Attorney General TJ Donovan, right, explains his decision not to prosecute Max Misch to the House Democratic Caucus in Statehouse on Jan. 22. Photo by Glenn Russell/VTDigger
Responding to calls to investigate how Bennington law enforcement officers handled an investigation into racist harassment of a black female lawmaker, Attorney General TJ Donovan said the town of Bennington should hire an independent consultant to take on the task.
Tabitha Pohl-Moore, head of the Vermont NAACP, issued a joint statement along with James Lyall, leader of the Vermont chapter of the American Civil Liberties Union, calling for a probe into the withholding of information by the Bennington Police Department.
“When you have somebody who is in fear for their life and you know that’s a problem — disclosing information that could lead to a different outcome or increased safety for an individual — why would you not disclose that information?” Pohl-Moore said in an interview Monday.
Donovan’s office filed charges last week following a state police investigation into information that Bennington police received in October, but didn’t come to the attention of the attorney general’s office until January.
The attorney general said that information regarding Max Misch, a self-professed white nationalist, should have been turned over to his office as it was investigating racial harassment by Misch of former state Rep. Kiah Morris, a Bennington Democrat.
“The significance of Bennington officials withholding relevant evidence must not be overlooked, particularly considering Bennington law enforcement’s track record,” the statement said.
The ACLU is currently suing the Bennington Police Department over allegations of racial profiling, and the Vermont Attorney General’s Office took over the probe into the racial harassment of Morris after claims that the police department wasn’t do enough to investigate the matter.
“The dysfunction of that system is one of the worst kept secrets in Vermont, as local residents and the lawyers who interact with that system daily can attest,” the statement from the two organizations read.
“The fact is that Kiah Morris’ ordeal — including Bennington law enforcement’s handling of it — would be almost inconceivable if the races of the individuals involved were reversed,” the statement added. “That is the definition of systemic racism. It cannot be ignored any longer.”
In an interview after Misch’s arraignment hearing last week, Donovan said Bennington police should have turned over the information about the high-capacity magazine to his office. However, he wouldn’t say whether his office would be taking any action on the issue.
“We’re focused on this case, we’re focused on this prosecution, we’re focused on public safety,” he said.
Following Monday’s calls from the ACLU and NAACP for a wider probe into the Bennington Police Department, Donovan would only say that the town of Bennington should hire an independent consultant to do the work.
“Many folks do this work outside Vermont and inside to review policies and procedures and to ensure Bennington police is following best practices,” Donovan said. ”That step will promote and maintain public trust in the Bennington Police Department.”
Graphic by Felippe Rodrigues/VTDigger
Donovan told Vermont Public Radio in September that there had been a “breakdown in Bennington” in relation to the Morris investigation, leading to his decision to take over.
But during his press conference last month — held about a week before the magazine tip came to light — he said the department had done everything by the book.
Asked where he stood now on the performance of the town police, Donovan stuck to talking points and repeated his desire to have Bennington hire an investigator. Asked why the attorney general’s office isn’t leading the investigation, he again urged to town to hire someone else to do it.
It wouldn’t be unusual for the Vermont Attorney General’s Office to conduct such probes.
Former Vermont Attorney General Bill Sorrell, who narrowly beat Donovan in a hotly contested Democratic primary for the post in 2012, said Monday that the office has a wide scope of power to probe matters involving state laws.
“The attorney general is the state’s chief law enforcement officer,” Sorrell said. “I think it’s fair to say he has broad investigative authority in matters involving law enforcement.”
For example, Sorrell said, the attorney general’s office investigates “virtually” all cases involving the use of deadly force by law enforcement officers.
James Lyall, head of the Vermont chapter of the ACLU, said the fact that one piece of information was withheld by Bennington police begged the question of what else they knew but haven’t shared with other agencies. He said Donovan’s decision not to investigate the situation himself “disappointing.”
Tabitha Pohl-Moore, head of the NAACP in Vermont, introduces Vermont Attorney General T.J. Donovan during a program at the Rutland Free Library last month. Photo by Kevin O’Connor/VTDigger
“I think given longstanding concerns about the city of Bennington that include but go beyond the action and inaction of its police department, there’s ample ground to think that’s an inadequate response,” Lyall said.
“For the town of Bennington to hand pick a consultant to potentially sign off on the actions of employees does not sound like the accountability that we and the NAACP and frankly the people in Bennington would like to see,” he added.
Bennington Police Chief Paul Doucette said last week that his department did investigate the claims by the therapist and Misch regarding the purchases of large-capacity magazines.
The police chief said that investigation showed that Misch had bought the large-capacity magazines locally, but before Oct. 1, 2018, when the law took effect.
Therefore, the police chief said, no information about the matter was sent on to prosecutors because it was determined that no crime had been committed.
Misch has pleaded not guilty to two misdemeanor charges for allegedly possessing large-capacity magazine over the legal limits, 15 rounds for handguns and 10 for long guns, that were purchased after the law took effect.
Morris did not run for re-election and resigned her House seat last year, saying she was a victim of racist threats and harassment.
Misch was identified as the person responsible, but Donovan said at last month’s press conference that there was not sufficient evidence to file charges against him, mainly due to free speech protections in the First Amendment.
Pohl-Moore and other racial justice advocates have been highly critical of Donovan’s decision not to prosecute Misch for his harassment.
She said she sees a discrepancy in how seriously Donovan now seemed to be taking the magazine charge, as opposed to his handling of the claims of racial bias by an entire law enforcement agency.
“It seems contradictory to me that he would pursue prosecution around possession of large capacity magazines while at the same time not taking a more formal stance with Bennington PD,” she said.
Alan J. Keays contributed reporting
Read the story on VTDigger here: Asked to probe Bennington law enforcement, attorney general takes a pass.