Law experts say this was tough case to prove
By Gordon Dritschilo
Herald Staff | September 12,2008
The plea deal in the Bryant Garrow case is not yet final, but according to experts consulted about the case, manslaughter charges may have been hard to prove with the available evidence.
According to Rutland District Court Clerk Laurie Canty, Judge Thomas Zonay approved the plea deal pending the results of a pre-sentencing investigation.
Canty said Zonay, a former police officer who has been on the bench for a year, could reject any agreed-to sentence cap in the deal, possibly prompting Bryant Garrow to withdraw his guilty pleas, but could not order a charge reinstated. She said a prosecutor could petition to have the case reopened, and a judge would have to rule on that petition.
Garrow, 21, pleaded guilty Wednesday in Rutland District Court to two charges of gross negligent operation of a motor vehicle and one of providing false information to police, all misdemeanors, as part of a plea deal in which the state dropped a felony manslaughter charge.
Garrow had been charged with running over 52-year-old Stewart Dickson, but Rutland County State's Attorney James Mongeon said Monday the state could not prove Garrow's jeep hit Dickson.
As to whether the case would still be viable, former prosecutors offered a variety of perspectives, though all said they did not want to second-guess Mongeon without knowing everything he knows.
At first glance, former Chittenden County State's Attorney Robert Simpson said the natural conclusion seems to be that a car must have hit Dickson. Simpson served from 2001 to 2006 and now runs the criminal justice program at Champlain College.
"This is a tremendous coincidence, that this guy just happened to die of head injuries in the general vicinity of these guys, drove away the wrong way, but without evidence he was hit, that's a very difficult case," he said. "You're in a tough spot to prove it beyond a reasonable doubt."
The first problem, Simpson said, is that after twice amending Dickson's death certificate, the state medical examiner's office listed Dickson's manner of death as "undetermined."
"It does make it very, very difficult when that is undetermined," he said. "If the medical examiner is unable to say it's a homicide, that's difficult. It is not unusual to have a circumstance where you have someone who has been killed and you don't have witnesses. The big kicker for me is that the medical examiner cannot make it a homicide."
The lack of trace evidence is another factor for Simpson. Despite taking a number of different samples from the undercarriage of the Jeep, police said they were not able to match any to Dickson.
"That is more difficult than the cases I've been involved in," he said. "That is a very tough case. In my experience, I don't think I've been involved in a case that difficult that was a motor vehicle case."
Vermont Law School professor Cheryl Hanna, a former Baltimore prosecutor, said she was less bothered by the lack of trace evidence.
"In the CSI world, there is this feeling you need hard forensic evidence to prove a case," she said. "That's not what the law says. The law says they have to be proven beyond a reasonable doubt. Most cases don't have the rich forensic evidence you see on TV. The law lets the jury fill in the gaps."
Hanna said that while the case had its weaknesses, from what she knew of the case, there was a great deal of evidence pointing to manslaughter.
"Could a reasonable jury have found Garrow hit Stewart Dickson with his truck?" she asked. "Yes. Would it have been a difficult case to prove? Maybe. Here it strikes me the prosecution is not thinking they had a strong enough case."
Hanna said there seems to be a trend in which juries feel like there needs to be physical evidence to justify a conviction. She said she does not have statistical evidence of the trend, but called it a "growing concern." She pointed out that prosecutors functioned for centuries without trace physical evidence.
Robert Tepper, who was elected as Rutland County State's Attorney in 1968 and served until 1975, said he has followed news accounts of the case. He said the circumstances were certainly enough to take a long, hard look at Garrow.
"Prosecutors and police, from time to time — not often, get a version of facts and then, upon re-questioning a witness or re-examining the same evidence, get a different view," he said.
New witnesses can come forward, Tepper said, and evidence can be excluded by a judge.
Tepper observed that while the outcome was likely to provoke a strong negative public reaction, it seemed appropriate because it appeared to be the best outcome police and prosecutors could achieve.
"The prosecutor's power is awesome," Tepper said. "The proof of a crime needs to be equally awesome. I think there's too much of a temptation, when one learns someone had something to do with a tragedy, that they should pay for it."
Tepper said the evidence was not clear.
"I wonder if there were witnesses who could have come forward, or could have come forward earlier and given the prosecutor a stronger case," he said. "That happens. People don't want to get involved. If there were witnesses who could have come forward, they may bear some of the outcry for this case appearing to be handled improperly."
People condemning Mongeon for the outcome, Tepper said, need to consider how they would view the situation if their son faced charges that could not be proven.
"How careful do you want your state's attorney to be?," he asked. "Mr. Garrow fled from the scene, going the wrong way down a one-way street. That does not equal clear and convincing proof he's guilty of manslaughter. The matter was handled free of personal ambition. We've seen prosecutors and prosecutions where ambition was placed ahead of justice for the accused."
Tepper recalled a case from his time as state's attorney when a prominent local official was accused of molesting a child.
"I spent a long time just thinking about it," he said. "I eventually decided not to bring the case because I knew I couldn't prove the case. Prosecutors need to be careful not to shred the reputation of someone on a case you cannot prove to appease a family or an alleged victim."
Tepper would not say whether he thought the charges were true, only that he was convinced he could not prove them.
"Thirty-seven years later, it's still clearly in my mind," he said. "I still go to sleep at night, but I have forgotten a hundred other cases, while that one still sticks in my mind. … If I can't convict, I have no business dragging somebody through the system."
Tepper also said most people convicted of the charges Garrow pleaded guilty to, as a first offense, would probably just get a fine — a sentence he doubted would please the public.
"Unless I could see something other than what I see, I think the state and the police did the best they could with that they have," he said. "Not every crime gets solved. That's the system we have chosen."
Contact Gordon Dritschilo at firstname.lastname@example.org.