The two police officers pulled their cruisers onto Interstate 91 south of Barton, tailing their target.
It was April 14, 2017, and the officers had just spotted what they’d been waiting for: a Toyota pickup with Dylan Cote and Trevor Letourneau inside.
One failure to signal a turn later, and the two 22-year-olds were arrested on heroin-related offenses.
Letourneau’s case was dismissed. Cote received a prison sentence of two to seven years. Why?
Because Northeast Kingdom Law, the primary public defense contractor in Orleans and Caledonia counties, negligently represented Cote, according to claims in a civil lawsuit against the state.
Letourneau’s public defender 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.
But NEK Law attorneys never pursued that argument or discussed it with Cote, the lawsuit says. They pressured him instead into taking a plea deal, and after his conviction, when Letourneau’s case was dismissed, they decided not to do anything to help their former client, according to the lawsuit.
Cote filed the suit last April. His attorney, David Sleigh, filed for summary judgment March 17 — asking the court to rule that Cote’s defense was ineffective and hurt his case, to vacate his conviction and to send the case back to criminal court.
“I don’t think there’s any question that their performance in this case fell well below the minimum standards that apply to lawyers in this area, and there is absolutely no doubt that their (defense) was prejudicial to Dylan,” Sleigh said.
Cote lives in the village of Orleans. He is currently on parole.
The case came after a VTDigger report in September 2019 on the ability of NEK Law to handle its caseload in the Kingdom. People in legal circles believed that staffing problems and the firm’s workload could compromise clients’ rights. Owner Jill Jourdan acknowledged at the time that was a possibility.
Jourdan declined to talk to a reporter for this report, saying only, “I hope your readers understand that these are mere allegations, and not necessary facts.”
Orleans County State’s Attorney Jennifer Barrett had not yet filed a response to the motion.
Traffic stop leads to drug arrest
Police had received a tip from a “concerned citizen” that Cote and Letourneau would be traveling to the Barton area that April 2017 night from Hartford, Conn., records show.
The pair would be traveling with “a large quantity” of heroin, police believed.
After Orleans County Sheriff’s Deputy Tyler Jacobs and Vermont State Police Trooper Steven Fauteux saw Letourneau’s silver truck on the highway, they followed it to the Circle K in Barton, records show.
At the gas station, Jacobs told Letourneau about the tip, records show. But Letourneau denied having any heroin on him or in his truck. Letourneau and Cote were free to go until Letourneau failed to signal his turn out of the parking lot. Fauteux pulled the truck over.
During the traffic stop, Jacobs brought out a police dog to sniff around the sides of Letourneau’s truck, records show. The dog alerted the deputy that it could smell heroin, records show.
In an affidavit, Jacobs wrote that both men agreed to a search of their persons and the truck.
Fauteux 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.
Illegal search
NEK Law was assigned to represent Cote, while another state contractor, lawyer Gertrude Miller, was assigned to represent Letourneau.
In November 2017, Miller filed a motion to suppress all the evidence police obtained in the search, and to dismiss the case.
“The evidence was obtained as a result of the illegal expansion of a motor vehicle stop into a criminal drug investigation,” Miller wrote, arguing that the search violated Letourneau’s rights under both the U.S. and Vermont constitutions.
“The instant that law enforcement deployed K9 Jonah around Mr. Letourneau’s vehicle, the police stop on Duck Pond Road … was illegally expanded,” Miller wrote.
Miller cited a Vermont Supreme Court case from 2016, involving a similar traffic stop resulting in drug charges. The court ruled that the use of a K-9 unjustifiably extended the investigation beyond the scope of the initial stop.
That state case relied on a U.S. Supreme Court case from 2015, Miller wrote, in which a majority held that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”
Miller wrote that the Supreme Court decision, when applied to Letourneau’s case, made all evidence gathered from the search inadmissible in court.
‘Suppression is the No. 1 issue’
In the current lawsuit, Sleigh wrote that “Mr. Cote and Mr. Letourneau were identically situated in their standing to raise the suppression issue proffered by Ms. Miller.”
But Cote’s lawyers, Dan Harnick and Jourdan, never made such a motion, Sleigh wrote, and their files show no record that they discussed the idea or mentioned it to Cote.
That was a failure by the defense team, Sleigh said in an interview.
“I can’t emphasize enough how fundamental it is in a drug case to pursue every suppression theory you can come up with,” he said. “More so than in any other case, suppression is the No. 1 issue in a drug possession case.”
In a deposition last December, Jourdan disputed the claim that suppression never came up.
“If I told you Mr. Cote’s recollection is that he had never even heard the motion — the word suppress — from either you or Mr. Harnick, would you be surprised?” Sleigh asked Jourdan, according to a transcript.
“I would think that he’s a liar, is what I would think,” Jourdan said.
Jourdan said she couldn’t recall specifics of her conversations with Cote, but maintained that suppression would have been on her mind and that she would have talked to her client about it.
“But,” she said, “my analysis of it was that it wasn’t necessarily a winner, and there were other things to consider.”
In the lawsuit, Sleigh also writes that Cote insisted he was innocent of the charges and didn’t want to plead guilty — though he eventually did in January 2018 and was sentenced to two to seven years.
Harnick, in a deposition last November, disagreed. “From very early on, he was telling me to try to get a deal worked out,” said Harnick, who no longer works for NEK Law.
Harnick added, “My recollection was that he actually wanted to resolve this matter quickly.”
However, according to notes from the heroin case cited by Sleigh, on several occasions Cote indicated that he didn’t plan to accept any plea bargains and wanted to fight the charges.
“Dylan was pressured to change his plea on the few times that he was afforded the opportunity to speak to his lawyers, who never did any research,” Sleigh said in an interview.
Decided to tell him nothing
In the summer of 2018, several months after Cote pleaded guilty, Miller’s motion to suppress evidence against Letourneau succeeded.
Records in the current lawsuit show that Harnick and Jourdan decided against telling Cote that Letourneau had beaten the rap or trying to remedy Cote’s situation.
“Given the nature of the plea agreement, the nature of the charges, Mr. Cote’s imminent release on furlough, and the possibility of the trial court’s order being overturned, it is our opinion that it’s not in Mr. Cote’s best interest to attempt to withdraw his plea,” Harnick wrote in an August 2018 memo.
Cote had actually been released two months earlier, in June 2018. Sleigh said that, because the public defenders never contacted Cote after his conviction, they never knew he was already out.
Harnick later told Sleigh in his deposition that he and Jourdan discussed whether to inform Cote about the ruling and decided to tell him nothing.
In the lawsuit, Sleigh argues that Harnick and Jourdan demonstrated poor legal service by not telling Cote or attempting to take action after Letourneau’s success.
Harnick and Jourdan both said in their depositions that they had no further obligation to Cote, as his case had been decided months before.
In an interview, Sleigh said that, in his opinion, that position flouts both standards for defense lawyers from the American Bar Association and “basic ethical notions.”
Harnick and Jourdan could have talked to the prosecutor, or filed a motion in court confessing to ineffective counsel, and worked to get the conviction vacated, he said.
“It’s not as simple to just say as soon as the case closes that your obligation ends,” he said. “It’s dependent on the circumstances that followed that closure.”
So far, nothing has happened in the case since Sleigh filed a motion for summary judgment. He doesn’t expect it to be wrapped up this month.
