NEK judge throws out drug conviction, rules public defenders failed

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Dylan Cote posted this photo of himself to Facebook in September 2018, a few months after his release.

A judge has scrapped the drug conviction of an Orleans County man who sued the state, contending that his public defenders didn’t do their jobs.

Judge Mary Miles Teachout vacated the 2018 conviction of Dylan Cote, 26, for conspiracy to sell, deliver, manufacture or grow a regulated drug.

“The undisputed material facts show that the performance of Mr. Cote’s attorneys fell below the required standard of practice, and the errors prejudiced Mr. Cote,” Teachout wrote in her decision July 19. Cote’s case may have ended differently, she wrote, “if there had not been ineffective assistance of counsel.”

Cote was represented by Northeast Kingdom Law, the primary public defense contractor in Orleans and Caledonia counties. For years, people in legal circles have worried that staffing problems and the firm’s workload could compromise clients’ rights. 

<img data-attachment-id="212898" data-permalink="https://vtdigger.org/2017/11/15/herring-sentenced-life-behind-bars-no-parole/jody-herringss-attorney-david-sleigh-2/" data-orig-file="https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347.jpg" data-orig-size="2741,1923" data-comments-opened="1" data-image-meta="{"aperture":"4","credit":"Bob Locicero","camera":"NIKON D750","caption":"Jody Herrings's attorney David Sleigh","created_timestamp":"1510573313","copyright":"Bob LoCicero (c)","focal_length":"135","iso":"5000","shutter_speed":"0.004","title":"Jody Herrings's attorney David Sleigh","orientation":"0"}" data-image-title="David Sleigh" data-image-description="

Defense attorney David Sleigh. Photo by Bob LoCicero/VTDigger

” data-medium-file=”https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-300×210.jpg” data-large-file=”https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-610×428.jpg” src=”https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-610×428.jpg” alt=”David Sleigh” class=”wp-image-212898″ width=”298″ height=”209″ srcset=”https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-610×428.jpg 610w, https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-125×88.jpg 125w, https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-300×210.jpg 300w, https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-768×539.jpg 768w” sizes=”(max-width: 298px) 100vw, 298px”><img data-attachment-id="212898" data-permalink="https://vtdigger.org/2017/11/15/herring-sentenced-life-behind-bars-no-parole/jody-herringss-attorney-david-sleigh-2/" data-orig-file="https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347.jpg" data-orig-size="2741,1923" data-comments-opened="1" data-image-meta="{"aperture":"4","credit":"Bob Locicero","camera":"NIKON D750","caption":"Jody Herrings's attorney David Sleigh","created_timestamp":"1510573313","copyright":"Bob LoCicero (c)","focal_length":"135","iso":"5000","shutter_speed":"0.004","title":"Jody Herrings's attorney David Sleigh","orientation":"0"}" data-image-title="David Sleigh" data-image-description="

Defense attorney David Sleigh. Photo by Bob LoCicero/VTDigger

” data-medium-file=”https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-300×210.jpg” data-large-file=”https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-610×428.jpg” src=”https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-610×428.jpg” alt=”David Sleigh” class=”lazyload wp-image-212898″ width=”298″ height=”209″ data-sizes=”(max-width: 298px) 100vw, 298px” srcset=”https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-610×428.jpg 610w, https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-125×88.jpg 125w, https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-300×210.jpg 300w, https://vtdigger.org/wp-content/uploads/2017/11/Jody-Herring-Sentencing-11-13-17-6710-1-e1510601533347-768×539.jpg 768w”>

Defense attorney David Sleigh in court. Photo by Bob LoCicero/VTDigger

The firm’s owner, Jill Jourdan, did not respond to a request for comment.

“I thought that this was a pretty egregious and plain case of inadequate representation,” Cote’s lawyer, David Sleigh, said after the ruling. 

Sleigh said Cote is happy to no longer be on parole, though “had his lawyer done a minimum amount of work, he in all likelihood wouldn’t have spent any time in jail at all.”

Cote’s suit, filed in April 2020, centered on the circumstances surrounding his arrest three years prior and the issue of suppression of evidence. 

