[B]ENNINGTON — About a month ago, self-professed white supremacist Max Misch crashed a press conference where Vermont Attorney General TJ Donovan said he wouldn’t be bringing any charges against him, or anyone else, for racial harassment against former Vermont state representative Kiah Morris.
On Thursday, the attorney general was in a Bennington courtroom — about a mile from where that press conference took place — filing two misdemeanor charges against Misch for allegedly possessing high-capacity magazines outlawed in Vermont last year.
Misch, standing in that courtroom about 20 feet from Donovan, pleaded not guilty to the two counts against him.
He was released on conditions set by Judge William Cohen, including that he not possess any weapons and that he stay away from Morris and her husband, James Lawton, as well as Lisa Shapiro, Misch’s ex-wife.
Susan McManus, a court-appointed attorney representing Misch, objected to her client having to turn over his weapons. She said her client has received death threats stemming from the national media attention he has received, and needed the firearms for protection.
Morris, an African-American Democrat from Bennington, resigned her House seat last year, saying she was a victim of racist threats and harassment.
Misch was identified as the person responsible, but Donovan said at last month’s press conference that there was insufficient evidence to bring charges against him, largely due to free speech protections in the First Amendment.
Minutes after Donovan made that announcement at the Congregation Beth El synagogue, Misch showed up in the crowded room wearing a shirt with the character known as Pepe the Frog on it — a character has become a symbol of anti-Semitism and racism.
He talked after that event to the media about how he enjoyed “trolling” Morris online. On Thursday, Misch, wearing a leather jacket, plaid button-down shirt and jeans, had little to say.
When asked about the charges against him, he told reporters, “No comment,” and left the courthouse.
If convicted of the offenses, Misch faces up to a year in prison and $500 fine.
Donovan said after Misch’s arraignment there’s no evidence linking the purchase of the magazines to previous online statements from Misch regarding Morris.
“That said, there has been an ongoing online dialogue, if you will, between Mr. Misch where he, as we know, references and makes racist, derogatory, demeaning statement against Ms. Morris and her husband,” Donovan said. “It is important to look at the totality of the circumstances in this case.”
Attorney Robert Appel, who has represented Morris and her husband, said Thursday he was pleased to hear that the attorney general’s office is pursuing the case against Misch.
Morris, reached later Thursday, declined to comment on the matter.
Misch is being charged under a law, S.55, that was part of a package of restrictions on firearms in Vermont that the Legislature passed and Gov. Phil Scott signed that went into effect last year.
The Attorney General’s Office alleges that Misch violated a provision of those gun laws prohibiting large capacity ammunition feeding devices. The law set a limit on magazine sizes to 15 rounds for handguns and 10 rounds for long guns.
Misch is believed to be the first person charged for violating the magazine restriction.
Donovan came under sharp criticism for not prosecuting Misch for his racist online harassment of Morris, who had been Vermont’s only black woman in the Legislature before deciding not to run again last year.
On Thursday, the attorney general denied that the current prosecution was a “vindictive act” on his part against Misch.
“We treat everybody with respect, but when there’s an allegation that somebody violated the law, we’re going to investigate that allegation, we’re going to gather the facts, the evidence and make a determination of whether or not the law was violated,” Donovan said. “That’s what we did in this case.”
Asked why state police did the investigation and the attorney general’s office is handling the prosecution, Donovan replied that a “law enforcement source” came to his office with “new information” the week of Jan. 22. Donovan said he then asked the Vermont State Police to initiate the investigation into Misch.
“I would note and the affidavit notes that this information previously was disclosed, some of this information was previously disclosed, to the Bennington Police in October and we did not receive this information,” the attorney general said. “We received this new information the week of Jan. 22.”
Asked if Bennington Police Department should have provided that information to his office earlier, Donovan responded, “Yes.”
Bennington Police Chief Paul Doucette, reached late Thursday afternoon, said his department did interview Lisa Shapiro, Misch’s ex-wife, on Oct. 17, a day after a complaint was made that Misch had been buying large capacity magazines.
