This blog serves as an archive of selected news stories from my times as a crime and general assignment reporter for The Keene Sentinel, a daily newspaper in Keene, N.H., The Cape Coral Daily Breeze, a small daily in the greater Fort Myers, Fla., area, and the Naples Daily News in Naples, Fla. I left daily newspapers in 2010 to be a reporter in Boston for Lawyers Weekly, a trade publication. Now I work for Lawyers Weekly in North Carolina. Because of copyright protections, I will not be posting any more news stories to this site.
By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: April 29, 2010
When a car collided with a college student walking in downtown Keene on Sunday evening, a Marlborough police detective had to investigate the incident while N.H. State Police troopers interviewed the victim.
On most evenings, Keene police officers would have handled the accident, which resulted in minor injuries. But they were busy processing a dozen people who were accused of trespassing at the new Cheshire County jail in Keene.
The arrestees – all were charged with trespassing and one was charged additionally with possession of marijuana and drug paraphernalia – have ties to the Free State Project and one of its offshoot groups, Free Keene.
The Free State Project is an effort to persuade 20,000 people to move to New Hampshire and participate in activism or run for political office. Project members are particularly active in Keene.
The Free Keene website states that the “Trespassive Twelve” circled the jail building several times, attracting the attention of some inmates, and police. “No Trespassing” signs are posted on the property.
Ian “Freeman” Bernard, 29, a Keene resident who was among the protesters, said in a phone interview Tuesday that the group was rallying for N.H. Free Press publisher Russell Kanning. Kanning is jailed for nonpayment of child support.
Bernard added that he and the other protesters also wanted to “raise the spirits of other men and women in prison there.”
The gathering drew a rather large police response: the Keene Police Department sent an entire shift, four officers and a supervisor, to the jail. Marlborough police sent Detective Steven E. LaMears. Swanzey police sent an officer. The N.H. State Police sent two troopers. Finally, three corrections officers from the jail joined the group.
Additional state troopers were called to cover the city of Keene while city officers dealt with the protesters, who were eventually arrested, processed at the Keene Police Department and ordered to appear in court at a later date.
The protest consumed significant police resources, creating a ripple effect in some area towns with limited resources, LaMears said.
“These smaller towns require state police coverage, so who’s going to cover them?” he said.
While Keene police officers were processing the 12 arrestees at the police department, a 19-year-old college student, Brittney Frank, was crossing Main Street in Keene when a car hit her, LaMears said.
Because city police had their hands full booking the protesters, LaMears was called back to Keene to investigate the collision while state police troopers interviewed Frank at Cheshire Medical Center/Dartmouth-Hitchcock Keene, where she was treated for a leg injury.
The driver of the vehicle that hit Frank, Almut Yakovleff, 56, of Alstead, told LaMears she was headed north on Main Street in her 1997 Honda Civic when the college student stepped in front of her car and entered a crosswalk, LaMears said.
It was nighttime, Frank was wearing dark clothing and Yakovleff said she didn’t see her until it was too late to stop the car, according to LaMears.
He has closed the crash investigation and will not be filing any charges or traffic citations against Yakovleff.
After he was done investigating the collision in Keene, LaMears tried to catch up on a logjam of other calls that were delayed while he was dealing with the situation at the jail, he said.
But before LaMears could make a dent in the backlog, he was sent to another call that ended in a drunken driving arrest that dragged on for six hours. The driver fell when she stepped out of her car and punctured her chin on a rock, LaMears said. He had to wait in the hospital until the woman was treated for her injuries and released.
LaMears said he spent most of his next shift chipping away at all the calls and cases he wasn’t able to address Sunday.
“It’s just a time delay,” he said. “You keep getting a backlog. This time it took a day to get out of that backlog.”
The ripple effect on police resources was an unintended consequence of the protest, Bernard said. And besides, the protesters should have been left alone, he said.
“There was no one being put in danger. There was no victim,” he said. “Even if the cops had to respond, they certainly didn’t have to send the entire squad out.”
The protesters who were arrested will likely request trials in a bid to clog the already-strained court system, Bernard said.
“I don’t expect anyone to take a plea,” he said.
Posted in Uncategorized | Leave a Comment »
By PHILLIP BANTZ
Sentinel Staff
Published: Tuesday, April 13, 2010
The Vermont man accused of leading police on a chase that topped 100 mph early Sunday morning appeared in Keene District Court on Monday.
James Davis, 39, of Springfield, Vt., was arraigned on charges of driving with an open container of alcohol, driving while intoxicated, reckless operation, disobeying police and driving after his license was suspended — his second offense.
A Bellows Falls police officer saw a vehicle driving erratically at about 2 a.m. just before the car crossed over the New Arch Bridge spanning the Connecticut River and entered Walpole on Route 12, said village police Sgt. Shane Harris.
The officer notified dispatch, giving Walpole officers a heads-up as the vehicle entered town.
