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Court Saves Us from Big Brother - but for How Long?

2012-01-25T05:08:18Z

On January 23, 2012, the United States Supreme Court decided what had been widely heralded as the most important 4th Amendment search and seizure case in a generation.

In United States v. Jones, the federal government took the position that it could install a GPS tracking device on any person's car, for any reason or no reason at all, and track the car's movements for weeks without getting a warrant. (In Jones, the government used the GPS tracking data to support a prosecution for drug trafficking).

There was a moment at oral argument either amusing or horrifying depending on your outlook, when Chief Justice Roberts, among the most conservative and "law and order" judges the Court has seen, expressed apparent astonishment that the Executive Branch was taking the position that it could even install such a device on Justice Roberts' vehicle without a warrant!

Perhaps it is not surprising after this exchange, that all 9 justices unanimously rejected the government's "big brother" position and held that the federal agents violated Mr. Jones's rights by installing the GPS tracking device on his car and tracking his movements without a valid warrant.

More sobering, however, is that the Court broke down into factions with 4 of the Justices adhering to a 17th and 18th century property law analysis of the issue - fixating on the actual "trespass" to Jones's vehicle that occurred when police attached a device to its undercarriage. Interestingly, Bush II appointee Justice Alito, usually marching in lockstep with the most "originalist" justices on the Court, joined the more moderate justices and in fact wrote the concurring opinion that criticized the Court for anchoring our privacy rights to ancient property law constructs.

As technology continues to progress, and especially as the nature of modern technology forces us to share virtually all of our most private information with soulless corporate and governmental institutions, our privacy will be irretrievably lost if the Constitution is interpreted in a strained and antiquated fashion to apply only to the tangible, material physical property in our possession and immediate control.

Every time we connect to a network, place our correspondence and address books and calendars and documents and photos and home videos on Google or other "cloud" applications, back up to online backup services, place a call, text or email message, our most personal information leaves our "possession" and is entrusted to storage and safekeeping by third parties. In other words, the government can learn the most intimate details about our lives, without setting so much as a foot or a fingerprint on any of our private property.

Thus, Justice Sotomayor revealed herself to be the Court's true guardian of privacy rights in the internet age by writing a separate opinion that embraced the 4th Amendment as safeguarding both property rights AND suggested the expansion of the "reasonable expectation of privacy" construct. She wrote: "More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." In other words, just because Facebook possesses and sees an otherwise private message that we send to another, doesn't mean that the government should get to see it too.

The bottom line is this: a majority of the Justices on the Court declined to make a broader announcement that we as Americans have a "reasonable expectation of privacy" that the government will not trace our movements for a month without judicial authorization. Thus, the Jones decision, while reaching the right outcome, will not curb the government's zeal to use 21st century technologies to render our sense of privacy and security nothing more than an archaic illusion.

Read the Jones decision

- Ted Lothstein

2011 - a Great Year for Law-Tech at Lothstein Law

2012-01-06T04:31:19Z

In 2011, Lothstein Law Office moved to the next level in law office technology. The results have been a dramatic improvement in my ability to manage complex cases, work on cases seamlessly inside and outside the office, and give audio-visual presentations in the courtroom and classroom.

The most dramatic transformation has come from the smallest but most powerful of law practice tools, the Ipad 2. With my Ipad 2, I am able to immediately and securely access, view and annotate discovery and other case materials everywhere I go -- in the courtroom, at administrative license suspension hearings, while traveling, and at home. PDF Expert lets me view and annotate lengthy, complex documents that I have extensively bookmarked and indexed using Adobe Acrobat. When discovery or other documents come into the office, my legal secretary Schelle simply scans it and drags it to a particular folder, and then I can instantly see it on my Ipad where I go.

Today, during an administrative license suspension hearing, I viewed the arresting officer's report on my Ipad 2 while making notes on a traditional yellowpad. In the class I teach at Plymouth State, I have used the Ipad 2 to display audio-visual presentations on the Smartboard to a room full of students. I have met in the office with DWI clients, put the Ipad 2 on the table in front of us running Google Earth, and then "virtually" traveled the roads that led to the scene of the motor vehicle stop or accident.

The first big investment I made in 2011 was to install a HP Proliant server with mirrored 500 gig hard drives, running PC Law as the platform to run my business, handle billing and manage my caseload and clients. I use Lexis Nexis Casemap 9, an advanced relational database, to build easily searchable databases and chronologies of the facts, documents, transcripts and cast of characters involved in complex litigation such as federal criminal cases and a post-conviction litigation I am handling arising out of a homicide conviction. For legal research, I began subscrion Westlaw Next, which runs on the PC but also has a fantastic Ipad app.

One of the best and most important technological tools in my law office is nearly free. My legal secretary Schelle and I heavily depend on Google Calendar, which allows us to view multiple calendars on our PCs, and on my Ipad 2 and android phone. On Google Calendar, if I put an appointment into the office calendar, she sees it immediately. If I put an appointment into my personal calender, she sees only a blocked out period marked "Busy," but the details appear on my PC or portable devices. If my wife or I put an event into our family calender, it does not appear on the office calendar at all. And Google Calendar automatically posts to MY calendar the entire Red Sox, Patriots and Duke Basketball schedules! (Yes, Google Calendar is non-denominational - you can select the Yankees and UNC Tarheels instead). Google calendar is free for personal use and only $50/year for business use.

