BENNINGTON — Expressing some reluctance, a judge Wednesday approved a plea deal resulting in the release of a former Shaftsbury man whose earlier conviction for lewd and lascivious conduct with a child had been overturned.
Superior Court Judge William D. Cohen ultimately accepted the deal in which Lamar Scales pleaded guilty to a lesser charge of lewd and lascivious conduct. In exchange, Scales was sentenced to the time he has already served since his 2013 arrest on charges involving touching a young girl in a sexual manner.
The deal will release Scales, avoiding a new trial in Bennington Superior Court.
Cohen said his concerns include that the agreement did not call for probationary supervision for Scales after his release, when he is expected to move to Pittsfield, Massachusetts, where he grew up.
The judge said he was not against the agreement, but “was not comfortable” with it and “would like to see an additional component of supervision,” as well as a counseling program for Scales.
Deputy State’s Attorney Robert Plunkett said the agreement, which was approved after an analysis of the case by State’s Attorney Erica Marthage and office staff members, took into consideration the risk of going to trial again about a decade after the incidents involved. The state also avoided asking the victim to testify again, he said, and the resulting sentence was in line with other sentences for a similar conviction.
After his 2014 Superior Court trial, Scales was convicted on three counts of lewd and lascivious conduct with a child and sentenced to six to 12 years in prison. However, the Vermont Supreme Court last month tossed his conviction on appeal, citing errors during the trial.
Plunkett said Scales will be listed on the sex offender registry for the next 10 years, which could lead to another arrest if he doesn’t comply.
Requiring parole supervision in Vermont also would prevent Scales from moving back to Pittsfield. Plunkett and defense attorney Jeff Rubin said Scales has relatives there, including someone who works with the city police department who could help him find support programs to help him re-enter society.
Rubin also noted that Scales, 42, has had no convictions involving a sex-related incident other than the ones on which he was sentenced, which date to 2004 to 2006. “There is nothing (similar) in his record, nor anything alleged to have been part of his life,” Rubin said.
Cohen said he continued to be concerned there was “no infrastructure in place to integrate him back into the community.”
“He has Pittsfield contacts who are willing to help him,” including a local minister, Rubin said, adding that Scales had no disciplinary problems while in prison.
In approving the settlement, Cohen required Scales to specifically state the conduct he was pleading guilty to — touching the victim under her clothes on her vagina.
Cohen also questioned Plunkett about whether the victim’s mother wanted to offer comment on the proposed plea deal.
Plunkett said it was his understanding that the mother, who had not attended court sessions since Scales’ conviction was overturned, opposed the Supreme Court’s decision and the proposed deal but, although notified, chose not to participate.
In overturning Scales’ 2014 conviction, the Supreme Court cited errors during the trial, including the introduction of certain possibly misleading testimony from the Pennsylvania state trooper who arrested him on a Vermont warrant, and the trial prosecutor’s suggestion during closing arguments that the jurors put themselves in the place of the victim.
The original charges were filed in March 2013 after Vermont authorities met with the girl, then 12, and her mother. The girl had recently told her mother that Scales improperly touched her on multiple occasions between June 1, 2004, and June 1, 2006, when she was between 4 and 6 years old.
A warrant was issued, and Scales was arrested in Pennsylvania where he then lived, after state police learned of the Vermont warrant.
