CONCORD — The New Hampshire Supreme Court Wednesday heard oral arguments in the appeal of the felony wiretapping convictions of a co-founder of CopBlock.org.
Adam "Ademo Freeman" Mueller was charged with violating the law by not obtaining the consent of a police officer, the former principal of Manchester High School West and a school secretary when he recorded their conversations about an incident involving a school resource officer and a student and posted portions of it on the website.
Mueller's appellate attorney argued the judge did not properly instruct the jury and Mueller should have a new trial.
Mueller posted portions of the recorded conversations on the website, along with video of a student being grabbed by the resource officer, pushed face down on a cafeteria table and handcuffed.
The video was taken by a student who had met Mueller and CopBlock.org co-founder Peter Eyre a few weeks earlier and had been given a video camera.
Mueller, who has apparently relocated to the Laconia area, judging by a recent blog on the CopBlock website, did not attend the appeal session.
Mueller represented himself in his felony wiretapping trial in Hillsborough County Superior Court North Aug. 13, 2012, telling jurors that he did not believe he had done anything wrong in recording the conversations with Police Capt. Jonathan Hopkins, principal MaryEllen McGorry and secretary Denise Michael.
McGorry and Michael were suspended with pay at the start of the 2012-13 school years. An investigation was conducted, but no information was made public and McGorry resigned in January 2013 and Michael retired in March 2013.
Brandon Ross, Mueller's "pro bono" appellate attorney, said Wednesday that Mueller had argued jury nullification, telling jurors: "This law's wrong, so don't convict me." But he also told jurors at the outset that he didn't think he had done anything wrong.
The jury convicted Mueller on three counts of felony wiretapping for recording the calls Oct. 4, 2011, without the consent of Hopkins, McGorry and Michael.
At Mueller's request, Judge Kenneth Brown sentenced him on the spot, to one to four years in jail, with all but three months suspended for five years of good behavior.
Mueller chose to begin his sentence immediately, but also sought to have the verdict set aside or reversed, the charges dismissed with prejudice so they could not be brought back, the conviction vacated and his release ordered, or, a new trial ordered and the remaining sentence stayed.
The judge denied his motion, saying it was not filed within the required seven days and Mueller was "an experienced pro se litigator and knows the rules."
Ross Wednesday said Mueller wasn't experienced enough to seek to have included in the judge's instructions to the jury that they could acquit Mueller if they found he believed what he did was legal.
He also said he believes that if Mueller had had a lawyer representing him at trial, he would not have been convicted.
Assistant Attorney General Lisa Wolford, who represented the state, said she was surprised, as were the justices, that Ross conceded Mueller was correctly charged with felony wiretapping. He had earlier maintained that it should have been a misdemeanor charge.
But Ross contended the judge incorrectly instructed the jurors, saying they must find Mueller had "purposely" committed the crime. He said the wiretap statute requires the jury to find the defendant "willfully" committed the crime, which he said has a stiffer requirement.
Wolford disagreed, but said the justices will decide whether the judge's use of "purposely" in reference to Mueller's mental state, when giving jury instructions, was a reversible error.
Mueller had earlier been convicted in Circuit Court-Manchester District Division of two resisting arrest charges in connection with a June 2011 incident in which anti-police signs were chalked on the police department building on Chestnut Street. In January 2012, he was sentenced to 12 months in jail with 10 months suspended.