Has Vermont’s top law enforcement officer given police a pass?

Vermont AG William Sorrell. VTD/Josh Larkin

Vermont AG William Sorrell. VTD/Josh Larkin

Vermont Attorney General Bill Sorrell likes to point out that he has prosecuted more police officers than any other attorney general in the state’s history. With 27 criminal prosecutions filed against police officers from Burlington to Brattleboro, Sorrell’s intolerance for police misconduct seems supported by the evidence.

Public documents show a more complex picture, and in interviews critics raise questions about Sorrell’s attitude toward law enforcement and police accountability in Vermont.

In 28 reviews of police incident reports, Sorrell did not file criminal charges against officers who used force in the line of duty. In some cases, officers shot and disabled aggressive or intoxicated people aiming firearms at point-blank range. In others, officers shot and killed individuals who were wielding knives, and in one instance suffocated a person resisting arrest with a pillowcase. Although officers in these cases have faced civil lawsuits from victims or their families, no officer has faced criminal charges.

VTDigger analyzed dozens of court records and press releases detailing cases of police misconduct from May 1, 1997, the day Sorrell took office, to August 7, 2012. The information was compiled by the Vermont Attorney General’s office in response to a public records request.

Controversial cases of documented police violence that did not result in criminal charges from Sorrell’s office include:

  • The December 2001 fatal shooting of 37-year-old Robert Woodward who, in the throes of an apparent psychotic episode, interrupted a Sunday morning church service in West Brattleboro, holding a knife to his right eye and threatening to kill himself. Three Brattleboro officers arrived and repeatedly requested that Woodward drop the knife, without success. As Woodward advanced toward two of the officers, they shot him seven times. Woodward died hours later. Sorrell found the officers’ use of force justified and did not bring criminal charges. Members of the Woodward family, who alleged that excessive force had been used, lost a later civil lawsuit against the state and the two officers.
  • In June 2006, Joseph Fortunati, went off into the woods in Corinth several weeks after he stopped taking medication for his condition, paranoid schizophrenia. He packed a kayak, a bike and camping gear and a handgun, according to a story in Seven Days. His relatives asked the Vermont State Police for help after he threatened them at gunpoint. Tactical Services Unit troopers Marc Thomas and Andrew Campagne were called in to find him. When Fortunati fled, they fired beanbag rounds at him. After this attempt to subdue him failed, Fortunati pointed a gun at Thomas and Campagne and the two officers shot him. Four hours later, his parents were told Fortunati was dead. No charges were brought against the troopers; the family later sued for wrongful death.

Sorrell says of the 27 criminal prosecutions he has brought over his tenure, at least three involved on duty police violence. In the first case, a former state trooper shoved a civilian’s face into a wall after first repeatedly choking him; in the second pending case, former state trooper allegedly caused reckless injury to two civilians; in third, a grand jury did not indict an officer firing at a motor vehicle in Springfield.

Of the 27 criminal prosecutions brought against officers for misconduct, few have resulted in prison sentences over six months, with most officers paying fines of $1,000 or less, and serving suspended sentences outside of prison, on probation.

It isn’t clear how many convicted officers have served deferred sentences, which under state law allow criminal convictions to be erased from a person’s record, if the terms of the sentence are met.

The variety of charges range from minor to alarming: included are DUIs, speeding tickets, sexual assaults against minors, domestic assaults, and embezzlement.

In one particularly graphic case, former state police trooper Mark Beezup fondled the breasts and inserted his fingers into the vagina of a 14-year-old girl, the daughter of his girlfriend between 2009 and 2011. He also took a photo with his cell phone of the girl’s breasts. At first charged with two felonies, Beezup later was convicted of misdemeanor charges and imprisoned for 90 days, though his overall suspended sentence amounted to a maximum of three years.

Asked if these relatively light sentences are appropriate, Sorrell said that officers who are prosecuted typically lose their jobs and their livelihoods. He also said that Vermont’s jails are already overcrowded.

Cindy Maguire, criminal division chief for the attorney general, said judges need to accept pleaded sentences negotiated between the state and criminal defendants, and that sentences should be looked at on a case by case basis.