US Supreme Ct - War on Marijuana Smokers Intensifies

2011-05-17T02:20:00Z

Is a man's home his castle? Traditional Fourth Amendment jurisprudence says yes - the police may not enter your home without a warrant. An exception to that rule, however, the "Exigent Circumstances" exception, has steadily eroded the rule when it comes to people using drugs - a victimless crime - in their own homes.

Today, May 16, 2011, the Court further eroded that fundamental principle when it ruled that Kentucky Police acted properly when they stood outside an apartment door, smelled marijuana, banged on the door, heard movement inside... and then smashed the door down without a search warrant and arrested the people inside. The defendant, King, got an ELEVEN YEAR prison sentence based on the drugs found in the apartment. Kentucky v. King, No. 09-1272, United States Supreme Court (decided May 16, 2011).  Read the Court's Opinion.

In making this decision, the Court reversed a decision of the Kentucky Supreme Court, which would have required the police to obtain a search warrant.

Justice Ginsburg, in dissent, lamented the continuing slow death of the Fourth Amendment by reminding us of its vitality in an earlier age.   She aptly summarized today's decision by writing: "The Court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases."

Then, she quoted a 1961 Supreme Court precedent, Silverman v. United States, as follows: "At the Fourth Amendment's very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion."

That may be true for businesspeople, white collar criminals and the like. That "core" has turned hollow, however, for those accused of drug crimes.

(c) May, 2011 Theodore Lothstein

Victory! NH Supreme Court Landmark Due Process Decision for DWI Breath Tests

2010-04-29T03:41:00Z

04/27/2009. NH Supreme Court upholds Due Process right in DWI investigations.

Today the Court held that police must capture and preserve additional breath samples when administering breath tests at the police station, for later analysis by an independent laboratory at the accused's own expense.

Without captured breath samples, the Intoxilyzer 5000 is nothing but a "black box" - we don't know how it's software works, we don't know the extent to which it can be trusted to screen out "interferent" compounds that are misidentified as alcohol on the breath, and we don't know when it has malfunctioned and produced a misleading and erroneous result.

For decades, the legislature and courts have required that police preserve a captured breath sample for analysis by a much more sophisticated gas chromatograph instrument, but in 2010, the legislature sought to eliminate that fundamental safeguard for the falsely accused.

That's why Ted Lothstein, and friends and fellow DWI lawyers John Durkin and Mark Stevens agreed to co-author an Amicus ("friend of the court") brief on behalf of the New Hampshire Association of Criminal Defense Lawyers (NHACDL). The brief opposed a pending Bill that would eliminate the requirement of captured breath samples in DWI investigations. David Rothstein, on behalf of the Appellate Defender Program, also submitted a brief in opposition to the proposed law.

On April 27, the NH Supreme Court rejected the position of the Department of Safety, House Criminal Justice Committee and Attorney General's Office -- instead ruling that eliminating the captured sample requirement would be fundamentally unfair. A big victory for the NHACDL, for DWI lawyers and their clients, and for the cause of justice. Read NHACDL's Amicus Brief here.

State Seeks to Cover Up Flaws in Breath Testing Program

2009-11-10T11:23:00Z

New Hampshire statutes, regulations and caselaw require that breath testing machines capture and preserve a second sample of the accused's breath. The accused is given the captured sample and has the right, at her own expense, to have the sample tested by an independent laboratory. The independent laboratory, CG Labs, uses a gas chromatograph - a far more reliable instrument - to determine the alcohol concentration in the breath - and the presence or absence of any interferents that may have tainted the reliability of the Intoxilyzer's reported result. The Department of Safety, and prosecutors, want to do away with this important safeguard that tends to prevent the conviction of the innocent. Why?

According to a front page article in the Concord Monitor, entitled, ironically, "State Aims to Upgrade Breath Test," government bureaucrats at the Department of Safety are lobbying the legislature hard to eliminate the captured sample requirement. They say their motive is "good science" - the Intoxilyzer 5000 is an old machine, new machines made by other manufacturers cannot be configured to capture a breath sample for the accused, so legislators should repeal the laws mandating captured samples. State Forensic Laboratory Director Tim Pifer contends that the Intoxilyzer 5000 is not only old, but fundamentally unreliable, so upgrading is in everyone's interest, including the accused. What's wrong with that argument?

First, Pifer's only evidence that the Intoxilyzer 5000 is "unreliable," is that the captured samples show the machines to be wrong 5% of the time. As an aside, this will come as a rude surprise to the hundreds of defendants over the last two decades who have been convicted by judges and juries based on sworn testimony from other bureaucrats at the Department of Safety that the Intoxilyzer 5000 is highly reliable! More to the point, however, is the sheer chutzpah of this argument which basically goes as follows: 1) Captured samples show that the breath testing is prone to error, 2) How do we solve that embarrasing problem? 3) Eliminate the captured samples! Then, the error rate will magically fall to zero.

