[A]n attorney for Jody Herring has argued that a judge who sentenced her to life in prison without the possibility of parole for four killings did not properly account for rehabilitation that can take place behind bars.
Prosecutors counter that Herring got the sentence she deserved for her crimes, and say the judge was presented little evidence of what programs would be available to her in prison to reduce her risk of committing murder again, if ever released.
Those are among the competing views presented in recent filings to the Vermont Supreme Court as Herring appeals her sentence handed down on Nov. 15, 2017, in Washington County Superior Court following a hearing that stretched over four days.
“There were four murders. They were well-planned,” Judge John Pacht said at that time, adding that Herring “mowed down” with a high-powered rifle her aunt and two cousins Aug. 7, 2015, before lying in wait in a downtown Barre parking lot to fatally shoot Lara Sobel, a state social worker.
A hearing date for oral arguments before the state’s highest court on Herring’s appeal has not been set, though it is expected to take place within the next several months.
Her attorney and prosecutors have both submitted lengthy written briefs in support of their positions, with the Vermont attorney general’s office submitting its filing earlier this month. Herring’s attorney has asked for additional time to file a response to that filing.
Herring, 44, is currently incarcerated at the Chittenden Regional Correctional Facility in South Burlington.
Joshua O’Hara, an appellate public defender representing Herring, wrote in his brief that a sentence with a minimum prison term doesn’t guarantee that an offender will be released when that minimum prison term is reached.
“Whether the defendant is released depends on (whether) the defendant has rehabilitated,” O’Hara wrote.
“When the trial court sentenced Jody to life without the possibility of parole, it concluded Jody was a ‘great risk to public safety’ and ‘didn’t hear a lot about how that risk would be addressed’ in prison.”
The attorney added: “This view presumes Jody would be released at her minimum if one were imposed, an erroneous view of Vermont parole law. The trial court abused its discretion when it imposed a life-without-the-possibility-parole sentence for this reason.”
In requesting a sentence with a chance for parole at the sentencing hearing, David Sleigh, Herring’s attorney at the time, said that did not mean “she’s going walk out of the door” after serving the minimum prison term, O’Hara wrote.
The attorney then quoted from Sleigh’s argument to the judge:
“We don’t know what the future brings, and if there’s an opportunity for rehabilitation and treatment, and if at some point in the fairly distant future concerns over public safety and the existence of this anxiety disorder are dispelled, then release at that time under the strict supervision of a parole officer may be appropriate.”
O’Hara, in the appeal, also stated that the judge didn’t properly take into account the role of trauma in Herring’s life as a mitigating factor when it came to sentencing.
Herring pleaded guilty to the four murder charges in July 2017, admitting to killing Sobel on August 7, 2015. Sobel was a caseworker for one of Herring’s children. Herring also admitted to killing her cousins Regina Herring and Rhonda Herring, as well as her aunt Julie Falzarano, at their Berlin home, hours earlier, upset because she believed they all played a role in her losing custody of her 9-year-old daughter.
During the sentencing hearing, Sleigh, her attorney, argued that his client had endured a lifetime of trauma and suffered from severe anxiety.
According to Sleigh, she was not able to get the proper care she needed, coming to a head following her “reckless” and “negligent” release in late May 2015 from Rutland Regional Medical Center after suffering a breakdown.
Sleigh did not ask for a specific sentence, but asked the judge to impose one that allowed a chance at parole after a “reasonable” amount of prison time.
“While the court was concerned about public protection and feared there was no means to treat Jody in prison, the parole process stands is a method to ensure that Jody will have become no risk to the public if she were to become eligible for release in her 70s,” O’Hara wrote in the appeal.
“The court displayed no knowledge of the parole process or how a sentence with a minimum term would work, legally,” the attorney added. “It is not reasonable for the trial court to have sentenced Jody to life without the possibility of parole without displaying some familiarity with how the parole process works. This was an abuse of discretion.”
Vermont Solicitor General Benjamin Battles, representing the prosecution, defended the sentence handed down by the judge.
“There is no program offered in prison that is designed for (Herring) – no sex offender or substance abuse program that might give her the exact tools she needs to not commit another murder,” Battles wrote.
“And, although some therapeutic and generalized risk reduction programming is available, prisoners do not have a wealth of options to choose from,” the solicitor general wrote. “Appellant put forward no concrete plan for her rehabilitation – how she might go about finding the ‘correct therapist’ instead of the ‘wrong therapist,’ when and how the parole board might be able to judge if she was rehabilitated, and whether there would be any way to guarantee that treatment in prison would carry through to the outside world.”
Also, Battles wrote, the sentence imposed by the judge was within the “boundaries” of the plea agreement reached between Herring and the prosecution which avoided a mandatory life sentence without parole and allowed her attorney to argue for a lesser prison term.
“This was an extremely serious crime and the judge heard from a number of witnesses, many of whom testified about the events in Jody Herring’s life,” Battles said Thursday. (The judge) considered all the factors and the need for just punishment in this case and handed down an appropriate sentence.”
O’Hara could not reached Thursday for comment, and his office referred questions about filings in the case to Vermont Defender General Matthew Valerio.
Valerio, reached Thursday, said he was letting the brief filed by O’Hara speak for itself.
Document cloud link – AG’s brief
Document cloud link – Herring’s brief
