Sen. Norm McAllister, R-Franklin, stands outside the courthouse. File photo by Elizabeth Hewitt/VTDigger
McAllister accepted the plea deal last month on the eve of the second of two sexual assault trials he faced. The first trial ended when his accuser perjured herself on a minor detail, though the woman’s attorney has said she maintains the assaults occurred.
The former lawmaker testified at a previous hearing that his previous attorneys brought him nearly to tears pressuring him to accept the deal, saying only a “retarded” person would reject the state’s offer — something both attorneys denied under oath.
The judge is considering whether to allow McAllister to back out of the plea deal. The deal required him to plead no contest to reduced charges that carried a maximum seven year prison sentence. The judge would hand down the actual sentence at a later date. Attorneys in the case would be allowed to argue for any sentence within the statutory parameters.
Attorneys for both sides will have another opportunity to file information on the motion to withdraw from the plea deal. It’s expected to take at least two weeks before the judge issues a decision.
The charges against McAllister brought an abrupt end to the Republican lawmaker’s political career.
He was arrested outside the Statehouse in 2015 and then suspended from the state Senate. A bid to return to Montpelier was derailed when he lost a re-election bid last year in the August primary.
During the more than 30 minute recording played in court Friday, McAllister can be heard discussing sexual encounters that the woman said caused her physical and emotional pain, as well as plans and past arrangements to trade sex for rent. They also discuss having the woman prostitute herself to other men for extra cash.
While on the stand Friday, McAllister’s previous attorney, Brooks McArthur, described the tape as “devastating” evidence against his former client.
The tape was played over the objections of McAllister’s new attorney, Bob Katims, who said playing the recording in open court could make it difficult to seat a jury were the sexual assault case to eventually go to trial.
Deputy State’s Attorney John Lavoie argued that the tape should be played because the state planned to introduce it early on at trial and portions of the tape were already part of the public record from earlier court filings.
“Mr. McAllister essentially attacked the competence of his attorneys. He’s attacked the trustworthiness of their advice,” Lavoie said, “He’s saying he’s innocent. His lawyers are telling him the state has a pretty strong case…and I think that a central piece of evidence upon which they relied should be offered to the court at this time.”
Judge Martin Maley sided with Lavoie. At one point when McAllister and his accuser are discussing the sex acts that caused her pain, the former legislator says, “I know I was basically forcing you to do something you didn’t want to do.”
Earlier in the conversation the woman tells McAllister that, “I think I started to end up feeling kind of like your prostitute.”
McAllister responds: “And, well, that’s what it turned into, truly.”
McArthur explained during his testimony that their strategy at trial would have been to concede the misdemeanor prohibited acts charges for solicitation — meaning prostitution — and argue that the arrangement was consensual.
That would have allowed them to focus their efforts on beating the sexual assault charge, which carries a possible life sentence. Both McArthur and his co-counsel, David Williams, said they thought, given what McAllister said during the recording, that doing so would be difficult. As a result, they said they advised McAllister to take the deal when it was offered late in the day after jury draw on Jan. 10.
Williams said it’s rare for prosecutors to allow a no contest plea in cases involving a sexual offense. Pleading no contest is not an admission of guilt, but rather an acknowledgement that the state may have sufficient evidence to prove its case.
That was important because Williams said McAllister appeared primarily concerned with whether accepting a plea would impact the outcome of a separate civil lawsuit being brought by his accuser.
McAllister said several times that he was worried about losing his Highgate farm were the court to award his accuser a large settlement in the civil suit, Williams said. A no contest plea could not be used against him in the same way as a guilty plea, according to Williams.
In pushing for the court to allow McAllister to withdraw his plea, Katims said it didn’t matter whether his previous attorneys thought the state had an “ironclad” case. What matters is whether McAllister understood what he was agreeing to, he said.
He pointed out that McAllister had maintained his innocence throughout the process and that he had rejected previous offers to settle. Katims zeroed in on whether McAllister was aware of the specific language in the charge to which he ultimately pleaded no contest.
Katims also focused much of his questioning Friday on whether McArthur and Williams did enough to ensure McAllister understood that accepting the plea deal meant he could be required to serve his maximum sentence unless he made admissions to the language in the plea during sex offender counseling.
At one point he also questioned whether Williams had painted an overly negative picture of McAllister’s prospects at trial by describing other cases where clients rejected plea deals in sexual assault cases and were handed long sentences at trial.
“You were basically telling him horror stories of what happens if you get convicted of a sex crime,” Katims said.
“I was telling him the truth,” Williams responded.
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