Domaingue lawyer says decision to set case aside so close to trial 'rare'
OSSIPEE — The defense attorney for a retired editor whose possession of child pornography charges were dropped said his client had been looking forward to clearing his name at trial and had rejected an earlier plea agreement offer from the state.
On Wednesday, the day a pretrial schedule was set in the case of Edward Domaingue, the eight counts of felony-level child pornography possession were dropped, or nol prossed. Carroll County Attorney Robin Gordon said the state would likely bring the charges back to a grand jury for re-indictment in 2014, pending additional investigation. A grand jury is convened only every six weeks in Carroll County.
Domaingue, 65, who lives in Florida but owns a second home in Wakefield, was indicted in May after a Microsoft employee reported the appearance of alleged child pornography uploaded to a SkyDrive cloud server on an account linked to Domaingue’s email address. The company notified the New Hampshire Internet Crimes Against Children Task Force, and the case was forwarded to the Wakefield Police Department.
The trial was set to begin Nov. 18 with jury selection, but Gordon said the state had no choice but to set aside the charges pending additional investigation.
“If we run out of time and the court is not granting a continuance, our hands are tied. We can’t go forward knowing there’s more to be done,” she said.
Domaingue’s defense attorney, David Ruoff of Manchester, said it is rare for the state to take dismissive action this close to trial.
“It’s a shame they got to within 30 days of trial to realize they hadn’t done as good a job as they wanted. So they must have their reasons for doing it. Normally, you would expect that before charging someone with a serious felony, one would have a good understanding of the evidence, and they didn’t,” he said.
“That’s disturbing and extremely rare for this to happen,” said Ruoff, adding that having the state dismiss a case but continue working on it has never happened to him in his career as a defense attorney and prosecutor.
Gordon had previously denied any potential the case would result in a plea bargain, but in clarifying her position in a phone call on Thursday, restated that the state is not allowed to disclose any details regarding plea agreements with anyone.
Ruoff said the state is required by statute to offer a plea agreement, and did so earlier in the case, but Domaingue rejected the offer. Domaingue pleaded innocent to the charges.
Ruoff said this case involved an alleged image that was found on a Microsoft SkyDrive Cloud server that anyone could access.
“The Cloud or SkyDrive servers are relatively new. Prosecutors are getting around to looking at them as potential places with evidence of crime,” he said, adding that dealing with these cases differs from cases where a person has child pornographic images on a hard drive on a personal computer as others may have access to data stored on Cloud-type servers, he said.
Gordon said, “We anticipate going forward again.”
As for the location of the alleged images on a SkyDrive rather than on a personal computer’s hard drive, she said, “I don’t think it matters much where it is (stored). We wouldn’t have brought charges if we hadn’t seen anything.”
Both sides filed motions to dismiss prior to trial. A defense motion to dismiss was denied by Judge Steven Houran on Sept. 23, and the state’s motion to dismiss without prejudice, was also denied on Oct. 29 as the state, not the court, does have the right to set aside charges.
Domaingue retired from his editor’s job at the New Hampshire Union Leader in 2010.