Walpole police Officer Michael P. Milano was patrolling on Route 12 near the Bellows Falls village line when he heard the bulletin.
“The vehicle came around the corner, almost half in my lane, and then we went for a ride,” Milano said.
Milano chased the suspect’s speeding Dodge Stratus from Route 12 to Route 63, where the vehicle spun around on an S-shaped curve and headed back toward Route 12. The chase hit speeds of more than 100 mph at two points along Route 12, Milano said.
Walpole police Officer Raymond Gosetti and an officer from Charlestown who heard about the chase on his radio helped Milano during the incident.
The pursuit went from Walpole to Langdon to Alstead to Surry before entering Keene, where city officers placed two spike mats into the path of the Stratus, puncturing three of the car’s tires.
After the Stratus hit the spikes it went off the road and stopped, but Davis refused to exit the vehicle, according to Walpole police Cpl. Justin R. Sanctuary.
Police used pepper spray on Davis, then he stepped out of the car and was arrested without further incident, Sanctuary said.
Once the Stratus was pulled over, police discovered that a woman in her 30s had been sitting in the car’s passenger seat during the chase. She was not injured during the incident and has not been charged with a crime. Police also found an open can of Budweiser beer in the car, Milano said.
Davis was also wanted on a bench warrant out of Claremont District Court, according to Milano.
A judge set Davis’ bail at $10,000 during Monday’s arraignment. He remained at the Cheshire County jail today.
Posted in MISCELLANEOUS CRIMES | Leave a Comment »
By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: Tuesday, March 23, 2010
A Keene psychologist has surrendered his license to practice mental health therapy in the wake of allegations he sexually assaulted and stalked a patient.
Dr. Burton G. Hollenbeck, 56, of Richmond has been indicted in Cheshire County on eight counts of felonious aggravated sexual assault, two counts of violating a protective order and one count of witness tampering.
Each sexual assault charge carries a maximum prison sentence of 10 to 20 years. Witness tampering, also a felony, is punishable by 3 1/2 to seven years in prison. Violating a protective order is a misdemeanor charge with a possible sentence of a year in jail.
Hollenbeck’s attorney, Cathy J. Green of Manchester, declined an interview request but released the following statement: “Dr. Hollenbeck will enter pleas of not guilty to all of these charges and is confident that when all of the facts are brought before the court, justice will prevail.”
Hollenbeck, who worked out of an office on Roxbury Street in Keene, hung up on a reporter when reached by phone Monday.
In late January, Hollenbeck agreed to quit practicing psychology in New Hampshire until the state Board of Mental Health Practice resolves the allegations of misconduct pending against him. Psychologists are barred by ethical code from having sex with current clients or former clients within two years of the termination of therapy.
The sexual assault indictments against Hollenbeck allege that he had sex with a 36-year-old patient eight times between March and October 2008. State law forbids doctors from having sex with current patients or former patients within a year of the termination of therapy. The patient’s identity in this case is being protected because The Sentinel does not name alleged victims of sexual assault.
The state Attorney General’s Office has appointed Hillsborough County Attorney Robert M. Walsh to prosecute the case. Walsh did not return messages seeking comment.
The alleged victim and her husband — they were married in 1995 and have two children — began seeing Hollenbeck for marriage counseling in mid-2006.
After learning that the wife had been abused when she was younger, Hollenbeck asked her to have one-on-one therapy sessions with him, according to separate lawsuits the wife and husband have filed against Hollenbeck.
They are seeking hundreds of thousands of dollars in compensation for mental anguish, emotional distress, lost wages, legal fees and other damages, losses or expenses they say they suffered as a result of the alleged affair and Hollenbeck’s “wanton, malicious and oppressive” actions.
Shortly after the wife started her private sessions with Hollenbeck, the doctor bought her golf equipment, gold and pearl earrings, paid her auto insurance, gave her $200 toward a trip to Europe and paid $50 for her monthly phone bill between March and November 2008, according to the husband and his attorney, William Aivalikles of Nashua.
The wife and Hollenbeck became involved in a romantic relationship in February 2008, the husband states in his lawsuit. In October, Hollenbeck’s office manager blew the whistle on the alleged affair, but the wife and doctor denied the allegations, according to the lawsuit.
The husband states in court documents that he wrote a letter in support of Hollenbeck because he could not believe the doctor was having a romantic relationship with his wife.
But in early December, the wife came forward and admitted she was having an affair with Hollenbeck, her lawsuit states. She then ended the relationship, according to her lawsuit.
Her attorney, Paul M. DeCarolis of Nashua, declined to comment on the case.
“All I can say is we’re confident that the case will get before a civil jury in Cheshire County and the jury will issue the appropriate justice,” DeCarolis said.
Court documents indicate the wife is seeking at least $400,000 in compensation from Hollenbeck. Her husband wants $500,000.
Both lawsuits have been suspended until Hollenbeck’s criminal case concludes.
After the wife ended her romantic relationship with Hollenbeck, the doctor began stalking her, according to her lawsuit.
