MONTPELIER — The state of Vermont will not immediately press charges against Ray Gagnon, the former stepfather of Brooke Bennett, even though he admitted to sexually assaulting a different underaged girl in South Royalton in 2007.
The option to charge Gagnon for sexual assault remains on the table, but federal charges Gagnon is facing have become the priority for the time being.
In addition, U.S. attorneys have filed a motion to dismiss a charge for allegedly obstructing the investigation into Bennett's murder.
"Obviously there's a larger matter being handled at the federal level right now," said Cindy Maguire, the chief of the criminal division at the Vermont Attorney General's office.
The state could still bring sexual assault charges against Gagnon in the future, said Maguire.
"For aggravated sexual assault there is no statute of limitations, so there's no issue of timing," she said.
Gagnon was arrested in July for allegedly obstructing the Bennett investigation. Police believe Gagnon told his landlord in Texas to dispose of computers that contained evidence relevant to Bennett's murder.
During that investigation, Gagnon told authorities that he sexually assaulted a different girl in South Royalton, court records state. He was scheduled to be arraigned last summer in Vermont District Court in White River Junction for the alleged South Royalton assault, but he never went before a judge.
Instead, Gagnon was arrested and charged with obstruction of justice by federal authorities.
Now, U.S. attorneys have filed a motion to dismiss the obstruction of justice charge, and Gagnon will soon be sent to Texas where he was indicted for child pornography crimes last July.
The 40-year-old San Antonio resident has also been charged for possession of child pornography in Alabama, where he owns a home.
Maguire would not say whether the state was planning to eventually prosecute Gagnon for the South Royalton crime or say why child pornography takes priority over an actual sexual assault, and she declined to comment further on the case.
But Michael Mello, a professor at Vermont Law School, said it is likely that everything that happens with the Gagnon case is being done with the intent of prosecuting Michael Jacques, who is charged with murdering Bennett.
"The Gagnon case is secondary to the Brooke Bennett case. Things are happening or not happening because of the impact it will have, or will be hoped to have, on Brooke Bennett," said Mello.
Transporting Gagnon to Texas to face the two child pornography counts could be a way to put pressure on Gagnon to become a willing witness for the prosecution, according to Mello.
"It's a way of concentrating his mind so he understands — and I mean really understands – how much he has to lose here. And I don't think it's a bluff," said Mello.
"Gagnon's testimony against Jacques presumably would be pretty powerful," Mello added.
One reason the state charge is probably not being pursued right now, Mello speculated, is because it's "cleaner and easier" to simply keep everything at the federal level.
The possession of child pornography charge Gagnon faces is also easier to prove than aggravated sexual assault or obstruction of justice, Mello pointed out.
"It's usually pretty clear and easy to prove," Mello said. "Did you have it on you or have it in your house? It's pretty much either you do or you don't, providing the search was valid."
There is no affidavit available in the Texas investigation because grand jury indictments involve oral testimony in a closed proceeding. Therefore few details about that investigation are available.
But the FBI did conduct an unsuccessful large-scale search for Gagnon's computers in a trash dump in Texas. Authorities believed the computers contained sexually explicit photos of an underage female witness involved in Bennett's disappearance.
Gagnon would face up to 15 years in prison if he is convicted of the transportation and possession of child pornography in Texas, according to Daryl Fields, a spokesman for the U.S. Attorney's Office in the Western District of Texas.
Federal authorities will most likely be in a pretty good bargaining position when it comes to trying to get Gagnon to testify against Jacques, said Mello.
"If he doesn't cooperate with prosecutors, he's looking at a very long stretch in a very unpleasant environment," said Mello.
Bennett, who was a 12-year-old from Braintree, was found dead in a shallow grave a week after she went missing on June 25. Her uncle, Michael Jacques, has been accused of drugging, raping and smothering her with a plastic bag. Jacques could face the death penalty if found guilty.MORE IN Central Vermont
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