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Kenyon: Court rights a wrong in overdose death

  • Jim Kenyon. Copyright (c) Valley News. May not be reprinted or used online without permission. Send requests to

Valley News Columnist
Published: 9/22/2020 9:40:36 PM
Modified: 9/22/2020 9:40:33 PM

Four years ago, Jacob Rillo sold a bag of heroin that resulted in the overdose death of a friend.

An autopsy report indicated the heroin that killed 26-year-old Jessie Boardman, of Chelsea, was laced with fentanyl, a synthetic drug that can be 50 times more potent than heroin.

The Vermont Attorney General’s Office charged Rillo, who was 24 at the time of his arrest, with “dispensing a regulated drug with a death resulting.”

Never mind that Rillo was hooked on opioids himself and was selling heroin to feed an addiction that was ruining his life. Vermont’s elected officials, like those in many states, want the public to believe the government can win its endless war on drugs by cracking down on small-time street dealers and people battling substance abuse.

When I wrote about Rillo’s case in March, I referred to a recent story in The New Yorker magazine about how nearly every state in the last two decades has employed the so-called “overdose-homicide option.” The magazine reported “addicts who share a lethal dose of drugs are being prosecuted as killers.” Sentences range from one year to the death penalty.

After his arrest, Rillo, who grew up in central Vermont and lived in Chelsea for a time as an adult, did what more than 90% of criminal defendants do: He took a deal.

Not wanting to risk a trial where he could be convicted and sentenced to up to 20 years in prison, Rillo agreed to plead guilty.

And that’s where the justice system broke down.

At his sentencing hearing in 2018, Rillo denied knowing at the time of the sale that the heroin was mixed with fentanyl. But that didn’t stop Superior Court Judge Howard VanBenthuysen from sentencing Rillo to five to 10 years behind bars.

While he’s been locked up, Rillo has had one thing going for him that many poor defendants don’t have — a skilled litigator who could argue his case before the Vermont Supreme Court.

Josh O’Hara, a staff attorney with the Vermont Defender General’s Office, specializes in Supreme Court appeals. The 39-year-old O’Hara, who finished a stint as president of the Vermont Association of Criminal Defense Lawyers earlier this year, has worked on behalf of indigent clients since 2011.

In March, I attended Rillo’s hearing before the state’s highest court. O’Hara, who wasn’t involved in Rillo’s case before the appeal, argued that his client’s guilty plea “lacked a factual basis.”

It’s “pretty clear” that Rillo didn’t learn until after Boardman’s death that the heroin he sold contained fentanyl, O’Hara said.

In a decision announced Sept. 11, the five judges ruled unanimously to reverse the conviction. “We agree with (Rillo) that there was no factual basis for his guilty plea because he did not admit to knowingly selling or dispensing fentanyl,” Chief Justice Paul Reiber wrote. “It is irrelevant to the crime charged that (Rillo) later knew… His admission to that later knowledge is thus insufficient to establish a factual basis for the ‘knowing’ element of the alleged crime.”

The Supreme Court sent the case back to the lower court for resentencing. There’s a good chance that Rillo, who has already served three years, could be out soon.

But he still faces another “dispensing a regulated drug with a death resulting” charge in the overdose of 23-year-old Jesse Kampen, of Brookfield, Vt., who died after using fentanyl-laced heroin in February 2017. Rillo has pleaded not guilty.

Charity Clark, chief of staff for Attorney General TJ Donovan, declined to comment on the Supreme Court’s ruling, other than to say “we look forward to a resolution at the trial court.”

I might be overly optimistic, but the ruling could have repercussions beyond Rillo.

“We’re learning there are similar cases where this might make a difference for some people,” O’Hara told me in a phone interview.

Former Windsor County State’s Attorney Bobby Sand, who is now on the faculty at Vermont Law School, doesn’t think the decision is a “game changer.” But it “reaffirms that prosecutors must be careful with the charges they’re lodging,” he said. “The government has to meet the bar that it sets.”

Anything that prompts prosecutors to hold back before taking a hard line in fatal overdose cases would be progress. Some tragedies are truly accidents. Locking up the guy who unknowingly provided a lethal drug doesn’t alleviate the state’s drug problem. But getting him treatment would.

“It could have implications for the way we treat people at the end of the (drug) pipeline,” O’Hara said.

At his sentencing hearing, Rillo said he became a “runner,” transporting heroin from Holyoke, Mass., and other opioid hubs to Vermont. “I never sold drugs to make a living,” he said. “I only sold because I was homeless and if I wanted a place to stay, people would expect stuff.”

VanBenthuysen, the superior court judge, told Rillo, “there’s no evidence that you were a dealer. You, I think it’s clear, were basically doing this to survive.”

But the judge still hit Rillo with a lengthy prison sentence in hopes that it would give “other people pause when they set out on a career of being runners,” VanBenthuysen said.

Do laws that carry stiff penalties actually serve as a deterrent?

“Maybe it works for the people making the laws who grew up in stable environments,” Sand said. “But when you’ve grown up in perpetual chaos and the doors to success are double locked, you’re not worrying about the consequences.”

If nothing else, the Supreme Court has given lawmakers something to think about. Does Vermont want to continue being a state that too often treats substance abuse disorders as a crime rather than an illness?

Jim Kenyon can be reached at

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