Attorney General’s office violated ‘fundamental due process rights’ of state trooper Robert Zink

Charity Clark blames State Police

by Mike Donoghue, Vermont News First

BENNINGTON – A superior court judge dismissed a simple assault charge Tuesday against a veteran state trooper after ruling the Vermont Attorney’s General’s office was involved in misconduct by failing to turn over documents to the defense until the eve of the trial.

Judge Kerry Ann McDonald-Cady also ruled the Attorney General’s Office cannot re-file the misdemeanor charge against State Trooper Robert Zink, who has been on an unpaid leave for two years waiting to have his day in court.

Defense lawyer David Sleigh said he had asked the Attorney General’s office multiple times over the two years for all relevant investigative documents in the case involving Zink. The prosecutors had repeatedly maintained there were no records involving use of force reports, but the AG’s office finally sent the requested documents to Sleigh about 3:40 p.m. last Friday, one business day before the jury trial was to begin.

The judge, after hearing from Sleigh and Assistant Attorney General Paul Barkus on Tuesday, took a recess to consider the legal arguments and the motions. She returned to the bench to rule in favor of Zink’s emergency motion to dismiss the case.

McDonald-Cady wrote in her findings that the state’s failure to promptly produce the records “struck at the very heart of the fundamental due process rights of the defendant for a fair trial that he would be prejudiced by anything less than a dismissal under these particular facts and compelling circumstances.”

Zink was one of the arresting officers for Christopher W. Campbell, 43, of Shaftsbury following a truck crash near his Tinkham Road home on Feb. 23, 2021, records show. Campbell was combative and intoxicated as Zink was called in to assist the initial responding trooper to try to arrest and handcuff the driver, police said.

Campbell, who was charged with 8 crimes in the case, was convicted for driving while under the influence after pleading guilty, records show. He paid $1,170 in court costs and fees for being nearly twice the legal limit for intoxication for an adult driver. Campbell also pleaded no contest to resisting arrest and that criminal case was sent to a local reparative justice board, Sleigh has said. One of the other troopers sustained a serious hand injury, police said.

It didn’t take long for the finger pointing to start after the dismissal of the charge.

Attorney General Charity R. Clark said in a prepared statement, ““We are disappointed with today’s outcome. It is troubling that discovery documents—which were requested more than once by the Attorney General’s Office, and their existence denied by Vermont State Police—were ultimately produced by Vermont State Police days before trial. My office will be working with Vermont State Police to determine how and why they failed to timely produce discovery documents in this case and how this situation can be prevented in the future to ensure that justice may be served.”

State police took serious exception to Clark’s claims. Spokesman Adam Silverman even included a series of email exchanges between state police and an Assistant Attorney General going back two years that indicated there were relevant reports and the prosecutor said he would follow up on getting them.

“It is unfortunate that the Attorney General has decided to cast blame on the Vermont State Police for discovery violations in this case before her office, or we, have investigated the matter completely,” Silverman said after Clark’ issued her comment. Silverman said Public Safety Commissioner Jennifer Morrison and Clark agreed to conduct parallel inquiries into what occurred and planned to discuss their respective findings later this week.

“The Vermont State Police treats its investigative obligations with the utmost seriousness. We categorically refute the Attorney General’s assertion that VSP ever denied the existence of these use-of-force reports. In fact, as you will see from the attached emails, the state police made the prosecution aware of these reports as far back as June 2021,” Silverman said.

State Police acknowledge that Detective Sgt. Jake Metayer had incorrectly stated the use of force reports were confidential with internal affairs. Yet Assistant Attorney General Earl Fechter told Metayer in a June 22, 2021 email to “Please stand-by on taking any action here. I have to check on a few things regarding use of force reports.” He went on to say “nothing more for you to do on this for the moment.”

Use of force reports have always been considered public records under Vermont law.

Fechter, who was assigned to the criminal division, also blamed the Bennington County State’s Attorney’s Office with not sharing information on the prosecution of Campbell with the AG’s office and asked Metayer to intercede.

“The state police acknowledges that investigators incorrectly stated that the reports were confidential internal affairs materials. However, it falls squarely upon the prosecution to determine what materials are discoverable in a case, and to disclose to defense counsel the existence of any potentially relevant information. Furthermore, when VSP received a request from the Attorney General’s Office for the reports on May 17, we produced them in a timely manner,” Silverman said.

