What Constitutes An 'Attempted' Crime Under Vermont Law?

Mar 12, 2018

Last month, police arrested 18-year-old Jack Sawyer, after he was accused of plotting a school shooting at Fair Haven Union High School in Vermont. Among the charges Sawyer is facing: attempted murder. 

Sawyer bought a gun, wrote extensive plans in a journal and communicated his intentions to a friend. Witnesses also testified of "red flags." But is that enough for prosecutors to prove that Sawyer attempted murder?

Robert Sand, an associate professor and director of the Center for Justice Reform at Vermont Law School, says there are some situations that are simpler to comprehend as "attempted" crimes than others.

Listen to a conversation with Sand above.

"Where attempts get complicated is where there is an interruption of the activity earlier in the process," Sand continues. "And what the law asks is: Has a set of facts moved beyond simply an intent, and maybe beyond mere preparation, into an overt act in furtherance of the crime?"

"Where attempts get complicated is where there is an interruption of the activity earlier in the process. And what the law asks is: Has a set of facts moved beyond simply an intent, and maybe beyond mere preparation, into an overt act in furtherance of the crime?" — Robert Sand, Vermont Law School

In the Sawyer case, the state has pointed to Sawyer’s journal and Facebook posts, which showed both his plans for a school shooting and a fascination with the 1999 Columbine High School massacre. His plans were detailed and he bought a gun.

But Sand points out that in the legal system, what it takes to charge versus convict a person aren't necessarily the same.

"What's enough to charge and what is enough to sustain a conviction are different levels of proof — and it is absolutely true that context influences analysis, context influences outcome," Sand says. "And so what might be viewed as mere preparation for a relatively minor offense, a judge might look at as more significant evidence toward an attempt, in the context of a potentially lethal event."

"What's enough to charge and what is enough to sustain a conviction are different levels of proof — and it is absolutely true that context influences analysis, context influences outcome."

Kelly Green, Sawyer's defense attorney, has filed a motion to dismiss charges against her client, arguing insufficient evidence. The judge has yet to issue a ruling on that motion.

In general, Sand explains, if the state doesn't have enough to continue with original charges in a case, then there are a few courses of action.

"If a charge gets dismissed at a pre-trial phase for insufficient evidence and the prosecution acquires additional evidence at a later date, the charge can be refiled. Jeopardy has not attached," Sand says. "A prosecutor could look for alternative charges. The issue might be if there wasn't enough to establish an attempt in the first instance, there might not be any other charge that could be brought validly as well either.

"The third is this notion that crimes are supposed to be specified in advance by the Legislature. And, arguably, we are not supposed to contort an existing law to fit a novel set of facts. Now what that sometimes means, painfully, is that a certain set of facts don't fit into an existing law, and that motivates the Legislature to pass a new law, prospectively, reaching future behavior. And yes, that does mean that a blameworthy individual might not be punished if that behavior didn't fit within an existing law.

"And I will say there are other states that look at issues regarding gun possession and potential violence differently than we do in Vermont. Some states and some other countries have a law that makes it a crime to possess a firearm with the intent to use it unlawfully. A crime of that nature reaches behavior sooner than would the law of attempt, at least in Vermont."

There are bills moving through Montpelier right now — sparked and furthered by the Sawyer case — that would make it easier for police to take firearms from people who pose an "extreme risk" to themselves or others.

VPR's Nina Keck contributed to this report.