On an April 2017 night, Cote was riding in a Toyota pickup truck with Trevor Letourneau. The then-22-year-olds were headed to Barton on Interstate 91.

Police had received a tip that the pair were traveling with “a large quantity” of heroin, records show. 

A local sheriff’s deputy and a state trooper followed the truck to the Circle K in Barton. When Letourneau failed to signal his turn out of the parking lot, the trooper pulled the truck over. 

During the stop, the deputy brought out a police dog to sniff around the truck, records show. The dog alerted the deputy that it could smell heroin, records show.

In an affidavit, the deputy wrote that both men agreed to a search of their persons and the truck.

The deputy found two bags containing suspected heroin in Cote’s wallet, according to police records. In the truck, officers found empty glassine bags, a container with a white powdery substance, a metal spoon, a hypodermic needle, a dinner plate with white powdery residue on it, aluminum foil and plastic wrap, according to police records.

They also found 80 bags of heroin, the officers wrote. Letourneau had bought the drugs to sell them, Cote later told police, according to records.

Both men were arrested on heroin-related offenses. But Letourneau’s case was dismissed, and Cote received a prison sentence of two to seven years.

Letourneau’s public defender, Gertrude Miller, was able to suppress key evidence by arguing that the officers illegally expanded their traffic stop by bringing out a K-9 to sniff for drugs. 

Jourdan and another NEK Law attorney, Dan Harnick, discussed the suppression issue but decided not to file a similar motion, according to the ruling issued last week.

Public defender Jill Jourdan speaks with a sheriff’s deputy before appearing in Orleans County Superior Court in Newport on Thursday, August 15, 2019. Photo by Glenn Russell/VTDigger

In depositions, Jourdan said she could not remember conducting any legal research related to Cote’s case. Harnick said he had done some research but didn’t remember any specific cases he reviewed. 

Cote and Sleigh maintain that his previous lawyers never talked to him about suppressing evidence. Jourdan, in depositions, said that she would have done so when she first talked to him in January 2018 — two days before jury selection would begin and months after the deadline for filing a motion.

Regardless, Teachout wrote, it can be inferred that no conversation about a motion to suppress happened before the filing deadline.

Cote pleaded guilty — after pressure from his public defenders and against his wishes, he says — the same month. He was released on parole that June 2018, having accumulated time served while his case made its way through the legal system.

A few weeks later, a judge approved Miller’s motion to dismiss Letourneau’s case, saying the traffic stop could not be used as a conduit to a drug dog search. But Jourdan and Harnick decided not to tell Cote anything about it.

The two lawyers said in depositions that they had no further obligation to Cote, as his case had been decided.

Judge Mary Miles Teachout works from the bench in Orange District Court on Dec. 19, 2008. Photo by Jennifer Hauck/Valley News

However, Teachout wrote that there is no dispute that “a required standard for criminal defense attorneys is that when, after conviction, counsel becomes aware of newly discovered information that creates a reasonable likelihood that a former client was wrongfully convicted, counsel has a duty to act.”

That duty, she wrote, continues after the attorney no longer represents the client. 

An expert witness for Cote in his suit, attorney Daniel Sedon, opined that because his lawyers never discussed or pursued a motion to suppress the evidence, Cote was “deprived of the opportunity to make an informed decision about whether to pursue a motion that could have resulted in avoidance of a felony conviction, or whether to waive rights and take a plea bargain, or whether to go to trial.”

The state offered no different expert opinion, and Teachout accepted Sedon’s testimony as fact.

Vermont laws on search and seizure provide greater protections than those in the Fourth Amendment, Teachout wrote, and the expansion of the traffic stop in 2018 led to police seizing “significant evidence implicating Mr. Cote.” 

Jourdan and Harnick’s lack of research into the search-and-seizure questions at play, and their decision not to file a motion to suppress evidence, “cannot be justified as a tactical choice,” Teachout wrote. 

The state has 30 days from the date of the ruling to appeal the decision. But Sleigh said “this sort of decision is rarely reversed” and predicted a “slim chance of success.”

He called the case “symptomatic of a serious, serious problem” in public defense in the Northeast Kingdom.

Correction: Daniel Sedon’s name was spelled incorrectly in an earlier version of this article.

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