Judge decides on 10 motions in mom’s kidnapping caseBy JOHN KOZIOL
Union Leader Correspondent
February 08. 2015 6:50PM
GRAFTON — Orders issued by Justice Peter Bornstein contain some good and bad news for Genevieve Kelley, the former Whitefield resident who in 2004 is alleged to have fled the state illegally with her then 8-year-old daughter.
Bornstein issued orders on Friday to 10 of 14 motions made last Wednesday by Kelley’s defense team and from Coos County Attorney John McCormick. The judge began with Kelley’s motion to be able to use “affirmative defenses” at her trial, which has been rescheduled for May 8.
Kelley has been charged with two counts of interference with custody, with McCormick alleging that in September 2004 she knowingly left New Hampshire for Colorado and then points unknown with daughter Mary Nunes and current husband, Scott Kelley, in violation of a court order that gave custody of Mary Nunes, to Mark Nunes, her biological father and Kelley’s ex-husband.
Kelley surrendered last November, but Mary Nunes and Scott Kelley, who faces charges of unlawful flight to avoid prosecution and non-custodial kidnapping, have yet to appear in public.
Alan Rosenfeld, who is Kelley’s lead attorney, has said that Kelley had no choice but to leave the Granite State to prevent Mary from being further harmed by Mark Nunes.
Kelley has accused Mark Nunes of sexually abusing the couple’s daughter, but authorities investigated Kelley’s allegations and found no grounds to charge Nunes.
Rosenfeld has said his client was not aware that Mark Nunes had been awarded custody of Mary Nunes on Dec. 1, 2004, adding that Kelley never received notification of that action by a New Hampshire court. Rosenfeld has said Kelley was justified in leaving with Mary, but Bornstein ruled that Kelley cannot use one of the two affirmative defenses that Rosenfeld previously proffered.
Specifically, Bornstein said the defense of protecting Mary Nunes from “real and imminent physical danger” would not be available to Kelley because regardless of whether a jury found her innocent or guilty of the Class B felonies, “...the jury would never need to consider and determine whether the defendant has established by a preponderance of the evidence...” the affirmative defense under the interference-with-custody law.
On a positive note for Kelley, Bornstein again rejected McCormick’s motion to prevent Rosenfeld from representing Kelley.
Based in Colorado and therefore not licensed to practice in New Hampshire, Rosenfeld sought and was granted permission by Bornstein on Dec. 18 to be Kelley’s lawyer even though McCormick claimed that Rosenfeld’s comments in a local newspaper were prejudicial and had tainted the pool of potential jurors.
McCormick filed a second request to revoke Rosenfeld’s ability to represent Kelley after Rosenfeld on Jan. 7 sent to several media outlets a news release and photo showing Kelley with supporters shortly after she posted bail and was released from jail. Bornstein denied McCormick’s motion without comment.