As for the relatively few criminal prosecutions of officers who used deadly force while on duty, Sorrell said he had not found criminal charges warranted in most cases. He also said the rigorous legal standard required in criminal court makes it difficult to prove an officer was acting without cause.

While he acknowledged there were “quite a few” forceful incident reviews over his term – 28, to be exact – he said that in most cases “we found that it was not criminal assaultive behavior on the part of the police. They weren’t intentionally, without reasonable concern for their own safety of the safety of others, using deadly force.”

“Police officers are subject to the same presumption of innocence as citizens are,” Sorrell said. While situations where deadly force comes into play should be avoided, he said, in certain cases police officers are legally entitled to use force in order to subdue dangerous subjects.

“To say a police officer is intentionally trying to kill someone without cause: that’s a tall order,” Sorrell said.

Legal sources contacted for this story said that in certain controversial or borderline cases, a grand jury proceeding is convened, allowing citizens to determine whether a criminal indictment is appropriate.

Since 1997 (when Sorrell took office), Vermont grand juries have been convened to examine three police use of deadly force incidents out of 28 reviewed by the attorney general.

Sorrell said grand juries, which he described as expensive and time-consuming, are only convened if a decision about whether to file criminal charges is a “close call.” The point of a grand jury is to allow ordinary citizens to make the decision.

Former state prosecutor and state trooper Dan Davis, who is now lawyer in private practice, said it’s “prudent” to convene grand juries in situations involving controversial police use of force incidents.

“You’re allowing the community to clear the police officer,” Davis said. “If they want to indict the police officer, that’s their right as well, as citizens.”

In many other states, Davis said, serious cases of police use of force require the use of a grand jury. In Vermont, grand juries aren’t required, and he said are actually “extremely rare.”

Paul Hudson, criminal division chief under former attorney general Jerry Diamond, said inquests, or secret investigative proceedings conducted by state prosecutors, are more common in these cases.

The critics

David Sleigh, a private attorney and former public defender, says Sorrell treats on and off duty police misconduct differently.

If police officers are charged with misbehavior outside their scope of duty, he said they are typically prosecuted.

Vermont State Police cruiser

“But if you look at allegations made by people about the course of his or her duty, you’ll see a different set of results,” Sleigh said. “If people are charged with unlawful force, almost uniformly the investigative agency finds there’s no chargeable wrongdoing.”

Sleigh says disclosure of the investigations could help the attorney general explain the thinking behind his decisions about whether to prosecute use of force cases.

The attorney general’s office refused to release underlying investigation reports of police misconduct to VTDigger.org, citing an exemption in the state’s public records law. It also declined to release details of police misconduct investigations where criminal charges were ultimately not filed, or a Vaughn index showing the number and names of such investigations.

Sorrell said he’d support opening police investigative records in 2013 should the Legislature decide to change the state statute.

“Why not have an open file?” asked Sleigh. “If you made a determination that tasing someone or shooting someone was justified, let’s see all the witness statements, let’s see if there were inquest proceedings. How were credibility conflicts resolved? How were conflicts of perception resolved?”

Sleigh cited the Woodward church shooting, in which witnesses questioned whether the mentally ill man threatened anyone other than himself.

Thomas Costello, a former state representative and lawyer who represented Woodward’s family in their ultimately unsuccessful civil suit, said he’d felt that in several cases “the activity of the police was unjustified.”

“It doesn’t have to be a murder case,” Costello said. “It can be a manslaughter case. If anyone’s going to prosecute it, it’s got to be the AG.”

Robert Appel, executive director of the Vermont Human Rights Commission and a former investigator for the state AG, said Sorrell has done a good job of prosecuting police fraud, but he had seen few excessive use of force cases.

DUIs, or falsifying training records, he continued, “that sort of stuff the AG seems willing to take on. But when it comes to filing criminal allegations, they don’t seem interested.”

He pointed to a case in Brattleboro where protestors who chained themselves to a barrel were tased by police until they agreed to unchain themselves. Jonathan Crowell and Samantha Kilmurray chained themselves to a barrel at a vacant Brattleboro lot in July 2007, refusing to co-operate with an arrest for unlawful trespassing. Brattleboro Police Department officers shocked Kilmurray twice and Crowell three times. Eventually, the protestors voluntarily unchained themselves.
Although no criminal charges were filed against the officers, nine months later the attorney general’s office released a report critical of the police’s use of force. Crowell and Kilmurray lost in a subsequent civil lawsuit against the state.

