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Head scratcher: Marshals say photos would invade Vt. killer’s privacy

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By Michael Donoghue,  a reporter, for the Burlington (Vt.) Free Press

BURLINGTON, Vt. – The U.S. Marshals Service says the privacy rights of a man who pleaded guilty to the 2008 kidnap, rape and murder of his 12-year-old niece  far outweigh the rights of taxpayers to see the man they will pay to keep behind bars for the rest of his life.

It is a head scratcher.

Michael Jacques was facing a potential death sentence until he struck a deal Aug. 9 with federal prosecutors that will spare his life. Under the plea bargain Jacques pleaded guilty to six charges on Aug. 27 and agreed to accept a life sentence in prison without the possibility of parole in Brooke Bennett’s death. In return the government dropped its pursuit of the death penalty. 

U.S. District Court Judge William K. Sessions III delayed the formal sentencing.  No date has been set.

While it may bring closure for some people, it leaves much of Vermont wondering how and why Jacques has changed his appearance after five years in prison.  Reporters attending his change of plea hearing were struck by the changes, including his hair and increased weight.

There were plenty of pictures of Jacques in 2008 in state court and of his coming and going to the state courthouse.  But it soon became a federal case, because there are no cameras allowed in federal courts.

At the federal courthouse in Burlington, the U.S. Marshals Service drives prisoners into a gated parking lot and pulls into a garage, which is promptly closed.  A private $1 million elevator, made for federal prisoners only, whisks them to the sixth floor, out of sight of the public, including the media.

Burlington Free Press Staff Writer Sam Hemingway requested a recent or current mugshot from the U.S. Marshals Service.

Hemingway noted the marshals service has released them in the past in other major cases, including that of notorious Boston crime boss, Whitey Bulger.  The marshals service distributed Bulger’s picture after he was captured in California in June 2011 and before he was convicted.

The Free Press waited until after Jacques’ conviction to make its request.

No go, said David Demag, the U.S. Marshal for Vermont.  Demag maintained the marshals only released photos when law enforcement was in pursuit of a suspected criminal, not once the person was caught.

That creates a double standard for criminal defendants.  If a judge orders a defendant jailed as either a danger to the community or a risk to flee, he or she doesn’t have to worry about being shown in a newspaper, television or online.

Yet if a defendant is ordered released by a judge on conditions or with bail, he or she is likely to have a picture taken walking out of the federal courthouse. So the more dangerous defendants are, the less likely they are going to be seen in the media.

As an example, the marshals recently denied a Free Press request for a mugshot of a Vermont corrections officers arrested in September by federal authorities on charges of sexual abuse of two female detainees. The guard was eventually released on conditions and the Free Press captured both video and a still photo for publication.

The Free Press initially appealed the Jacques denial to Washington, D.C. lawyer William E. Bordley, who handles Freedom of Information Act requests for the U.S. Marshals Service. Bordley responded that release of such a photo of Jacques “would constitute a clearly unwarranted invasion of personal privacy.”

Bordley wrote that the marshals could release a booking photo of Jacques under two circumstances – if Jacques waived his privacy rights or if the newspaper could prove the public’s interest was served by disseminating the photo.

Free Press Executive Editor Michael Townsend said the newspaper is appealing Bordley’s denial to the Justice Department’s Office of Information Policy.

“I don’t believe a person convicted of the crime of raping and murdering a 12-year-old girl has any right to privacy,” Townsend wrote about the photo request.

“If the authorities give out pictures in pursuit of criminals, then it stands they should give out pictures after the capture, the conviction and the sentencing rather than trying to stand in the way of public exposure.”

Defense attorney David Ruhnke has said he would ask Jacques the next time he sees him if he was willing to waive his privacy rights with regard to any photos taken of him by the marshals.

The hope is Jacques’ mugshot will be released, ideally before the formal sentencing.

Donoghue can be reached at mdonoghu@burlingt.gannett.com.