Claremont District Court Judge John J. Yazinski barred Hollenbeck from contacting the wife in a Dec. 22, 2008, restraining order. In her request for the restraining order, the wife writes that Hollenbeck followed her to a gas station on Dec. 3 and tried to block her car with his vehicle.
“I refused to tell him where I was going so he followed me all around Keene and a few miles out before giving up and turning around,” she wrote. “I fear for my life because I have reported him to the Board and I don’t know what he will do, how he will react and I have many phone messages for you to hear his temper.”
She writes that Hollenbeck won’t stop calling her and sending her text messages and that she’s seen him parked outside her house.
Four days after the incident at the gas station, Hollenbeck pulled the keys out of the ignition of the wife’s vehicle while she was trying to drive away from him during another confrontation, according to her statement in support of the restraining order.
Hollenbeck “told me I could have them back when I got to his office. Despite repeated (requests) to give them back he went to his office. As I entered he grabbed me and threw me on the couch. He threw me many times whenever I was able to get out of his grip. I told him, ‘No Burt No! Get off me!’ to no avail.”
Hollenbeck is accused of violating the restraining order by contacting the wife on Dec. 22 and Dec. 23, 2008. During the latter conversation, he told her, “I can’t help you from prison,” according to the indictments. The alleged statement led to the witness tampering charge.
On Dec. 31, 2008, Hollenbeck was arrested for violating the restraining order. He posted $25,000 bail and was released from jail the next day. The restraining order remains active.
Posted in COURTS, SEX CRIMES | 1 Comment »
By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: March 18, 2010
The effort to free a man serving 10 to 30 years in prison for kidnapping a Jaffrey woman has hit a legal roadblock. A Superior Court judge rejected a request to give Brian R. Chevalier a new trial.
In 2004, Chevalier, 43, was acquitted in Cheshire County Superior Court of 10 other criminal charges — including aggravated sexual assault, criminal threatening and burglary — but a jury found him guilty of the kidnapping charge.
His ex-girlfriend testified during the trial that Chevalier held her against her will and repeatedly raped her at her Jaffrey home. The Sentinel does not identify alleged victims of sexual abuse.
Chevalier’s attorney, Justin P. Nadeau of Portsmouth, who has volunteered his legal services, and two retired police officials — one is a state representative — believe the ex-girlfriend concocted the rape and kidnapping story.
They base their belief on her phone records from the night of the incident and a linguistic polygraph test of the statement she gave to police. The linguistic polygraph test, known as Scientific Content Analysis, or SCAN, is used by law enforcement officials to gauge the reliability of a person’s retelling of an incident.
The ex-girlfriend testified during Chevalier’s trial that Chevalier became angry while he was kidnapping her because she was receiving calls from an unidentified caller during a three and a half hour period, but her phone records show no calls during that time, according to Nadeau.
Her statement to police about the incident is inconsistent and she uses language that indicates she was not a victim, according to John M. Healy, a retired N.H. State Police lieutenant who teaches the SCAN technique.
One of Healy’s students, state Rep. Dudley “Dan” Dumaine, R-Auburn, who is a former Keene police officer, also believes Chevalier is innocent.
Healy, Dumaine and Nadeau believe the ex-girlfriend concocted the story after her estranged husband walked in on her and Chevalier the morning after they spent the night together. They say she feared she’d lose custody of her daughter if her husband brought up her infidelity during divorce proceedings.
In an e-mail to The Sentinel, the woman said her now-ex-husband was engaged to another woman before the attack.
“I have never had a reason to lie. I did not lie,” she wrote. “My divorce was final long before things went to trial. I could have refused to testify.”
She declined requests for a phone or in-person interview.
Meanwhile, Nadeau filed a motion with Coos County Superior Court requesting that Chevalier be given a retrial based on the phone records and SCAN of the ex-girlfriend’s statement. The case is playing out in Coos because Chevalier is imprisoned there.
Nadeau believes jurors will overturn the kidnapping conviction after they hear about the SCAN of Chevalier’s ex-girlfriend’s statement.
He also believes that Chevalier’s original attorney, now-retired public defender Hampton W. Howard, was ineffective because he did not introduce the ex-girlfriend’s phone records during the first trial. Howard could not be reached for comment.
Judge Peter H. Bornstein recently rejected Nadeau’s request for a retrial. He concluded that Nadeau failed to prove that introducing the phone records or SCAN results would lead to a different outcome during a retrial.
Also, Howard cross-examined the ex-girlfriend during the first trial and convinced jurors that Chevalier was not guilty of 10 of the 11 charges he faced, which led Bornstein to determine that Howard handled the case effectively.
“For all of those charges, the victim was the only witness. … It is apparent, given the outcome of the case, that the jury did not believe much of the victim’s testimony,” Bornstein wrote in his decision.
“The petitioner has not shown a reasonable probability that SCAN evidence, which would have served only to further impeach the victim, would have yielded a different result.”