Second, the State does not actually propose to buy all new machines, because that would cost a fortune to the taxpayers. New machines from manufacturers like Germany's Draeger can cost upwards of $12,000 per machine, plus expensive training of maintenance personnel, etc. So, Pifer suggests in the Monitor article that we upgrade the machines one by one. Of course, that makes no financial sense whatsoever. The cost of the machines will be far less to the State if purchased in bulk. So, do the bureaucrats really want to promote reliable science... or do they simply want to eliminate the embarrassment that occurs when captured sample analysis demonstrates the problems with breath testing.

NH Supreme Court - Right against Self-Incrimination - Shield Against Elevated Penalties at DWI Sentencing

2009-11-08T03:57:00Z

NH Supreme Court: Right Against Self-Incrimination Applies at Sentencing Hearings, Not Just Trials.

Here's a familiar scenario: Prosecutor thinks DWI defendant has no prior DWI convictions.

Client, and attorney through attorney-client privilege, know there are prior convictions in another State.

Judge, at sentencing hearing, asks client: "Before I impose sentence, I will ask you: Do you have any prior convictions for DWI?"

A skilled lawyer will be able to deflect this question, or refuse to answer it outright, under the authority of State v. Burgess, an appeal briefed and argued by Ted Lothstein. In Burgess, the Court squarely held that the right against self-incrimination applies not just at trial, but at a sentencing hearing. The defendant retains the right to remain silent, and the sentencing judge may not draw an adverse inference from silence (e.g., if accused had nothing to hide, he would not need to remain silent).

Thus, under Burgess, the judge has no right to ask that question, the client should not answer, and the lawyer should protect his or her client.

NH Supreme Court - Drunk Driving Roadblocks Upheld

2009-11-08T03:50:00Z

May 25, 2007. Drunk Driving: Secret Random Stops Upheld.

Being a DWI Hunter is tough. You've got to hide in darkened parking lots across the street from bars, cruise the highway, and drive all over town, looking for a drunk driver... and hope that the drunk driver drives so badly that you'll develop individualized, reasonable suspicion to pull him over.

There's got to be a better way.

Commercial fisherman don't always use a hook and line, do they? Some use a driftnet.

In State v. Hunt,155 N.H. 465 (2007), the New Hampshire Supreme Court, interpreting the State Constitution, upheld a DWI roadblock in Portsmouth where the only advance publicity had been in a Dover newspaper a few hours before the roadblock.

Five defendants caught in the dragnet won their motions to suppress in the district court, but the State prevailed on appeal.

Previously, the Court had at held that significant advance notice of roadblocks must be publicized in local media because otherwise roadblocks have no deterrent value in deterring drunk driving.

Besides, advance notice allows the public can make a choice... do I want to waive my constitutional rights and submit to random, suspicionless searches when I go out this Saturday night, or would I prefer to stay home?

The Court decided:

1. Sobriety checkpoints do not per se violate Part I, Article 19 of the New Hampshire Constitution.

2. The Court backed away from its previous emphasis on the importance of advance publicity and even implied that advance publicity may not be constitutionally required at all, leaving that for another day.

So, what to do about sobriety checkpoints?

If you see a checkpoint up ahead, and you don't feel like submitting to a warrantless and unwarranted intrusion into your privacy, take the next available turn-off. According to the Hawaii Supreme Court among others, intentional evasion of a checkpoint is not reasonable suspicion to stop the vehicle.

Can the prosecution prove its case using rank hearsay?

2009-08-26T00:24:00Z

On September 5, 2007, the New Hampshire Supreme Court, in a 3-2 decision, upheld the constitutionality of laws that allow the prosecution to use hearsay evidence to prove an essential element in a DWI prosecution. State v. O'Maley, 156 N.H. 125 (2007).

The Court upheld the constitutionality of a statute that allows the prosecution to use hearsay to prove the accused's guilt of DWI. Hearsay evidence may be used to show how the blood sample was collected... and hearsay evidence may even be used with respect to the actual testing itself.

A so-called "certifying scientist," rather than the actual lab analyst who performed the test, may testify regarding the results of blood tests - even if that result is critical to establish guilt or innocence.

The Court rejected the defendant’s claim that such presentation of rank hearsay regarding the collection and testing of his blood sample would violate the federal confrontation clause as interpreted by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 126 S.Ct. 2266 (2006).

Further, in reaching this result, the Court acknowledged that the hearsay testimony at issue practically amounted to the only evidence of guilt in the case.

Justice James Duggan dissented, suggesting that the issue could be relitigated under the State Constitution, or addressed under the Court’s “supervisory powers."

Last June, however, the United States Supreme Court invalidated similar provisions of Massachusetts law, holding them to violate the accused's fundamental constitutional right to confront the witnesses against her. Melendez-Diaz v. Commonwealth of Massachusetts (U.S. June 25, 2009)

So, the big question is: will NH courts continue to rely on a badly-reasoned ruling decided by a bare 3-2 majority of the court, in the wake of a landmark decision of the United States Supreme Court that is now the 'law of the land'?

