- Pool Photo: Glenn Russell / the Burlington Free Press
- Jack Sawyer with defense attorney Kelly Green in court
Jack Sawyer could have passed for a typical teenager as he walked into Rutland Superior Court last Friday — if not for the chains around his ankles and wrists. His wavy brown hair needed a trim. A hint of nascent, unkempt sideburns sprouted on either side of his thin face. His gait was awkward, as if he hadn't yet grown into his lanky body.
While the 18-year-old Vermonter took his seat in the courtroom, lawmakers in Montpelier were debating gun-control legislation inspired by allegations that he had planned a Parkland, Fla.-style massacre at Fair Haven Union High School.
Meanwhile, back in Rutland, it was becoming clear that the charges against Sawyer — three counts of attempted murder and one count of attempted aggravated assault with a weapon — might be on shaky legal ground. His two public defenders sought to have the charges dismissed and to revoke an order holding him in prison without bail. They say there is insufficient evidence to prove that Sawyer "attempted" anything.
"There is a big difference between planning, or preparing, to make an attempt and attempting a crime," his attorney Kelly Green told reporters outside the courtroom. "The state has to have evidence that he attempted these crimes. I haven't heard a word of it."
The prosecutor, Rutland County State's Attorney Rosemary Kennedy, declined to comment on the case but previously told reporters she stands by the charges she filed on February 16, when Sawyer's arrest shocked the state.
The legal challenge is a tough call, according to attorneys. Even if the charges survive the bid for dismissal, they could be tough to prove beyond a reasonable doubt at trial.
"Attempt" charges must include an act "towards the commission" of the offense in Vermont law. Prosecutors assert that Sawyer's purchase of a 12-gauge shotgun at Dick's Sporting Goods days before his arrest meets that requirement.
Prosecutors have also introduced evidence that Sawyer allegedly made detailed plans to shoot up his old school: Facebook messages he exchanged with a friend in New York in which he discussed his plans, a notebook entitled "Journal of an Active Shooter" explaining his motivations and thinking, and video of his six-hour interrogation by Vermont State Police, during which he matter-of-factly discussed his plot.
Will that be enough?
The case against Sawyer would be easier to prove if he had driven to his old high school with firearms or had gotten arrested as he walked into the building. Those actions would more clearly represent "commencement of the consummation" of the crime, the standard needed to prove an attempt, according to Vermont Law School associate professor Robert Sand.
Sawyer was arrested before taking such a definitive step.
In such cases, Sand said, "What gets complicated, when there is an interruption before the final event, is to decide: Was this in fact the commencement of the consummation, and that final bad thing was only stopped because there was some outside intervention?"
Had Sawyer made the transition from planning to overt action? Was he actually going to do it?
"He had every intention of following through," Vermont State Police Det. Sgt. Henry Alberico, who interrogated Sawyer, testified on Friday
But that, defense attorneys said, is a subjective conclusion. During two days of hearings last week, Green hammered away at the assumptions behind it.
"There is no witness you're aware of that saw him at the school hallway with a gun, right?" she asked Alberico on Friday.
"There is no witness you're aware of that saw his car parked at the school?" Green asked.
"No one has even seen him in Fair Haven, correct?"
"I don't know ... It's possible," Alberico said.
"You're unaware of any witness that has seen him in Fair Haven?"
In the most straightforward attempted murder cases, a defendant shoots someone who manages to survive. More often, such thorough, indisputable evidence is lacking, Windsor County State's Attorney David Cahill said in an interview. Attempt laws leave ample room for both judges and juries to apply "common sense," Cahill said.
"In terms of proving a school-shooting case in a perfect world, would the prosecutor from an evidentiary perspective want to see someone walk to school with a firearm? Yes," said Cahill, speaking about such cases in general. "But in a real-life perspective, do we ever want things to get that far? No. The law of attempts provides for criminal liability ... where an average joe on the street might not see an anywhere-near-completed crime."
Sawyer's case has gotten a blizzard of media attention. But the uncommon nature of last week's hearing has been largely lost in the news. Typically, defendants are brought in for a brief arraignment immediately after arrest, they plead not guilty, and their cases go quiet for months as evidence trickles in and lawyers weigh their options.
Even in the most serious cases, defendants usually waive so-called "weight of the evidence" hearings, in which prosecutors must show that the evidence of guilt is "great" in order for a case to proceed.
"In this case, there is not sufficient evidence," Green told Seven Days. "That's why we're challenging it now."
Weight-of-the-evidence hearings usually take an hour or two. Sawyer's was almost a mini-trial, spanning two days and including multiple witnesses. The hearing focused on two main pieces of evidence — Sawyer's interview with Alberico and excerpts from his journal.
The handwritten diary, with entries that began in late October and ended only a few days before his arrest, reveals the dichotomy at the heart of the case.
In chilling passages, an angry Sawyer, who acknowledged a fascination with the Columbine High School shooting in 1999, seems hell-bent on murder.
"I'm aiming to kill as many as I can and whoever I can, but it'd also be more satisfying to kill a lot of the dumb fuckers I actually went to school with," Sawyer wrote. "I know what they're like and how idiotic they are."
He later added, "I will gear up and let loose my anger and hatred. It'll be fantastic."
On other pages, the journal reads like the immature ramblings of a lost youth. "I've had another change of plans," he wrote in an entry dated December 28. He wanted to go live in the woods, he wrote, "off of the wild."
Sawyer suffers from depression and anxiety and had been living in a residential treatment facility in Maine. In his journal, he devotes more ink to musing about suicide than killing others. At one point, he wrote about wanting to drive into a wall at 100 mph.
"I just want it to happen already," Sawyer wrote on December 30. "Life is too much to handle and I've got about 65 years more if I don't die and if I'm already sick and tired after 18 years, then I know I'll just be miserable or even more so for that matter. I know I'm wasting my breathe [sic] as I inhale."
Judge Thomas Zonay is expected to rule in the coming weeks on whether the charges against Sawyer will stand.
To illustrate how difficult the decision could be, Sand, a former prosecutor, recounted a hypothetical scenario he has shared with students: A man plans to grow marijuana. He buys grow lights, fertilizer and books on cultivation techniques, and he researches where to buy seeds. But before he starts, police get a search warrant and arrest him.
Had the man crossed the line from preparing for a crime to attempting one?
The scenario sparked heated debate among both students and professionals: Sand solicited opinions from 10 sitting state's attorneys in Vermont. On whether there was enough evidence for an "attempt" case, they were split, five to five.