JOLTED, Part 3: Thought, Or Crime? (Transcript)
When does planning a school shooting become attempted murder? The question went all the way to the Vermont Supreme Court.
Note: These transcripts are provided for accessibility and reference. If you are able, we strongly recommend listening to this episode of JOLTED at joltedpodcast.org. Please check the audio before quoting in print, as the transcript may contain minor errors.
EMILY CORWIN, EDITOR: I'm Emily Corwin, the editor of JOLTED. Before we get started, this is the third part of a five-part series. If you haven't heard the previous episodes, we recommend you go back and do that. We won't go anywhere.
LIAM ELDER-CONNORS, HOST: In the last episode, Jack Sawyer's sends his friend Angela McDevitt some troubling phone messages, and Angela hands her phone to a guidance counselor. What police do next catapults Vermonters into a debate. A debate over things like: at what point a thought, or even a plan, should become a crime; and whether we need NEW laws to keep kids safe, in this post-Columbine era.
From Vermont Public Radio, this is JOLTED.
ELDER-CONNORS: I'm Liam Elder-Connors.
NINA KECK, HOST: And I'm Nina Keck. On this episode, we ask: what is the right thing to do when someone threatens to commit a school shooting?
HARLEY DAYTON: I am one of 400 students who worries about going to school because of what the outcome may be if Jack Sawyer gets released on any given day.
ROSE KENNEDY, STATES ATTORNEY: I came to the conclusion that the attempted murder, aggravated murder was the appropriate charge.
MATT VALERIO, VERMONT DEFENDER GENERAL: The bottom line is that there likely wasn't even a crime here.
KELLY GREEN, PUBLIC DEFENDER: The proper response wasn't to do nothing, the proper response was to get Jack to the hospital.
ELDER-CONNORS: Part three: Thought, or Crime.
KECK: In Jack's case file there's a video of Jack's police interrogation, an interrogation Jack willingly took part in. I picked up a copy of it from the courthouse in Rutland.
When we hit play, we see Jack in a light colored hoodie, sitting in a large black chair, trying to get comfortable as he waits to be questioned. It looks like a small room. There's a table and we can't see much else. Jack cracks his neck and then his back, twisting his head and body from one side to the other. Then he slouches down into the chair. He'll he wait there for almost an hour before anyone comes in.
INTERROGATORS: Hey Jack, how are you? I'm Todd and this is Henry. I'm gonna grab another chair....
KECK: The sound from the video is garbled, but eventually Vermont State Police Detectives Todd Wilkins and Henry Alberico walk into the room. Jack sits up and shakes their hands. The detectives move some chairs around - that's the banging you hear - and then they start asking questions. First easy ones, like what's Jack been up to, where he's been living....
INTERROGATORS: And if you are all set, I just need to you to sign your name right there.
JACK SAWYER: Ok.
KECK: They read Jack his Miranda rights, tell him he doesn't have to answer any more questions.
INTERROGATORS: One quick thing is that your mom and dad…
KECK: They let him know his mom and step dad are waiting outside, but Jack says he prefers to talk to the police alone. And he's 18, an adult, so police don't need anyone else's consent to interrogate him. When police ask Jack if he knows why he's there, he says he thinks it has to do with things he was saying a couple years ago.
SAWYER: There were ideas - no suspicions that I was going to shoot a school.
INTERROGATORS: Were you talking about it?
SAWYER: Yeah, A little bit yeah.
KECK: But later, Jack admits to police he's still thinking about shooting up the school.
Watching this video makes me think of my father. My dad was a lawyer and there was one piece of advice he hammered into my head when I was a teenager. I can still picture him saying it to me across the kitchen table.
'No matter what,' he told me, 'if you ever find yourself at a police station being questioned about anything - DON'T SAY A WORD.'
I think my dad would have wept had he watched Jack's interrogation, because for more than seven hours -- sitting in that black chair -- Jack tells police everything.
ELDER-CONNORS: During the interrogation, Jack says he's read several books on the 1999 Columbine massacre. He says it helped him imagine his own school shooting and suicide at Fair Haven Union.
INTERROGATORS: So when you read the Columbine book, did you kind of relate to those guys?
ELDER-CONNORS: Jack tells police he had originally planned his shooting for April 20th, the anniversary of Columbine, but realized Fair Haven Union would be on break, so he moved the date up to March 14, which at this point is one month away. He explains this is why he came back to Vermont. It's why he bought the shotgun and the ammo at Dick's.
