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Bar News - November 18, 2011

High Tension at the High Court


The US Supreme Court recently heard Perry v. New Hampshire, a case in which eyewitness testimony was brought under scrutiny. Richard Guerriero, above right, of the NH Public Defender’s Office argued on behalf of Barion Perry, while NH Attorney General Michael Delaney, lower right, argued for the state.
Ascending the marble staircase and entering the stately US Supreme Court building to argue a case before the nation’s top nine legal minds is the pinnacle of achievement for trial lawyers.

"Every lawyer’s dream is to one day argue a case before the Supreme Court of the United States," said New Hampshire Attorney General Michael Delaney, who found that dream becoming reality Nov. 2, as he prepared to argue on behalf of the state in Perry v. New Hampshire. "It’s a very special thing, and one that is unlikely to repeat itself in my career."

The oral arguments in Perry v. New Hampshire marked the first time in decades that a criminal case from the Granite State has made its way to the country’s highest court. In Delaney’s view, that fact means the state’s justice system has been effective in its handling of criminal prosecutions, because "a lot of states get to the highest court in the land for the wrong reasons."

For attorneys on both sides of the Perry case, which pivoted on the controversial topic of eyewitness identification evidence, the experience was both humbling and nerve-wracking.

"The dynamic is indescribable," said David Rothstein, New Hampshire deputy chief appellate defender, who joined public defender and lead counsel Richard Guerriero at the counsel table. "You’re standing in front of nine people that are the smartest people you can imagine in your profession, and they’re all questioning you all at once… Even experienced advocates, I think, have difficulty maintaining control in a situation like that. You’re just trying to keep your balance, so to speak."

Both Guerriero and Delaney, who was joined at the counsel table by Assistant Attorney General Tom Bocian, faced tough questions from the justices, but after countless hours of preparation and with the help of their colleagues, they were ready for the challenge.

Guerriero, who represents 32-year-old indigent defendant Barion Perry of Nashua, was interrupted at every turn during his 30-minute argument, as the justices attempted to poke holes in his theory that witness identification evidence, because of its unique propensity to result in wrongful conviction, ought to receive special treatment in the eyes of the law.

Despite his best effort, however, the content and tone of the discourse suggested that the Supreme Court doesn’t favor creating new rules or precedents to address the issue.

"It was very intense," Geurriero said later. "The court was not entirely receptive to our position, but we expected that."

Guerriero argued that the court should allow due process challenges to eyewitness identifications made under suggestive circumstances, even when police didn’t orchestrate those circumstances, as was the case in Perry. But across the bench, the justices appeared to side with Delaney, who argued that allowing such challenges would open the floodgates for all kinds of evidence that could be deemed unreliable, resulting in a fundamental change in the criminal trial process.

"Why is unreliable eyewitness identification any different from unreliable anything else?" asked Justice Antonin Scalia, who took the lead in aggressively challenging Guerriero’s argument.

Guerriero tried to focus the justices on a string of cases the High Court decided in the 1960s and 1970s — the last time the court addressed the issue — in which the court found that eyewitness identification evidence posed a unique threat to justice in the criminal courtroom, in part because witnesses who believe their own testimony are extremely convincing to jurors, even when they are wrong. Scientific research over the last 10 to 15 years has repeatedly proven that witness misidentification is one of the leading causes of wrongful conviction in America.

"I think that what the Court has said is that there is something special about eyewitness identification testimony," Guerriero said.

"I’m saying we don’t mean it," Scalia responded.

None of the justices, least of all Scalia, seemed willing to explore the research or the precedent cases, choosing instead to discuss the implications of a finding in favor of Perry. Justice Elena Kagan acknowledged the research, saying it "should lead us all to wonder about the reliability of eyewitness testimony," but made clear her reservations about giving special treatment to witness identification evidence.

"I’m just suggesting that eyewitness testimony is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think," she said.

Perry was convicted of stealing property from a parked car at a Nashua apartment complex based in part on the testimony of a witness who identified him from her second-floor window. Existing law and rules of evidence allow a challenge and subsequent hearing under the due process clause when witness identification happens as the result of police manipulation. In Perry’s case, the witness gave a vague description of the man she had seen taking equipment from the trunk of her neighbor’s car, and when asked by police to be more specific, she pointed to the window and to Perry, who was standing in the dark parking lot next to a police officer and the stolen goods.

Guerriero conceded the state had no part in creating the suggestive circumstances under which the witness identified Perry, but argued that because the circumstances were nonetheless suggestive, the court should have independently decided whether the evidence was reliable before allowing it at trial.

Delaney and US Justice Department attorney Nicole Saharsky, who backed the state’s position in a 10-minute presentation, argued that the judicial system already provides tools, such as cross-examination, special jury instructions and closing arguments, that defense attorneys can use to show jurors why specific evidence is unreliable.

Justice Anthony Kennedy agreed, saying that by not giving jurors the opportunity to decide whether evidence is reliable, "You’re just usurping the province of the jury."

Delaney, during a telephone interview, chose not to comment on the apparent leanings of the court, preferring to wait until the justices issue an opinion. He said the case wasn’t about winning or losing.

"My job as attorney general is not win or lose this case, but to seek justice on behalf of New Hampshire and argue for one side as an officer of the court," he said.

Delaney and Guerriero traveled to Washington, D.C., on the same plane, both with family along for support. The two attorneys waited together in the lawyers lounge at the Supreme Court building for about an hour before their case was called.

"It was kind of interesting," said Guerriero, director of training and litigation support for the New Hampshire Public Defenders Office, "because we were on opposite sides of the case, but our lives aren’t that different."

Thousands of cases are proposed for review by the US Supreme Court each year, but the High Court only accepts about 100. The court has no statutory timeframe for deciding the Perry case, but a decision is expected sometime in late winter or early spring.

Perry Coverage in Bar News

Bar News regrets the misperception created by its choice of a photo to illustrate our front-page preview of the Perry v. New Hampshire case in the October 14 Bar News. The caption correctly noted that the case involved the reliability of an eyewitness identification in suggestive circumstances; however, the image of a suspect in handcuffs created a misleading impression of law enforcement’s role in arranging those circumstances.

For further information, please see the Bar's
Barion Perry v. State of New Hampshire web page, updated regularly with links to pleadings and coverage of the case.

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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