As for the phone records, another Superior Court judge, Timothy Vaughan, rejected a previous argument from Chevalier that introducing that evidence would have resulted in a different verdict. Because Chevalier did not appeal Vaughan’s decision, he waived further litigation on the argument, Bornstein ruled.
Calling Bornstein’s decision “disappointing,” Nadeau said he will appeal to the N.H. Supreme Court for a retrial. If that fails, he’ll take his request to federal court.
Nadeau said Chevalier’s case has been one of the most expensive cases he’s ever handled for free, or pro bono, in his career.
“When you take on a case pro bono, you do it because you want to, because you believe in the cause,” he said. “I believe in Brian Chevalier. I believe that at the end of the day he will have a fair hearing.”
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By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: March 12, 2010
MANCHESTER — Surrounded by three lawyers, the man who ran the now-shuttered Hinsdale Greyhound Park walked out of U.S. Bankruptcy Court in Manchester Thursday afternoon, closing the door on a Chapter 7 case that began in December 2008.
Joseph E. Sullivan 3rd declined an interview request through one of his attorneys, Arpiar G. Saunders Jr., after the hearing. Sullivan believes the “court order stands for itself,” Saunders said.
In the order, Chief Judge Mark W. Vaughn called the bankruptcy settlement “fair and reasonable and in the best interests of the bankruptcy estate.”
The settlement Vaughn approved calls for drawing $1,086,120 from the estate to repay the track’s creditors.
Dozens of bettors who were unable to withdraw their wagering accounts when the track closed stand to be repaid about half of what they’re owed, said Deborah Notinger, an attorney for the bankruptcy trustee, Michael S. Askenaizer. The court appointed Askenaizer to liquidate the track’s assets.
One of the track’s biggest bettors, Herschel Bird of Nevada, disapproves of the settlement. He suspects that Sullivan, who had a salary of more than $200,000 during the three decades he ran the track and took out $650,000 in loans from the business, may have hidden assets from Askenaizer.
“When you’re asked to take 50 cents on the dollar, you feel like you’re being ripped off,” Bird said. “Something doesn’t ring true about Sullivan’s finances.”
Sullivan stated in a deposition with Notinger that he is destitute and financially dependent on his sister, who loaned him $70,000.
Sullivan and his wife own a house and two properties in Swanzey valued at an estimated $575,000.
But after a $375,000 mortgage, they have about $200,000 in equity in those assets, according to Sullivan’s deposition.
Sullivan also lists $123,206 in other personal property, which includes a 2003 Cadillac Seville, a 2004 Jeep Cherokee, jewelry and art.
Based on the advice of his attorney, Bird did not file an objection to the settlement with the court, which might have altered the outcome of Thursday’s hearing. None of the track’s other creditors objected to the deal.
Under the settlement, $400,000 will be taken from the proceeds of a land deal Sullivan and business partner Carl B. Thomas, who owns Spofford-based Thomas Construction Corp., made with Wal-Mart Stores Inc. Sullivan has to come up with another $400,000 by selling the remaining former track land.
That land, about 66 acres, belongs to Hinsdale Real Estate LLC, a holding company Sullivan and Thomas created before the bankruptcy filing.
Sullivan sold the track land, originally 91 acres, and buildings to the holding company for $3.3 million.
Later, the holding company sold 25 acres to Wal-Mart for $2.1 million. The remaining 66 acres have been assessed at $1.2 million. The buildings on the property are assessed at $3.5 million.
Sullivan disagrees with those assessments. He has made an unsuccessful attempt to have Hinsdale lower the assessed value of the land and buildings, which would result in a decrease in property taxes. He is appealing the town’s decision to the state.
Sullivan and Thomas have two years to hand over $400,000 to the bankruptcy estate by selling all or some of the 66 acres at and around the track before the court steps in and forces an auction of the property.
The $800,000 from that land sale and the Wal-Mart deal will be combined with $286,120 the bankruptcy estate has from the track’s other liquidated assets, such as computers, furniture and vehicles that were auctioned last spring.
A peripheral condition of the settlement calls for Thomas to buy Sullivan’s 75 percent interest in Hinsdale Real Estate for $500,000.
Sullivan owes Thomas about $2.3 million for two loans secured by mortgages tied to the former track property. Thomas is gambling that he can recover his debt on the mortgages and perhaps make a profit by selling the 66 acres, even after the court takes a $400,000 cut from the proceeds.
“That land is worth bupkus. Nothing’s selling in that area,” Notinger said after the settlement hearing. “He’s taking all the risk and we’re getting money up front.”
Askenaizer and Notinger have raised concerns that Sullivan’s deal with Hinsdale Real Estate prior to the bankruptcy filing was a fraudulent property transfer.
But they agreed in the settlement to not pursue the allegation by filing a lawsuit against Sullivan.
They say legal action would be expensive and, even if it were successful, Askenaizer would be responsible for selling the track’s remaining property to pay off Thomas’ debt and the creditors.
