Experts react to attempted murder verdict
By Brent Curtis
Staff Writer | June 05,2014
A Rutland City police station surveillance video shows Jennifer Berube coming up behind Officer Damon Nguyen and holding a knife to his neck.
In a surveillance video shot inside the Rutland Police Department, Jennifer Berube can be seen quietly approaching a seated police officer from behind with a knife in her hand.
Before Officer Damon Nguyen knows she is there, Berube wraps her arms around his neck and a brief but violent struggle ensues as the officer and the 38-year-old woman fight for control of the 2-inch-blade.
By the time Berube was subdued, Nguyen was bleeding from a cut on his neck a half-inch from his jugular vein.
Rutland County State's Attorney Marc Brierre charged Berube with attempted second-degree murder and brought the case to trial where a jury last week acquitted the homeless woman of attempted murder along with a lesser charge of attempted aggravated assault to cause serious bodily injury that a Rutland criminal court judge allowed the jurors to consider.
The acquittals were shocking to members of the police department and city government. But former prosecutors and legal professors reached this week said jurors in cases like the one involving Berube are influenced by a wide variety of factors and even video footage of an alleged assault can be called into question.
Cheryl Hanna, a Vermont Law School professor and former prosecutor, said in her experience, acquittals are often a direct result of an effective defense.
“When this happens, it means someone had a really good defense attorney,” she said. “If you see an assault take place and you still acquit, it's because someone has given the jury a better story about the evidence than the prosecution did.”
Trials, former prosecutor Brian Marthage said, involve more than just deciding someone is guilty of a criminal act — they involve finding a defendant guilty of a very specific criminal offense and all of the elements of that offense.
In the case of attempted murder or attempted aggravated assault to cause serious injury, jurors would have had to conclude that not only did a person assault someone, but that they did so with intent to kill or cause serious injury.
David Soucy, foreman of the jury in the Berube case, said last week that he and the other 11 jurors in the case agreed that had Berube intended to kill or inflict serious bodily injury, the officer's wounds would have been far worse.
“She had the opportunity to kill,” Soucy said. “There are pictures in the video where his right hand is not in control of the knife and she could have stabbed him but didn't.”
While jurors were allowed to consider the lesser aggravated assault charge, they were limited to concluding that Berube intended to cause serious bodily injury because of the prosecutor's decision to bring only an attempted murder charge.
But there were other criminal charges that contained elements of the incident with Berube that could have been brought before the trial.
Offenses such as aggravated assault with a deadly weapon and aggravated assault with intent to prevent a law enforcement officer from performing a lawful duty — both of which carry potential 15-year jail sentences — encompassed elements of the alleged offense, Marthage said.
The former deputy Bennington County prosecutor said Brierre may have made a strategic decision when he decided to bring only the attempted murder charge against Berube because including lesser offenses sometimes leads jurors to “compromise” by delivering a guilty verdict on the lesser charge.
But in his time as a prosecutor, Marthage said he included multiple offenses in cases like the one involving Berube to give jurors greater leeway in reaching a guilty verdict.
“My philosophy was to play all the cards I was dealt as opposed to holding back on all the charges a jury would otherwise be able to consider,” he said.
Brierre said in a voice mail message that he decided to charge Berube with only attempted murder because it was the best fit for the elements of the offense.
“When the charge was filed we went with the one we felt was applicable,” he said.
Robert Sand, the former Windsor County state's attorney, said acquittals aren't uncommon in a criminal justice system that he said is designed to safeguard against unjust convictions.
“The judgment as a society was made to not find a person guilty until the prosecution is able to prove each and every element of a case,” said Sand, who is now a criminal law professor at Vermont Law School.
“As a society, we decided we would rather have a factually guilty person go free than have someone who is factually innocent person be wrongfully convicted,” he said.
Sand — who emphasized that he was not commenting on any specific case — said jury's must also decide whether the evidence in a case achieves the legal threshold in criminal cases of providing proof “beyond a reasonable doubt.”
And achieving a unanimous decision from 12 jurors isn't least among a prosecutor's challenges.
“How often do you get 12 strangers to agree on the same thing?” Sand said. “The system is designed to make it hard to convict.”