What impact will judge's decisions have in Jacques' case?Deborah Denno in The Burlington Free Press, May 08, 2011
U.S. District Judge William Sessions III gave federal prosecutors the go-ahead to pursue the death penalty in the Michael Jacques case last week, but Sessions also threw out some evidence the government planned on using to convince a jury Jacques should be executed.
“That could be a very significant ruling,” said Deborah Denno, a Fordham University law professor whose writings about the death penalty have been cited by five sitting U.S. Supreme Court justices.
Jacques, 45, is awaiting trial in September on charges he lured his 12-year-old niece, Brooke Bennett, to his East Randolph home June 25, 2008, and then drugged, raped and killed her. Her body was found covered with dirt a week later in woods a mile from Jacques’ home, following a massive police search.
Denno’s critique focused on a section in Sessions’ 79-page death penalty ruling that forbids prosecutors from telling jurors about certain evidence. That evidence relates to allegations that Jacques, as a teenager, had improper sexual contact with three underage girls. Sessions said the material was inadmissible because Jacques was never convicted of a crime in connection with the case.
Jacques allegedly engaged in sexual acts with one of the alleged victims, a female relative, more than 100 times. Jacques was charged with lewd and lascivious conduct, but local prosecutors later dismissed the charge, according to documents obtained by the Burlington Free Press.
“The court finds that the probative value (of the unadjudicated conduct) is outweighed by the danger of creating unfair prejudice,” Sessions wrote in his opinion, filed last week in U.S. District Court in Burlington.
In another setback for the government, Sessions also ruled that prosecutors could not use some of the evidence from an elaborate plot Jacques is accused of hatching while in jail after his 2008 arrest. Authorities say the plot was designed to shift blame for Bennett’s slaying from Jacques to a fictitious international ring of child pedophiles.
Sessions wrote that he was troubled by the government’s post-arrest use of an informant — a former co-worker of Jacques — to gather details about the alleged scheme.
“To the extent they make reference to the charged criminal conduct, the statements will be excluded from the guilt phase of the trial and, if the trial proceeds to the penalty phase, they will be excluded from that proceeding as well,” Sessions wrote.
As a result, jurors likely won’t get to see letters Jacques gave the co-worker-turned-informant that contained critical details about how Bennett’s remains were positioned in the ground and her exact time of death.
Michelle Martinez Campbell, a Vermont Law School professor who specializes in criminal law, said she thought the loss of that evidence would not be too damaging to the government.
“It would be helpful evidence,” she said. “But I don’t think the consequences of this ruling will be tremendous for the case.”
U.S. Attorney Tristram Coffin said last week that prosecutors were reviewing Sessions’ rulings but would not say if he was contemplating challenging any of them. He declined further comment.
Denno, Campbell and others contacted by the Burlington Free Press last week said the government case against Jacques remained largely intact following Sessions’ ruling. The trial is scheduled to get under way in September.
State Attorney General William Sorrell, who turned over prosecution of Jacques to the U.S. Attorney’s Office after Jacques’ arrest, said he thought the prosecutors’ case was in good shape.
“The government is probably relieved that it will be able to proceed to trial pretty much on the basis on which it intended to proceed,” Sorrell said.
Another capital case
The trial, when it begins, will be the second in six years in which the specter of a death sentence will hang over a court proceeding in Vermont. Federal court is the only jurisdiction where the death penalty can be levied in the state; Vermont abolished its death penalty statute in 1965.
In 2005, Donald Fell, now 31, was sentenced to death for abducting and murdering Terry King, 53, of North Clarendon, in November 2000. Fell’s accomplice, Robert Lee, was also charged; he later hanged himself while incarcerated in St. Albans. Fell is on death row in Terre Haute, Ind., while his case is under appeal. He recently asked a federal judge to throw out his conviction and order a new trial, according to documents filed at federal court in Burlington.
Sessions initially rejected the government’s request to seek the death penalty in Fell’s case, saying such a punishment violates the Sixth Amendment’s guarantee of a right to trial by jury on every element of an alleged offense.
Sessions’ ruling was overturned by the 2nd U.S. Circuit Court of Appeals — a reversal that likely influenced his handling of the Jacques case. Sessions appears to have scrupulously followed the appellate court’s decision from the Fell case in fashioning his ruling on the permissibility of the death penalty against Jacques.
“He was bound to follow precedent when appropriate,” said state Defender General Matthew Valerio, who is not involved in the Jacques proceedings. “Given the arguments made in the Fell case, it would be unlikely to see a lower-court judge go off on his own on what are settled appellate grounds.”
Sessions did make one ground-breaking ruling in the case last week, however.
Acknowledging the volume of media attention given the Jacques case, Sessions said the search for an impartial jury will require a jury pool that encompasses the entire state. Juries in federal trials in Burlington, where the case will be tried, normally are drawn from a jury pool from northern Vermont.
“I am very certain that has never happened before here,” federal court Clerk Jeff Eaton said of the prospect of a statewide jury pool.