BRATTLEBORO — The day many crime victims and defendants have been waiting for is within sight. The Vermont Judiciary has permitted a criminal jury trial to be held in Windham County next week — the first time since the pandemic put jury trials on hold last March.
But on Friday, no case was left on the trial short list. The defendants either decided to plead guilty, their charges were dismissed or cases were disqualified because witnesses couldn’t travel to Vermont, said Chief Superior Judge Brian Grearson.
A Bennington County case — which made the trial list — was the last left standing, until prosecutors asked that it be removed from consideration.
That left the trial with a location, potential jurors and plans to stream it for public viewing, but no case to try. State court officials are now looking at late May as their next opportunity to restart jury trials.
Almost a dozen Windham County cases were originally placed on next week’s trial list, Grearson said. As the March 22 jury selection date neared, he said, cases began dropping off until only one remained: State of Vermont v. Dalton Kissell.
Kissell, 30, was charged in 2018 with two counts of selling less than 200 milligrams of heroin in Brattleboro. On Thursday, Windham County State’s Attorney Tracy Kelly Shriver filed a notice to dismiss the case with prejudice. She didn’t cite a reason; Shriver couldn’t be reached for comment on Friday.
The dismissal of Kissell’s case meant the trial slot would go to Reynald Carey, a Bennington County defendant. Carey, 30, of Pownal, is facing multiple felony charges, including burglary and aggravated vehicle operation without the owner’s consent.
He is accused of stealing a safe from a Manchester restaurant as well as stealing a truck in Dorset, both of which reportedly happened in 2019. He was placed in the Windham County trial list on the restaurant theft charges, according to court officials.
When the number of Windham County cases headed for trial started shrinking, Grearson said the courts looked to neighboring southern Vermont counties for back-up cases. That was in early March, and Carey’s name was brought forward.
On Thursday, Bennington County State’s Attorney Erica Marthage asked the court to remove Carey’s case from consideration. She said her office doesn’t have a deputy who is willing to try a case in Windham County right now. She laid out various reasons, including her office’s not having been part of planning the safety measures at the Windham courthouse and the plan to keep trial participants inside the building the entire day.
“This provision is unacceptable on many levels, not the least of which is, I cannot order an employee that they are not allowed to leave a courthouse for an extended period of time,” according to a portion of Marthage’s three-page written motion.
The jury trial, which the prosecutor said she has heard referred to as an “experiment,” was understood by her to be a voluntary opportunity. “Not a situation where my employees would be required to be in an environment engineered without our input, not in our courthouse and on such short notice.”
Carey’s attorney, public defender Kate Lamson, said in a call Friday that she had opposed the state’s motion. She said she was ready to bring the case before a jury.
Vermont had been days away from restarting jury trials. Now, the state has to wait at least another two months for an opportunity to unfreeze what is a constitutional right for defendants — and a process that helps crime victims reach some sort of closure.
Windham County, the only county that has been greenlighted for state jury trials, isn’t scheduled to hold another jury selection until late May, Judge Grearson said. Other counties that could soon get approved for trials aren’t expected to hold them earlier than Windham County, said the Vermont Superior Courts’ chief administrative judge.
When asked Friday whether he anticipated all potential trial cases disappearing, he said he was not surprised it happened this week, having seen many cases resolved as a jury trial loomed. “Surprised, no. Disappointed, yes,” he said.
Knowing that many victims and defendants would feel let down, Grearson said he felt for them. “It’s a difficult process,” he said. “All we can hope is to do better the next time.”