Prosecutors seek new charges against Sawyer after Supreme Court ruling

By Alan J. Keays, VTDigger.org

RUTLAND – A Rutland County prosecutor is trying to be bring additional charges against a Poultney man accused of what police say was a foiled plot to cause “mass casualties” at his former high school in Fair Haven.

Unlike the charges that were initially brought against Jack Sawyer in mid-February that could have sent him to jail for the rest of his life, the two new charges are misdemeanors that together carry only a possible maximum penalty of three years in jail.

The move by the prosecutors to file the two additional misdemeanor counts comes after a ruling last week by the Vermont Supreme Court that dealt a severe blow to the four felony charges currently pending against Sawyer, prompting his attorneys to seek to have them dismissed.

A hearing in the case is set for 3 p.m. Tuesday in Rutland Superior criminal court to determine what bail or release conditions, if any of either, should be imposed on Sawyer.

Ahead of the hearing, both the prosecution and defense submitted paperwork to the court. Kelly Green, a public defender representing Sawyer, filed a motion to have the judge review probable cause of the four pending felony charges and to dismiss the case.

Those charges all involved “attempt” offenses, including attempted aggravated murder and attempted first-degree murder.

The Supreme Court ruled last week that Sawyer could not longer be held without bail, and that mere planning alone does not rise to the level of an attempt under Vermont case law.

As a result, according to the decision, the allegations against Sawyer do not rise to the level of a crime.

“In the present case,” Green wrote, “the Vermont Supreme Court has considered not only the police affidavit of probable cause in the case, but all of the State’s evidence, and has determined that — as a matter of law — Jack’s acts do not amount to a crime because State has no evidence of the attempt element.”

The judge has not yet issued a ruling on Green’s request. Sawyer remained in detention Monday at the Rutland jail without bail, pending Tuesday’s hearing.

Later Monday afternoon, Rutland County State’s Attorney Rose Kennedy, who is prosecuting the case, filed an “amendment of information.” She said Monday that she couldn’t comment on the matter.

Defender General Matthew Valerio, whose office is defending Sawyer, said Monday that he also couldn’t discuss the prosecutor’s amended information other than to say it involves the addition of two misdemeanor charges.

He said he couldn’t reveal the specific charges that are being sought. The two charges together, he said, carry a possible maximum sentence of three years in jail, if convicted.

Without a finding of probable cause, the proposed charges are not a public record. The judge did not rule on probable cause by the close of business Monday, so no paperwork was available through the court.

Green, Sawyer’s public defender, was not immediately available for comment.

Should the judge agree to dismiss, or not find probable cause for the felony charges, bail and conditions of release could still be imposed against Sawyer if the judge finds probable cause for the two misdemeanors.

However, it’s rare, Valerio said, for cash bail to be imposed on misdemeanor charges alone, especially when a defendant has no criminal record, as is the case with Sawyer.

The move by the prosecutor to file the additional misdemeanor charges follows a statement issued by Gov. Phil Scott early Friday evening saying that his administration is working with county, state and federal prosecutors to pursue “any and all legal avenues” to keep Sawyer in custody.

The governor said he was “appalled” by Sawyer’s potential release, adding, “Based on the evidence in the public record, it is clear the individual intended and still intends to carry out a horrific crime.”

Sawyer was arrested in mid-February after authorities said a 17-year-old girl from New York reported to police that she had conversations with Sawyer through Facebook messenger that indicated to her that he was planning a shooting at his former high school.

Later, when interviewed by police, Sawyer talked of his plan to shoot up the high school, even picking out a date, March 14. He also kept a notebook, titled, “Journal of an Active Shooter” that police say included written plans to carry out a shooting at the FHUHS, including a “kill list” of students and staff.

In addition, in an interview with police, Sawyer said that even if arrested, it would only delay him from carrying out a shooting, according to court records.

His attorneys have said, and the Supreme Court in its recent ruling agreed, that simply planning or preparing to carry out a crime did not rise to the level of an attempt under Vermont case law.

That has prompted the Legislature to schedule hearings Tuesday in both the House and Senate to draft new legislation regarding “attempt” crimes in the state.

The legislation set to be discussed first in the Senate committee would be a “strike-all amendment” to H.25, “An act relating to sexual assault survivors’ rights.”

John Campbell, executive director of the Department of State’s Attorneys and Sheriffs, had recently proposed a legal change to the definition of “attempt.” Instead of prosecutors having to prove that an “overt” was taken toward carrying out a crime, they could apply a “substantial step” analysis, according to his proposal.

Under that analysis, prosecutors would be required to establish a person’s intent to commit a crime and identify a step corroborating that intent.

Any change in the law wouldn’t retroactively apply to Sawyer’s case, but could apply to similar cases following the enactment of any legislation.