Jack says he bought $500 worth of bitcoin so he can buy a another gun, a handgun, on the dark web. He tells them his first target is the the school resources officer, a man Jack says he'll shoot in the head.
INTERROGATORS: I'm just curious - what do you put for a number?
SAWYER: As many as I can get.
When one of the detectives asks Jack how many casualties he wants in all, it's hard to hear. He says “As many as I can get."
INTERROGATORS: What do you think?
SAWYER: I can't remember specifically what Virginia Tech's count was, but higher than that……
INTERROGATORS: They were higher than Columbine, right?
SAWYER: Yeah, by at least half.
INTERROGATORS: Maybe up around 20, 25?
SAWYER: So the way I see it is I just need to beat the highest count.
ELDER-CONNORS: Jack tells them he needs to beat the highest count, which means killing more than 32 people: the toll in the 2007 Virginia Tech shooting.
INTERROGATORS: Beat the highest count of what?
SAWYER: Of all the School shootings.
INTERROGATORS: Yeah so you're talking specifically school shootings.
ELDER-CONNORS: Jack seems so calm and matter of fact. Even the detectives seem stunned.
ROSE KENNEDY, STATES ATTORNEY: I actually went to the police barracks and was watching some of the interview.
ELDER-CONNORS: Rutland State's attorney Rose Kennedy watches Jack's interrogation on closed circuit television in real time.
KENNEDY: And as I was watching the interview, we were actually, I had a deputy with me, we were pulling up attempt stat -- or, case law. Reading through it, aggravated murder as well, and sort of comparing what we were seeing and hearing to what we were reading in the case law.
ELDER-CONNORS: Kennedy has to decide what -- if any -- crimes Jack Sawyer has committed, and how to charge him.
It's not easy. Mass casualty attacks are a pretty new concept. This is probably the first such “attempt" the state's courts have ever seen.
So the two prosecutors keep watching.
INTERROGATORS: If this stuff hadn't come to light and you weren't here sitting here talking to Henry and I, do you think that those thoughts would have continued to a point of maybe someday you would of actually followed through with the plan?
SAWYER: Yeah like, someday. I don't know if it would be this year, next year or a few years, but like probably at some point, because that's just the way that I'm set on like, even dying.
ELDER-CONNORS: When detectives ask Jack if being arrested will change his plans he says no, it'll only delay him. “I don't know if it'll be this year, next year, or a few years," Jack says "but probably at some point, because that's just the way I'm set on dying."
KECK: Jack's chattiness, his willingness to confess all this, is typical after mass attacks and averted mass attacks. According to the FBI, suspects like Jack tend to brag. In fact, that's how many potential shooters are identified. They can't keep their plans to themselves.
And Jack's candor has consequences.
KECK: After you watched him in the interrogation, do you feel like Jack Sawyer was capable of carrying out that plan? WILLIAM HUMPHRIES, FAIR HAVEN POLICE CHIEF: Absolutely.
Fair Haven Police Chief William Humphries is at the police barracks with Rose Kennedy, watching.
KENNEDY: Um, ultimately I believed his intent and I believed I had to act.
KECK: After listening to hours of Jack Sawyer's interrogation, States Attorney Rose Kennedy charges the 18-year-old with two counts of attempted aggravated murder, one count of attempted first degree murder, and attempted assault with a deadly weapon.
These are the most severe charges in the state's criminal code. They carry the same sentence as an actual aggravated murder charge: life in prison, with no possibility of parole. If Jack is convicted, a judge would have no discretion to reduce that sentence.
KELLY GREEN, PUBLIC DEFENDER: Huge charges, huge!
This is Kelly Green, Jack Sawyer's public defender.
GREEN: So then you read the affidavit, then I read the affidavit, and I'm like What? Wha-? For this?! We don't do that. That's immoral.
KECK: And you're saying too huge.
GREEN: Too huge.Yeah, overcharged. Well, and over charged not just because the charges were so serious, but because
the facts weren't there. The facts didn't support the charge. Jack didn't commit those crimes!
KECK: Were you angered by the charges?
GREEN: I was like aggravated, aggravated that you know you have a whole town completely terrified. You have this family completely traumatized. You know you've whipped up a level of drama that we haven't seen in a while here and maybe for no reason.
