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Many Elected Prosecutors Facing Challenges in Vermont


Published July 9, 2014 at 10:00 a.m.

Though they hold elected office, Marc Brierre and Alan Franklin could be forgiven for not seeing themselves as politicians. They are the state's attorneys in Rutland and Orleans counties, respectively, holding positions that rarely generate vigorous contests and usually provide incumbents a job until they no longer want it.

Not this year.

Of Vermont's 14 counties, seven will see battles for state's attorney, either in the August primary or the November general election. Former senator Vince Illuzzi, who has held that job in Essex County since 1998, has a primary challenger. The state's attorneys in Bennington, Grand Isle and Washington counties are also facing opponents, and two lawyers are vying to replace the retiring Joel Page in Lamoille County.

"That is unusual," said Robert Sand, a former Windsor County state's attorney who never faced a contest during 15 years in office. "Long-term incumbents tend not to have strong challengers. That always surprised me: how state's attorneys elections tended to fly under the radar, given that we make thousands of decisions a year that have a profound impact on people's lives."

The most bitterly contested races are in Orleans and Rutland counties, where Franklin and Brierre are facing challenges from people they assumed were on their side — their own deputies.

In Rutland County, Brierre fired Deputy State's Attorney Rosemary Kennedy one day after she held a press conference announcing she was seeking his job.

In Orleans County, Deputy State's Attorney James Lillicrap remains on the payroll. Why is he challenging his boss, Alan Franklin? "Alan is a great person to go out and have a beer with," said Lillicrap. "The criticisms I have were not involving Alan as a person. They involve Alan as a state's attorney."

Before he faces Lillicrap in November, Franklin first has to survive a primary challenge from his former clerk, Jennifer Barrett. Both Kennedy and Barrett appear to have won the backing of key law-enforcement officials, and neither is hesitating to throw verbal grenades at their old bosses.

They are fighting for a key post that is often poorly understood by voters — many of whom, prosecutors say, don't even realize the position is elected.

State's attorneys serve four-year terms and have no boss, wielding complete autonomy to file or dismiss charges brought to them by police. They effectively control how criminal laws are applied in their county, which can result in a patchwork approach to how criminals are treated in Vermont. In recent years, some state's attorneys have introduced alternative-treatment programs for repeat drug offenders, deciding to forgo criminal prosecutions and send defendants to treatment; others have taken a more traditional punitive approach.

The office can launch a prosecutor to a more prominent role. Patrick Leahy went straight from the Chittenden County state's attorney's office to the U.S. Senate, and T.J. Donovan, who currently holds Leahy's old job, is viewed in political circles as a future candidate for higher office.

But they are the exceptions.

Most state's attorneys aren't well known — even inside their counties — and their names rarely appear in the news. Many, such as Brierre and Franklin, are apolitical lawyers who view the gig as the pinnacle of their careers.

Brierre started working as a deputy state's attorney in Rutland County in 1983. When his boss, Jim Mongeon, retired in 2009, then-governor Jim Douglas appointed Brierre to serve the remainder of Mongeon's term. Brierre won his own four-year term in 2010 and settled into a job from which he would like to retire one day.

But now he's fighting with Kennedy, a Democrat. She is a Rutland resident who worked as a deputy prosecutor in Chittenden County for several years before Brierre hired her in 2013.

She has criticized Brierre, a Republican, for not collaborating closely enough with law enforcement, including in community initiatives such as Project Vision, an alliance of government, nonprofits and citizens dedicated to beating back a surge of drug crimes and related problems in Rutland.

"I think the state's attorney's office needs to be strong in the courtroom and outside the courtroom," Kennedy said.

Kennedy appears to have won some pivotal allies.

Rutland Mayor Chris Louras introduced her at the press conference announcing her candidacy, and Rutland's widely respected police chief, Jim Baker, sat in the crowd. Neither has formally endorsed Kennedy's candidacy.

Only days before her announcement, a jury returned a not-guilty verdict against a woman charged with attempting to murder a Rutland police officer — one of the highest-profile cases Brierre has ever handled.

Jennifer Berube crept behind an officer in the booking room with a two-inch knife and flung her arms around his neck before she was disarmed. The officer suffered a small cut to his neck. The incident was captured on a video that was shown to the jury.

At the conclusion of the trial, both Louras and Baker voiced frustration with the verdict, while Berube's attorney has said that Brierre overreached and failed to understand there was not enough evidence to support an attempted murder charge.

