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Prosecutors offer settlement to Lowe

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Posted on January 4, 2010 |
By Andy Kirkaldy



MIDDLEBURY — Documents filed in Addison District Court show that prosecutors on Dec. 18 offered a settlement to former Vergennes Police Chief Michael Lowe that could end the court cases concerning misdemeanor and felony charges against Lowe that led to his resignation in September.

The next step in the legal proceedings is a combined status conference and motion hearing scheduled for 10 a.m. on Jan. 11. At the request of Lowe’s attorney, Richard Goldsborough of South Burlington, Judge Cortland Corsones agreed to postpone a previously scheduled Dec. 21 conference until next week.

“The grounds are the State made a settlement offer on 12/18/09, and which, if agreed to, would settle both the DUI (driving under the influence of prescription drugs) and the pending felony charges,” wrote Goldsborough in his Dec. 21 motion seeking the postponement. “Counsel for Defendant needs time to review the implications of the offer with his client and research several aspects of the offer.”

Lowe, 51, was arraigned in August on a number of charges, including DUI; neglect of duty; embezzlement, which stems from Lowe’s trading a gun seized as evidence for a drug purchase; and fraudulently obtaining prescription drugs, which stemmed in part from persuading a young Vergennes patrolman to hand over his prescription drugs to Lowe. The drugs Lowe was taking included painkillers and anti-depressants. He spent time at a Florida drug treatment facility this summer while on a paid leave of absence from duty.

Lowe’s legal woes began in June when a police cruiser he was driving, allegedly while under the influence, struck a parked car. Court documents later revealed that he was already being investigated by the attorney general’s office for his alleged drug problem and for an alleged conflict of interest in another case.

State officials are prosecuting the cases because of Lowe’s long-standing working relationship with the Addison County state’s attorney’s office. Lowe had served for about eight years as the Vergennes police chief.

The recent settlement proposal is not public at this point. Goldsborough declined comment last week. Lawyers at the Vermont Attorney General’s office who are handling the case could not be reached for comment last week.

Such settlements can take many forms, but provisions can include agreements on what sentences prosecutors will ask a judge to consider, what pleas a defendant will enter, what charges prosecutors will pursue and which might be dropped, and whether or not a case will go to trial.

The state’s settlement offer came after the only significant action in the cases since Lowe’s two August arraignments in Addison District Court: On Nov. 24, Judge Corsones denied Goldsborough’s motion to exclude key “drug recognition expert” (DRE) testimony from the proceedings.

Goldsborough had argued, in part, that the work of Vermont State Trooper and DRE Todd Ambroz just after Lowe’s accident should be excluded because Ambroz’s evaluation consisted of “unreliable data inputs that do not comport with scientific standards” and that, as Corsones summarized, “the science of drug recognition is not sufficiently reliable.”

The AG’s office had responded with a lengthy motion and data to support the validity of DRE training and its acceptance in other states.

Cortland accepted that argument, writing, “The State has submitted significant evidence indicating DRE protocols are accepted and considered reliable in the medical and forensic communities. The state has also provided an outline of other states’ appellate courts that have utilized DRE testimony ... The Defendant has not cited the court to any appellate courts that have ruled differently.”

Cortland did agree to hold a two-hour hearing “only on the questions of whether Todd Ambroz qualifies as an expert, and whether he applied that training appropriately in this case.”

Corsones also on Nov. 25 “rendered moot” a related motion from Goldsborough for an evidentiary hearing to evaluate the DRE testimony.

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