Nashua road rage verdict set asideBy NANCY WEST
New Hampshire Sunday News
April 19. 2013 4:53AM
A judge in Nashua has set aside two guilty verdicts against a driver in what started as a Pelham road-rage case because a key police officer who testified against him has a potential credibility issue that wasn't disclosed before trial.
Judge Jacalyn A. Colburn set aside second-degree assault and reckless conduct jury verdicts against Cody Eller, 20, in a highly unusual case because prosecutors failed to tell his lawyer until days after Eller was convicted that Pelham Police Officer Eugene Stahl "was on the Laurie list."
Eller's lawyer, Jeffrey Kaye, said he was pleased with Colburn's decision, but upset when told prosecutors plan to retry Eller of Windham in Hillsborough County Superior Court South in Nashua.
"If they do retry the case, they would be compounding a tragedy," Kaye said. "I would hope they would reconsider at some point."
Eller and his family have already spent all their savings defending him in the first trial, Kaye said.
But Assistant Hillsborough County Attorney Kent Smith said he will move forward, acknowledging his office made a mistake by not checking the Laurie list before trial and only discovering after conviction that Stahl's name is on it.
"We plan to retry the case because we think (Eller) hurt (the injured motorcyclist) really badly," Smith said. "He had a severe leg injury and significant impediment."
Colburn's ruling is believed to be the first time a superior court judge has set aside a jury verdict because of a Laurie issue since the original 1995 state Supreme Court case State v. Laurie reversed a murder conviction because the defense wasn't told the lead investigator was dishonest. Top prosecutors in New Hampshire are required to maintain confidential Laurie lists, so named as a result of the ruling, that contain the names of law enforcement officers who have been disciplined for issues involving their credibility. The names and portions of their confidential personnel files could then be turned over to the defense for possible use in impeaching their testimony at trial.
An attorney general's memo in 2004 gave examples of potential Laurie issues as including police officers lying under oath, committing theft or fraud or engaging in other conduct that could affect their truthfulness. Colburn's ruling did not specify Stahl's potential Laurie issue, and his lawyer Catherine Costanzo, declined to do so as well.
She did say Stahl has "taken a reputational hit" as a result of the case. Colburn denied Stahl's motion to intervene in the case.
"He (Stahl) wants the public to know he understands that criminal defendants need these protections and police and prosecutors need to bend over backwards, but that means he has not had the opportunity to dispel the idea that what placed him on the Laurie list was some serious misconduct," Costanzo said.
On the contrary, Costanzo said, Stahl is proud of everything in his personnel file.
In her order dated April 15, Colburn cited the state constitution requiring prosecutors disclose evidence favorable to the accused where it is material to guilt or punishment in setting aside the verdicts.
"(The state) admits that it withheld favorable evidence by failing to disclose that officer Stahl was on the Laurie list, meaning there may be information in his confidential personnel file relevant to his credibility," Colburn wrote.
Colburn went on to say the state failed to prove that the undisclosed evidence would not have affected the verdict.
The convictions stemmed from a crash May 13, 2011 in which William Hawksley was driving a motorcycle south on Lowell Road in Pelham. Colburn's order said Officer Stahl testified that Eller told him at the scene that he intentionally hit Hawksley's motorcycle because he was trying to illegally pass him, which Eller denied.
Jurors found Eller not guilty of first-degree assault, the most serious charge.
Concord Attorney James Moir, who defended Carl Laurie in the murder of Lucien Fogg, said Colburn's ruling is very rare. "This is the first time I have ever heard of a failure to provide Laurie information resulting in a Superior Court judge setting aside a conviction and Laurie has been in effect for about 18 years," Moir said.
"I can only hope a decision such as this will underscore to prosecutors their responsibility to provide such important evidence to each defendant," Moir said.
Associate Attorney General Jane Young remembered a state Supreme Court case in which a potential Laurie issue was revealed after a drug conviction, but it didn't result in a new trial because the other evidence against the man was overwhelming.