KECK: Kelly Green saysthere is a better choice. She says the state should have sought civil commitment for Jack, at a mental hospital.
GREEN: get that kid to the hospital. There's a statute about it. It's on the books.
KECK: We asked State's Attorney Rose Kennedy about this, and she argues she didn't have access to Jack's mental health records. A commitment hearing, she says, wouldn't have guaranteed public safety, and most importantly, she believed he had committed attempted murder, so that's what she charges him with.
KECK: Let's take a minute to talk about Rose Kennedy. She's known in Vermont for being a tenacious, state's attorney.
She spent several years as a prosecutor in Burlington before taking a job as a deputy in the Rutland State's attorney's office, in a city known for its “old boys club."
A year later, Kennedy announced her campaign to unseat her boss. She argued he was too laid-back in his approach to prosecution, and she promised to work more closely with local police. Kennedy won, and quickly shook things up. She fired the longest serving prosecutor in the office.
She's up for re-election this November and no one is running against her.
ELDER-CONNORS: Let's go back to February, to the day after Parkland. Jack Sawyer spends that night at the Marble Valley Regional Correctional Facility, in Rutland.
To convince a judge to keep Jack behind bars, Rose Kennedy enters into evidence the interrogation video and two documents which reporters quickly post online. One is the police report, which includes a transcript of Jack and Angela's phone messages. The other document is that journal of Jack's.
These documents ignite a flurry of media coverage
[LOCAL TV FOOTAGE MONTAGE]
ELDER-CONNORS: The details shock Vermont's Republican Governor into immediate and unprecedented action.
ELDER-CONNORS: To many Vermonters, especially those near Fair Haven, the threat Jack Sawyer posed was obvious. But any legal remedy would be far from straightforward.
Sawyer's case would play out a fundamental tension at the heart of our criminal justice system. The tension between protecting personal liberty, and public safety.
It would come down to identifying the moment when a thought, or a plan actually becomes a crime.
KECK: To understand how Vermont defines this idea of attempt, we visit Jared Carter, an assistant professor at the Vermont Law School.
JARED CARTER, ASSISTANT PROFESSOR OF LAW: So in order to attempt a crime there has to be both the intent to commit the crime, and then the second step is the prosecution has to prove that the person took an overt act towards actually carrying out the crime.
KECK: Compared to many other states, Vermont sets a high bar when it comes to the definition of attempt.
CARTER: In other words, it can't just be they purchased the goods in order to carry out the crime, they bought the weapon or they bought the tools. They actually have to move towards carrying out that crime. And the words they use is the "commencement of the consummation of the crime." So actually doing it. You have to do some act. It can't just be in your head, can't just be in your personal space. That's what the law in Vermont says.
KECK: In Vermont, to qualify as attempt, you have to have been so far into a crime that you would have succeeded were it not for some intervention. The courts' interpretation of the law is based on a case more than a century old -- when this prisoner, a guy named John Hurley, began planning a prison break.
CARTER: And it's a fascinating case because the facts are that a prisoner had smuggled, or purchased hacksaw blades in order to try to break out of prison, and he had accumulated these hacksaw blades in his prison cell presumably to cut through the windows, and throw his bedsheets out and climb down, the classic prison escape. And what the court said was 'that is not enough to have an attempt' because, yes he may have intended to escape and commit that crime but he didn't actually take an overt step towards doing it. He hadn't actually started hacking the bars.
KECK: Carter and just about every other lawyer we've talked to say this Hurley decision is key when it comes to understanding how Vermont views attempted crimes.
CARTER: I think many people might say well wait a minute the guy was collecting hacksaw blades to break out of prison. Why isn't that enough? And I think the reason is because he might have had that design, he might have had that idea, he might have purchased some blades, but he hadn't actually done anything and in this country, typically we criminalize acts not thoughts.
State's attorney Rose Kennedy wants Jack behind bars without bail before trial. Many in Fair Haven tell us that makes them feel safe.
Denying a defendant liberty like this, however, is unusual in Vermont.
Murder and attempted murder are some of the few charges severe enough to allow the courts to do it. But to hold Jack without bail, Kennedy has to prove there's something behind her charges.
Jack's in jail for more than a month when a lower court judge rules there is enough evidence to keep him there.
ELDER-CONNORS: Jack and his attorneys appeal that decision to the Supreme Court.
