The U.S. Attorney's Office disclosed this week that Caledonia County State's Attorney's Office is reconsidering its earlier decision to bring no state criminal charges in the O'Hagan slaying.
"Because the government advises that State authorities are now in a position to bring charges concerning the homicide, the government is now limiting its request to this court regarding sentencing," Kirby noted.
State's Attorney Lisa Warren continued Wednesday not to respond to phone messages left by the Burlington Free Press about the federal disclosure that her office is considering taking action in the criminal case. Her chief deputy, Kirk Williams, who has been working closely with Vermont State Police on the O'Hagan case, referred questions to his boss.
Warren told her local newspaper, The Caledonian-Record, that she could not comment on the case.
"It's still an ongoing criminal investigation," the newspaper quoted the elected prosecutor as saying.
Norrie is one of three related Sheffield men who have been linked to O'Hagan's slaying, federal court records show, but nobody has been charged by state prosecutors. Norrie, 23, his cousin Richard Fletcher, 27, and his brother Keith J. Baird, 32, all are in state or federal custody on various unrelated charges.
Kirby wrote that Chief U.S. District Judge Christina Reiss should focus at Norrie's sentencing only on the two criminal charges his client admitted to in June.
Kirby had written earlier that he was expecting the government to ask for a 20-year sentence, in part because of the O'Hagan homicide. The government this week said it wants Norrie to spend 6Â½ years in prison, a term at the high end of the federal sentencing guidelines.
Kirby argued that, based on evidence he has been provided in the O'Hagan killing, he believes it is impossible for state prosecutors to say with certainty which of three men pulled the trigger. He said the prosecution is saying only that Norrie "participated" in the events of the night.
The defense lawyer wrote that he was given no access to the state's homicide file until Oct. 8, and there was insufficient time to review the five or six large boxes, a computer system that contains 800 reports and some recorded testimony.
Kirby, a former U.S. attorney for Vermont, said a three-month delay in the sentencing would give him time to review the investigation if the homicide is going to be mentioned.
Norrie pleaded guilty in June in U.S. District Court in Rutland to possession of a stolen Rough Rider .22 handgun and possession of a firearm by a drug user in October 2009.
Assistant U.S. Attorney Joe Perella said Norrie, while on release for state felony larceny charges, stole the .22 caliber revolver from his father in Sheffield and sold it a man who later used it to rob a McDonald's employee who was making a night bank deposit.