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Bar News - January 20, 2016


SCOTUS Denies Cert in Addison Death Penalty Appeal

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Now that the United States Supreme Court has denied the petition for writ of certiorari in the direct appeal of Michael Addison, the state’s only death row case in more than 75 years is set to enter the complicated process known as writ of habeas corpus.

The US Supreme Court on Jan. 11 denied the cert petition Addison’s defense team filed in October, which asked the Court to reexamine four issues from Addison’s trial, including the constitutionality of the death penalty. Out of the thousands of petitions the US Supreme Court receives every year, it typically accepts fewer than 100 cases, “so it’s kind of like applying to Harvard,” said David Rothstein, lead defense counsel in the Addison case and deputy director of the NH Public Defender.

“You have to be very precise and very clear,” Rothstein said of writing the cert petition. “It’s a real waste of time if you’re just asking the US Supreme Court to correct a mistake you think the New Hampshire Supreme Court might have made, or you don’t have some much broader point that is going to be of interest to the US Supreme Court. That being said, in a capital case it’s standard [to file a cert petition], regardless of the nature of the case.”

Prosecutors and appellate attorneys at the NH Attorney General’s Office spent many hours preparing the brief in opposition of the cert petition. “The appellate work, I think, is exceptional on both sides,” said Senior Assistant Attorney General Jeffery Strelzin, the lead prosecutor in the case, who keeps a photo of Addison’s victim, slain Manchester police officer Michael Briggs, on his office wall.

In preparation for the writ of habeas corpus proceedings in both state and federal courts, the NH Judicial Council recently approved a detailed set of eligibility criteria for court-appointed, post-conviction counsel in a capital case – something that has never existed in New Hampshire.

Habeas proceedings involve collateral attacks of the conviction and sentence and generally include a claim of ineffective assistance of counsel, so Rothstein and the NHPD are clearly excluded from representing Addison going forward.

According to state law (NH RSA 604-A:2), “In a post-conviction proceeding in which a defendant seeks to attack the validity of an underlying conviction, the court shall appoint counsel or approve a request for services other than counsel when the interests of justice or judicial economy require.”

On Dec. 1, 2015, a judge granted a motion to authorize appointment of post-conviction counsel for Addison in the capital case that was filed in Hillsborough County Superior Court (Northern District) by Andru Volinksy, who represented Addison in a robbery case unrelated to the death penalty case. The Judicial Council subsequently issued a request for qualifications from defense attorneys interested in taking the case (see related notice). Responses are due by Friday, Feb. 5.

The selected defense attorney or team will have one year from the date the US Supreme Court denied cert to file a petition for writ of habeas corpus in US District Court and/or state court. This task is likely to require “a small army” due to the volume of files Addison’s cases have generated over the past 10 years and spanning three separate trials, said Rothstein, who now becomes a witness in the habeas proceedings. Meanwhile, the Attorney General’s Office will continue representing the state.

“I don’t know if it puts them at a disadvantage,” Strelzin said of Addison’s new defense team. “But it creates a lot more work, because they’ve got to get up to speed on everything… It’s a lot for both sides to keep track of and to keep it straight.”

Rothstein and Chief Appellate Defender Christopher Johnson worked for months to select and hone the questions to be presented in the cert petition to the US Supreme Court. Those questions included whether the jury should have heard a statement Addison made after the shooting that the trial court had deemed to be “replete with lies,” whether the court erred in admitting evidence about the privileges afforded to inmates serving life in prison without parole, whether the breadth of the victim impact statement given at Addison’s trial should have been limited, and whether the death penalty amounts to cruel and unusual punishment.

Selection of the questions was based on US Supreme Court Rule 10, which outlines the considerations governing review on cert, including whether the US Court of Appeals has issued a decision, whether the decision of the state court of last resort conflicts with another court, or whether the case involves an important question of federal law that conflicts with relevant Supreme Court decisions. Rothstein said the decision to include the constitutionality of the death penalty was based largely on Justice Stephen Breyer’s dissent last year in Glossip v. Gross, in which he asked for a full briefing on the issue, and was joined by Justice Ruth Bader Ginsburg. (The defense also filed a reply brief in response to the state’s opposition.)

Assistant NH Attorney General Elizabeth “Libby” Woodcock has been involved in representing the state in the Addison death penalty appeal since it went to oral argument before the NH Supreme Court in November 2012. She specializes in handling habeas corpus proceedings on behalf of the state.

There already are two habeas petitions, which were denied in state court, that are now pending in federal court, related to Addison’s felony convictions that preceded the capital murder case.

Acceptance of the case by the US Supreme Court would have been advantageous for the defense, because the High Court examines the issues without having to give deference to the lower courts, whereas the habeas statute is narrower.

“The federal court only interprets the constitution,” explains Woodcock. “They leave it very much to the state to decide state law and only intervene if they see certain exceptional errors.”

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