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Jim Kenyon: Daley’s lengthy sentence still outstretches his crime

  • Eric Daley listens to testimony during his post-conviction relief trial in Windsor Superior Court on Monday, Feb. 11, 2019, in White River Junction, Vt. (Valley News - Jennifer Hauck) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.



Valley News Columnist
Saturday, September 07, 2019

In another country — Norway, perhaps — that takes a more enlightened approach to crime and punishment, Eric Daley might have stood a chance.

But not in the U.S. Not in Vermont.

Daley, who grew up in Springfield, Vt., is more than 16 years into a 26- to 33-year prison sentence, which was nearly the maximum that Judge Mary Miles Teachout could dole out in 2004 under his plea deal. Daley, now 39, has long tried to get his time behind bars shortened.

But Windsor County State’s Attorney David Cahill and Vermont Superior Court Judge Timothy Tomasi would have none of it. Their recent tag-team effort virtually guarantees that Daley will stay locked up for another 10 years.

In Vermont, Daley is considered a pariah — a high school dropout turned small-time drug dealer (marijuana mostly) who led Vermont State Police on a high-speed chase that resulted in the death of Trooper Michael Johnson, of Bradford, Vt., in 2003.

Daley, who was 23 at the time, had been stopped for speeding on Interstate 91 in Thetford. After Daley exercised his constitutional right to not have his car searched without a warrant, troopers tried to stall until they could bring in a drug-sniffing dog. They detained Daley beyond the time it takes to write a speeding ticket. (More on that in a bit.)

With two pounds of marijuana and some LSD in his sports car’s trunk, Daley panicked. He tore off down I-91 with two troopers in hot pursuit. Johnson, a 17-year state police veteran, was not involved in the traffic stop but was nearby.

Johnson started setting up tire-deflating spike strips across the interstate’s southbound lanes in Norwich. Before he could get out of harm’s way, however, Daley came barreling around a corner. When he saw other cars had stopped to avoid the spikes, Daley slammed on his brakes. His black Nissan careened out of control, flipping over in a cloud of dust in the grassy median.

After extricating himself from the car, Daley fled on foot. He’s repeatedly said that he didn’t see Johnson, a 39-year-old husband and a father of three young children, and was unaware that he had hit anyone.

Daley’s actions were extremely reckless, but Johnson’s death was an accident. There’s no doubt that Daley deserved a lengthy prison sentence. Just not anything close to 26 years.

By comparison, a 22-year-old Norwich University student spent 2½ years in prison after getting into a one-car crash that killed an 18-year-old female passenger in 2011. Derek Seber pleaded guilty to drunken driving — his blood alcohol level was more than twice the legal limit — with death resulting and no contest to fleeing the crime scene.

In 2015, former Rutland city attorney Christopher Sullivan was sentenced to four to 10 years in prison after being convicted in a drunken hit-and-run crash that killed a 71-year-old woman as she crossed a downtown Rutland street. Sullivan, 59, was released last month.

Former Vermont Defender General Robert Appel, who represented Daley in his bid for a lesser sentence, argued that his client’s case should be treated as other manslaughter cases — “a reckless homicide lacking any degree of malice whatsoever” that carry a 15-year maximum sentence.

At a hearing in February, Daley asked Tomasi to vacate his sentence on the grounds that his court-appointed lawyers were constitutionally ineffective.

Daley’s side argued that his attorneys should have, among other things, tried to get the case dismissed due to the extended traffic stop. “The events that transpired (later) that day were the product of an unlawful detention,” attorney Paul Volk, who served as Daley’s expert witness, told the judge.

At the very least, Daley’s lawyers should have used the “unconstitutional police conduct” as a “bargaining chip with the prosecution” during plea negotiations, Volk said.

Tomasi was unmoved. In a ruling released Aug. 30, Tomasi wrote that he had “serious doubts about (Daley’s) ability to recall events accurately and without bias” when it came to client-attorney discussions that occurred 16 years ago. (Daley’s primary defense attorney, Matthew Harnett, of Rutland, died of cancer in 2012.)

When Daley filed his petition for post-conviction relief, I thought Cahill might see the pointlessness in continuing to warehouse an offender for no other reason than to appease law-and-order types.

As prosecutors go, Cahill, who wasn’t involved in Daley’s original prosecution, is a deep thinker who doesn’t seem to measure success by how many people he can get locked up.

It would have been within Cahill’s prosecutorial discretion to step out of the way of Daley’s path to post-conviction relief.

In an interview at his office on Tuesday, Cahill made it clear that giving Daley a break was never a consideration. His decision was made partly of out of respect for Harnett, whom he knew professionally.

“I’m not willing to stand by and allow untruths be told about his work,” Cahill said. “I’m not going to sign my name to a document that says Mr. Harnett’s performance was insufficient; it wasn’t.”

