The

Vermont Supreme Court last week ordered a new bail hearing for 21-year-old Alex­ander Stolte, who has been in jail almost two years awaiting trial for allegedly killing a one-year-old in his care, in Chelsea on March 17, 2010.

A hearing for Stolte—which must include consideration of new DNA evidence—was initially scheduled for yesterday afternoon, in Chelsea Superior Court, but was postponed and has not yet been rescheduled.

The Supreme Court decision or­dering the new hearing was issued Friday, three months after attorneys for the prosecution and defense presented their arguments before a three-justice panel. Public defender attorney Kelly Green of Randolph, who presented the defense’s argu­ment, said this week that she be­lieves the Stolte ruling will have a significant effect on decisions to hold criminal suspects without bail statewide. (See side article.)

Stolte has been held without bail since March 19, 2010, when he was charged with second-degree murder in the death of Kyleigh Mc­Daniel, the infant daughter of his then-girlfriend. Stolte, whose trial is scheduled for June, has consis­tently maintained his innocence and offered to take lie detector tests.

Vermont law and the state’s Con­stitution allow for a suspect ac­cused of a crime that carries a life- imprisonment sentence to be held without bail “when the evidence of guilt is great.”

The evidence on which Stolte was initially charged was circumstan­tial: Primarily that he was believed to be the only person at his mother’s Chelsea home that night, and pre­sumably the only person who had access to Kyleigh when she suffered the injuries that led to her death. Au­topsy results later indicated that the baby girl died of head trauma, that she had been sexually assaulted, and that she had older injuries in­cluding broken ribs, that had since healed.

DNA Evidence Cited

In a startling turn in the case, Stolte’s defense attorney Dan Se­don in October 2011 filed a 17-page motion revealing new evidence that he claimed indicated his client was innocent of the crime.

Sedon’s motion revealed that a DNA analysis ordered by the state and reported in June 2011 showed that a hair found inside the victim did not belong to Stolte. Crime lab technicians also did other DNA testing of evidence from the crime scene, Sedon wrote, and found no DNA evidence linking Stolte to the murder and assault.

Further, he argued that investi­gators, pursuing their theory that Stolte had committed the crime, failed to look for evidence outside the residence. He noted that the baby’s crib had been located by an unlocked door and was easily vis­ible from outside.

Sedon maintained that the state no longer had sufficient evidence to hold Stolte without bail. The de­fense attorney also suggested, in his filing and in statements to the press, that that his client was innocent and Kyleigh’s killer remained at large.

Judge Harold E. Eaton, however, declined to hold a new bail hearing in the Chelsea courthouse to con­sider the new evidence.

In his denial, Judge Eaton wrote that the new evidence amounted to “modifying evidence.” Previous Supreme Court rulings, he noted, had found that such evidence ought to be presented to a jury, not to the judge.

Sedon promptly appealed Judge Eaton’s denial to the Vermont Su­preme Court, which heard the case in December. Atty. Green argued for the defense, and Orange County State’s Atty. Will Porter represented the state.

Attorney’s Argument

Green argued that the DNA evi­dence being presented in this case was more substantial than the “modifying” types of evidence con­sidered in previous Supreme Court rulings on bail appeals.

The decision to hold Stolte with­out bail was “perhaps reasonable” in 2010, but was no longer defensi­ble, given the new evidence, Green said to the justices.

In a side argument, Green also suggested that the standard used in Vermont to determine whether to hold suspects without bail is un­constitutional.

For his part, State’s Atty. Porter argued that forcing a judge to recon­sider bail every time new evidence turns up would result in a series of mini-trials before the real trial be­gins.

The three justices hearing the appeal—John Dooley, Marilyn Sk­oglund, and Brian Burgess—sided with the defense on the matter of holding a new bail hearing, but did not directly take up the constitu­tionality issue.

In their written decision, the justices tightened the definition of “modifying evidence” as testimony from witnesses that is introduced by the defense “to meet and dispute the State’s evidence.”

The DNA evidence in the Stolte case, the justices noted, had been ordered and obtained by the state, not the defense. Also, they wrote, DNA analysis is a kind of “non-tes­timonial evidence” that tends to be more credible than testimony from individuals.

“Here, it was error to necessarily equate the defendant’s new DNA evidence, purportedly undisputed as to its foundation, with disputed, testimonial “modifying evidence,” Justice Dooley wrote in the unani­mous decision.

The justices directed Judge Eaton to determine first whether the new evidence is “undisputed,” and if so, if it could have made a difference to the initial determination that the state had sufficient grounds to hold Stolte without bail.