Vermont prosecutors rarely have secured hate crime convictions. A recent legislative change might make it easier
The killing of a transgender woman in Morristown last week has spurred calls to charge the alleged murderer with a hate crime. But law enforcement officials say for now, they don’t have evidence to support that charge.
Judicial records show that Vermont prosecutors have rarely secured hate crime convictions in the past five years, though a recent legislative change was designed to make it easier for them to win such cases.
Police say 29-year old Fern Feather, of Hinesburg, was stabbed to death by Seth Brunell last Tuesday. Brunell, 43, has pleaded not guilty to second-degree murder. If convicted, he faces a life sentence. He’s currently being held without bail at Northeast Correctional Complex in St. Johnsbury.
Brunell’s attorney did not respond to a request for comment.
According to court records, Feather, who grew up in the Northeast Kingdom town of Albany, picked up Brunell hitchhiking, and the two spent a few days together. Around 10:20 a.m. on April 12, Morristown police responded to a call about a man standing next to a body at an intersection in town. Police found Brunell near Feather’s body when they arrived. Feather had been stabbed in the chest, police said in an affidavit.
Brunell, according to court records, told police that Feather attacked him after he rejected a sexual advance. “I was just protecting myself,” Brunell allegedly said to the officers.
Police said they did not see any signs that Brunell had been attacked, according to court records.
As police continue to investigate the case, an online petition asking prosecutors to add a hate crimes charge has been signed by 9,117 people.
“It would be enough to show that one of the reasons that the defendant committed the act was because of this person's status in one of those protected categories. And that's simply a much easier bar for the prosecution to meet.”
Kim Jordan, director of the SafeSpace Anti-Violence Program at Pride Center of Vermont, said Brunell’s justification for the alleged crime centers around Feather’s identity.
“That says to me, and I would say to a lot of queer and trans folks that, ‘Oh, this is a hate crime,’” Jordan said.
But law enforcement officials aren’t ready to bring a hate crime charge — yet.
“We’re not going to rush into anything,” said Aliena Gerhard, a deputy state’s attorney in Lamoille County. “I think it would be more devastating to just add it on because it looks good, and not be able to prove it. When we prosecute a case, we make sure that we have strong evidence, so that we can prove it beyond a reasonable doubt.”
Vermont law allows prosecutors to add a hate crime "enhancement" if the suspect’s actions are motivated by bias towards a protected class, which include race, gender identity and sexual orientation. The enhancement increases the criminal penalties a suspect faces, depending on the severity of the underlying crime.
But recent history suggests it's difficult to obtain a conviction for a hate crime in Vermont, even if the facts of the case suggest some level of bias.
State prosecutors filed 66 hate crime charges between 2017 and 2021, according to the Vermont Judiciary. But there have only been seven hate crime convictions in that time. One stemmed from a St. Albans incident where, court records say, a man threatened and shouted racial slurs at his neighbors, including the family’s 3-year-old son.
“We’re not going to rush into anything. I think it would be more devastating to just add it on because it looks good, and not be able to prove it. When we prosecute a case, we make sure that we have strong evidence, so that we can prove it beyond a reasonable doubt.”
Hate crimes have often proven difficult to prosecute. In 2018, the state supreme court narrowly overturned a disorderly conduct conviction — with a hate crime enhancement — of a man who allegedly put Ku Klux Klan recruitment flyers in the mailboxes of a Black woman and a Mexican woman in Burlington. The court wrote that the defendant’s conduct didn’t convey an “imminent threat of harm.”
“To the extent it conveys a message of personal threat to the recipient, it is that the Klan will recruit members and inflict harm in the future,” wrote former associate justice John Dooley in the decision.
In other recent cases, hate crime charges have been dropped as part of plea deals. An Essex man who shouted racial slurs and waved a gun at a convenience store clerk pleaded guilty in 2018 to aggravated assault and reckless endangerment, but the disorderly conduct charge with a hate crime enhancement was dropped as part of the plea deal, the Burlington Free Press reported.
In another incident, a hate crime charge levied against a teenager accused of spray painting racial epithets on the athletic fields behind South Burlington High School was dropped after he pleaded guilty to lesser charges, according to the Burlington Free Press.
There have been efforts to make it easier to prosecute hate crimes, including a change to Vermont’s statute. Last year, lawmakers amended the law to classify hate crimes as actions “motivated in whole or in part” by a "victim’s actual or perceived” identity. Previously, the statue said the crime needed to be “maliciously motivated.”
Jared Carter, a professor at Vermont Law School, said the new law makes it easier for prosecutors to prove hate crime allegations.
“It would be enough to show that one of the reasons that the defendant committed the act was because of this person's status in one of those protected categories,” Carter said. “And that's simply a much easier bar for the prosecution to meet.”
Another bill passed by the Legislature last year bans defendants from justifying violent actions based on the actual or perceived sexual orientation or gender identity of the victim, a change Carter said could be relevant in Feather’s murder case.
Brunell, according to court records, told police his actions were in self-defense and that he rejected a sexual advance from Feather because he “wasn’t gay.”
The U.S Attorney’s Office can also pursue federal hate crime charges in Vermont, which it did for the first time in 2019. Federal authorities charged Stuart Kurt Rollins, of Barre, with intimidating and harassing his Hispanic neighbors. Rollins pleaded guilty to one count of criminal interference with fair housing rights, a federal hate crime, and was sentenced to time served and three years of supervised release.
"I do think it would be helpful and beneficial. But I don’t think calling it a hate crime will prevent further hate.”
Vermont’s top federal prosecutor, who was appointed in December, has said his office plans to focus on bias incidents and hate crimes.
“We are committed to investigating those kinds of situations that might implicate federal law,” U.S. Attorney Nikolas Kerest told Vermont Edition in January.
Jordan, with Pride Center of Vermont, thinks law enforcement officials should call Feather’s killing a hate crime, in part to make visible “what so many queer and trans folk know.”
“So in that respect, I do think it would be helpful and beneficial,” Jordan said. “But I don’t think calling it a hate crime will prevent further hate.”