Murderer’s sentence reduced by nine years
By Brent Curtis
staff writer | August 30,2014
A West Rutland man’s prison sentence for killing a Benson man in 2009 was shortened by nine years this week.
As part of a rare post-sentencing deal, the Rutland County state’s attorney and an attorney representing 40-year-old Trevor Herrick agreed Thursday to shorten the West Rutland man’s prison term from 22 years to life to one that would effectively incarcerate him for a total of 13 years. With credit for time he has already served in jail, Herrick has less than eight years remaining to serve.
Herrick has been behind bars since his arrest on April 20, 2009, when he stabbed Kerry Munger, 52, to death during a meeting at the Diamond Run Mall. The two men chose that location as the place to settle a feud over Munger’s estranged wife, who was having an affair with Herrick.
At trial, Herrick’s attorney argued that he acted in self-defense. A subsequent appeal to the Vermont Supreme Court was also defeated.
But in March, Herrick’s attorney Devin McLaughlin filed a petition for post-conviction relief that argued his client had received ineffective counsel from his trial attorney and that one of the jurors who convicted Herrick failed to disclose biased information about his past.
A hearing was scheduled Thursday to argue the merits of that petition, which asked for a new trial in the case.
Instead, McLaughlin and State’s Attorney Marc Brierre agreed to a compromise that shortened Herrick’s prison sentence while guaranteeing an end to further appeals.
Brierre said Friday he agreed to the sentence reduction because Herrick’s conviction was “subject to collateral attack.”
“Rather than risk going to a new trial, we agreed to the stipulation,” he said, adding that Herrick will also be subject to lifelong supervision on probation.
Munger’s niece, Anna Peer, said she and her family, who attended the hearing, we’re disappointed that Herrick would serve less time behind bars but didn’t want to risk a new trial for her uncle’s killer.
“It’s obviously unfortunate and we’re very unhappy about it, but the idea of a new trial doesn’t sit well with us either,” she said. “We’re pretty positive that he would have been granted a new trial without the agreement.”
In his petition for post-conviction relief, McLaughlin and Peter Langrock wrote that one of the jurors who heard his case tainted the verdict because of an undisclosed incident in his past that wasn’t discovered until long after the trial ended.
Herrick’s lawyers said juror Donald Lizotte failed to honestly answer a question before the start of the trial about whether he or a family member had been injured or killed in a violent crime.
In reality, the lawyers say Lizotte’s brother, Terry Lizotte, was killed in a 1991 house fire and Terry Lizotte’s wife was charged with murder and manslaughter related to the incident. The charges went to trial and Ruth Lizotte was acquitted, the lawyers said.
“An honest answer by (Donald) Lizotte ... would have been a valid basis for a challenge ... given Donald Lizotte’s probable bias arising from what he more likely than not perceived as a wrongful acquittal,” the lawyers wrote in the petition.
Herrick’s attorneys argued that Herrick’s trial attorney, Matthew Harnett, who died after the trial ended, erred by not informing his client about the importance of testifying in his own defense and failing to prepare him to take the stand.
“The decision of the defendant to testify in a murder case, especially where the primary defense is self-defense, is critical,” the lawyers wrote.
McLaughlin could not be reached for comment Friday.