With a new Justice appointed to the Court this month, the time is ripe for the Court to revisit and overrule the O'Maley decision. Litigators should argue that it was wrongly decided as a matter of State Constitutional law, and at any rate was abrogated by the United States Supreme Court's decision in Melendez-Diaz. No State can afford its citizens less rights than guaranteed to all citizens across the country by the Supreme Court.

Stay tuned! - ted

NH Supreme Court - Narrows Scope of Exclusionary Rule

2008-04-22T04:00:00Z

04/22/2008. Court Narrows Scope of the Exclusionary Rule.

State v. Joseph Panarello, No. 2007-554 (2008). This decision resolves a classic conundrum regarding the scope of the exclusionary rule. When the police violate someone's constitutional rights, and find evidence as a result, the evidence is suppressed. What happens if the police violate someone's constitutional rights, and the person reacts by committing a new crime - is the conduct suppressed?

The State conceded that the police made an unlawful warrantless entry into Panarello’s home, in violation of Part I, Article 19 of the State Constitution. The State, however, appealed from the trial court’s decision to suppress evidence that Panarello reacted to the unlawful intrusion by pointing a gun at a police officer.

In an issue of first impression, the court joined “the overwhelming weight of authority” by adopting a “new crime exception” to the State Constitution’s exclusionary rule. Just as the police need to be deterred from violating the constitutional rights of citizens... citizens need to be deterred from taking the law into their own hands.

Thus, the trial court was wrong to suppress the evidence. Nevertheless, the court affirmed the trial court's order, because the prosecutor never argued the existence of a "new crime exception" to the trial court. Just as the game of Monopoly has a card entitled "Bank Error in Your Favor"... Panarello wins his case because of a card in the criminal justice deck entitled "Prosecutor Error in Your Favor." Read the State v. Panarello decision.

War on Marijuana Users Intensifies

2008-04-08T04:00:00Z

04/08/2008. New Weapon for War on Marijuana Users.

In this most unfortunate decision... the Court upheld the right of the police to make a warrantless entry into a private home, based on the smell of burning marijuana. Thus, police were allowed to enter a private room without a warrant where the circumstances presented no emergency and indeed, presented no risk whatsoever of injury to any person. State v. Luis A. Rodriguez, 945 A.2d 676 (N.H. April 8, 2008).While investigating an unrelated matter, police officers smelled the odor of “burning marijuana” emanating from a particular hotel room. The officers knocked on the door and eventually gained entry by threatening to forcibly open the door. Inside, the officers observed drugs and drug-related material, at which point they secured the room and obtained a search warrant.

Under Part I, Article 19 of the State Constitution, warrantless entries into the home are per se unreasonable and illegal unless within the narrow confines of an exception to the warrant requirement. The Court held that this warrantless entry was justified by probable cause and exigent circumstances, because possession of marijuana was a jailable offense, not a minor offense; because the odor of burning marijuana, as opposed to burnt marijuana, represented the destruction of evidence; ...

and because the hotel room had indoor plumbing, further facilitating the ready destruction of evidence!

Yes, the Court actually relied on indoor plumbing. This may give comfort to the many families in NH who will retain their right to privacy because they still haven't installed indoor plumbing.

Justice Hicks dissented. He noted that the expectation of privacy of a hotel room occupant is equivalent to that of an occupant of a private home, and found it “unsettling” that the precedent would allow a warrantless entry into a private home based upon similar facts. Read Court's Decision in State v. Luis Rodriguez.

NH Supreme Court - Double Jeopardy and the Iraq War

2008-03-20T04:00:00Z

In State v. Solomon, 943 A.2d 819 (Mar. 20, 2008), Attorney Ted Lothstein persuaded the New Hampshire Supreme Court that the trial court violated Solomon's right against double jeopardy under the New Hampshire Constitution by attempting, without manifest necessity, a mid-trial substitution of judges in a bench trial. Ted Lothstein briefed and argued this case before the state's highest Court. News of this decision was published in the National Criminal Law Reporter, and received substantial local coverage, such as in the Concord Monitor and the Lawrence (Massachusetts) Eagle-Tribune.

Solomon, charged with simple assault, began his bench trial before Derry District Court's Judge Coughlin. In the middle of the alleged victim's testimony, a legal issue caused a continuance, and then another continuance.

While waiting for the next court date, trial counsel opened his Bar News... and surprise! Judge Coughlin, a member of the National Guard, had departed for Iraq. Coughlin had requested another tour of duty there, by letter waiving his right to a 30 day notification period to settle his affairs.

Judge Stephen of the Derry District Court offered to start again or pick up where Coughlin left off, but trial counsel argued that Solomon's double jeopardy rights required completion of trial before the tribunal that started the trial - not just any judge, but Judge Coughlin. Judge Stephen declared a mistrial, over Solomon's objection that there was no manifest necessity under all the circumstances.