"Police officers deserve to know that we have their back," Kennedy said at the press conference.

"The case was tried on what I felt was strong evidence," Brierre said in an interview. "The police were well aware of and in support of the charge and going forward that way."

As for firing Kennedy, Brierre said, "If they're trying to take the office in a different direction, then they're not working for the office."

Brierre said that Kennedy has a naive view of the job. While she speaks of the state's attorney being more of a community leader, he said, she fails to grasp the punishing demands of the caseload.

"I think experience does count for something," Brierre said. "I believe [Kennedy] doesn't appreciate the multiple factors that come from having a high-caseload county, and a high serious felony caseload."

Franklin makes a similar argument as he attempts to fend off three opponents in Orleans County. If the Republican survives the primary challenge from Jennifer Barrett, he'll face two candidates in November: Independent Ben Luna, a former deputy prosecutor from Caledonia County; and his own deputy, Lillicrap, running as a Democrat.

Franklin has allowed Lillicrap to stay on despite his candidacy. "He's done a good job here," Franklin explains with a shrug of his shoulders. "Really nothing more than that."

A Newport native, Franklin was hired as a deputy prosecutor in 2005. Gov. Peter Shumlin appointed him state's attorney in 2011 to replace Keith Flynn, who became the commissioner of the Department of Public Safety.

Franklin said he believes he has done the job well, pointing to the recent conviction of a Newport man with a lengthy criminal record who got a life sentence for a brutal assault.

He said he was surprised when challengers filed for election, and he is struggling to adjust to the reality that he must woo voters.

His campaign plans? "I'm working on that," he said.

Doing any fundraising? "I'm working on that."

His opponents said local police officers urged them to challenge Franklin.

Lillicrap, whom Flynn hired as a deputy prosecutor in 2010, handles felony sex cases as part of the county's special investigations unit, and said he has secured prison time for every defendant in those cases. Lillicrap said that he would try to work closely with local police agencies, consulting with them throughout prosecutions.

"Alan has a different way of doing things. He views himself as an island, as opposed to a collaboration with a common goal to keep our community safe," Lillicrap said.

Was it difficult for Lillicrap to challenge his boss?

"It is difficult, but I was very up front with Alan. It's [also] difficult being a deputy state's attorney in an office that is being criticized," Lillicrap said.

Franklin hired Barrett straight out of law school as a clerk in 2011. She said she was a deputy prosecutor in everything but title; she even handled two trials. She left to become a deputy prosecutor in Bennington County, where she says she has taken more cases to trial than Franklin or Lillicrap have in recent years. She has been campaigning on weekends and plans to move to Orleans County if she wins.

"From what I remember and what I have been told by law enforcement, if a case is not a clear winner, neither attorney Lillicrap or State's Attorney Franklin will bring them to trial," Barrett said. "The cases that go to trial aren't black and white. I'm happy to put a case in front of a jury.

"The county needs leadership," Barrett said in an interview. "Attorney Franklin is difficult to get a hold of. He spends a lot of time out of the office. Orleans County could really benefit from someone who is in the office, pulling their weight."

Luna said he would bring a much-needed fresh perspective to the office.

"There's a lot of work to do in Orleans County and a lot of shortcomings. I am the only candidate with a vision to do something," said Luna. He said he would build a website and hold regular public meetings to enhance the office's transparency.

While police officers typically refrain from endorsements in state's attorney races, Newport Police Chief Seth DiSanto has endorsed Barrett, saying she would be tougher on criminals.

"The difficult thing for me is to keep morale high when my guys come to me and say, 'Why do you want me to go through three and a half hours of follow-up on a case when I know it's going to get dismissed or get pleaded down?'" he said. "Very rarely are we consulted about cases. We should be on the same page."

Franklin chalks up any criticism to natural tensions that sometimes exist between police officers, who deliver the bad guys and want to see them punished, and prosecutors, who decide whether the police cases can be proven.

"Our jobs are different," Franklin said.

At least some of the prosecutors hoping to hold on to their jobs can look forward to marching in parades and chatting up locals at diners and coffee shops — even though they acknowledge being more suited for the courtroom than the campaign trail.

"I don't mind marching in parades. I wouldn't want to do it all the time," Brierre said. "I find it refreshing to hear from the public. The problem is you don't [always] have time ... You have to go back to the caseload."

The original print version of this article was headlined "Rutland, Orleans Prosecutors Face Challenges From Their Deputies"



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