The state Supreme Court last month tossed the conviction of Lamar Scales, 42, while finding that the prosecution had used improper tactics during his jury trial in September 2014.
He was sentenced to serve six to 12 years in prison on the three felony counts, which followed his 2013 arrest in Pennsylvania, where he was living at the time.
During an initial conference in Bennington County Superior Court, Judge William D. Cohen scheduled a bail review and possible settlement conference for Friday at 1:30 p.m. The Supreme Court has remanded the case to the local court, and a new trial could be scheduled if a settlement cannot be reached.
Scales appeared at the conference last week with his attorney, public defender Jeff Rubin, who said his client will seek a reduction in his $100,000 bail to allow him to be released during any retrial.
Rubin said Scales could stay with his mother or aunt, both of whom live in Pittsfield, Massachusetts, but his preference, the attorney said, would be to stay at a shelter for the homeless in Rutland.
Scales is being held at Marble Valley Regional Correctional Facility in Rutland.
Bennington County Deputy State’s Attorney Alexander Burke indicated at the conference that he will oppose bail because Scales’ ties “are essentially out of state” and he was living in Pennsylvania when he was arrested.
Cohen and the attorneys discussed possible dates for a retrial, if no settlement of the case is reached, and it appeared the court would lean toward a retrial in early April. A trial would be expected to last four to five days and could be held in Rutland.
Scales’ conviction was overturned after the Supreme Court cited errors during his trial, including the introduction of testimony from the Pennsylvania state trooper who arrested him on a Vermont warrant and the prosecutor’s suggestion that the jurors put themselves in the place of the child involved.
The Supreme Court decision stated: “Vermont has recognized the impropriety of an appeal to jurors to put themselves in the place of the victim. As the D.C. Circuit Court of Appeals recently explained: ‘A golden rule argument — which asks “jurors to place themselves in the position of a party” — is “universally condemned” because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on evidence.’”
On the other point, the court cited improper use of consciousness-of-guilt evidence, stating: “Defendant argues the court erred in admitting the testimony of the Pennsylvania trooper for two reasons: first, there was no foundation that his response to the trooper was probative of consciousness of guilt as to the specific charges here, and second, because it was unduly prejudicial. We agree.”
When the arresting trooper first spoke with Scales and asked his name, Scales said it was Shahid Nur. The trooper said Scales later told him his name was Scales but he had changed it.
In its decision, the court found there was evidence that Scales had truly changed his name and that he had used the name Nur consistently while in Pennsylvania.
The charges were filed in March 2013 after Vermont authorities met with the girl and her mother.
The girl had told her mother that Scales had improperly touched her on multiple occasions between June 1, 2004, and June 1, 2006, when she was between 4 and 6 years old.
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