Bird, the Nevada bettor, criticizes Askenaizer and Notinger for being too passive in their handling of the track’s bankruptcy — he wanted them to thoroughly investigate Sullivan’s finances instead of relying on the deposition and his financial affidavit.
Bird wants to know what Sullivan did with the money he made while working at the track and the $650,000 in loans he took from the business. Sullivan’s two daughters were also on the track’s payroll for years, making about $25,000 annually, even though they did not hold regular jobs, according to two former track employees who asked to remain anonymous.
In his deposition with Notinger, Sullivan indicates that he used a portion of the $650,000 that he took from the track to correct accounting errors.
Sullivan said the track’s vice president of operations, whom Sullivan appointed to run the company for a stint in 2005, had a gambling problem and used company money to fuel his addiction.
“When I had to let him go I went back in and the accounting was a wreck and I set about rebuilding it,” he told Notinger.
One of the former track employees wrote in an e-mail that Sullivan “representing himself to be ‘the cavalry’ riding back in to put (Hinsdale Greyhound Park) back in operating order after less than a year of mismanagement is bull crap. Joe never stopped controlling operations at HGP, he just hid in the shadows.”
Meanwhile, Bird said the track’s creditors may have gotten a raw deal because the bankruptcy trustee system is flawed. He said trustees have a financial incentive in the outcome of Chapter 7 cases in which assets are available to liquidate, which rarely happens.
Trustees receive a percentage of the funds they gather for the bankruptcy estate based on a sliding scale that ranges from 25 percent for the first $5,000, 10 percent for the next $45,000, 5 percent for the next $950,000 and 3 percent of the balance. They can also be paid for legal services.
The amount of Askenaizer’s payout was unclear and he did not return a phone message before press time today. An attempt to reach Notinger was also unsuccessful.
Posted in COURTS, GAMBLING | Leave a Comment »
By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: February 21, 2010
A Portsmouth lawyer has joined the effort to overturn a kidnapping conviction against Brian R. Chevalier, a Merrimack man who has been in prison since the conclusion of his 2004 trial in Cheshire County.
Justin Nadeau, who last year won a landmark state case that paved the way for grandparents seeking visitation rights with their grandchildren, has taken Chevalier’s case pro bono.
Nadeau wants a judge to set aside Chevalier’s kidnapping conviction and hold another trial on the charge.
He argued during a hearing Thursday at Coos County Superior Court — the case is being heard in Coos because Chevalier is imprisoned there — that he has evidence that will prove Chevalier’s innocence.
If Judge Peter Bornstein declines to give Chevalier, 43, a second trial, Nadeau could take his argument to the federal level at U.S. District Court in Concord.
“This can definitely end right here in state court,” he said. “We’re hoping.”
A former Keene police officer, state Rep. Dudley “Dan” Dumaine, R-Auburn, and Justin M. Healy, a retired N.H. State Police lieutenant, also believe Chevalier is innocent. They say the statement that Chevalier’s accuser, an ex-girlfriend, gave to police doesn’t add up.
She wrote that Chevalier ambushed her inside her Jaffrey home, then held her hostage for 21 hours while he threatened and sexually assaulted her.
Her name is being withheld because The Sentinel does not identify alleged victims of sexual abuse. Attempts to contact her have been unsuccessful.
Chevalier was tried on 11 charges ranging from aggravated sexual assault to criminal threatening, burglary and kidnapping.
After deliberating for two days, a jury acquitted Chevalier of every charge but kidnapping. Because Chevalier had prior convictions for property crimes, he qualified for an enhanced prison sentence and received 10 to 30 years.
Chevalier’s lead public defender, Hampton W. Howard, had argued at trial that Chevalier’s ex-girlfriend concocted the rape and kidnapping story. He said the woman panicked when her estranged husband and young daughter walked in on her and Chevalier the morning after they spent the night together.
The woman feared she’d lose custody of her daughter if her husband brought up her infidelity during divorce proceedings, so she lied about her relationship with Chevalier to protect her own interests, Howard said in court.
Dumaine and Healy also concluded that she concocted the rape and kidnapping story after analyzing the written statement she gave to police after the incident. They used a linguistic polygraph test known as Scientific Content Analysis, or SCAN, to study the statement.
Healy trains local, state and federal law enforcement officials to use the technique. He was teaching a seminar in Boston when a police officer brought Chevalier’s ex-girlfriend’s written statement to class.
Healy used the document, which did not identify Chevalier or his ex-girlfriend, as an example of a blatantly deceptive statement. Healy found that the writer was inconsistent in her retelling of the incident and she used language that indicated she was not a victim.
Dumaine, a former longtime Keene police officer, enrolled in one of Healy’s seminars and, after seeing the statement, convinced Healy to track down Chevalier.
Nadeau said he trusts the SCAN technique and hopes a judge will allow Dumaine and Healy to testify about their findings if Chevalier gets a new trial.