BAILIFF OF THE VERMONT SUPREME COURT: Good afternoon your honors.
ELDER-CONNORS: Now, the state has to make its case again.
KENNEDY: May it please the court, I take no pleasure in talking to you today about an 18-year old charged with the most serious crime in Vermont.
ELDER-CONNORS: In early April State's Attorney Rose Kennedy stands in front of three Vermont Supreme Court justices.
KENNEDY: Mr. Sawyer is very clear that his intent is to kill as many kids, as many students as possible at Fair Haven Union High School.
ELDER-CONNORS: Kennedy explains that she is not in front of the court to discuss punishment or the appropriate resolution of the case. Rather, she says, the discussion is about whether the lower court was right to hold jack without bail: whether the police were right to arrest him and whether the case should proceed to a criminal trial where a jury would be able to decide Jack's fate.
Justice Harold Eaton pushes back with the central question.
JUST HAROLD EATON OF THE VERMONT SUPREME COURT: In your opinion, when did this cross over from just planning, to an attempt?
KENNEDY: So, let's talk about Hurley, ok.
ELDER-CONNORS: Yup - she's citing the 1906 Hurley case, the one with the hacksaws. She says because Jack provided so much detail about his intent to murder students, getting in the car and driving back to Vermont actually began the act of murder.
KENNEDY: So now the action of moving to Vermont. We know is an action he took in preparation. I would argue it's the inauguration of the commencement of the consummation of the crime, because he's in Vermont to commit this killing.
EATON: Once that happens, it doesn't matter what happens after that? He could say, you know, "I've changed my mind, throws the gun away, goes back to Maine he's still guilty?"
KENNEDY: Under Vermont case law yes.
ELDER-CONNORS: Rose Kennedy ticks off a list of actions which convinced her Jack would have committed the shooting if law enforcement had not arrested him:
KENNEDY: He buys the gun, he researches the ammunition, he buys ammunition, he takes money from his bank account, $500, puts it in a bitcoin account to buy a nine millimeter glock gun, uses a TOR browser and a VPN so that his IP address can't be detected, he goes on the website for Fair Haven Union High School and determines when is a good day when students will be present....
MARSHALL PAHL, DEPUTY VERMONT DEFENDER GENERAL: The acts that the state points to in this case as support for its attempts charges are not truly acts for purposes of an attempt analysis, they are preparation."
ELDER-CONNORS: That's Marshall Pahl, Vermont Deputy Defender General. He's a colleague of Kelly Green's and at this hearing, he's representing Jack Sawyer. Pahl tells the justices the state's evidence does not measure up.
PAHL: None of the offenses that Mr. Sawyer is charged with, did he commit.
ELDER-CONNORS: Pahl points out Jack was arrested almost a month before the date he had chosen for his alleged shooting and that he never got close to Fair Haven Union High School.
PAHL: So is it your position that no crime was committed here at all and if the police had come up with all this information the proper response is to do nothing?
PAHL: I don't think I can prove a negative your honor...
ELDER-CONNORS: It's not Pahl's job to tell the prosecution what to charge. But was a crime even committed? That question ignites debate across Vermont while the court deliberates.
Prominent lawyers who are following the case -- they feel strongly Kennedy is wrong on the law.
JARED CARTER, ASSISTANT PROFESSOR OF LAW: I think quite frankly, they may have, quite frankly, they may have jumped the gun a little bit.
MATT VALERIO, VERMONT DEFENDER GENERAL: The bottom line is. There likely wasn't even a crime here.
DAN SEDON, VERMONT DEFENSE ATTORNEY: That is essentially how I saw the case from the beginning.
KECK: Eight days after oral arguments, the justices release their ruling. The high court agrees with Jack's defense attorneys, that in this case, Jack may have prepared to commit a crime, but that isn't the same as attempting a crime. Jack can no longer be kept in jail without bail.
States Attorney Rose Kennedy says at the time she thought she had it right.
KENNEDY: The Supreme Court disagreed. And I understand their decision, but I think there's still a chasm in the case law in Vermont. There's got to be a place where law enforcement should be able to act to stop a horrific crime from occurring that's a lot sooner on this continuum than when someone actually shows up to commit the act.
KECK: A little over a week after the Supreme Court's decision, Kennedy dismisses all four felony charges against Jack Sawyer. That's because the justices decision about Jack's bail signals she doesn't have a strong case.