“The Department of Public Safety and the state police continue to be willing to work with the Attorney General to conduct a full review of this matter to identify what happened and to ensure situations like this do not arise again.”

Attempts to interview Clark on Tuesday afternoon about her statement and the case were unsuccessful. As the phone interview was to begin, Clark’s chief of staff, Lauren Jandl, said she wanted to be on the phone, along with Assistant Attorney General Domenica Padula, chief of the criminal division. The newspaper declined the four-way interview. It invited Clark to speak 1-on-1 when ready. She declined.

Sleigh maintained that dismissal without the ability to refile the charge was the proper “sanction for the State’s misconduct in failing to provide written witnesses statements that were within the prosecuting attorney’s possession or control…”

“We are relieved at the outcome and the decision to dismiss it. We did not believe this case ever warranted criminal charges,” Sleigh said.

“It was a legitimate use of force,” said the longtime defense lawyer, who has a record of being critical of police at times. “He was within policy.”

The head of the Vermont Troopers’ Association agreed with the judge’s dismissal and Sleigh. VTA Executive Director Mike O’Neil, who attended the trial, said the union believed the charge should never have been filed.

Zink has spent his entire police career in Southern Vermont. He comes from a well-known Bennington family that included his father, who was the longtime captain and chief deputy in the Bennington County Sheriff’s Department.

State police hired Robert Zink in 2008 and assigned him as a road trooper at the Shaftsbury Barracks following his graduation from the Vermont Police Academy. He became a detective trooper with the Narcotics Investigation Unit in 2012, then returned as a senior trooper at the Shaftsbury Barracks in 2013.

He was assigned as a detective trooper in Shaftsbury in 2014, then promoted to sergeant/patrol commander two years later. In August 2019 he was assigned to the Rutland Barracks and he was demoted back to trooper for undisclosed reasons, state police said. He transferred back to the Shaftsbury Barracks in December 2020 and served until his suspension.

Sleigh said a review of the investigation, including audio and video, shows Campbell was “violent, resisting, non-cooperating and intoxicated” for three hours, at the scene, at the hospital and at the state police barracks.

Sleigh said a second state trooper, Jeremey Sullivan, can be heard during the struggle at the scene yelling to Campbell to “let go of my Taser, let go of my Taser” just seconds before the punches in questions are thrown.

The entangled Campbell, Zink and Sullivan went sliding about 50-feet down a steep icy driveway after handcuffing the defendant and preparing to move him to a police cruiser, records show.

Zink did acknowledge in his court affidavit that he and Trooper Sullivan did strike Campbell, but only after the defendant had pinned Zink on the ground and was trying to take the Taser out of Sullivan’s holster.

“While Campbell had me pinned against him with his leg, he was continuing to grab at Trooper Sullivan’s Taser. Both Trooper Sullivan and I had to strike Campbell repeatedly in order to get him to unpin his leg from me and to stop attempting to take Trooper Sullivan’s Taser,” Zink wrote in the affidavit.

“During this whole time, Campbell refused to co-operate, would not follow our commands, continued to resist and was attempting to stand up and get away from us,” Zink wrote.

Later back at the barracks in Shaftsbury, Campbell began smashing his face on a metal cage, causing him to bleed profusely all over the holding cell, Zink reported.

Lt. Thomas Mozzer, the station commander, Zink and now former Troopers David Pfindel and Sullivan all attempted to gain control of Campbell in order to render medical aid to him, the court affidavit noted.

While attempting to restrain Campbell, he continued to resist and began kicking at all the troopers in the holding cell, Zink said.

The Bennington Rescue Squad arrived, and Campbell continued to be combative all the way to the Southwestern Vermont Medical Center in Bennington, police said. Bennington Police also responded to the hospital to help quell the disturbance, records show.

Bennington County Deputy State’s Attorney Robert Plunkett charged Campbell the day after his arrest with eight criminal counts — aggravated assault on state police, unlawful restraint, impeding police by trying to take a Taser away from another state trooper, driving while intoxicated, careless and negligent driving and three counts of simple assault on police — a protected professional performing a lawful duty.

Campbell has filed a $25 million civil lawsuit in U.S. District Court in Burlington in January 2022 claiming excessive force by three state troopers that responded to his truck crash. He is seeking $5 million for each of five claims, the lawsuit said.

That federal case had been placed on hold pending the outcome of Zink’s trial.