[V]ermont Public Safety Commissioner Thomas Anderson told lawmakers Friday that it’s not easy to devise legislation to define a crime in response to a foiled school shooting because it’s such a rare occurrence — so much so that he couldn’t find a model from other jurisdictions.
“There are not a lot of cases where police actually intercepted or thwarted these kind of attacks and here’s how they were charged,” Anderson told the House Judiciary Committee. “It’s not for a lack of looking.”
Anderson’s comments came while testifying on proposed changes to the state’s domestic terrorism statute in response to a ruling last week from the Vermont Supreme Court in the case of Jack Sawyer of Poultney, accused of threatening to shoot up his former high school in Fair Haven.
Sawyer, arrested in mid-February, had been charged by prosecutors with four felony “attempt” offenses, including attempted aggravated murder and attempted first-degree murder. Those are offenses that would have locked him up for the rest of his life, if convicted.
However, a three-justice panel of the state’s high court recently ruled that the allegations against Sawyer represented merely planning or preparation, not an “attempt” to carry out a crime under Vermont case law.
Sawyer’s attorneys have said from the outset of the case that their client had been overcharged, as he never actually attempted to kill anyone.
Prosecutors have contended that Sawyer’s own words to police when interviewed revealed his intent to carry out the mass shooting at the school. If arrested, he told them, it would only delay him from following through on his threats.
Anderson, a former federal prosecutor, said that when he first learned that charges brought against Sawyer included attempted murder counts he thought it would be difficult case to prosecute.
“It’s not that it was mischarged, it’s that it’s not a great fit,” he said. “It’s like you’re trying to to fit a square peg in a round hole.”
That’s why there needs to be changes in the law to address such cases, he said.
“The goal is to have a criminal statute that better fits the type of conduct we saw in the Fair Haven case or might see again in the future,” he said.
“This is really looking at trying to figure out planning and taking steps to consummate a serious mass casualty-type crime, where do we draw that line?” he asked. “It’s not an easy one, I get that.”
The high court in its decision ruled Sawyer could no longer be held without bail, but stopped short of dismissing the offenses outright. Instead, it sent the case back to the trial court for “further proceedings consistent with this decision.”
In response to that ruling, Gov. Phil Scott had said that he wanted new legislation in place before Fair Haven students return from school vacation on Monday.
That won’t happen, as lawmakers have been taking testimony on the matter throughout the week and say they would rather get it right, than get something done quick.
They are hoping to have a bill through the Legislature by the end of the next week.
Even if the law were changed today it would apply to future prosecutions, but cannot be applied retroactively to Sawyer.
The House Judiciary Committee has been focusing more on changes to the attempt statute while their counterparts in the Senate have been moving forward on revisions to the state’s domestic terrorism law.
The Senate panel approved legislation Thursday, sending their proposal to the full chamber for consideration, which is expected to begin on Tuesday.
Should it pass the Senate, it would then move to the House.
On Friday, the House committee, in preparation for that possibility, heard from Anderson on changes he thinks could make that Senate proposal more effective.
According the proposed legislation approved by the Senate panel, “domestic terrorism” is defined as “threatening to engage in, engaging in, or taking substantial steps” to cause death or serious injury to multiple people or threaten any “civilian population with mass destruction, mass killings, or kidnapping.”
“Substantial steps,” the proposed legislation stated, is “conduct that strongly corroborative of the actor’s intent to complete the commission of the offense.”
Anderson told the House panel he would adjust that definition of “substantial steps” with a few changes, including swapping out the word “complete” with “commit,” and adding examples of what that those steps could entail. 
“Substantial step shall mean conduct that is strongly corroborative of the actor’s intent to commit the commission of the offense,” Anderson’s proposal stated. “Under this section a ‘substantial step’ includes the obtaining, collecting, purchasing, or fabrication of materials to be employed in the commission of the offense.”
Anderson told the House committee, “It seems to me that the actor’s intent to complete the crime is pretty far down the road.”
He added that by providing examples of what “substantial steps” may mean could serve as a guide for a court reviewing such a case.
“If somebody took one step, would that be enough?” Rep. Tom Burditt, R-West Rutland and a committee member, asked Anderson.
“These are all going to be fact specific,” Anderson replied. “If you have substantial planning and then one act, that might be enough.”
However, he added, it would be up to a prosecutor to determine if the facts fit charging the crime. And, ultimately, the commissioner said, that prosecutor will have to prove that case beyond a reasonable doubt to get a conviction.
Sen. Dick Sears, D-Bennington, chair of the Senate Judiciary Committee, said later Friday that he was open to suggested changes proposed by Anderson, but wanted to keep the legislation as “narrowly focused” as possible on the issue they are trying to address.
Sawyer is currently held on $100,000 bail at the Rutland jail. A hearing is set for next week to determine if the felony charges against him should stand. His attorneys have filed a motion asking the judge to dismiss them in light of the Vermont Supreme Court ruling.
Anderson said if the earlier Vermont Supreme Court ruling on the bail matter serves as a guide, it doesn’t look likely those felony charges against Sawyer will continue to stand.
“The handwriting may already be on the wall,” he said, a reality that highlighted the need for new legislation.
“Hopefully,” Anderson said, “we’ll never have to use it.”