Harley Breer Jr. set to be released today
Judge rejects added conditions for convict in high-profile Barre kidnapping
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By Thatcher Moats Times Argus Staff - Published: December 21, 2009
BARRE – A judge has ruled against the Vermont Department of Corrections and the local state's attorney, denying their request to add sex offender conditions to the probation of a soon-to-be-released convict in a notorious kidnapping case.
The reasons Judge Mark Keller rejected the request on Thursday seem simple enough: Lawyers involved in the matter said there must be a change in circumstances for probation conditions to be modified.
Harley L. Breer Jr., was never found guilty of a sex crime, and there was no change in his circumstances, said Breer's attorney, Kerry De Wolfe.
It appears the seriousness of Breer's crimes is why the state fought to add the sex offender conditions.
Breer, 40, is set to be released from prison today after about a decade in jail. He was convicted of a brutal, high-profile 1999 kidnapping in which he tied up a 61-year-old woman in Barre, took her to a remote hunting camp and abandoned her, according to court documents.
Breer also was accused of raping the 61-year-old woman, who was the mother of Breer's ex-girlfriend, court papers show, but a jury acquitted him of that charge.
Breer also was charged with raping his girlfriend in 1990 and was acquitted by a jury in that case as well.
Breer, a Washington County native, was a star athlete in high school, and the kidnapping was a high-profile case.
In 2002, after the acquittals on the sex crimes, prosecutors asked Keller for a special hearing during which Keller could look at the evidence of the two alleged sex crimes and decide — by a preponderance of the evidence — if he believed Breer was guilty of the sex crimes.
Keller ruled that he did believe Breer committed the sex assaults.
"The court finds that the state has established with reliable evidence by a preponderance of the evidence that the sexual assaults did occur …" Keller wrote in his decision.
At the subsequent sentencing hearing, however, he didn't add sex offender conditions to Breer's probation.
Breer was sentenced to 12 years and nine months to 16 years and six months on charges that included unlawful restraint and burglary, stemming from his kidnapping of the 61-year-old woman. (The "good time" statute was still in effect back then, and with credit for good behavior, Breer is set to reach his maximum and be released, officials said.)
On the actual kidnapping charge, Breer was given probation. His probation includes rules he must follow when he gets out of prison, which say he can have "no adult female sexual relationship" without the consent of his probation officer and must engage in mental health counseling.
He is not required to undergo sex offender treatment, which Washington County State's Attorney Tom Kelly said is the most important new condition the state was seeking.
"That's the primary one," Kelly said.
Sex offender treatment has been shown to minimize the risk of re-offense, and Kelly said minimizing the risk for the public was the reason the state was seeking the new conditions.
At the original sentencing, the Department of Corrections did not weigh in on what probation conditions Breer should have, because they didn't think probation would be part of his sentence, officials said.
"That is probably our fault," said JoAnne Pereira, the director of probation and parole in Barre. "But back then, for the most part, when you had an offender come through with that criminal history, probation wouldn't even be considered. Judge Keller had a different idea, I guess."
At the time of sentencing, corrections recommended a 30- to 70-year straight sentence for Breer.
Thursday's hearing was held in St. Albans, where Judge Keller now presides.
Pereira said it's not rare to request conditions modifications.
"We do it all the time," she said.
Breer's lawyer, however, said the request in this case was unusual because it was so obviously unwarranted.
"In my experience this was unusual because the state doesn't ask unless there has been a change" in circumstances, said Kerry DeWolfe.
"This was a clear example of the state overreaching," she said.
Pereira wouldn't say where in Vermont Breer was planning to live after his release from prison but said it is not in Washington County.
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