I can’t fault Cahill for defending a fellow member of the Vermont bar who is no longer around to speak up for himself.

But I think politics played a role, too.

If Cahill hadn’t put on the full-court press, the law enforcement community would never have forgiven him. If Cahill has any interest in someday running for Vermont Attorney General or getting a gubernatorial appointment to the bench, he couldn’t risk being seen as going easy on Daley.

Here’s a shocker: Cahill didn’t agree with my assessment. Potential political ramifications didn’t enter his mind, Cahill said, because he has no intention to run for statewide office. Time will tell.

When people in law enforcement ask him about the Daley case, Cahill speaks with candor. In 2004, Daley received a sentence that was at the “harsher end of the sentencing spectrum,” Cahill told me. “It likely couldn’t be reproduced today.”

Daley can appeal Tomasi’s decision to the Vermont Supreme Court, but getting a reversal is a long shot.

Looking back, Daley didn’t have much to be hopeful about from the moment that Tomasi was assigned the case. A former federal prosecutor, Tomasi was appointed to the bench in 2010 by then-Gov. Jim Douglas, a Republican. Generally speaking, Republican governors aren’t looking for bench candidates who are soft on crime.

From occasionally sitting in Tomasi’s courtroom, I get the feeling that like many judges, he’s careful to avoid decisions that could invite public scrutiny. Ruling in Daley’s favor would have done just that.

By taking Cahill’s side, Tomasi has nothing to worry about. When was the last time a judge took heat for slapping down a defendant involved in the death of a law enforcement officer?

Tomasi wrote that Harnett had good reason to strike a plea deal — which in hindsight doesn’t seem like much of a deal — on Daley’s behalf. Federal prosecutors were making noise about taking over the case, which would have brought the death penalty into play, Tomasi said.

The “result in this case cannot be blamed on any professional incompetence” of Harnett, the judge concluded. (Daley ended up pleading guilty to several charges, including involuntary manslaughter, drug possession and attempting to elude police.)

I can’t argue that Tomasi gave Daley short shrift. He took more than six months to craft his 46-page ruling.

The judge put little stock in the argument that state police played a role in the events preceding Johnson’s death.

Why did troopers engage in a car chase that reached speeds of more than 100 mph when no violent crime had been committed? How much training had Johnson received about setting up road spikes?

If Daley was solely at fault, why did the state agree to pay out a $4.5 million settlement in the civil lawsuit filed by Johnson’s family?

In his decision, Tomasi acknowledged Johnson’s family had brought the suit against the state for its “negligence in contributing to the officer’s death.”

At the outset of this column, I mentioned Norway. While researching how the U.S. criminal justice system compares to other countries’, I came across a 2017 scholarly article out of Emory University School of Law in Atlanta.

In 2011, a car bomb exploded in Oslo, Norway, killing eight people. Anders Behring Breivik, who had detonated the bomb, then boarded a ferry to a nearby Norwegian island, where he went on a shooting rampage. Disguised as a police officer, Breivik killed 69 people, a majority of whom were teenagers attending a youth camp.

At trial, Breivik was found guilty and sentenced to 21 years — the highest penalty available in Norwegian courts.

“There was little outrage over the result of the trial and no cries for vengeance,” the Emory International Law Review said. “The public, including the parents of the teenagers killed, actually spoke out against any theoretical application of the death penalty.”

Under Norwegian law, Breivik can remain incarcerated after 21 years, if it’s determined that he’s still a threat to society.

In case you’re wondering, Norway has some of the lowest crime and recidivism rates in the world. Meanwhile the U.S. ranks among the highest in both categories.

The U.S. also has the world’s highest incarceration rate. Daley is among nearly 2.3 million people behind bars in this country.

He’s spent most of his last 16 years at out-of-state prisons because there’s not enough room in Vermont’s six prisons for all the people lawmakers, prosecutors and judges want to keep locked up.

Daley is currently among more than 200 Vermont inmates being stored 1,400 miles away at a private prison in Mississippi. Last Monday, 39-year-old Vermonter Christopher Chase died of an apparent suicide in his cell at the same Tallahatchie County Correctional Facility.

“He was a buddy,” Daley told me when we talked by phone on Wednesday. “The last time I saw him, he shook my hand and gave me a hug.”

Earlier in the week, Daley had learned that his petition for post-conviction relief was denied. Because Vermont doesn’t invest a lot in such things, Daley can’t expect to receive much job training or help with honing life skills before he returns to the outside world as a middle-aged man.

“I don’t want to think about doing another 10 years,” he said. “I’ll lose my mind.”

I guess Daley’s inability to get his sentence shortened was to be expected. In the end, it was too much to ask of a criminal justice system where retribution is the overriding desire.

Jim Kenyon can be reached at jkenyon@vnews.com.