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Jim Kenyon: Rethinking Sentence of Small-Time Dealer Who Killed Cop

  • Eric Daley in a photo he took of himself in March at North Lake Correctional Facility in Baldwin, Mich.

  • Eric Daley listens to his sentencing hearing on Sept. 13, 2004, in Vermont District Court in White River Junction, Vt. The 24-year-old killed state police Sgt. Michael Johnson with a car in 2003. (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, May 21, 2016

At the time of Eric Daley’s sentencing hearing in 2004, I wrote that the 25- to 33-year prison term he received for leading Vermont State Police on a high-speed chase that resulted in the death of Trooper Michael Johnson was a just punishment.

“Even Mother Teresa would have trouble finding Daley’s punishment too harsh,” is how I put it.

I was wrong. I now believe the sentence was too harsh, based on the facts, the circumstances, what has transpired since, and my recent conversations with Daley.

Court papers filed last month by the Vermont Prisoners’ Rights Office, which is working to get Daley’s conviction and sentence vacated, have also helped me see the case in a new light.

But emotions got the better of me that September day nearly 13 years ago. I wasn’t alone. A lot of people in the White River Junction courtroom nodded in approval after Judge Mary Miles Teachout handed down the sentence. Even law enforcement officers who came to see justice served seemed surprised at its severity. They were expecting Daley to get 20 years, at the most.

But who could find fault with Teachout’s decision?

Johnson, 39, was a husband and father of three young children. A 17-year state police veteran, he was killed on June 15, 2003 — Father’s Day. The “Mayor of Bradford,” as his obituary called him, was also a high school basketball coach who “loved serving the youth in local communities.” There wasn’t a church around large enough to hold his memorial service. Five days after his death in Oxbow High School’s 1,600-seat gym, there was barely an empty seat or dry eye.

Daley was a 23-year-old small-time drug dealer from Springfield, Vt., who sold mostly marijuana. A high school dropout who liked fast cars and partying.

On that fateful Sunday afternoon, Trooper Michael Smith stopped Daley for speeding on Interstate 91 South in Thetford. From a quick background check, Smith discovered that Daley had a short rap sheet for drug offenses, but hadn’t spent any time behind bars.

Smith and Sgt. Tim Page, who had also pulled up to the scene in his cruiser, wanted to bring in a drug-sniffing dog to go over Daley’s car, but finding a canine unit close by was taking a while. Whether state police had probable cause to detain Daley beyond the time it took to write a speeding ticket is a legal issue up for debate.

Daley, sitting in his car, grew antsier by the minute. After having just met with his supplier, he had 2 pounds of marijuana in his trunk. From his rear-view mirror, he could see the two troopers talking in Page’s cruiser.

“At that point, for some dumb reason, I panicked,” Daley told me recently.

He tore off down the highway in his black 1991 Nissan sports coupe, with the two state police cruisers following in hot pursuit. Daley reached speeds of 120 mph.

At the time of Daley’s traffic stop, Johnson was 5 miles south on the interstate in Norwich. Johnson radioed Page to ask if he wanted him to put down tire-flattening spike strips. Be quick about it, Page radioed back. Daley was only a mile north of him.

Johnson grabbed the spike strips from his cruiser’s trunk. Daley’s sports car came flying around a corner. Daley saw what he thought were a car’s brake lights straight ahead. “I feathered my brakes, trying to slow down,” he said.

The black Nissan skidded into the median, where Johnson was stationed, and flipped several times. Johnson ran for his cruiser, police said.

With dust and debris flying through the air, Daley said, he was unaware his car had struck anyone.

Daley jumped out of his car. He didn’t stop running until he reached the bank of the nearby Connecticut River. He flagged down two strangers in a canoe, asking them for a lift across the river to Hanover.

A friend drove Daley all the way to Pennsylvania, where he planned to elude authorities by taking to the Appalachian Trail. The morning after he set out on the trail, police caught up with him. He surrendered without a fight.

Daley spent a year in jail, including the first 2½ months in solitary confinement, awaiting trial. Because he had fled across state lines, prosecutors said they could turn his case over to the feds.

“They were talking about (seeking) the death penalty,” Daley said.

Partly to avoid federal prosecution, Daley pleaded guilty to seven charges, including involuntary manslaughter.