The New Hampshire Supreme Court agreed, primarily on the basis that the record did not show any attempt by Coughlin to notify the parties of his impending departure and attempt to bring the trial to completion. Thus, there was no manifest necessity to declare a mistrial, because the circumstances that brought about the tribunal's unavailability were not unavoidable.

That being said, its hard to fault Coughlin, not only because he did what he did for an "admirable" purpose as the Court put it, but because before this decision there was absolutely no law in NH.. and very little law anywhere else... regarding the double jeopardy right as applied in a bench trial.

Can judges hand off the baton like a relay race when trial becomes inconvenient for the first judge? A couple of courts have said yes, but most have said no, and now the New Hampshire Supreme Court joins them, determining that the following quotation from LaFave applies to judges just as it applies to juries:

"Every jury has its own character and the initial jury may be more favorably disposed to the defendant than the next jury."

Of course, those of us who practice in District Court... and pray for our case to be specially assigned to a particular judge... couldn't agree more! Read State v. Solomon

NH Supreme Court - Confrontation Right Triumphs

2008-03-14T04:00:00Z

03/14/2008. No Cross-Examination on Prior False Accusation = New Trial!

Today, in an appeal briefed and argued by Attorney Ted Lothstein, the New Hampshire Supreme Court reversed an aggravated felonious sexual assault conviction because of the trial court’s refusal to allow the defense to cross-examine the complainant about her prior false accusation of another man. The decision resulted in significant coverage in the Boston Globe, Concord Monitor, and Foster's Daily Democrat.

In the past, the Court has repeatedly upheld the exclusion of such evidence, to the extent that defense lawyers have twice had to go to the First Circuit to get habeas relief. White v. Coplan, 399 F.3d (1^st cir. 2005); Ellsworth v. Warden, N.H. State Prison, 333 F.3d 1 (1^st Cir. 2003)(Andrew Schulman wins on federal habeas).

Today, in a case where Kornbrekke was accused of adult forcible rape in a “date rape” scenario, the Court held that the trial court erred in precluding cross-examination of the victim regarding her false accusation of a different man seven years prior. She had recanted her earlier accusation, and that case was nol prossed, but the prosecution now claimed that her earlier accusation was true, and the recantation false.

The Court rejected that argument: “Regardless of what characterization it is given, inconsistency exists between the complainant’s original allegation and her later recantation, and this inconsistency can be used to impeach her credibility.” Thus, the Court held that the cross-examination was admissible and not unduly prejudicial to the State under Rule 403.

The Kornbrekke decision constitutes helpful support for arguments that counsel should be able to cross-examine an adverse witness about a past act that reflects on his penchant for dishonesty. Different and more onerous legal standards apply when counsel seeks to introduce "extrinsic evidence," or evidence from witnesses other than the one being cross-examined, regarding the past act that reflects negatively on the witness's honesty.

After Kornbekke won his appeal, the prosecution decided not to try the case to a new jury. Instead, the prosecution dropped the charges! Read about it here, in the Concord Monitor.

Read State v. Karl Kornbrekke

NH Supreme Court - Sentencing and Remorse

2008-02-28T04:00:00Z

02/28/2008. Sentencing Hearings, Remorse, and the Right Against Self-Incrimination.

In State v. John Burgess, 943 A.2d 727 (2008), an appeal briefed and argued by Theodore Lothstein, the Court analyzed whether a criminal defendant's "lack of remorse" could be used against him at sentencing, without violating the right against self-incrimination, when the accused's silence constitutes the only evidence of "lack of remorse."

Burgess was charged with attempted escape. He testified that he did tamper with his restraint device, and did run from the courtroom in the middle of his jury trial, but did not intend to escape. Not surprisingly, this jury trial swiftly led to a sentencing hearing. There, the trial judge said he took into account Burgess’s lack of remorse, and nonparticipation in the PSI, as aggravating sentencing factors.

The Court established the following principles of law:

1. The State Constitution’s (Pt I, Art. 15) privilege against self-incrimination applies not only in the pre-trial proceedings and trial, but extends throughout the sentencing process.

2. Lack of remorse is relevant to sentencing and the trial court may infer it from other facts and circumstances.

3. The trial court cannot punish defendant for standing trial rather than pleading guilty.

4. The trial court may punish a defendant for his false trial testimony.

5. BUT the trial court “may not constitutionally increase defendant’s sentence because he refuses to admit guilt after conviction.” “[U]nder our sentencing scheme, denying a defendant leniency simply because he fails to speak and express remorse is equivalent to penalizing him for exercising his right to remain silent.”

6. The trial court may not make an end run around proposition #5 by reasoning that defendant’s silence after conviction reflects his lack of remorse or lack of potential for rehabilitation. (Here, the Court recognizes a split of authorities, rejects the bad cases, and follows the good ones).

7. Proposition #5 is LIMITED by two substantial caveats, as follows.

8. First, proposition #5 holds only for those defendants who go to trial. If D pleads guilty, but remains silent at sentencing, the trial court CAN justify a “denial of leniency” based on that silence and failure to express remorse.

9. The second caveat is more complicated and can only be resolved on a case by case basis. Some trial defenses, notably mental state defenses, are not necessarily inconsistent with expressing remorse.