“Repeatedly stunning someone who was offering no threat certainly seems like an assault to me,” said Appel.

Appel believes Sorrell’s reluctance to prosecute officers could be due in part to his experience as a former state’s attorney for Chittenden County. State’s attorneys, he said, work very closely with law enforcement and tend to defer to police. The attorney general’s office also maintains a close working relationship with law enforcement, Appel said.

Appel says the state needs an investigator outside the criminal justice system who can conduct meaningful external reviews of law enforcement. He cites New York City’s public advocate as an example.

Right now, observed Appel, “It’s not like citizens get a crack at reviewing the conduct of police officers.” Because of closed records, “citizens are left wondering what the heck happened … which I don’t think is healthy.”

Other than expensive and burdensome civil litigation, concluded Appel, “we as a state don’t have a meaningful way to hold officers accountable.”

Appel said individual civil lawsuits don’t address systemic issues, a point echoed by Allen Gilbert, executive director of ACLU Vermont.

ACLU Vermont Executive Director Allen Gilbert. VTD/Josh Larkin

ACLU Vermont Executive Director Allen Gilbert. VTD/Josh Larkin

Gilbert said even when there’s strong evidence for police misconduct, there’s no effective system for correcting it. Using private civil lawsuits as a solution, he said, may ignore an important public issue of “police misconduct that can verge on brutality.” As long as underlying investigation reports of police misconduct are kept secret, it’s hard for victims and potential civil plaintiffs to assess whether a lawsuit is viable, he said.

“Even if the AG determines that the issue isn’t a crime, the problem is that we don’t have access to the records that might shed light on whether indeed it might be considered a crime by others,” said Gilbert. “All we have is the AG’s determination that it wasn’t a crime. That’s why we think access to those reports is so important.”

Gilbert wants the state to adopt a professional licensing system for police so that law enforcement can be regulated by the state like other professionals, such as doctors and lawyers.

Sorrell responds to criticisms by reiterating his oath of office to “do equal right and justice to all.” He says he believes there is no difference between the way he has treated police officers and members of the general public.

As for concerns that he’s too close with law enforcement officers, he calls those criticisms just “not true.”

“You ask the 27 officers who I’ve prosecuted: Am I soft on cops?” Sorrell asks. “The record is otherwise.”

Sorrell said he fights against the politicization of his office’s criminal prosecutions. His job isn’t to prosecute every tenth case, he said, in order to make percentages, but instead to look at each unique case to see if charges are warranted.

“I understand folks have lost a loved one, in terribly unfortunate situations,” Sorrell said. “They are upset and they want to hold someone accountable for that – I understand that.”

“As for the lawyers [who bring civil lawsuits], they’re in the business,” he said. “I’m sure they’d like to have an AG who does their work for them. But again, my record is what it is, and it is not one of showing favoritism.”

The civil cure

In a review of federal court records, VTDigger found at least 27 civil lawsuits filed against Vermont police officers for inappropriate use of force since 1997. Several involve officers named in either court records or press releases from the AG’s office. Most of the lawsuits in this analysis were filed in federal district court rather than state courts.

VTDigger looked at cases filed under the 440 Westlaw code for civil suits, with the cause of the suit listed as 42:1983. The numerical code refers to civil rights violations committed by state or federal officials and includes the use of excessive force by a public officer, according to legal experts.

VTDigger looked at cases for the period May 1 1997 to August 22 2012, selected known cases from news clips and other public records, and searched manually for the names of likely plaintiffs and defendants. Then court complaints were reviewed to see if allegations of wrongful force or assault were specifically included. Civil suits categorized under other codes, as in personal injury suits, or with other self-reported causes besides 42:1983, are mostly not included.

Some of the lawsuits appear to be frivolous, with handwritten complaints filed by pro se plaintiffs, who represent themselves in court, naming a broad spread of public agencies and officials. Others are more serious, alleging instances of unjustified and unnecessary police force, backed by documentation and testimony and argued by experienced counsel.

