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Jim Kenyon: Turning the tables on Vt. police policies after manslaughter conviction

  • Valley News columnist Jim Kenyon in West Lebanon, N.H., on Jan. 28, 2019. (Valley News - Geoff Hansen) Copyright Valley News. May not be reprinted or used online without permission. Send requests to

Valley News Columnist
Published: 2/12/2019 6:10:01 PM
Modified: 2/12/2019 6:10:07 PM

At the time of Eric Daley’s sentencing in 2004, it was easy to believe the two-bit drug dealer (marijuana, mostly) got the lengthy prison sentence that he deserved.

I did.

On Father’s Day 2003, Daley, then 23, was involved in a high-speed chase with Vermont State Police on Interstate 91 that resulted in the death of Trooper Michael Johnson, of Bradford. Johnson, a 39-year-old husband and a father of three young children, was a 17-year state police veteran and high school basketball coach.

Daley, a high school dropout, pleaded guilty to an array of charges, including involuntary manslaughter, drug possession and attempting to elude police, for which Judge Mary Miles Teachout sentenced him to 26 to 33 years.

But was Daley solely responsible for Johnson’s death? Or did state police actions and policies also figure into the tragedy?

These are questions I didn’t think to ask at the time, but that were raised on Monday by lawyers now working on Daley’s behalf during his “post-conviction relief” trial at Windsor Superior Court in White River Junction.

After nearly 16 years behind bars, Daley is asking Judge Timothy Tomasi to vacate his sentence on the grounds that his court-appointed lawyers were constitutionally ineffective. (The primary defense lawyer, Mark Harnett, of Rutland, died of cancer in 2012.)

If the judge sides with Daley, he could be granted a new sentencing hearing, or even be allowed to withdraw his guilty pleas and have his case restarted. (A decision is probably a few months away.)

Robert Appel, Vermont’s former defender general, is now representing Daley. Paul Volk, another prominent Vermont criminal defense attorney, has been hired as an expert witness.

Much of their argument centers on the failure of Daley’s original attorneys to challenge the role that state police played in the fatal crash.

On the fateful Sunday afternoon in June 2003, Trooper Michael Smith stopped Daley for speeding on I-91 south in Thetford. In a quick background check from his cruiser, Smith could see that Daley had a rap sheet for misdemeanors, including drug offenses.

On Monday, Daley, now 38, testified that the trooper asked a half dozen or so times for permission to search his car. “He kind of bullied me,” Daley said, “but I held my ground.”

Smith eventually issued Daley a ticket for speeding. As Daley was about to drive away, however, Smith ordered him to stay put. Smith and Sgt. Tim Page, who had pulled up to the scene in his cruiser, were calling in a drug-sniffing dog.

Appel and Volk argued that after issuing the speeding ticket and repeatedly being denied consent to search Daley’s car, state police had no legal authority to continue detaining him.

“The events that transpired (later) that day were the product of an unlawful detention,” Volk testified.

In legal parlance, it’s known as the fruit of the poisonous tree. Harnett should have filed court motions to argue that Daley’s extended roadside detention was “unconstitutional police conduct,” Volk said. “There is a possibility the case would have been dismissed,” he said.

At the very least, Harnett could have used the questionable stop as a “bargaining chip with the prosecution” during plea negotiations, Volk added.

Law enforcement’s decision to pursue Daley in a high-speed chase also raises issues that Harnett apparently didn’t press. Troopers knew from Daley’s driver’s license and car registration where he lived. Their interest in detaining him stemmed from their suspicion that he was carrying drugs, not that he had committed any violent crimes.

Then came the decision to have Johnson, who was in his cruiser 5 miles south on the interstate in Norwich, put down tire-flattening spike strips on a busy highway to stop Daley.

It wasn’t well thought-out, Volk said. “This was a decision that was made very quickly,” he said, adding that cops could have “broken off the pursuit” instead of escalating the situation. (After Johnson’s death, state police changed policies for how and when to deploy spike strips.)

Although it wasn’t mentioned on Monday, civil court documents filed prior to the state’s insurance carrier reaching a $4.5 million settlement with Johnson’s family in 2013 raised the possibility that state police might have erred in their pursuit of Daley.

Windsor County State’s Attorney David Cahill didn’t prosecute the original case against Daley, but he is handling the post-conviction relief matter. Cahill and Colin Seaman, a Waitsfield, Vt., attorney serving as the state’s expert witness, argued that Harnett’s work in the case met the profession’s “minimally competent standard.”

Seaman put little stock in Daley’s argument. Although state police might have gone “a little far” in the traffic stop, troopers still had reason to chase after Daley and put down the spike strips, Seaman said.

Harnett didn’t have a lot to work with, Seaman said. “You’ve got the media, the family, a lot of the public” already against Daley, he testified. He argued that the defense blaming police would only “make things worse.”

A few years ago, after learning more about the case and talking extensively with Daley, I changed my thinking. As I’ve written before, he deserved a lengthy sentence but enough is enough. If he loses this round, he’ll likely have to finish his minimum sentence of 10 more years behind bars.

By comparison, Derek Seber, 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. 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.

During a break in Monday’s trial, I caught up with Appel outside the courtroom. Bringing up the state police’s role in the events preceding Johnson’s death is “painful but appropriate,” Appel said. “Their bad choices don’t count in this forum, only Eric’s.”

Jim Kenyon can be reached at

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