Some examples (from the author, not from the opinion): A person can claim self-defense, necessity or other justification defense, but still express remorse for the injuries suffered by the victim. A person can claim entrapment but still express remorse for getting involved in any manner in the drug trade.

10. To work through an example: A person charged with aggravated DWI resulting in a collision with serious bodily injury can claim she was not impaired when she drove her vehicle, but still express remorse for causing a motor vehicle collision resulting in the grave injuries suffered by the occupants of the other vehicle. Thus her silence at sentencing following an unsuccessful impairment defense at trial could be used against her.

If that same person testified that she neither was impaired nor caused the collision, I read Burgess as holding that the trial court in sentencing may not hold her silence at sentencing against her. The only elements of the offense left are operation, vehicle and public way and it would be absurd for someone to express remorse for operating a vehicle on a public way.

11. Finally, a sentencing court can hold defendant’s nonparticipation in a PSI against defendant, but limited as follows. Burgess did not even show up for his PSI, and this complete lack of nonparticipation the trial court properly could infer lack of amenability to rehabilitation.

Lawyers should encourage their clients to appear for the PSI and If a client participates in the PSI, but refuses to discuss the offense or background facts that could elevate the offense or establish other criminal liability, that silence cannot be used against defendant at sentencing. Note that the skilled lawyer must now take into account the principles in paragraphs 8-10 above in advising a client what she should talk about, and what she should not talk about, during the PSI.

Read State v. Burgess

NH Supreme Court- Landmark First Amendment Victory

2008-01-18T04:00:00Z

01/18/2008. Landmark Victory for Privacy and the First Amendment.

In State v. Zidel, 940 A.2d. 255 (Jan. 18, 2008), Theodore Lothstein won a landmark victory for the First Amendment ... and won his client's appeal, erasing his felony convictions and freeing him from a certain prison sentence.

The State prosecuted Zidel for possesion of child pornography, based on pornographic images of adult bodies engaged in sexual activity, that he collaged together with photographs of the heads/faces of minors he pasted unto the shoulders of the adult bodies.

Defendant never intentionally took these images outside the privacy of his own home or otherwise made them available to others such as posting them on the internet. Alas, when he inadvertently gave the wrong disk to the director of the very camp where he took the (innocent) photographs of the 15 year old girls, he found himself charged with possession of child pornography, seemingly on a one-way trip to state prison.

Here are the basic First Amendment principles: 1) distribution of "obscenity" is not constitutionally-protected; 2) private possession of "obscenity" receives absolute constitutional protection, and 3) child pornography is the sole exception to #2.

In a photo finish, a bare 2-1 majority of a three-justice panel of the New Hampshire Supreme Court derailed that train, ruling that the prosecution violated the defendant's right to free speech under the First Amendment.

Justice Duggan, writing for a majority that consisted of himself and Chief Justice Broderick, reasoned that the child pornography exception is based on the many ways in which child pornography harms children. Children cannot be harmed, however, by the private viewing of collages that do not involve the actual sexual exploitation of children and are not distributed into the community.

In reaching this result, the Court extended upon a landmark ruling of the United States Supreme Court providing constitutional protection to "virtual child pornography," (Ashcroft v. Free Speech Coalition), and in the process created its own landmark ruling. The majority only reached Zidel's as-applied challenge to New Hampshire's child pornography law, so it did not hold the law unconstitutional as a general matter.

Justice Hicks, dissenting, believed that extension to be unwarranted, because "morphed" or "composited" images, unlike virtual images, do involve a real child -- at least the child's head, anyway.

For this victory, Ted thanks trial counsel Behzad Mirhashem and Don Topham of the Nashua, NH Public Defender's Office, who did an incredible job researching and presenting this difficult issue to the trial court, and preserving the issue for appellate review. Here's a link to more information about my friend Behzad, currently a federal defender in Boston... and a trial attorney extraordinaire - and physicist!

Note: The majority carefully limited its holding to images not distributed in any fashion. The message to would-be collage artists: don't put your creations up on myspace!

Read State v. Marshall Zidel

NH Supreme Court - Consolidation of Charges

2007-11-30T04:00:00Z

11/30/2007. 4 Drug Sales, 4 Trials.

When can separate charges against the same defendant be consolidated into a single jury trial?

The Hillsborough County Grand Jury indicted Brown for selling drugs to two confidential informants on four separate dates, but all involving same drug in the same intersection in downtown Nashua. The Hillsborough County Superior Court (South) in Nashua consolidated the charges for trial, over defense objection. On appeal, Attorney Theodore Lothstein won reversal of these convictions, based on his argument that consolidation of these charges resulted in an unfair trial.

In reversing Brown's convictions and remanding for the charges to be tried to separate juries, the New Hampshire Supreme Court relied primarily on another appellate victory by Ted Lothstein, Petition of State of N.H. (State v. San Giovanni), 154 N.H. 671 (2007).

Litigators take note, while the Brown case was pending, the Superior Court announced a new Superior Court Rule on consolidation, Rule 97-A. Since then, there has not been any authoritative interpretation of the rule change.