According to the state’s Office of Risk Management, in charge of liability for civil lawsuits, the state has faced 12 civil lawsuits against Vermont State Police troopers, alleging excessive force, from 2009 to 2012.

Of those cases, the state has won four and settled five at a total cost of $200,000.

Megan Shafritz, civil division chief for the attorney general’s office, said the state chooses to settle for a wide range of reasons, based on careful calculations about the odds of winning a suit, the cost of litigation and other factors.

Recent cases in Vermont involving municipal officers, include a February 2012 settlement of $12,500 for a complaint from a man who was threatened at gunpoint by an Orleans County sheriff. His apartment was turned over for evidence before police realized they’d targeted the wrong suspect. In another case, a 20-year-old male who was tasered by Rutland City police for refusing to put on a seatbelt in a police cruiser won a $10,000 settlement in May 2009.

Kim Cheney, a civil lawyer and former Vermont Attorney General, said the unfortunate reality is that civil remedies seem to be the chief solution in these cases. The question, he said, is if “civil lawsuits are a better enforcement tool for police proprietary than oversight by prosecutors? And I think the answer to that is no.” Cheney declined to comment on Sorrell’s record, saying that he didn’t know about the relevant cases.

Many civil suits don’t fare well in litigation against the state, Shafritz said. The state avidly defends state employees, she said. Several suits have been dismissed before trial, while in others judges have ruled for the defendants. In some cases, trial juries eventually rule in favor of police officers and against citizen plaintiffs who are seeking monetary damages and relief from the courts.

Even when lives are lost as a result of police work, no criminal charges are typically filed for wrongdoing. Subsequent civil lawsuits brought by relatives also often fail. A federal judge ruled against Robert Woodward’s family, after the deceased’s estate filed a civil suit. Joseph Fortunati’s family also lost a civil suit.

Police accountability in Vermont

The purely legal dimension of police misconduct and use of force is one part of a weak system of state police accountability. Critics have charged for years that closed records, decertification issues, and opaque internal affairs and investigative procedures cast doubt on Vermont’s ability to hold police officers accountable.

Richard Gauthier, executive director of the Vermont Criminal Justice Training Council, explained that even if an officer is internally disciplined, nothing prevents him or her from applying for a job elsewhere.

Senator Dick Sears, chair of Vermont's Senate Judiciary Committee.

Senator Dick Sears, chair of Vermont's Senate Judiciary Committee. VTD file photo

That’s why Gauthier supports expanded circumstances under which the council can decertify an officer, effectively removing his or her ability to work in law enforcement in the future. He says a working group of the council plans to present such a proposal in the next legislative session.

Gauthier envisions decertification as a third option for dealing with police misconduct, independent of civil and criminal court cases.

Another problem, critics say, is that police police themselves. Police investigators examine the wrongdoing of colleagues and there is no special training to ensure impartiality, Gauthier said.

Vermont State Police spokeswoman Stephanie Dasaro said state police investigators are assigned to cases outside the subject’s troop area, to “help reduce possibility of favoritism.”

This safeguard doesn’t satisfy watchdogs and advocates.

“The state police — who are they conducting an investigation of? State police. Seems like a closed loop to me,” Appel said.

Appel says the current internal culture of the police is insular and needs “fresh air and impartial perspectives.”

Gauthier said police are trained to take responsibility for misconduct, voice concerns and stay honest with supervisors. He explained that investigators just gather facts for prosecutors and agency heads, so that “impartiality is kind of a given.”

Sorrell and police sources say there has not been a rise in police misconduct. Last year, Seven Days’ Andy Bromage penned a comprehensive article into the possible causes of police misconduct, documenting an increase in such cases over recent years.

Sen. Dick Sears, D-Bennington, chair of the Senate judiciary committee, said that the Legislature’s main focus with respect to police accountability is alternative weapons, like tasers and other means of nonlethal force. Sears said legislators left police oversight to the Vermont Criminal Justice Training Council and the courts.

Correction: Kim Cheney was Vermont Attorney General. We originally, due to an editing error, said he was an assistant attorney general.

The following spreadsheet is a listing of police misconduct cases that have been investigated by the Vermont Attorney General.

Nat Rudarakanchana

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