As a result of the department’s investigation, which included going out to local stores that sold firearms, the police chief said his officers determined that Misch had bought the large capacity magazines locally, but before Oct. 1, 2018, when the law took effect.
“They came from dealer stock,” the police chief said. “My interpretation of S.55, when it was to take effect, that magazines that were currently in stock at a gun dealer or store, or what have you, would be legal to be purchased by Oct. 1, 2018.”
He said, “It was determined that no violation had taken place because (Misch) took possession of those particular magazines prior to Oct. 1.”
As a result, the police chief said, no information was forwarded to prosecutors because it was determined that no crime had occurred.
The magazine ban is currently being challenged in lawsuits filed in two Vermont courts.
Donovan said Thursday he understood there was confusion regarding different effective dates concerning the law. He said the two charges he is bringing both involve purchases made by Misch well after Oct. 1 — on Dec. 1.
According to a four-page affidavit in support of the charges, Vermont State Police Detective Trooper Patrick Slaney wrote that on Jan 25, he was assigned a case “which was initiated by the Bennington Police Department on October 16, 2018.”
At that time, Slaney wrote, it was reported that Lisa Shapiro, Max Misch’s ex-wife, had disclosed he was making racially charged comments about Morris and “recently came into possession of an AK-47 rifle and several thirty round magazines.”
On Jan. 28, Slaney wrote he spoke with Shapiro who told him that she was concerned about her ex-husband.
“During a session with her therapist, Shapiro disclosed her concerns which involved Misch’s purchasing weapons, large capacity magazines, and stockpiling ammunition,” Slaney wrote. “This, coupled, with Shapiro’s knowledge of white supremacist and neo-Nazi affiliations, prompted her therapist to report this information to law enforcement.”
Shapiro told the state police detective that Misch tries intimidate people online, is a “proud” member of the Green Mountain Goys, a white supremacist group. She also said that Misch assaulted her in March 2016 and “strangled” her by putting his hands around her neck, the affidavit stated.
In addition, Slaney wrote, Shapiro told her about firearm and ammunition purchases Misch had made between September and November, and that she drove him to Hinsdale, New Hampshire in early December to a sporting goods store that sells guns.
Vermont State Police detectives went to that store, Runnings, and viewed receipts and security camera footage that showed Misch and Shapiro shopping there on Dec. 1, the affidavit stated. The purchases included two 30-round magazines, the detective added.
On Wednesday, Slaney and Vermont State Police Detective Lt. Reg Trayah met with Misch at the Bennington Police Department, according to the affidavit.
Misch told the detectives that within the last six months he had bought one AR-15-style rifle, the affidavit stated.
“Misch confirmed he had purchased two magazines for the AR-15 style rifle between April 11, 2018, and October 01, 2018,” Slaney wrote. “When asked if Misch had purchased any magazines after October 01, 2018, he advised he no longer wanted to answer any questions.”
Police showed up at Misch’s apartment on Gage Street in Bennington later Wednesday, armed with a warrant, and searched it, seizing two 30-round magazines “consistent with what was purchased” on Dec. 1 from Runnings, according to the affidavit.
Donovan termed the investigation into Misch a “dynamic situation.” Asked if additional charges may be coming, he responded: “We’re going to continue to do our investigation.”
In court Thursday, Assistant Attorney General Ultan Doyle, the prosecutor on the case, had asked that bail for Misch on the two misdemeanor charges be set at $400, the maximum amount allowed by law.
Doyle termed Misch a flight risk, pointing out that Misch had traveled out of state to New Hampshire to buy the large-capacity magazine leading to the charges against him.
Cohen said that while Misch may have traveled to the neighboring state, he returned to Vermont. The judge did not set any cash bail.
In addition to the conditions ordering him not to possess any weapons or ammunition, Cohen required Misch to remain in Bennington County.
Correction: An earlier version of this article had the bullet capacity allowed for hand guns and long guns backwards. It is 15 rounds for hand guns and 10 rounds for long guns.
