Mitigating Life

There really isn't an appropriate photo for this case.
State v. Jody Herring, 2019 VT 33
 
The facts of this highly publicized case remain extremely painful for a large cross-section of our community and may be difficult for some to read about.  On August 7, 2015, defendant Jody Herring went on a day-long rampage, fatally shooting three of her family members and a Department of Children and Families social worker over the course of several hours.  After shooting her last victim, the defendant dropped her weapon and surrendered to police.  The evidence against the defendant was overwhelming, and she never denied her actions.  There were some questions raised early on regarding her mental state prior to and at the time of the murders, but defense counsel ultimately did not try and offer an insanity defense.  Instead, the criminal charges against the defendant were resolved without a trial when the defendant reached a plea agreement with the State.  Under the agreed upon terms of the deal, the defendant was required to pled guilty to three counts of second-degree murder and to one count of first-degree murder for the ambush killing of Lara Sobel, the DCF social worker.  The agreement also called for the defendant to be sentenced to three terms of 20 years to life, one for each of her murdered relatives, but the parties were unable to reach an agreement as to the sentence for the murder of Ms. Sobel.  Instead, the agreement called for a contested sentencing hearing at which both parties could argue for any lawful sentence.  The only real question to be determined though, was whether the defendant would ever have a chance to be released on parole.
During the three-day sentencing hearing, the State, as anticipated, argued for life imprisonment without the possibility of parole, citing the horrific nature of the crimes, the devastating impact on the lives of the victims’ friends and families, and the fear which still permeated the community at large, as justification for the extreme sentence.  Defense counsel, on the other hand, sought to focus the court’s attention away from the facts of the crimes, and on the lifelong history of abuse that the defendant had endured.  It was the defense’s position that the long history of abuse, and the resulting mental trauma suffered by the defendant, should serve to mitigate her responsibility, and justify at least a chance for parole at some point in the distant future.  In support of their position, the defense presented evidence from two forensic psychiatrists who offered testimony regarding the defendant’s metal health, her state of mind at the time of the killings and how past traumatic life events had affected her functioning as an adult.
Ultimately, the court was not persuaded by the defense’s strategy and, in addition to the three agreed upon 20-to-life terms for each of the murdered family members, sentenced the defendant to life without the possibility of parole for the murder of Ms. Sobel.  Since Vermont does not have the death penalty, life without the possibility of parole is the most severe sentence which can be imposed and triggers an automatic appeal whenever it is imposed.
Since there had been no trial, the two claims of error on appeal both involve the lower court’s conduct during the sentencing hearing.  The defendant’s first claim of error was that the sentencing court acted improperly by using the testimony about her past abuse and trauma against her, in effect “blaming her” for her mental state.   The defendant’s second claim was that the court’s decision to sentence her to life without the possibility of parole was based on an erroneous understanding of Vermont law.
In its decision, the Court wastes no time in explaining that when it comes to sentencing, the only time appellate review is warranted is when the sentence imposed was clearly unreasonable based on the facts and the law.  To prevail at the appellate level, the defendant needs to show that the sentencing court either completely failed to consider the facts of the case properly, or that it blatantly misinterpreted the law in making its decision.  In other words, the lower court needs to have screwed up pretty badly for a sentence to be reversed on appeal. If, on the other hand, the trial court has followed the proper sentencing factors and has issued a lawful sentence, the sentence will stand. 
In a nutshell, the petitioner’s first argument is that the trial court used the testimony regarding Ms. Herring’s past trauma and mental health issues to justify the more severe sentence, instead of viewing it as the mitigating evidence it was intended to be.  Unfortunately for the defendant, the sentencing court spent a great deal of time, both during the hearing, and in its written decision, discussing the testimony regarding Ms. Herring’s past abuse.  In fact, at one point in its decision, the trial court clearly stated that it had “a great deal of compassion and understanding” for the defendant, but that ultimately, when viewed in the totality of the circumstances, the testimony presented by the defense was insufficient to justify the lesser sentence.  Listening to the evidence presented by both sides and then making a decision based on that evidence is what the sentencing court is obligated to do, and in this case, is exactly what it did do.  The Court makes it clear that the fact that the defendant disagreed with the sentencing decision does not constitute a reversible error.
The defendant’s second argument suggests that the sentencing court’s decision to deny her the possibility of parole was based on a mistaken belief that she might be granted parole and released from prison without being fully rehabilitated.  As evidence of this, the defendant refers to several statements made by lower court regarding the potential risk she posed to public safety.  At one point in the proceedings, the court mentioned that it had not heard much about “how that risk would be addressed” were she ever to be released on parole.  The defendant argues that since the parole system in Vermont would not allow her to be released without being fully rehabilitated, the decision to deny her parole was solely due to the court’s misunderstanding of how the system works, and therefore should be reversed.
In addressing this argument, the Court dispels the notion that the sentencing court’s decision was based on either the likelihood of the defendant’s rehabilitation or the potential future risk she may pose to the public.  As evidence of this, the Court points out that the lower court came right out and explicitly stated in its decision that it felt “an obligation to assure that . . . the enormity of the crimes are reflected in the sentence”.  The lower court goes on to discuss the notoriety of the crime in its analysis and spends a good deal of time explaining the importance of general deterrence as a sentencing factor in its decision to deny the defendant the possibility of parole.  Given the sentencing court’s clear and unambiguous reasoning in its decision, little of which had anything to do with the future risk to public safety, the Court finds no error and upholds the sentence.
For the murder of four innocent people, Jody Herring will remain behind bars for the rest of her life. 
      

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