Nadeau also wants to introduce the ex-girlfriend’s phone records — evidence that, like the statement analysis, was not presented during the first trial.
Nadeau said Chevalier’s ex-girlfriend testified that Chevalier kept her from answering the home phone and ordered her to play back any messages that were left on her answering machine.
She said she received several calls between 5:30 and 9 p.m., and each call made Chevalier more agitated because the caller kept hanging up without leaving a message, according to Nadeau.
She said Chevalier threatened to kill her if she didn’t tell him who was calling, and he dialed *69 in an attempt to identify the caller, Nadeau said.
But phone records show no calls were made to the ex-girlfriend’s house during the 31/2–hour timeframe she testified about, Nadeau said.
He said Howard, Chevalier’s former public defender, should have presented the phone records during trial to contradict the ex-girlfriend’s statements and “impeach her credibility.”
“This newly discovered evidence, the SCAN analysis and the phone records, would have had a profound effect on the jury and would have resulted in acquittal at trial,” Nadeau said.
Howard has retired from the public defender office. He did not return a message left at his residence.
In a March 2009 interview with The Sentinel, Chevalier proclaimed his innocence and said he was desperate to find a lawyer to fight for him.
“I’m not claiming to be an angel. I’ve done a lot of things. I’ve been in prison before,” he said. “But I did not do this. I did not rape or kidnap anyone. I’m just hoping that somebody will take another look at this case.”
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By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: February 25, 2010
A proposed settlement has been reached in the Hinsdale Greyhound Park bankruptcy case that would help reimburse creditors and forgive the former track’s president for an alleged fraudulent property transfer prior to the Chapter 7 filing.
The track closed in December 2008, leaving dozens of racing bettors with an estimated $500,000 in their wagering accounts holding the bag. The track also owes more than $1 million to additional creditors, including other tracks it did business with.
The proposal calls for drawing $400,000 from an escrow account and another $400,000 from the sale of the property at and around the now-defunct track, which includes 106 acres. The $800,000 will be combined with another $286,120 the bankruptcy estate has from the track’s other liquidated assets.
This would give bankruptcy trustee Michael S. Askenaizer $1,086,120 to help repay the track’s debts. A trustee is a third party appointed by the court to administer a debtor’s bankruptcy estate.
“The trustee believes, in his best business judgment, that this settlement with the settling parties is fair and reasonable and in the best interests of the bankruptcy estate,” Askenaizer wrote in the proposal.
As part of the proposed settlement, Askenaizer would agree to not sue Sullivan and his estate for an alleged fraudulent transfer of property to a real estate holding company, subordination of mortgages and a $650,000 promissory note former track president Joseph E. Sullivan 3rd took from the track when it was operational.
Askenaizer wrote in the proposal that while sufficient evidence exists to file and possibly win a lawsuit against Sullivan, doing so would “involve the expenditure of lots of attorneys’ fees and expert fees in order to prevail.”
And even if the lawsuit were successful, Askenaizer said he would have to sell the track’s remaining property, pay off a $2.3 million debt to Sullivan’s business partner Carl B. Thomas and cover property taxes and other costs from carrying the property.
“Given the depressed values of the commercial real estate market in southwestern New Hampshire, where the remaining property is located, the trustee believes refusing this settlement offer and litigating instead is not in the best interests of the estate,” Askenaizer wrote.
Before the bankruptcy filing, Sullivan sold the track’s property and buildings for $3.3 million to Hinsdale Real Estate LLC, a holding company he created with Thomas of Spofford-based Thomas Construction Corp.
The holding company later sold 23 acres to Wal-Mart Stores Inc. for $2.1 million, with $500,000 going into the bankruptcy estate escrow account that, under the settlement proposal, could be used to repay creditors. The rest of the proceeds paid off a portion of Sullivan’s debt from property taxes and loans.
Sullivan still owes Thomas about $2.3 million. The debt is tied to two loans for a total of $2.1 million, plus interest, that Thomas gave to Sullivan. The loans are secured to mortgages against the track property.
The settlement proposal gives Hinsdale Real Estate two years to sell the remaining track property, about 83 acres. The bankruptcy estate will take 65 percent of the sale proceeds until it receives $400,000. The other 35 percent will be used to pay Thomas for the mortgages.
The remaining $100,000 from the escrow account tied to the Wal-Mart land deal will be used to pay outstanding property taxes.
If the land doesn’t sell within two years, the property would go to auction.
A separate agreement under the settlement proposal would give Thomas full control over Hinsdale Real Estate. He plans to purchase Sullivan’s 75 percent interest in the company for $500,000, according to Askenaizer.
Askenaizer and Sullivan’s bankruptcy attorney could not be reached for comment. Sullivan has declined to answer questions about the case.
A hearing on the settlement proposal is slated for March 11 at U.S. Bankruptcy Court in Manchester.
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Timothy O'Meara
By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: February 09, 2010
A personal injury lawyer based in Keene is one step closer to losing his license to practice law in New Hampshire.
