Terri Williams, the owner of a Market, took her daily receipts from the store to home for safekeeping - locking the money in a gun safe. She had 13 to 15 employees, many of whom knew of this practice. One night, and the way home, she came across a tree in the road and stopped. A man then pepper sprayed her and stole the money. Defendant Douglas appealed his conviction for assault and robbery.

The Supreme Court reviews a criminal conviction taking the state's evidence as true and then determining whether it is sufficient and fairly supports guilt beyond a reasonable doubt. Douglas claimed the evidence was insufficient to show he knew Williams would have the money on the way home. Seth Drown testified Douglas told him he had "robbed some lady in North Concord" and he had heard friends of Douglas "bragging" about Williams being vulnerable to robbery. However, the Court ruled it was irrelevant how Douglas might have learned of Williams' vulnerability. Down's evidence that Douglas admitted he robbed "some lady" was sufficient to convict him.

Douglas then offered Paul Kennedy as a witness. He told the trial judge Kennedy and Drown has been in jail together soon after the robbery. Kennedy would testify he heard Drown talking to someone else about making up stories so he could get out of jail. More, he overheard Drown, or other inmate, say they actually committed the crime.

The trial court refused to let Kennedy testify. The rules of evidence require that evidence from another witness contradicting Down's testimony could only be offered if Drown was given the opportunity to explain or deny what Kennedy would say. It ruled that Douglas' attorney had failed to question Drown about these statements when Drown was cross examined at trial. Drown has been released from subpoena the day before, and wasn't present in court. Further Douglas' lawyer had failed to inform the Court about Kennedy and requested that Drown be available to testify in rebuttal to Kennedy. A unanimous Supreme Court agreed Defendant's counsel had not followed the evidence rule. It reviewed Federal Cases involving the same rule and upheld the conviction.

Was an innocent man convicted because of his lawyer's mistake? We'll never know what the jury would have done if it had heard Kennedy. Douglas does have a remedy. He can ask the Superior Court to reverse his conviction because he had ineffective assistance of counsel. That Court would review counsel's work and determine whether it was so inadequate that Douglas should get a new trial. In the meantime, Douglas serves his sentence. The wheels of justice grind slowly. State v. Danforth 2008 Vt. 69.