New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

Keep your contact information up-to-date.

Visit the NH Bar Association's Lawyer Referral Service (LRS) website for information about how our trained staff can help you find an attorney who is right for you.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - January 21, 2015

Criminal Law: Landmark Decision Alters Tactical Landscape for Prosecutors

Key Take-Aways from
Locke and Glenn
  • Chris Johnson’s advocacy should serve as a reminder that when a factual scenario presents a compelling case for relief, but the law is unfavorable, it’s important to argue that the law should be changed – even if it’s a long shot. The Court has reversed itself or adopted new doctrines on many occasions in both civil and criminal appeals in recent years. We all have heard that “bad facts make bad law.” The Locke decision reminds us that good facts make new law.
  • Don’t be hesitant to challenge the Court’s past decisions or its doctrinal approaches to legal issues in briefing or oral argument. At the last Appellate Advocacy CLE, members of the Court encouraged the audience to openly question its decisions and doctrines – the Locke decision demonstrates that they meant what they said.
  • Poll the jury when you lose. Even though it only makes a difference in one in, perhaps, 1,000 cases, you don’t want your client to be that one and have no available relief.
  • Read your slip opinions the day they come out!

Last June, in a landmark decision that received little notice, the New Hampshire Supreme Court adopted a “mandatory joinder” rule that promises to have a lasting and widespread impact on our criminal justice system. The Court embraced that rule in State v. Locke to avoid an unjust outcome – continued criminal prosecution after acquittal by jury – under circumstances where the rule against double jeopardy did not necessarily apply.

Several months later, the Court applied the new rule in the Glenn appeal (which this author handled; see summary of the case) to require the post-conviction dismissal of five felony charges.

With these two decisions, the Court substantially changed the tactical landscape for prosecutors as they select charges for potential indictment against a defendant.

In State v. Locke, the Court addressed the appeal from a criminal prosecution that had followed a truly bizarre procedural path. In a storyline that would be more at home on a sensationalized TV crime drama than in the real-life justice system, Jamie Locke was first acquitted by a jury that actually intended to convict her, and then convicted by a jury that, according to the New Hampshire Supreme Court, never should have been allowed to hear the case.

The case arose out of reports that on a cold November night, several individuals had beaten a highly intoxicated man and thrown him over an embankment into the frigid waters of the Merrimack River. The Concord Police, responding to the emergency call but unable to negotiate the steep embankment, reportedly had to send out a boat to rescue the victim.

Locke and two other defendants were indicted on a number of felony charges, including, for Locke, conspiracy to commit murder, accomplice to attempted murder, attempted murder, and first-degree assault, as principal and accomplice. She took her case to trial, and the jury acquitted her of all but one charge, accomplice to attempted murder, which the trial judge then dismissed as alleging a crime that did not exist in New Hampshire. Thus, the case was over, right?

Wrong. Immediately after the verdict, in a stranger-than-fiction turn of events, the jury foreman revealed to the presiding judge that the jury had actually voted to convict Locke of conspiracy to commit murder, but the foreman had misread the verdict.

The trial court found that the State had waived any objection to the accuracy of the State’s verdict by failing to move to poll the jury. Understandably unwilling to “let it go,” the prosecution brought new indictments for second-degree assault, as accomplice and principal – crimes that carried a different label, but arose out of the same criminal episode as the first degree assault indictments that had ended in acquittals. Locke was convicted of second-degree assault and brought her appeal.

In his brief, Appellate Defender Chris Johnson contended that conviction on retrial, following acquittal on charges arising out of the same set of facts, violated Locke’s right against double jeopardy. However, as the Court itself acknowledged in the Locke decision, our State’s double jeopardy jurisprudence, like Locke’s case itself, has followed a twisting and inconsistent path, at best of uncertain application to a case like Locke’s, where the “new” indictment arose out of already-tried facts, but required proof of different “elements” (legal building blocks that form the definition of the crime).

Apparently recognizing that the case could go either way, in the closing paragraphs of his brief, Johnson proposed an alternative path for the Court to follow. He pointed out that, in a pair of decisions from the late 1970s, the Court had mentioned the existence of a “mandatory joinder” doctrine, followed by several other States, which precluded prosecutors from bringing new charges following an acquittal, if the new charges arose out of the same conduct or same criminal episode. However, these passages of his brief represented something of a “hail Mary,” not only because the issue had not been preserved in the trial court, but also because the Court has not so much as mentioned the doctrine in the last 35 years.

At the same time, I was preparing my brief in the Glenn appeal, a case that followed a somewhat different procedural path but raised the same issue of fundamental fairness: If the prosecution brings an indictment or indictments to a jury and does not prevail, should the prosecution be allowed to try the same defendant on the same fact pattern, but with different charging theories?

In his first trial, although witnesses painted a picture that could support multiple criminal offenses, Charles Glenn Jr. had been indicted for only two charges – first-degree murder and second-degree murder. Glenn was acquitted of first-degree murder, and the jury failed to reach a verdict on second-degree murder.

Well-established double jeopardy law allowed the prosecution to retry the indictment that resulted in a hung jury, but the State, hedging its bets, also added five new felony charges arising out of the same criminal episode, including criminal threatening, attempted robbery, felon in possession of a firearm, and falsification of physical evidence. Like Johnson, I had raised a number of double jeopardy and other arguments in opposition to these “new” indictments, but unlike Johnson, I had not suggested that the Court should adopt the mandatory joinder doctrine.

On June 13, 2014, the Court announced its decision in Locke. Expressing a laudable degree of self-reflection, the Court criticized a pattern of doctrinal inconsistency in its own double jeopardy jurisprudence that had persisted for over two decades. The Court was able to bypass this thicket by adopting the mandatory joinder rule, which offers a much simpler solution: At the outset of the prosecution, the State must join together all charges that it intends to pursue against the defendant that arise from the same conduct or criminal episode. The Court applied the new rule prospectively, and to all other cases then pending on direct appeal.

I read the Locke slip opinion, announced through the Court’s email service, and hastily prepared and filed a motion the next business day asking to add an issue to Glenn’s appeal: Whether the new mandatory joinder doctrine would require dismissal of the five new felony charges indicted for Glenn’s retrial. We briefed that issue, and last month, the Court announced its decision – all of those convictions were vacated.

While it has not been the subject of much fanfare in the media, the Locke decision is nothing less than a landmark decision in the history of criminal procedure in New Hampshire, as evidenced by its immediate impact on the then-pending Glenn appeal.

In the two decades that I have practiced, I have had the discussion on many occasions with clients, that even if we prevail on the charges presently pending, there is always the possibility that the State could come back later with new prosecutorial theories. As discussed, double jeopardy law under the State Constitution is of, at best, murky application to these scenarios.

From this point forward, at the outset, prosecutors must make what will likely be a “final decision” as to which charges should be brought against the accused. This is a significant change in the tactical landscape for prosecutors and defense lawyers in this state.

Ted Lothstein

Ted Lothstein, of Lothstein Guerriero, in Concord, focuses on criminal litigation in state and federal Court, DWI and motor vehicle defense, and appeals. He is a member of the NH Bar’s CLE and legislation committees.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer