[B]ENNINGTON — Attorneys preparing for the Timothy Butler murder trial disagreed Thursday about the need to delay an August start date because of the pace of discovery submissions.
During a status conference at Bennington Superior Court Criminal Division, defense attorney Brian Marsicovetere said delays in receiving material from the criminal investigation have pushed back his schedule for depositions, which he has yet to begin.
Because of those and prior delays, he said, “I think it is reasonable that we could pull this together by the end of the year. I don’t think August is realistic.”
Deputy State’s Attorney Robert Plunkett said the release of the materials to the defense “might be slightly behind track,” but the defense will essentially soon have all discovery materials, including DNA evidence.
The defense should be able to prepare for an August trial date, Plunkett said, later adding, “Just to be clear, Mr. Marsicovetere has the case.”
The additional discovery is not the core evidence the state plans to present, he said.
Butler is charged in the January 2017 stabbing death of 81-year-old Helen Jones in her home on Buck Hill Road in Arlington. He pleaded not guilty last March to felony counts of first-degree murder and burglary into an occupied dwelling armed with a dangerous or deadly weapon. The charges could bring a prison term of 35 years to life.
Butler, 32, who has been held since his arrest March 8, 2017, following an intense police investigation, has not appeared in person during periodic status conferences at the Bennington court.
Marsicovetere, with the Serious Felony Unit of the Office of the Defender General, attended Thursday by phone from his White River Junction office.
Concerning discovery materials yet to be turned over to the defense, Plunkett said that state police investigators had recently turned over about 100 gigabytes of material in digital form, making that package “a little bit difficult to copy.”
As with a previously released large volume of material, he said, police detectives will make arrangements for someone from Marsicovetere’s office to obtain a copy. It will be a few more days before the defense has a copy, Plunkett said, adding, “The reason for the delay in this submission is, quite frankly, there were more homicides in Vermont than had been anticipated.”
Marsicovetere told Judge William Cohen, “I would say we are not on track for August,” terming the original trial schedule “not practical.”
He said he received raw data on DNA testing about three weeks ago, “and so, it took a while to put that data together as well.”
A defense expert is now “poring over that,” Marsicovetere said, but he also wants to know what is in the pending discovery submission.
“I don’t know what’s in this recent submission, but it sounds pretty significant,” he said. “So, I think we can submit a revised [trial] schedule for the court’s consideration once I see what that is.”
Asked afterward about the DNA testing in the case, State’s Attorney Erica Marthage, who attended the conference Thursday, declined to comment on those results at this time.
Defense depositions of principals in the case have had to wait for the discovery materials, Marsicovetere said, “because I would like to see the case file before we do a deposition.”
Plunkett said the defense “has not sought to depose anybody,” or work toward an agreement with the prosecution on any outstanding materials still required. “To the degree than Mr. Marsicovetere is trying to say he does not have enough to even review the case, I don’t believe that is correct at all,” he said.
Depositions were to be completed by June 10 in the original trial schedule.
Cohen said he would leave the August trial schedule set last fall in place. If there is a defense request or a joint request for a delay in what is scheduled for an eight-day trial, he asked for that in writing.
Marsicovetere said he hoped he could “sort this out” with Plunkett, referring to the schedule, but if there is no agreement, he “will submit something to the court.”