A hearing panel for the N.H. Supreme Court Attorney Discipline Office recommended Monday that Timothy A. O’Meara be disbarred for violating several rules of conduct.
The four-member panel of lawyers and non-lawyers concluded that O’Meara lied to a paralyzed client and her family and coerced them to sign an agreement to pay him $2 million in legal fees.
The panel determined that O’Meara placed his interests above the interests of his client.
In a scathing 40-page decision against O’Meara, panel Chairman Robert C. Varney wrote that “it is apparent greed got the best of Mr. O’Meara.”
O’Meara has referred questions about his disciplinary case to his attorney, Michael R. Callahan, who did not return messages left at his Concord office.
The panel’s recommendation to disbar O’Meara has been forwarded to the state’s Professional Conduct Committee, which will issue its own decision.
If the committee decides O’Meara should be disbarred, the case will be bumped up to the Supreme Court.
The state’s highest court has final say on any disciplinary cases that involve the possibility of disbarment or any other sanction greater than a six-month suspension from practicing law.
Disbarment is rare in New Hampshire. Only two lawyers have been banned from practicing law in the state since 2006.
Lawyers who are disbarred in one state are commonly disbarred in every other state where they are authorized to practice law.
O’Meara is a bar member in New Hampshire, Pennsylvania and Vermont.
Disbarred lawyers can apply for readmission, but they must retake the bar exam, pass character and fitness hearings and undergo rehabilitation, said James L. DeHart, general counsel for the N.H. Attorney Discipline Office.
“They’ve got to show that they’ve done something to rehabilitate their lives so their conduct is such that it’s not likely they will offend again,” he said.
In 2005, O’Meara agreed to represent Anita Conant after a paving company’s dump truck slammed into the back of her car.
Conant, a Hampton resident, was stopped at a lighted intersection in Pennsylvania, where she was attending her father’s funeral, when the speeding truck hit her car.
The car was launched into the air and sailed about 130 feet before it landed on its roof. The impact severed Conant’s spine. She was left paralyzed from the neck down.
O’Meara sued the paving company, Lyons & Hohl Paving Inc., and offered to settle the case for the company’s $11 million insurance policy limit through The Cincinnati Insurance Companies. Lyons & Hohl kicked in another $500,000 as part of the settlement.
The Conants say they never authorized the settlement, which represents less than half of what a certified life-care planner, who O’Meara hired, determined it would cost to care for Conant during her lifetime.
O’Meara disregarded the estimated life-care costs and went after the settlement because he wanted a quick payday, according to disciplinary counsel Landya B. McCafferty, who represented the Conants during the panel hearings.
McCafferty declined comment on the panel’s decision.
After the Conants confronted O’Meara about making the alleged unauthorized offer, O’Meara mailed a letter to Cincinnati Insurance stating that the Conants had withdrawn their settlement demand.
While he wrote the letter on Jan. 24, 2006, he dated it for Jan. 20 — several days before the insurance company had accepted O’Meara’s settlement proposal.
O’Meara testified during the panel hearings that the erroneous date was an innocent mistake.
“The Panel finds no credibility in Mr. O’Meara’s testimony that the date on the letter was just a ‘mistake,’” Varney wrote in the panel’s decision.
A correct date would have rendered the letter useless because Cincinnati Insurance had already accepted O’Meara’s offer for the policy limit by that date, according to the panel.
When the Conants learned of O’Meara’s alleged unauthorized settlement offer, they asked him to reduce his fee. They also asked what would happen if they fired him.
“Mr. O’Meara replied he would sue for his full one-third fee,” Varney wrote. “He also told the group he would win.”
However, O’Meara’s contract gave the Conants the option to fire him and pay him and any of the employees at his firm who worked on the case $275 an hour. O’Meara testified that he never told the Conants about this option, and he did not keep track of the hours his firm spent on the case.
During a heated meeting with the Conants, O’Meara agreed to insert “to be negotiated” into his contract for his legal fee. This happened after he failed to persuade the family to pay him $2 million in fees, according to the panel.
But O’Meara testified that the family did, in fact, make a verbal agreement to pay him $2 million during the meeting.
He said the new fee was not written into the contract during the meeting because he “has terrible handwriting” and because he was “on his way out the door of the Conant residence, it was snowing heavily, and it had been a long day,” Varney wrote.
The panel rejected both explanations, calling them “incredible.”
During the final day of mediation at a courthouse in Philadelphia, O’Meara used “strong-arm tactics” to pressure the Conants to sign a contract that gave him $2 million in legal fees, Varney wrote.
He told the Conants that he would walk away from their case, moments before the court hearing, if they continued to refuse to sign the contract, according to the panel.
The Conants signed the contract, but they disputed O’Meara’s legal fees once the case was settled. After arbitration, O’Meara received $1.6 million — the largest payment of his law career.
The panel’s decision to recommend disbarment was also influenced by Conant’s vulnerability, according to Varney.
