MONTPELIER, Vt. (AP) – If federal prosecutors take over the case of the man accused of killing a state police trooper with his car, he might face the death penalty, an expert says.

Public Safety Commissioner Kerry Sleeper said it was too early to say who would prosecute Eric Daley, charged with killing Sgt. Michael Johnson on Sunday during a police chase on Interstate 91.

But Sleeper said he would not oppose a decision to seek the death penalty under federal law.

“I can clearly state he killed one of my troopers. He killed him as surely as if he fired a bullet from a gun,” Sleeper said Wednesday. “I hope he pays the highest penalty the state and federal government can impose.”

Gov. James Douglas on Wednesday called the death of Johnson a terrible tragedy, but he said it was too soon to say if the death penalty would be appropriate.

“I am pleased that Mr. Daley was apprehended,” Douglas said at a Statehouse appearance. “I certainly have no mercy for Mr. Daley and I hope he will be dealt with harshly in our criminal justice system.”

Sleeper has said police are working with state and federal authorities to build a case against Daley. The Lebanon, N.H., man was arrested Tuesday on the Appalachian Trail in Pennsylvania where he was trying to elude police. Daley agreed to return to Vermont and was scheduled to appear in District Court in White River Junction late Thursday afternoon.

A message left Wednesday for U.S. Attorney Peter Hall was not immediately returned.

Daley drove away from police on Sunday after being stopped for speeding. Johnson laid spikes across the road trying to stop Daley’s vehicle and when Daley tried to drive around the spikes he hit Johnson, who died a short time later in a hospital. Daley then fled across the Connecticut River into New Hampshire.

Johnson, 39, was a 16-year veteran of the state police. He was married and had three children. Funeral services are planned for Friday at Oxbow Union High School in Bradford.

Daley, 23, has a long criminal history. He is currently charged with gross negligent operation with death resulting, leaving the scene of a fatal accident, and attempting to elude police, but more charges will be forthcoming.

Drug charges were pending against him in New Hampshire at the time of the accident and authorities say drugs were found in Daley’s car Sunday. Authorities have said Daley was in the process of making a drug delivery when he was first stopped.

Vermont has no state death penalty statute. Vermont Law School Professor Michael Mello said Johnson’s death was a quintessential state murder case. So there would be only one reason to involve federal prosecutors.

“If it’s a federal case they can seek the death penalty,” Mello said.

Mello said the federal Justice Department had been working to expand the use of federal death penalty laws.

“One thing I’ve learned is never to underestimate the creativity of the Ashcroft Justice Department in finding a federal hook to get the case in federal court and go after the death penalty,” Mello said. “(John) Ashcroft is a true believer, especially in states that don’t have the death penalty.”

As an example, Mello pointed to a case in Minnesota in which federal prosecutors are seeking the death penalty against a man accused of murder during an armored car robbery.

Despite not having a state death penalty, federal prosecutors in Vermont have worked on two capital cases in the past five years.

In 1998 prosecutors sought the death penalty against an Indiana man later convicted of sending a bomb via UPS that killed a Fair Haven teenager, Christopher Marquis. That case was resolved when the bomber pleaded guilty to the charges against him in exchange for a sentence of life without parole.

Federal prosecutors also sought the death penalty against Donald Fell who is charged with the 2001 kidnapping in Rutland of a Clarendon woman who was killed in New York state. In that case, U.S. District Court Judge William Sessions declared the federal death penalty unconstitutional, but his decision is being appealed.

Mello said it was unclear what, if any, impact Sessions’ decision in the Fell case would have in a possible federal prosecution of Daley.

Mello, who personally opposes the death penalty, didn’t know which federal law could be used to seek the death penalty against Daley, although Johnson’s death would have to be linked to federal drug laws.

“If anyone can find a federal hook it’s the wizards in the Ashcroft Justice Department,” he said.

Vermont is one of 12 states that does not have a death penalty, but cases like the death of Sgt. Johnson are the ones that prompt states to revive it. “All of those 12 states are only one hideous crime away from bringing back the death penalty.”

AP-ES-06-18-03 1751EDT

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