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Bar News - June 22, 2007


Double Trouble: NH’s Untested Death Penalty Faces Two Trials

By:


In events unprecedented in recent history, two unrelated capital murder cases are moving forward simultaneously in New Hampshire.  Lawyers in both cases are gearing up for lengthy litigation involving a law that has remained untested since it was last updated 17 years ago.
 

“I’ve been in New Hampshire for 22 years and at no time during those years have there been two concurrent death penalty cases,” said Manchester Attorney Michael Ramsdell, former chief of the Attorney General’s Homicide Unit. “It’s just not something that happens here very often.”

           

The cases against Michael “Stix” Addison, charged with shooting Manchester Police Officer Michael Briggs, and John “Jay” Brooks, charged in the murder-for-hire of Jack Reid Sr., are both a long way from trial. Addison—represented by the Public Defender’s Office with a team of three attorneys led by Richard Guerriero—is slated for trial in September 2008.  A trial date has not yet been set for Brooks, now represented by Attorney Christopher Carter. (At presstime, two other defendants in that case have been indicted on murder and conspiracy charges, but not capital murder.)

           

The trial is only part one in the process. Under the state’s capital murder statute, RSA 630:5, death penalty cases are automatically appealed to the NH Supreme Court. Addison’s attorneys recently filed paperwork in the Court seeking to halt all proceedings in that case because the Supreme Court does not have rules dictating how the attorneys should structure their appeal pleas.

           

Constitutional challenges to the death penalty statute, which dictates lethal injection as the method of execution, are expected. A number of states have seen challenges to lethal injection as “cruel and unusual punishment” under the 8th Amendment.

           

Since 1734, 24 people have been executed in New Hampshire. Howard Long was the last person executed (1939), though two men, Frederick Martineau and Russell Nelson, were convicted and sentenced to death in 1959 for murdering a businessman in a Nashua parking lot.   They were spared the death penalty in 1972 when the U.S. Supreme Court ruled in Furman v. Georgia that there must exist a degree of consistency in the application of the death penalty—and in several cases throughout the country the death penalty was thrown out.

           

The state’s capital murder statute, RSA 630:5, has seen scant use since it was last updated in 1990, as a result of the case against Kenneth Johnson of Bow.  At that time, the capital murder statute was declared unconstitutional.

           

Only one case has been brought forward under the current law, that of Gordon Perry who shot and killed Epsom Police Officer Jeremy Charron in 1997.  Perry ended up pleading guilty to capital murder as part of a deal to avoid the death penalty and was sentenced to life in prison without parole.

           

“A lot has changed in federal constitutional law that might make this law unconstitutional,” said Richard Dieter, executive director of the Death Penalty Information Center in Washington, DC. “These laws can easily be overturned the first time they go through the process.”

           

NH Attorney General Kelly Ayotte is confident that New Hampshire’s law will survive such challenges. “It’s modeled after a federal statute that has withstood challenges; we think it will stand up,” she said.

           

The law may face a stiffer challenge when reviewed under provisions of the NH constitution, since, in some instances, it provides greater protection than the U.S. Constitution, Ramsdell said.

           

Several states have recently seen their death penalty statutes declared unconstitutional; New York’s law was struck down in 2004 when a jury was told that if it did not come to a unanimous verdict, the judge could hand down a lesser sentence of life in prison with the possibility of parole.  Therefore, a jury might feel compelled to give a unanimous verdict even if the members weren’t truly of one mind.

           

The Kansas Supreme Court struck down that state’s death penalty law also in 2004, ruling it unconstitutional because it contained a provision giving the state an advantage when jurors found the aggravating and mitigating factors presented at sentencing carried equal weight. The Kansas law dictated that in such a situation, the defendant must be sentenced to death.

           

Ramsdell acted as prosecutor on the last two capital cases in New Hampshire—the Johnson and Perry cases—though he left the AG’s office before the conclusion of Perry’s case. One of the major challenges for prosecutors in capital cases is that, under the current statute, they have more to consider than whether the offense meets the legal criteria for the crime.

           

Before Ayotte can determine whether to bring a capital murder charge, she has to examine the evidence in light of aggravating and mitigating circumstances. “That’s just to make the charging decision,” Ramsdell said. “After that, the resources that are necessary to support either the prosecution or defense are tremendous.”