Read State v. Sean Brown

NH Supreme Court - Limits Prosecutor's Cross-Examination of Accused

2007-11-09T04:00:00Z

11/09/2007. Court Condemns Prosecutor's Cross-Examination Technique.

Have you ever seen a prosecutor torment the accused on the stand by cross-examining him with respect to every instance in which his testimony disagrees with that of other witnesses?

"So, are you saying that Officer, err, I'm sorry, I mean DETECTIVE Jones lied to this jury when he said he heard your confession?"

"So, are you saying that those five nuns all lied to this jury when they said they saw you run out of the store with a pillow case full of money?"

In an appeal briefed and argued by Theodore Lothstein

Theodore Lothstein, was State v. Mussey, 153 N.H. 272 (2006)(prosecutorial commits misconduct by arguing in closing that the police office officers who testified in this case would risk losing their jobs if they lied).

Read State v. Lopez.

NH Supreme Court - illegal Sentences

2007-10-16T04:00:00Z

New Hampshire Supreme Court. Maximum Jail Sentence, and Maximum Fine, PLUS Probation = Illegal Sentence.

The State accused Hancock of urinating on a probation officer, charged as a misdemeanor due to a prosecutorial mistake in drafting the charge. The jury convicted Hancock, and Judge Barry sentenced Hancock to the maximum jail term, 12 months stand committed, and the maximum fine, $2000, PLUS the maximum term of probation, two years. The Court reversed, ruling that Hancock's sentence was illegal, and more importantly, holding that a contempt prosecution is not an available sanction for a probation violation. State v. Richard Hancock, _ N.H. (Oct. 16, 2007).

Appellate attorney Ted Lothstein contended that this sentence constituted plain error, because by imposing the maximum jail sentence and maximum fine, the trial court exhausted all of its sentencing authority, and could not also place defendant on probation. Therefore, the order of probation was an illegal sentence, because it could not be enforced by any sanction.

The State, however, advanced the following argument: 1) A sentence is a court order, 2) This sentence included probation, 3) Therefore the probation was a court order, 4) Violation of a court order is punishable by a contempt prosecution, 5) Therefore, violation of probation is punishable by a contempt prosecution, which carries a maximum sentence of a year in jail, INDEPENDENT of the penalties for the underlying offense.

At oral argument, defendant argued that the State's position could mean endless punishment as a trial court continues to impose terms of incarceration for probation violations even after the maximum term under law for the offense has been fully served.

The Court agreed with defendant. In an opinion authored by Associate Justice Linda Dalianis, held that a trial court cannot sentence a defendant to probation, unless the court has withheld some portion of the maximum jail sentence and/or maximum fine. Accordingly, the Court vacated the sentence and remanded for resentencing.

As the Court's decision to treat Hancock's issue as plain error illustrates, its never too late to challenge an illegal sentence. Don't worry if it was a negotiated plea, because even the defendant's agreement cannot confer authority upon the trial court to impose an illegal sentence. Crosby v. Warden, 152 N.H. 44, 47 (2005).

Read State v. Hancock

Reigning in the 'Community Caretaking' Doctrine

2007-05-10T04:00:00Z

May 10, 2007. Reigning in the 'Community Caretaking' Doctrine.

In an appeal briefed and argued by Theodore Lothstein, the Court held that the stop of the defendant's vehicle and all evidence derived therefrom - including the entire basis for the criminal prosecution - should have been suppressed by the trial court. State v. Craveiro,155 N.H. 422(May 10, 2007).

Police chief parks in middle (dry portion) of flooded road, trying to figure out how to deal with flooding from heavy rains. Craveiro tries to drive around police chief's cruiser, right through the flooded portion of the road (essentially, car drives through deep puddle). Chief stops Craveiro.

The trial court upheld the stop under the community caretaking doctrine as a nonpretextual effort to safeguard the property of others.

The Court held the community caretaking doctrine can apply to such situations, but these facts did not support a community caretaking stop, because the water was not very deep, and because the chief's actions in allowing Craveiro to drive on after he got an emergency call suggested that there really was no need to stop this car from going through a puddle.

With this decision, the Supreme Court sent a message that courts need to scrutinize "community caretaking" claims by law enforcement carefully, and with skepticism.

This case is, indeed, the fifth time in recent years that the Court has suppressed the fruits of a seizure or search where the police claimed a community caretaking or similar non-investigative, benevolent, justification. The other four are State v. D'Amour, 150 N.H. 122 (2003); State v. Denoncourt, 149 N.H. 308 (2003); State v. Boyle, 148 N.H. 306 (2002); State v. Seavey, 147 N.H. 304 (2001). That list should make a trial court think twice about knee-jerk reliance on this doctrine to uphold a search or seizure.

Beware of cops claiming that they stopped a car that, say, crossed the fog line twice, not out of suspicion of DWI, but rather out of the goodness of their hearts -- concern that the driver was ill, tired, falling asleep.... Impairment is impairment, whether by alcohol, illness or fatigue.

The determination of whether a motor vehicle was lawful should not depend on whether the officer claims a benevolent purpose (ill driver) or an investigative purpose.