Conant, who is unable to speak or care for herself, attended the panel hearings with her family. Strapped into a bulky wheelchair, she sat across the room from O’Meara, her respirator making an air-sucking whistle every few seconds.
The panel said O’Meara took advantage of the Conants while they were worried about an uncertain financial future and busy caring for Conant.
“The Panel finds that Mr. O’Meara inappropriately attempted to use these factors to leverage himself into a stronger position for negotiating a $2 million fee,” Varney wrote.
O’Meara’s checkered past also played a role in the panel’s decision.
He was publicly censured in 2003 for lying to a judge about an erroneous date he placed on a court document while representing himself in a divorce and child custody case. And when he was a student at Franklin Pierce Law Center he was suspended for cheating.
“This pattern of conduct indicates either the lack of a moral compass, or an inability to comprehend what constitutes acceptable conduct in the practice of law, or both,” Varney wrote.
Posted in COURTS | 2 Comments »
By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: February 10, 2010
Keene police officers are an exception in the Monadnock Region because they do not carry Tasers — stun guns that can zap offenders into submission.
But that doesn’t mean the city officer who shot and killed a man during a standoff last week would’ve used a Taser if he had one.
In the wake of the Feb. 2 shooting, questions have surfaced about whether Officer Joshua English and other officers who were with him could have used non-lethal weapons to diffuse the tense situation.
The Attorney General’s Office concluded in a preliminary investigative report of the incident that English, who joined the Keene police force in August 2004, was justified in pulling the trigger.
Hinsdale police Lt. Todd Faulkner is a court-recognized Taser expert who has provided stun-gun training to nearly every officer in the region who has the device.
Faulkner said officers are told to meet deadly force with deadly force. They should not bring a Taser to a situation involving a gun or knife, he said.
“The Taser is not the appropriate tool if you have a hostage and someone with a knife,” he said. “The Taser is extremely effective when deployed correctly. However, it shouldn’t be used in dynamic, deadly force situations.”
Tasers can come in handy when an officer is trying to arrest someone who’s combative or uncooperative. Instead of getting into a fight or using pepper spray, which can clear out an entire room or blow back into an officer’s face, the officer can subdue the troublesome person with a quick shock.
Keene Police Chief Kenneth J. Meola believes stun guns are effective tools, but said the city cannot afford to equip its 46 officers with the devices.
Police-grade Tasers cost about $800. Add another $22 for each cartridge and it would cost about $40,000 to equip the city’s officers with Tasers.
But that’s only the tip of the cost iceberg.
“It’s not just the initial cost. It’s the training and retraining costs,” Meola said. “We’ve looked at Tasers and they’re a very expensive tool to have. We have to prioritize our needs and training dollars and, at this point, getting Tasers hasn’t proven to be something we can do.”
English shot Charles E. Turcotte, 39, in the head while Turcotte was crouched on a bed behind his ex-girlfriend, Hae Kyong Whitcomb, also 39. Turcotte was holding a knife with an 8-inch blade against her throat, according to Attorney General Michael A. Delaney.
English and two other officers, including a hostage negotiator, tried to reason with Turcotte before the shooting, Delaney said. But Turcotte refused to drop the knife or release Whitcomb and he became increasingly agitated as the clock ticked, Delaney said.
English was armed with his department-issued AR-15 rifle. Another officer in the room had a shotgun loaded with rubber ammunition, which was never fired.
“Simply because we have something doesn’t mean it’s appropriate for every situation,” Meola said. “We bring it because it’s an option in our use-of-force continuum. We would never just go into a hostage situation with less-lethal rounds.”
Faulkner, who has been trained to use less-lethal ammunition, also said rubber bullets should never be used as an officer’s only option during a potentially deadly situation.
As for Tasers, he said the devices are extremely difficult to use in cramped locations. And if the device malfunctions, the intended target could easily rush and kill the officer who fired the Taser, he said.
A Taser has a range of 35 feet and fires two prongs at about 165 feet per second, but both prongs must hit the target and stay secured before the device can deliver a debilitating 50,000 volts of electricity.
“That officer has to be sure that when he pulls the trigger, both darts hit the target,” Faulkner said. “If that doesn’t happen, the Taser is ineffective. Then you could be facing a man with a knife, and that is a very volatile, deadly situation.”
When dealing with someone who’s armed, officers are trained to stay about 50 feet from the person, if possible, according to Faulkner.
The Spruce Street shooting occurred in a small bedroom, where English and two other officers were standing about 8 feet from Turcotte and Whitcomb.
During the standoff, English had his rifle pointed at Turcotte, who authorities said was shielding his body with Whitcomb.
“When you have someone hiding behind any object that could impede the Taser probes, you are in a situation where you could have Taser failure,” Faulkner said. “In that kind of situation, common sense would dictate that the Taser is not the right tool.”
Despite the limitations of stun guns, Faulkner said he couldn’t imagine being without one.
“Absolutely not,” he said.
Posted in SHOOTINGS | 2 Comments »
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