By Alan J. Keays, VTDigger.org
RUTLAND — Rutland County State’s Attorney Rose Kennedy has dropped four felony charges, including three attempted murder counts, brought against Jack Sawyer, who police said had threatened to shoot up Fair Haven Union School.The filing by Kennedy comes on the heels of a Vermont Supreme Court decision earlier this month that cast doubt on the charges.
A three-justice panel of the high court ruled that Sawyer, 18, could no longer be held without bail on the allegations against him and that merely planning, or preparing, to commit an offense doesn’t rise to the level of an attempt under Vermont case law.
The prosecutor wrote in her latest filing that she was dismissing the felony counts “because the Vermont Supreme Court’s decision in this case makes continued prosecution of these attempt charges, on the available evidence, untenable.”
Kennedy submitted the filing dismissing the four felony charges against Sawyer ahead of a deadline set for last Monday to explain why the charges should continue to stand. Judge Thomas Zonay, who is overseeing the case in Rutland Superior criminal court, had previously decided that there was enough evidence to let the charges stand, at least pending a further proceeding in the case.
A hearing had been set Wednesday for the parties to present arguments on whether those felony charges should be dismissed due to a lack of probable cause.
Two misdemeanor charges remain pending against Sawyer: criminal threatening, and carrying a dangerous weapon with the avowed purpose to commit serious injury or death, which together carry up to three years in prison.
Sawyer’s attorneys have argued since the outset of the case in mid-February that the felony offenses against him were “overcharged,” leading the case to become sensationalized.
His attorneys say that Sawyer’s actions did not go beyond planning or preparation, and he didn’t take steps to actually attempt a crime, citing case law on “attempt” crimes dating back more than a century.
Sawyer was arrested after what authorities said were his plans to cause “mass casualties” at Fair Haven Union High School were revealed. Police said they discovered a notebook from Sawyer, titled “Journal of an Active Shooter,” which included plans he had for carrying out the shooting and a “kill list” of students and staff.
They said that his purchase of a shotgun and ammunition in the days before his arrest showed his intention to carry out those plans.
Brooke Olsen-Farrell, superintendent of the Addison-Rutland Supervisory Union, which oversees Fair Haven’s high school, issued a statement Monday in light of the dropping of the felony charges against Sawyer.
“We are incredibly disappointed with the decision today to dismiss the attempt charges. It is unfortunate that we do not have adequate laws in place to protect our students. We will continue to advocate for our attempt laws in Vermont to be modernized,” she wrote.
“We stand steadfast in our commitment to the safety and security of our students. As such, we continue to encourage our students, our staff and our community that if they see something they must say something.”
The four felony charges brought against Sawyer following his arrest included two counts of attempted aggravated murder, and charges of attempted first-degree murder and attempted aggravated assault with a weapon.
Had Sawyer been convicted of those offenses he would have been sentenced to life behind bars. All four of those charges were dismissed as part of Kennedy’s recent filing.
“The charges should never have been brought in the first place,” Kelly Green, Sawyer’s public defender, said Monday of the prosecutor’s decision to dismiss the felony charges against her client.
Sawyer, who has no previous criminal record, has been locked up since his arrest Feb. 15, remained held Monday at the Rutland jail on the $100,000 bail, according to the state’s online inmate locator.
In dismissing the four felony charges, Kennedy asked the court to continue the $100,000 bail.
A hearing in the case had previously been set for Wednesday in Rutland Superior criminal court. At that proceeding, Green said Monday, she will seek to have that bail dropped.
“Has anyone ever been held on $100,000 on misdemeanors?” she asked. “I don’t think so.”
The judge, in an order issued later Monday afternoon, said that he could not review Sawyer’s bail at that hearing pending his attorneys appeal last week to the Vermont Supreme Court of his previous ruling setting $100,000 bail and release conditions.
Shortly after Zonay issued that order, Sawyer’s lawyer submitted a filing, writing that Sawyer’s “interest in seeing a timely review of the current bail decision in order to facilitate a transition to treatment appears to be best served by withdrawing” the appeal, so the trial court can hold a bail review hearing Wednesday, as scheduled.
At a hearing last week, Green asked to have Sawyer released to the custody of his father, David Sawyer of Poultney. She added that she had been working to secure an impatient treatment bed at the Brattleboro Retreat or another facility so her client could obtain psychiatric care, if released.
Kennedy’s filing dismissing the felony charges against Sawyer was formally dated Friday, April 20, which the prosecutor noted in the motion fell of the anniversary of the mass shooting at Columbine High School in Colorado in 1999, which Kennedy pointed out in an extended footnote to her motion.
“In the aftermath of that massacre, people debated whether the school, the community or law enforcement could have done more to prevent the senseless killings,” the prosecutor wrote.
In this case, Kennedy added, all involved, including a parent who first raised concern in a call to police; a 17-year-old girl from Poughkeepsie, N.Y., who reported conversations she had with Sawyer over Facebook Messenger; and state and local police “acted swiftly and decisively to avoid a tragedy.”
The prosecutor also wrote that, in consultation with law enforcement, they believed that Sawyer’s actions “substantiated an attempt” under the state law.
“We take the defendant at his word that he intends to commit a mass killing, that he has prepared to do so and that if left unchecked, he will commit a mass killing,” Kennedy wrote in that footnote. “The Vermont Supreme Court has concluded that the available evidence does not substantiate an attempt.”
She continued, “The undersigned believes Vermont’s law of attempts has proven inadequate when a planned school massacre is uncovered in what the Supreme Court deems its preparatory stages.”
Kennedy last week appeared before the Senate Judiciary Committee, telling them that she was there “to beg for an attempt statute that will work.”
Kennedy couldn’t immediately be reached Monday for comment. She said in an email message that the footnote to the filing would serve as her comment on the matter.
Legislation is currently working its way through the House and Senate to update the state’s attempt and domestic terrorism laws in response to the Vermont Supreme Court ruling.
Vermont Defender General Matthew Valerio, whose office represents Sawyer, said Monday he didn’t believe that a footnote from the prosecutor was appropriate to include in a filing.
“I’ve never seen that before,” he said, adding that it interjects politics into the case.
“It’s not relevant to the case in any way,” Valerio said. “You can make your argument to the Legislature, you can make your argument to the Court, but you can’t make your argument to the Legislature in your filing with the Court, as far as I’m concerned.”
Green, Sawyer’s lawyer, has argued that the misdemeanor charges against him should be dismissed as well.
The criminal threatening charge alleges that Sawyer threatened death or serious harm to Scott Alkinburgh, the school resource officer at Fair Haven Union High School, telling police when they interviewed him that Alkinburgh was the only person who could stop his planned school shooting, according to court records.
Green, in challenging that charge, has contended that her client had never communicated that threat to Alkinburgh directly.
The weapon charge alleges that the day before his Feb. 15 arrest, Sawyer had a 12-gauge shotgun “with the avowed purpose to kill students at Fair Haven Union High School.”
Green said during the point in time alleged in that charge, Sawyer had no intent to shoot up the school, adding that any talk or writing about planning a shooting occurred before the purchase of the shotgun.