Any such principle would encourage police manipulation and perjury, and any such principle would be illogical, because even a trained police officer can't tell from a distance whether a driver twice crossed the fog line due to DWI, DWT (driving while tired), DWS (driving while senile, which BTW is legal in Florida), DWQRA (Driving While feeling Queasy after eating the Riblets at Applebees), etc.

- Ted Lothstein

NH Supreme Court - Reforms the Opening the Door Doctrine

2006-12-19T04:00:00Z

12/19/2006. Court Reforms the Opening-the-Door Doctrine.

In State v. Donald Morrill, N.H. (2006), a case briefed and argued by Ted Lothstein, the Court overruled long-standing precedent and eliminated its "opening-the-door" doctrine.

In its place, the Court has established two much more specific and limited doctrines. And, Donald Morrill gains his second appellate victory.

In 2004, his conviction for AFSA was reversed because the trial court erred in ruling that defense evidence "opened the door" to otherwise-inadmissible testimony by a DCYF social worker that she believed the child victim's story.

Did that make the prosecution gunshy about the opening-the-door doctrine on retrial? Not at all. Once again, when the defense tried to present a defense on retrial, the prosecutor persuaded the trial court to allow in otherwise-inadmissible evidence, this time hearsay from the victim's deceased father, on an opening-the-door theory. This time, the Court signalled that it has had enough.

The opening-the-door doctrine no longer exists. Instead, litigants will have to rely on two more specific, and more narrow doctrines: Curative admissibility, and specific contradiction.

Curative admissibility applies when one party puts in otherwise inadmissible evidence, the evidence is prejudicial, and the opposing party would like to rebut it with countervailing inadmissible evidence. The doctrine applies "only when inadmisible evidence has been allowed, when that evidence was prejudicial, and when the proferred testimony would counter that prejudice."

"Curative admissibility" is the "fighting fire with fire" doctrine. It only applies when you sneak in some inadmissible evidence, such as rank hearsay, impermissible opinion testimony, etc.

Specific contradiction, on the other hand, applies when one party puts in admissible, relevant evidence, which creates a misleading impression. The classic example: You win pretrial ruling suppressing bag of weed found in client's pocket at the time of arrest, because police violated client's constitutional rights. Client still faces cocaine possession charge. Client testifies that "that wasn't my cocaine... I don't do drugs." Bingo - the marijuana evidence is back in.

The Court instructed litigants, in the future, to stop citing the "opening the door" doctrine in a conclusory fashion, and instead

"make clear which of the above doctrines is being invoked. This is so because the two doctrnes are invoked by different types of evidence - 'curative admissibility' is triggered by the erroneous prior admission of inadmissible evidence, while 'specific contradiction' is trigered by the introduction of misleading admissible evidence. Identifying the particular doctrine will permit more focused discussions between litigants and judges and will prevent further erosion of the unique requirements of each doctrine."

The Morrill decision serves to remind prosecutors that they have to live by the rules of evidence, too, no matter how much it stings.

Read State v. Donald Morrill

NH Supreme Court - Landmark Victory for Self-Defense Right

2006-11-20T04:00:00Z

11/20/2006. Court Reverses Manslaughter Conviction Because Defendant Had Right to Claim Self-Defense.

In State v. Ethan Vassar, 154 N.H. 370 (2006), in an appeal briefed and argued by Theodore Lothstein, the New Hampshire Supreme Court reversed a provocation-manslaughter conviction and ordered a new trial. The 'victim,' Vassar's brother, went on a drunken rampage, threatening Vassar, assaulting Vassar's mother, and vowing to kill them both along with any police officers who might try to stop him. Finally, believing his brother had gone to get a rifle to carry out his threats, Vassar pursued and shot his brother five times in rapid succession, killing him.

The trial judge refused to allow Vassar to argue self-defense, because 'victim' was unarmed when shot and Vassar shot him. In an important victory not just for Vassar but for those who would, after years of domestic abuse, finally rise up and defend themselves, the Court held that the State should have been required to disprove self-defense beyond a reasonable doubt.

Here's what you can learn from this decision about the right of self-defense in New Hampshire:

To have a right to self-defense, you have to act reasonably, but you DON'T have to be right. In other words, if client reasonably believes that "victim" is armed or about to arm himself, client can use deadly force, even if 20/20 hindsight shows us that victim was not about to use deadly force, and perhaps had no intention of arming himself.
"Reasonably" may include, as it did in this case, the shooting of an unarmed man. In the more typical simple assault case, Vassar gives you authority to argue self-defense where the "victim" has provoked and/or escalated the encounter, but the defendant was the first one to punch, kick, push, etc.
Defendant must also subjectively believe he needs to use self-defense, in addition to the requirement that he act reasonably.
NH SCt joins the long list of other jurisdictions that allow, under Rule 404(b), the defense to introduce the victim's prior history of violence, to the extent known to the defendant, because that history is relevant to the defendant's state of mind - the reasonableness of his belief that he needed to act in self-defense.

Read Court's Decision - State v. Ethan Vassar (2006).