The state’s highest court heard arguments on Tuesday in the case of the former Fair Haven High School student accused in a foiled plot to shoot up the high school, about what constitutes an attempt under Vermont law.
Rutland County State’s Attorney Rose Kennedy and attorney Marshall Pahl, a public defender representing Jack Sawyer, offered differing views of how far a person has to go in planning and preparing for a crime, before it is considered an attempt to carry out the crime.
A three-justice panel of the Vermont Supreme Court is hearing the defense’s appeal of a trial judge’s ruling that found the 18-year-old Sawyer, who now lives in Poultney, could continue to be held without bail pending his trial. Sawyer faces four felony “attempted” charges, including attempted aggravated murder, which, if he were convicted, could send him to jail for the rest of his life.
“This court has found consistently and repeatedly that preparation, generally speaking, cannot satisfy the act of the attempt offense,” Pahl told the justices.
“Is it your position that no crime was committed here at all and if the police had uncovered all this information the proper response was to do nothing?” Justice Harold Eaton later asked.
“I don’t feel that I can speculate what evidence would have been presented if there were different offenses charged,” Pahl responded. “None of the offenses that Mr. Sawyer is charged with, did he commit.”
Pahl said Sawyer never traveled to his former high school in Fair Haven. He said Sawyer never even entered the town where the high school is located.
Kennedy’s response was that had law enforcement waited to act until Sawyer showed up at the school, the consequences would have been dire.
“If we are told we have to wait until this young man shows up on campus with his arsenal, we aren’t talking an attempt no more,” Kennedy said. “People will die.”
Pahl said that Vermont sets a high standard when it comes to proving an “attempt” crime.
He pointed to a 1906 Vermont Supreme Court decision in State v. Hurley, involving an inmate charged with attempted escape from prison for arranging for a friend on the outside to pass saw blades through the prison bars so he could cut his way out of the cell.
Hurley got the blades, but he was caught before he had started sawing his way out. He was convicted on a charge of attempted escape but the conviction was overturned by the Vermont Supreme Court, which ruled that simply obtaining the tools for the crime, in this case an escape from prison, did not constitute an attempt to carry out the crime — the escape.
“The threshold is set so much higher than it is in other states,” Pahl told the justices of attempt crimes in Vermont.
Kennedy countered that Sawyer’s action had gone beyond planning and preparing. He was arrested on Feb. 15 after a 17-year-old friend from New York state reported to police a conversation she had had with him over Facebook.
Police say the ensuing investigation led them to his notebook, titled, “Journal of an Active Shooter,” which detailed his plot to shoot up his former high school in Fair Haven.
Also, Kennedy said, Sawyer had recently purchased a 12-gauge shotgun, was taking steps to acquire additional firearms on “the dark web,” and after reviewing the school’s calendar had a set a date of March 14 to carry out the shooting.
“So he wasn’t ready to do what he wanted to do on the day he was arrested, he still wanted to get another gun?” Justice Karen Carroll asked Kennedy.
“He had some more steps he needed to take, according to him,” Kennedy said. “He also indicated that he could adapt and, if he felt like he needed to change his plan, he would.”
Kennedy asked the justices to watch the state police interview with Sawyer in which, the prosecutor said, he laid out his intentions.
“Mr. Sawyer was very clear his intent was to kill as many students as possible at Fair Haven Union High School,” Kennedy said. She added that Sawyer’s “goal” was to eclipse the number of people killed in previous school shootings, and that he specifically mentioned the 2007 mass shooting at Virginia Tech that killed 32 people.
“In your opinion, when did this cross over from planning to attempt?” Justice Eaton asked Kennedy.
The prosecutor responded it was when Sawyer traveled back to Vermont from Maine, shortly before his arrest.
Sawyer had been sent to Maine in 2016 to attend Ironwood, a residential treatment school, after Fair Haven school officials began looking into his fascination with the 1999 Columbine High School massacre.
Sawyer has pleaded not guilty to the charges against him. He has been held without bail since his arraignment, following his arrest in February.
Judge Thomas Zonay ruled last month in Rutland Superior criminal court that Sawyer could continue to be held without bail on the four “attempted” offenses, including charges of attempted aggravated murder and attempted first-degree murder.
The judge ruled after a hearing that spanned two days that Sawyer’s action leading up to his arrest went beyond planning and preparing, and reached a point that allowed the case to proceed on the attempted charges.
“Insofar as a jury must make an inference of immediacy to satisfy the ‘overt act’ requirement, Defendant’s confession and journal denote an acceleration of his plans,” Zonay wrote in his 21-page decision.
“Such evidence would permit a jury to infer that the police caught Defendant near the execution of his plan,” Zonay wrote. “In sum, there exists evidence which, when considered under the applicable standard, would permit a jury, on these facts, to find that law enforcement prevented Defendant from executing an imminent attack.”
The three Supreme Court justices, Eaton, Carroll and Justice Beth Robinson, will issue a written decision in the case. The court did not give a timeline for the ruling.
