RUTLAND — A more than century-old ruling involving a prisoner’s bid to bust out of prison could prove pivotal in deciding a modern-day case of a Vermont teen accused in a foiled school shooting.
That 1906 Vermont Supreme Court decision, State v. Hurley, is referenced in recent motions filed by both the prosecution and defense over felony charges brought against Jack Sawyer that could send him to prison for life, should they stick.
At the center of Sawyer’s case, and that of an inmate named Hurley 112 years ago, is the question: When does a plan, thought or idea become an attempted crime?
The prosecutor and defense attorney in the Sawyer case filed dueling motions in Rutland Superior criminal court by a Monday deadline that provide two different takes. A judge has yet to rule on the matter.
If authorities had allowed the attempt in Sawyer’s case to progress further before making an arrest, Rutland County State’s Attorney Rose Kennedy wrote in a filing Monday, it may have been too late to stop him from carrying out a planned attack on Fair Haven Union High School.
And, according to the Kennedy, the outcome would have been “almost too horrific to contemplate.”
“The police could have released the defendant, concluding that he had to progress further in this plan before they could arrest him,” Kennedy wrote in a filing submitted Monday in response to a motion from Sawyer’s attorney to dismiss all charges against him.
“One could fairly view this action as placing the student and staff of FHUHS in extreme danger. Nonetheless, that is what the defense seems to suggest,” Kennedy added. “The police would then wait outside the school, looking for the defendant. Perhaps when the police saw the defendant at the school they could have arrested him.”
But, Kennedy asked in the filing, would that have been enough “under the defense’s understanding of the law” regarding what constitutes an attempt to warrant an arrest?
“Assuming that moment would have been enough, an officer would then have to confront an armed would-be mass murderer,” the prosecutor wrote. “This situation is needlessly dangerous. Of course, there is a very real risk that an officer does not intercept or unsuccessfully intercepts the defendant before he began his planned massacre. The implications of that scenario are almost too horrific to contemplate.”
If forced to wait until they saw Sawyer on the school’s campus “with his arsenal these crimes might not have been stopped.”
Kelly Green, a public defender representing Sawyer, argued during a court hearing last week and in a formal filing that the charges against the former FHUHS student should be dismissed.
“The Vermont Supreme Court has been clear, there is a big difference between planning, or preparing, to make an attempt, and attempting a crime,” Green said outside the courtroom last week. “The state has to have evidence that he attempted these crimes, I haven’t heard a word of it.”
A hearing in the case set for Monday was called off. The prosecutor and defense both met motion deadlines Monday, laying out their positions in dueling filings on whether the charges should stand and if Sawyer should continue to be held without bail.
Judge Thomas Zonay presided over a hearing that stretched over parts of two days this month on whether Sawyer should remain jailed while the case against him remains pending. The judge has yet to issue a ruling that matter, or whether the charges should be dismissed.
Sawyer pleaded not guilty last month to four felony charges, including counts of attempted first-degree murder and attempted aggravated murder. If convicted, he could face life behind bars.
Police arrested Sawyer last month as they say he was preparing an attack on the school. Police say they found a notebook he kept, titled “Journal of an Active Shooter.” In that journal, according to police, was a kill list of students and staff at the high school.
Just days before his arrest, according to police, Sawyer had also purchased a 12-gauge shotgun and buckshot. He later told police he wanted to buy an AR-15 rifle and 9mm Glock handgun, but didn’t yet have the money.
Sawyer, who in a videotaped interview with police played during recent court hearings, frequently mentioned the mass shooting in 1999 at Columbine High School in Colorado. Sawyer also told a detective that he had planned to carry out his plot on April 20, the same date as the Columbine massacre.
However, Sawyer said, that when he went online to check the school calendar he realized that Fair Haven high school was on spring break that week. That’s when, he told the detective, he moved the date up to March 14.
Green, in a filing to dismiss the charges submitted late last week, wrote that Sawyer didn’t go to the school, seek out help from anyone to carry out a school shooting, or lie in wait for any person.
“This case is presented in a difficult context,” Green wrote. “News of horrific school shootings and the understandable concerns of the Fair Haven community are reflected in the way that this case has been charged and prosecuted.”
To prove “attempt,” the defense attorney wrote, prosecutors must show that a defendant “intended the crime and committed an act in its furtherance.”
And, not just any act will do, according to Green, quoting from the 1906 Vermont Supreme Court ruling in State v. Hurley: “The act must be of such a character as to advance the conduct of the actor beyond the sphere of mere intent. It must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.”
Hurley, Green wrote, was a prisoner charged with attempted escape from prison, arranging for a friend on the outside to pass saw blades through the prison bars covering so he could cut his way out of the cell.
Hurley did obtain the saw blades, but before he started sawing he was caught, charged and convicted of the attempted escape, Green wrote.
“In vacating the conviction, the Court emphasized that procuring the tools to commit a crime is an ‘act that stands entirely unconnected with any further act looking to their use,’” the defense wrote in the filing. “At any moment the prisoner could have begun his work sawing his way out of his cell but until he lifted that saw and set to work, he had committed no attempt.”
Then, Green wrote, again quoting from the ruling, “He had procured the means of making the attempt but the attempt itself was still in abeyance. Its inauguration depending upon the choice of an occasion and a further resolve. That stage was never reached, and the procuring of the tools remained an isolated act.”
Kennedy, the prosecutor, wrote in her response that without the journal or the interview with police, Sawyer’s possession of a shotgun “would be no more criminal than the prisoner in Hurley with a hacksaw in hand.”
She also pointed out that when police first spoke with Sawyer on Feb. 14 while investigating a complaint of a possible threat against the school, they did not arrest him despite him saying he had bought a rifle because there was not yet probable cause of a crime, Kennedy wrote.
It would be a day later that a 17-year-old girl from New York state, a friend of Sawyer, reported to police a conversation she had with him over Facebook. Police say their ensuing investigation uncovered his journal and his plot to shoot up his former high school.
After discovering the journal and hearing him talk about his plans and steps he has taken, Kennedy wrote, Sawyer is no longer merely a man in possession of a shotgun.
“He has acted to fulfill his intent,” the prosecutor wrote. “Understanding that the question of when planning becomes action is highly fact intensive the State argues that this a fact specific evaluation and is best left to the jury to determine.”