To keep Jack's criminal proceedings going, Kennedy adds two misdemeanor charges, but they're much less serious: criminal threatening and carrying a dangerous weapon with intent to do injure. At the time, they carried at most three years in prison, combined.
The court sets Jack's bail at $10,000 which his family quickly posts. On April 27, the 18-year-old walks out of jail. He's agreed to check himself into Brattleboro Retreat, Vermont's only psychiatric hospital for children and adolescents. And he must stay away from Fair Haven Union High School. It's unclear when his misdemeanor charges will be heard in court.
For the school's principal Jason Rasco, this is unbelievable.
JASON RASCO, PRINCIPAL: We did everything that we were supposed to do right. Like, we did. Like the kids said something when they saw something. And then all of a sudden to say, 'there's no crime?' And I'm like, 'well if there's no crime, then why do we have the police presence that we do, why did we just spend hundreds of thousands of dollars of new security, why are we changing our behavior if no crime had been committed?"
KECK: But at the very bottom of the Vermont Supreme Court's decision the judges add a final thought. The courts can only interpret the laws as they are written. It's up to lawmakers, they point out, to change Vermont's attempt laws.
Almost immediately, lawmakers do take this up. And they wrestle with thorny questions, like:
How much should we protect the freedom of speech, freedom of thought, and yes, freedom to bear arms -- when the lives of school-kids might be at stake?
Should I be allowed to think to myself "I want to shoot up my old school"?
Should I be allowed to say as much to a friend by text?
What if I write down my plan to shoot up a school in my journal. Is it a crime now?
What if I do that, and then I buy a gun? Buying a gun IS legal in Vermont.
HARLEY DAYTON, STUDENT: I am a student who feels scared hopeless and angry....
ELDER-CONNORS: Fair Haven Union high school student Harley Dayton joined several classmates in Montpelier to urge lawmakers to take up these questions and change the law.
DAYTON: I am one of 400 students who worries about going to school because of what the outcome may be if Jack Sawyer gets released on any given day. I have experienced panic attacks....
ELDER-CONNORS: Lawmakers decide not to change Vermont's attempt laws, at least not just yet. Some fear it could lead to prosecuting thought. But they do decide to pass a so-called domestic terrorism law. It likely could have been used in this case, if it had been on the books in February. This new law makes it easier to convict someone who plans or threatens a mass attack.
And Jack's lawyers take advantage of another brand-new law. One that increases the maximum age at which an offender can be tried as a juvenile from 17 to 21. If Jack succeeds in moving his case to family court, it will become confidential.
Stories like Jack's happen all across the country. And if you look, you can see some trends.
Failed school shooters often do get charged with attempted murder, like Jack did. And like Jack's case, the charges often don't stick.
According to news reports, attempted murder charges didn't stick for the 17 year old in Nebraska who was found on school property with a rifle and bombs.
They didn't stick for the 15 year old in Pennsylvania who had a bag full of guns he planned to take to school with him.
And they didn't stick for the 17 year old in Minnesota who had a storage locker with bomb-making materials.
KECK: But other charges do stick. Charges having to do weapons possession. And, depending on what state you're in, planning to do harm with bombs can have much more severe consequences than planning to hurt others with guns.
In Vermont, possessing a single destructive explosive device is a felony which can lead to a 10 year prison sentence.
But that's not what Jack had. The 18-year-old bought a gun legally at Dick's Sporting Goods in February. And back when Jack was arrested, carrying that gun with an intent to injure -- that was a misdemeanor with at most, a two year sentence.
Nobody in Vermont is talking about outlawing guns. But exactly who can have a gun legally, and why, and how? That's changing.
ELDER-CONNORS: On the next episode of JOLTED, Governor Scott's reversal.
KECK: Jolted is reported and produced by Liam Elder Connors and me, Nina Keck.
Emily Corwin is our editor and project manager
Sarah Ashworth is our Senior Editor
Angela Evancie is VPR's Managing Editor for Podcasts
John Van Hoesen is VPR's Chief Content Officer
Our theme music is by Ty Gibbons and Blue Dot Sessions.
Engineering support is from Chris Albertine
We had digital support from Jonathan Butler, Noah Villamarin-Cutter and Meg Malone.
Support for JOLTED comes from the VPR Innovation Fund, and from Primmer Piper Eggleston and Cramer, PC.