Under the plea agreement, prosecutors proposed a sentence of 28 to 33 years. At the sentencing hearing, Daley’s attorney, Matthew Harnett, of Rutland, argued for five to 15 years.

Teachout gave him close to the max.

That wasn’t all. For decades, Vermont, like many states, had awarded offenders with so-called “good time” for staying well-behaved and following prison rules during their incarceration. It could knock years off an inmate’s sentence.

Around the time of Daley’s sentencing, however, Vermont lawmakers for all practical purposes eliminated good time in response to demands by victims’ advocate groups for truth in sentencing.

It turned out that Daley was eligible for some good time, but it was subtracted from his maximum sentence.

As a result, Daley’s maximum and minimum release dates now are identical: June 9, 2029. The year he spent in prison awaiting trial brings his total to 26 years.

If nothing changes, Daley, now 36, will be released when he’s 49.

 

Does Daley deserve to spend 13 more years in prison? A lot of people probably think so.

But the Vermont Prisoners’ Rights Office doesn’t. On April 14, the state-funded office filed a petition on Daley’s behalf for “post-conviction relief” in Windsor Superior Court.

Harnett, Daley’s attorney, who died of cancer in 2012, didn’t pursue an important issue in the sentencing portion of the case, court documents suggest.

“A strong argument should have been made that the use of spike/tire deflation strips to effectuate the stop of Mr. Daley was reckless, negligent and unreasonable under the facts and circumstances at the time,” wrote Paul Volk, a Burlington attorney hired by Prisoners’ Rights to investigate Daley’s case.

There’s evidence that he’s right.

In 2013, the state’s insurance carrier reached a $4.5 million settlement with Johnson’s family, and court documents filed prior to it raised the possibility that state police might have erred in their pursuit of Daley, an argument that is again being made in the attempt to get his sentence vacated.

“The use of the spike strips in the manner that they were utilized in this case contravened appropriate police procedures and regulations, and was not done in a safe and adequate fashion by involved law enforcement, including Sgt. Johnson,” Volk argued.

Three months after Johnson’s death, state police “significantly” revised their vehicle pursuit policy. “That revision was reflective of Trooper Johnson’s incident,” the department’s spokesman, Scott Waterman, said last week.

A change pertaining to spike strips “requires troopers to choose a deployment location that provides adequate cover to protect the trooper from a vehicle potentially traveling at high speed,” Waterman said.

 

Daley’s petition is just starting to wind its way through the court system and likely won’t be heard until this fall. It’s probably a Hail Mary, but a few things are going in Daley’s favor.

America’s overreliance on incarceration is under public scrutiny. States and the feds are starting to figure out that a lock’em-up-throw-away-the-key approach is costly and ineffective. Vermont spends roughly $62,000 a year per inmate. About 4 in 10 are back in prison within a few years.

The national get-tough-on-crime movement that dates back to the 1970s emphasized punishment over rehabilitation. With 95 percent of offenders eventually being released from prison, elected officials are beginning to understand that a system focused on punishment isn’t a good long-term strategy.

“We went that way for a considerable amount of time,” said Vermont Chief Superior Court Judge Brian Grearson. “I’d like to think we’re making some progress in going back in the other direction.”

A while back, I brought up Daley’s case with former Windsor County State’s Attorney Bobby Sand, who prosecuted him.

“It might have been the right sentence at the time, but not necessarily now,” said Sand, who teaches at Vermont Law School.

Sand was by no means advocating for Daley’s early release. He was just bringing up an idea that’s gaining traction, nationally, among criminal justice experts: What if judges were given the authority to review a lengthy sentence after 10 years or so?

I mentioned the idea to Grearson. “I don’t know if it’s a proper role of a judge,” he told me, with his usual candor.

A judge’s original sentence is based on the “facts and circumstances that existed at that point,” Grearson said. After that, “we haven’t had any contact with the person. All the information we’d be getting is from the Department of Corrections.”

Marc Mauer, executive director of the nonprofit Sentencing Project in Washington, D.C., takes a different view.

A periodic review of an offender’s sentence is in “everyone’s interest,” he told me by phone. “On the day of sentencing, no one can predict what that person will be like in five, 10 or 20 years. We need to recognize that people mature in prison and many age out of criminal behavior.”

David Cahill, who became Windsor County state’s attorney in January, will be in charge of responding to Daley’s petition for post-conviction relief.

