[S]T. ALBANS — The retrial of former Franklin County state senator Norm McAllister, whose conviction of prostituting a tenant living and working on his Highgate farm was overturned late last year, may be moved to Chittenden County.
The trial could take place as early as April.
Judge Michael Kupersmith, in the first hearing since the Vermont Supreme Court tossed McAllister’s conviction, told attorneys that he’s open to having the retrial held in the state’s most populous county due to the intense publicity the case has received up north in
Franklin County.
“My thinking is this,” the judge said during the hearing Friday afternoon in Franklin County Superior criminal court. “If we bring in enough jurors we could find 12 to 14 jurors who will say despite what they may have read or heard they can be fair and impartial, but you might have to go through several hundred people to do that.”
He then added, “If you move to Chittenden you can probably pick the jury in an hour.”
Chittenden County borders Franklin County to the south. While the two counties are close geographically, they are far apart politically.
Chittenden is known for being one of the state’s most liberal counties, while Franklin is considered one of the few remaining strongholds for conservatives.
Robert Katims, McAllister’s attorney, didn’t say during the hearing whether he supported or opposed moving the trial, and he declined comment following the hearing
Franklin County Deputy State’s Attorney John Lavoie, who is prosecuting the case, said during the hearing that he is fine with moving the trial to Chittenden County.
Lavoie said if the trial were to be moved, having it take place in Chittenden County made the most sense since it has a large population of people needed to pick a fair and impartial jury to hear the case.
Katims did tell the judge, as he has previously said in discussing the retrial, that he intends to file a motion to dismiss the case entirely “in the interest of justice.”
The judge agreed to allow attorneys on both sides to have two weeks to file motions. If that motion is denied, Kupersmith said the earliest possible trial date would be in April.
Both attorneys said it wouldn’t take them long to prepare for the retrial, since the case has already been tried once. There was some disagreement over whether the trial would take one or two days.
Regarding the trial’s venue, Kupersmith said he would further discuss the matter with court staff in Burlington, where the Chittenden County court is based, as well as with Chief Superior Judge Brian Grearson.
McAllister’s case has generated statewide interest since his arrest on the Statehouse grounds more than three years ago, and his subsequent suspension from the state Senate. McAllister later sought to regain his seat, but lost his re-election bid when he failed to emerge from the GOP primary.
The Supreme Court, in overturning McAllister’s conviction in November, agreed with two of the main arguments raised by his legal team challenging the trial. The jury convicted the former senator on a misdemeanor count of prohibited acts.
That charge alleged McAllister, then a sitting senator, prostituted a woman living and working on his Highgate farm to a friend. Prosecutors accused McAllister of using that money, $70, to pay a utility bill for the trailer on his property where the woman was living.
In overturning McAllister’s conviction, the high court wrote that “the trial court committed reversible error when it admitted previously excluded prior-bad acts evidence and when it retroactively instructed the jury to disregard admitted testimony during deliberation.”
The Supreme Court sent the case back to the trial court in Franklin County for a retrial.
Judge Martin Maley, who presided over McAllister’s trial, is no longer the sitting judge in criminal court in Franklin County due to the annual rotation of judges around the state. Instead, Kupersmith has been assigned to handle the retrial.
McAllister, 67, had faced two counts of felony sexual assault, alleging he raped two women who worked for him, including an intern at the Statehouse and the tenant farmhand.
He had also been charged with three counts of prohibited acts relating to prostitution.
McAllister twice stood trial, each case involving different women. In 2016, during the first trial, one of the sexual assault charges was dropped when it was discovered that his accuser perjured herself on a minor detail during her testimony.
In July 2017, in the second jury trial, McAllister was acquitted of a second felony sexual assault charge alleging he twice raped the woman who had lived and worked on his Highgate farm.
That jury also acquitted him of a prohibited acts charge. That charge alleged that his relationship with that woman, spanning several years from 2012 to his arrest, was coercive and amounted to prostitution.
The only charge McAllister was convicted on related to the prostitution of the tenant who lived and worked on his farm, and that’s the conviction that has since been overturned by the Vermont Supreme Court.
