Paragraph nine reads: "The defense countered that Walters, suffering from depression, had mixed alcohol and an anti-depressant on the night of the gunfight – a combination that the defense argued led Walters to perceive Mozzer as an intruder.

http://www.rutlandherald.com/article/20100831/NEWS01/708319927/1002/NEWS01

Walters: New trial likely

By Brent Curtis

STAFF WRITER - Published: August 31, 2010

A hung jury in the attempted murder trial for John Walters represents a setback but not a fatal flaw to the prosecution's case, according to legal and law enforcement officials.

A Rutland jury hearing the case was disbanded Friday after six hours of deliberation ended in a deadlock. The jury's inability to reach a unanimous verdict prompted Judge Thomas Zonay to declare a mistrial.

Now, prosecutors in the case must decide whether to seek a new trial on the same charge of attempted second-degree murder or pursue other alternatives such as recharging Walters for a lesser offense, offering the Proctor man a plea bargain or dropping the charges against him altogether.

Rutland County State's Attorney Marc Brierre said Friday he wouldn't comment on the active case.

But state police Lt. David Notte said during a meeting with Brierre on Monday, the prosecutor said the state's attorney said his office was prepared to ask for a new trial.

“We're basically where we were at the beginning,” Notte said.

The situation also hasn't changed for Walters, who has been jailed since 2008 for allegedly trying to kill state police Sgt. Thomas Mozzer during a gunbattle inside Walters' home.

During a five-day trial, prosecutors presented evidence that Walters pursued Mozzer, who was called to the house to check on Walters' welfare, through the home with a 9 mm handgun that he fired four times at the trooper.

The defense countered that Walters, suffering from depression, had mixed alcohol and an anti-depressant on the night of the gunfight – a combination that the defense argued led Walters to perceive Mozzer as an intruder.

Jurors weren't polled before they were released from duty and it remains unclear how they split over the Proctor man's guilt or innocence. Five jurors reached Monday declined to comment on the case.

The ratio of the split and the elements that divided jurors are important pieces of information for prosecutors to consider as they move forward, according to Michele Martinez Campbell, a visiting assistant professor at Vermont Law School and a former federal prosecutor.

“It helps to know if it was 11 to one or a broad split,” she said. “You also need to know what it's about. It could be it's not a question of guilt or innocence but rather which charge he's guilty of.”

In Walters' case, jurors were allowed to consider attempted involuntary manslaughter – a lesser offense – if the jury didn't think he was guilty of attempted second-degree murder.

Speaking from her experience, Martinez Campbell said she would expect a second trial on the same charge – although she said it was possible prosecutors might seek a lesser charge or attempt to work out a plea deal with Walters.

Vermont Defender General Matthew Valerio agreed that the split among jurors was important information for the prosecution. In general, he said, it could be useful information for the defense as well.

While a hung jury may not be an indication of innocence, it could be an indicator that the prosecution can't prove its case, he said.

“You could say in a motion to dismiss, ‘Now after hearing all the evidence, there's no way the state can get a conviction,'” he said.

The chance of successfully dismissing a case after a single trial is slight, Valerio said. However, he said, such dismissals have happened and the likelihood of a dismissal increases if juries fail to reach a verdict in multiple trials.

Mistrials also factor into bail review arguments, Valerio said, since defense attorneys can argue that the strength of the prosecution's case is less than believed before trial.

In Walters' case, defense attorney Matthew Harnett has already stated his intention to ask for reduced bail.

While willing to talk about how mistrials affect cases in the general sense, Valerio declined to talk about Walters' case in particular or what elements of the case may have deadlocked the jury.

From Martinez Campbell's perspective, the outcome of the gunfight may have influenced jurors.

The evidence presented at trial showed that Walters and Mozzer exchanged shots with Walters following the trooper through part of the first floor of the home.

However, Mozzer fired 13 of the 17 rounds and he emerged unscathed while Walters was shot five times including one round that struck the back of his right shoulder.

“I think that's an important factor,” Martinez Campbell said. “In my experience, jurors in cases where an officer is wounded or killed are more willing to come down hard.”

“It sounds like jurors were influenced by the result of the fire fight was that the homeowner was hurt while the trooper was not,” she added.

That's a point of view that Notte said he hopes no juror would agree with.

“People forget that Tom Mozzer was the victim in this. He was just doing his job,” he said. “Just because we wear a badge doesn't mean we give up our Constitutional rights.”

Notte said he and Mozzer were hoping to find out how big the split among jurors was and what elements they disagreed on during their meeting with Brierre Monday morning.

However, the state's attorney told police that prosecutors hadn't polled the jurors yet and might not have that option until after a new trial was brought.

Notte said he left the meeting confident not only that prosecutors would seek a new trial but also that the state's attorney would pursue a charge no less than attempted involuntary manslaughter.

“We're back at the beginning, but it's not an acquittal,” he said. “I think if it was an acquittal, the whole law enforcement community would be upset.”

brent.curtis@rutland herald.com