Cahill pointed out that the “proceeding will not be about whether Mr. Daley has been rehabilitated or not. It’s a much narrower issue.” That issue, largely, is did he have effective counsel?

Regardless, it opens a door, and brings up questions that go beyond Daley’s case — for starters, America’s decision to make its criminal justice system primarily about punishment in the last 40 years.

“For much of the 20th century, rehabilitation was the presumed goal of the (U.S.) corrections system,” said Mauer, who is recognized as a national expert on criminal justice reform. “It wasn’t practiced very well and didn’t have enough resources, but it was called corrections for a reason.”

The U.S. actually is an outlier when compared with many other developed countries. In April, 60 Minutes aired an enlightening piece on Germany’s criminal justice system where “prison isn’t meant to punish,” but costs less and produces far fewer repeat offenders than the U.S. system. In Germany, 75 percent of prisoners sentenced to life are paroled after 20 years or less, 60 Minutes reported.

 

How much benefit will come out of Daley spending 13 more years in prison? How much more vengeance is there to exact?

I met Daley in December during a visit to the North Lake Correctional Facility in Baldwin, Mich. He’s among about 220 inmates with lengthy sentences who Vermont keeps at the private prison to save money and ease in-state overcrowding.

We talked about the fatal crash, and his life before it.

His parents, both factory workers, were divorced when he was kid. He lived mostly with his mother in southern New Hampshire. He acknowledges being on the rebellious side.

“I put her through hell,” he said.

At 16, Daley dropped out of high school, but later earned his GED. He was a couch surfer, living with friends when not getting along with his mother and stepfather.

He started dealing pot. “I was just trying to make money,” he said. “I was a dumb kid doing dumb things, and something tragic happened out of it.”

He’s not the only one, of course.

In October 2011, for example, Norwich University student Derek Seber packed seven students into his small car on the way home from an off-campus party.

They never made it. One of Seber’s passengers, 18-year-old Renee Robbins, was killed in the crash.

Police said Seber, 22, had a blood alcohol level of more than twice the legal limit. After pleading guilty, Seber received a sentence of five to 12 years, with all but 2½ years suspended.

It might not be an apples-to-apples comparison. When police officers are killed in the line of duty, there’s an additional price to pay. But still, it provides useful context.

In recent months, I’ve talked about Daley’s sentence with police officers, lawmakers and lawyers who agreed privately that, looking back now, it seems excessive. No one wanted to go public. Supporting Daley isn’t a popular cause, and I completely understand why.

I also wondered what Teachout, the judge who sentenced him, thought about the case — nearly 13 years later. Grearson told me that the “code of judicial conduct precludes (judges) from commenting on any cases.”

I was hoping to talk with Johnson’s widow, Kerrie, as well. When I reached out to her through a family friend, she politely declined to comment.

 

I’ve talked with Daley quite a bit in recent months in person and by phone. He’s been incarcerated out of state for 12 years. He earns $2 a day working in the prison laundry. This winter, he won a prison-sponsored Scrabble tournament for inmates. First prize was a bag of Folgers coffee.

In the grand scheme of things, it doesn’t sound like much. But after being locked up for 13 years, Daley settles for small triumphs.

He’s grateful to his parents for sending him money to buy food and clothes. When there’s money in his phone account, he calls them at least once a week.

Daley said he’s had a couple of scrapes during his time behind bars but nothing in recent years. Early on, when he was still incarcerated in Vermont, he spent time in the hole for getting into a row with a guard over how to do laundry.

He tells anyone who will listen that he’s not the same person that he was 13 years ago. He also knows that few people are willing to forgive him for “choosing to flee that day, instead of dealing with the consequences. Everyone just looks at what I did. They’re not looking at who I am. They have already made their judgment, but I’m not a violent person. I’m not a threat.”

Thirteen more years behind bars sounds like an eternity to Daley. Too late to have a family or start his own business, perhaps something in the music world.

“I’m already scared to start over, but starting over at 49, with nothing and no technical skills to speak of, while trying to start a family seems almost impossible,” he said.

With all the talk about reducing Vermont’s prison population, and emphasizing rehabilitation over punishment, I’d argue that Daley has done enough time — or close to it — to warrant a second chance.

It doesn’t take a Mother Teresa to see that.

 

Jim Kenyon can be reached at jkenyon@vnews.com or 603-727-3212.