           

The capital murder law sets out a precise set of circumstances under which a defendant can be charged for “knowingly caus[ing] the death of:

 

  • “A law enforcement officer or a judicial officer acting in the line of duty or when the death is caused as a consequence of or in retaliation for such person’s actions in the line of duty;
  • [or] before, after, while engaged in the commission of, or while attempting to commit kidnapping as that offense is defined in RSA 633:1;
  • [or] by criminally soliciting a person to cause said death or after having been criminally solicited by another for his personal pecuniary gain; 
  • [or] after being sentenced to life imprisonment without parole pursuant to RSA 630:1-a, III; 
  • [or] before, after, while engaged in the commission of, or while attempting to commit aggravated felonious sexual assault as defined in RSA 632-A:2; 
  • [or] before, after, while engaged in the commission of, or while attempting to commit an offense punishable under RSA 318-B:26, I(a) or (b) of the Controlled Drug Act.”

 

Once the defendant is charged, both defense attorneys and prosecutors have an enormous amount of research ahead of them just to get up to speed on the death penalty statute. “We live in a place where we don’t consider capital murder very often,” Ramsdell said. “It’s a very specialized area of the law and since it doesn’t get used very often, there’s a learning curve.”

           

Attorneys on both sides have to research federal cases to ascertain the current posture of the law on issues from jury selection to notice requirements. “Certainly if you’re the prosecution on the case you have to recognize at every step that a procedural error could result in a reversal, if not of the conviction, then certainly of the sentence,” Ramsdell said. “It means you’re going to be working long hours and researching every issue that’s raised and you have to win all of them.”

 

Richard B. McNamara, a Manchester attorney (and current NHBA President) and a former prosecutor for the attorney general’s office, was appointed with Attorney Bill Brennan to represent William Gagne in a murder-for-hire case in 1982. The case eventually went forward as a first-degree murder case after the woman who hired Gagne pled guilty to second-degree murder in exchange for her testimony at trial.

           

“Having defended one of these cases, I learned that everybody handles them differently,” McNamara said. “Everybody looks twice at everything. Everybody’s more careful, particularly here in New Hampshire where the last execution was almost 70 years ago.”

           

Attorney Barbara Keshen, one of three public defenders on Perry’s case, spent an average of 60 hours per week on the case. “Unless you’ve worked on a death penalty case, you really can’t appreciate the effort it involves,” said Keshen, now counsel for the ACLU in New Hampshire. Because of the time required for the Perry case, her remaining cases were shifted to other attorneys. “It really means that other people become overburdened, so the quality of justice overall could suffer as a result,” Keshen said.

           

Attorney General Ayotte sought, and received, an additional $420,000 from the legislature for her office to cover the cost of bringing Addison to trial. The office hired an additional attorney and a paralegal for the criminal bureau.  The paralegal’s time is devoted to the capital cases. Three attorneys are assigned to each capital case, while a typical murder case is assigned to two attorneys, Ayotte said. She herself is actively involved in the cases and the office also has an intern to assist in the extra work.

           

On the defense side, the enormous costs of these cases has affected the justice system in other states, according to Dieter.  Georgia’s Public Defender system ran out of money and California has a four-year wait for death row inmates seeking court-appointed lawyers for their appeals.

           

Some question whether the financial resources necessary for a death penalty case is the best use of money. “If you give [almost] half a million dollars for an initial investment to the state, how do you not give the defense equal resources?” Keshen asked.  The costs reflect not only preparation of the case, which will likely include consultation and hiring of expert witnesses, but must consider the eventual expense of execution.

           

“We’re not a wealthy state and it’s really a bad use of resources to spend all this money to put one, and possibly two, individuals to death,” Keshen said, adding there is an alternative to the death penalty. New Hampshire does have a true life-sentence without the possibility of parole. “They hear the door lock behind them and know they’ll never get out,” Keshen said.

           

The state does not have a death chamber, though Ayotte predicts the facilities’ issue will be resolved long before the Addison and Brooks’ cases move forward.  The state must determine how to handle the execution of Gary Sampson, a Massachusetts case in which a federal judge ordered New Hampshire to be the site of execution.

           

There is also the issue of selecting a jury in a state that has seen support for abolishing the death penalty twice in recent years. “In my view, it is going to be a very difficult task for the prosecution to convince a New Hampshire jury to inflict the sentence of death,” McNamara said. “There is a sort of public unease across the country because of all the people found not guilty in homicide cases in the light of new scientific evidence.”

           

Ayotte said, “I have confidence in the jury system, that we will go forward and find a jury of New Hampshire citizens that can fairly consider these cases and apply the law.”

           

Lara Bricker is a freelance writer. She is a former staff writer and continues as a columnist for the Portsmouth Herald. She also worked as an investigator for the NH Public Defender. This is her first article for Bar News.

 

 

 

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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