Covid-19 has sidetracked the sentencing in the first murder case in Montpelier in nearly 100 years, with the need for social distancing in the courtroom and key out-of-state witnesses from coronavirus hotspots who would be required to quarantine for up to 14 days.
A Washington County jury in November convicted 33-year-old Jayveon Caballero of second-degree murder in the shooting death of Markus Austin, a former player with the semi-pro Vermont Frost Heaves basketball team.
Austin, 33, was employed at the Vermont Psychiatric Care Hospital in Berlin as a mental health specialist when he was killed outside his Montpelier apartment in January 2017.
Moving forward with a sentencing hearing in the case has been stymied by the global coronavirus pandemic and steps that need to be taken to help prevent its spread, including people staying six feet apart and quarantine requirements for out–of-state visitors.
“It’s very difficult in this unprecedented time to know how long we’re going to be in this unprecedented time,” Judge Mary Morrissey said during a hearing Friday as the parties tried to figure out how to proceed.
“I think at this point,” the judge added, “we’re sort of trying to plan for something that is beyond our control and is difficult to predict.”
The parties Friday decided to try come back Sept. 9 for the sentencing hearing, with a check-in to take place in mid-August.
“We’ll see if the landscape has changed substantially enough to make Sept. 9 a workable date for the sentencing hearing,” Morrissey said.
“I understand the importance of Mr, Caballero having in court the people that he thinks are important to him to have here for sentencing,” the judge said. “I equally understand the victim’s family’s strong desire to be here in court in order to have their statements heard.”
In returning its verdict last fall, the jury did not convict Caballero of a charge of first-degree murder, which was among the choices it had.
Instead, Caballero was convicted of second-degree murder, which carries a sentence of 20 years to life in prison. That’s lower than the 35 years to life sentence that comes with a first-degree murder conviction.
A central issue in the seven-day trial was intent.
Prosecutors have argued that Caballero acted out of revenge, and ambushed Austin after he drove up to his Montpelier apartment. They say Caballero had targeted Austin after a fight outside a bar in Barre earlier that night.
Daniel Sedon, Caballero’s attorney, has contended that while his client fired his gun that night, his intent was not to kill Austin. But, when Cabarallo fired in a direction away from Austin, the bullet hit the vehicle’s windshield, which caused it to curve, and strike Austin, the defense attorney has said.
Morrissey said during the hearing Friday that based on the size of the criminal courtroom in Barre, about 14 people could fit in the gallery while adhering to social distancing guidelines and another three people could sit in the jury box.
A proposal to use a much larger courtroom in nearby Montpelier, where civil proceedings occur, was rejected over security concerns since that facility lacks a secure holding cell, Morrissey said.
In addition, the judge said, current orders governing the operations of the statewide court system in the response to the Covid-19 pandemic limits access to court hearings to only certain parties and registered media.
“Those are obstacles,” Assistant Attorney General Elizabeth Anderson, a prosecutor in the case, said during the hearing.
Another obstacle, Anderson said, is that the victim’s family resides in an out-of-state county that currently would require them to quarantine once they came to Vermont. That could force them to have to come and stay in the state up to 14 days prior to the proceeding.
The judge responded, “I don’t want this to go on indefinitely without a sentencing hearing being held.”
Sedon, the defense attorney, spoke for the need for public access to a courtroom for such proceedings.
“I think the entire defense attorney community has been uncomfortable with the lack of public access to criminal proceedings under the emergency order,” Sedon said, adding that he understands the emergency situation facing the court system.
However, during a sentencing hearing, he said, it is vitally important for public access to the courtroom, including for a defendant to have people there for support.
Sedon later added, “I think the important people in this case need to be able to appear live in the court, and the court needs to see them live, and the public has to have some means of observing the proceedings.”
Judge Morrissey did raise the possibility of a courtroom hearing that also included live-streaming of the proceeding so others not there could view it.
Assistant Attorney General John Waszak, another prosecutor, raised concerns about what that might entail.
“The victim’s family has a statutory right to provide victim impact statements,” Waszak said. “Remote technology being what it is, I think, it would be a serious problem, from our perspective, if the remote technology was not perfect.”
The judge agreed that making sure the victim’s family had access to the courtroom to attend the hearing in person was necessary before such a proceeding could take place.
However, she said, at some point a sentencing hearing must occur.
“Mr. Caballero absolutely has a right to be sentenced,” Morrissey said, “and the family absolutely has a right to have some finality to this proceeding.”
Read the story on VTDigger here: Covid-19 creates roadblocks to sentencing in Montpelier murder case.