By Roxy Benson and Elena Fasullo
BURLINGTON VT– Judge Michael Harris denied a motion to dismiss charges of a man accused of first degree aggravated domestic assault and violation of conditional release here last week in Chittenden County Superior Court.
The motion to dismiss was brought by defense attorney Jason J. Sawyer after the failure of a prosecution witness to appear in court after receiving two subpoenas, which Sawyer argued has prevented this case from moving forward and violated the accused’s Sixth Amendment right to question a witness and the accused’s right to a speedy trial.
The charges emanate from two separate cases for the accused, the first in 2018 and the second in 2023. The accused was originally due to serve an 18-month sentence, but has now been incarcerated for more than 1,000 days and held without bail.
Defense attorney Sawyer requested the release of the accused, stating the accused had been in jail for too long because of the many delays in the case.
Judge Kevin Griffin had heard a status conference before the current motion to dismiss, and said the court must hear from the witness by a certain date after they failed to appear the first time. However, the motion to successfully subpoena the witness by the given date never happened.
Sawyer stated, “The state has not made an effort to bring her in. This case is two years old and effort has not been made… what is the point of issuing an order like this if the state won’t do what the judge says?”
Defense attorney Sawyer added he felt the State failed to make the appropriate effort to ensure the witness appeared before the judge, noting his added efforts in bringing the witnesses in by hiring an investigator should not be his responsibility, and instead should be handled by the State.
Deputy District Attorney Emily Pijanowski stressed the normalcy of trials continuing without the presence of witness testimony from the complaining witness, emphasizing, “It’s normal to proceed to trial without witness, due to the nature of the crimes.”
The prosecutor added there is still good reason to continue with the case without relying on the witness testimony because of an excited utterance statement on an audio recording.
In response, defense attorney Sawyer argued that “this process is fundamentally unfair on many grounds,” and reiterated that Judge Griffin’s orders are clear.
Sawyer noted the prison time already served by the accused, and the effect that has had on him and his family, quoting from the accused’s statement to the court where the accused explained how he had missed his grandfather’s funeral and had not been able to be there for his three young children due to the extended prison time.
Judge Harris and DDA Pijanowski stated concern with setting bail due to a previous alleged incident of the accused cutting off a GPS bracelet.
The accused addressed this alleged incident in his statement, expressing regret and noting, “I was in a different headspace then,” and asked the court to please consider for him to be able to work towards release in the future.
With his whole family in attendance for support, he pleaded with Judge Harris to re-think his release as he is trying to make his family proud, and not let them down.
Judge Harris turned down requests for dismissal of the case, citing concern about the behavior of the accused—the unlawful removal of the GPS ankle monitor. While bail was also requested, it was not granted following the violations of conditional release following the first assault charge.
Judge Harris decided to issue a civil contempt for the witness and stated the court would be willing to consider incarceration of the witness if there was an additional failure to appear, as well as making arrangements to expedite the case.
