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Archive for September, 2009

The Dark Side of the Court System

gavelBy PHILLIP BANTZ

The Keene Sentinel: February 23, 2008

Life-altering decisions are often made by lawyers haggling for justice behind closed doors. In nearly all criminal cases, plea deals are negotiated and defendants admit guilt in exchange for lighter sentences.

Prosecutors are bound by state law to work with defense attorneys and make an attempt to reach a resolution before trial.

And while victims and their families may voice their opinions to prosecutors and judges, they ultimately have no say in the process.

Some end up feeling betrayed by a cold legal machine that allows justice to slip through their fingers.

This is a glimpse of the lesser-known side of the business of law.

***

“I felt lost. It was like I was in a different country. We obviously had no say in the matter,” James P. McCarthy Sr. said of his experience with Cheshire County’s court system.

“My kid was killed in a car accident,” he said, “and the guy who killed him only got a slap on the wrist.”

His 21-year-old son, James P. McCarthy Jr., known to friends and family as “Jimmy,” was riding in Seth R. Olson’s convertible in September 2006 when the car hit a sharp turn in Jaffrey and flipped.

McCarthy was thrown head-first into a pole. His young daughter was left fatherless.

Authorities said Olson had been speeding and his recklessness caused the crash.

Olson and his family contend it was a tragic and unintentional accident.

“My brother didn’t mean for this to happen. That night in that car, it could have been anybody. It just happened,” Meghan A. Olson, 19, said. “I saw my brother that night. I’ve never seen him more destroyed in my entire life. … He would have taken Jimmy’s place if he had the chance.”

Seth Olson declined to be interviewed for this story.

He was initially charged with negligent homicide, reckless conduct with a deadly weapon, vehicular assault and driving with a suspended license.

After a year of court proceedings, prosecutors and Olson’s public defender negotiated a plea deal.

The deal was influenced by tire skid marks and other evidence at the scene that would have weakened the chances of securing a conviction during a jury trial, according to Cheshire County Attorney Peter W. Heed.

“A plea deal is usually a good thing,” Heed said. “It may not be the best sentence, but it’s still a guilty plea. It’s not an acquittal.”

The deal shocked the McCarthys, who said they learned about Olson’s agreement after it was finalized.

Both sides had agreed on a deal that would send Olson to the Cheshire County jail in Westmoreland for six months on one misdemeanor charge of vehicular assault.

All other charges against him would be dropped.

“I almost threw up on the table. I left the county attorney’s office crying,” said McCarthy’s mother, Gail A. McCarthy. “I never expected Seth Olson to spend the rest of his life in jail, but his dangerous driving caused Jimmy’s death. I still haven’t gotten over the anger of it and I don’t feel that Jimmy got justice.”

“My jaw just dropped. We didn’t have any say in it,” said James McCarthy Sr., who was sitting beside his wife in the county attorney’s office when they learned of Olson’s plea deal.

“They shoved the plea down our throats. Six months. I still can’t believe it.”

After he’d served less than four months of his sentence, which began in mid-October, the jail’s disciplinary board determined Olson was ready for release.

The decision was based on his good behavior, work history and minimal criminal record, said Richard N. Van Wickler, the jail superintendent.

“The prosecutors left the decision up to us,” Van Wickler said. “We made the best decision we could at the time. Unfortunately, we’re not always right.”

Olson was arrested again Feb. 7 while on work release. He’d submitted a urinalysis test to the jail that tested positive for marijuana, according to Van Wickler.

He spent another 10 days in jail, serving out the remainder of his minimum sentence, and was released.

Olson’s obligation to the jail’s disciplinary board and the court system is finished. The plea deal did not require him to serve probation.

The McCarthys recently asked Mothers Against Drunk Driving and state representatives to investigate their son’s death and the way it was handled by the courts.

“I want people to know that you don’t plea bargain a beautiful life like Jimmy’s,” said McCarthy’s grandfather, Philip J. McCarthy. “This is a miscarriage of justice as far as my family’s concerned.”
***
Lawyers are not immune to the flammable mix of emotions in criminal cases involving death or life-altering victimization.

They may feel passionately about a defendant’s guilt or innocence, but that does not sway the law.

“Of course it can be hard. We may not be happy with the sentence in some cases. We just can’t make everybody happy,” said Heed, the county attorney. “We’re not the attorneys for the victims or the police. We’re the attorneys for the law.”

Prosecutors often deal with grief-stricken families and scarred victims. These are people whose lives have been devastated, and they’re desperate for some sort of justice.

They are not invited into the closed-door legal meetings. They will never see the inner workings of the courts.

But while prosecutors are not required to confer with victims and their families, they still usually try to keep them in the loop.

“You don’t intentionally try to create a poor relationship,” Heed said. “We fight as hard as we can on every case. We also try to develop a rapport with the victims. We try to minimize their pain and confusion.”

The McCarthys said they consistently received updates in their son’s case, and applauded a court-appointed advocate who helped them through the experience.

“We were involved in the process and Lyndi Horn, our victim advocate, was wonderful,” James McCarthy Sr. said. “We just had no say. … We’re riled up at Peter Heed for plea bargaining.”
***
Forget the courtroom dramas on television in which a suspect is arrested, convicted and justice is served in an hour, minus commercial breaks.

The real legal system is a high-stakes game of strategy, and it can be incredibly tedious – imagine a chess game that plays out for years.

And a trial can be a costly gamble. Lawyers never know what a jury will do, which is why most cases are resolved with a plea bargain.

“At least 95 percent of all cases are settled by plea negotiations,” Keene defense lawyer Paul G. Schweizer said. “Plea bargains are absolutely essential to the judicial system.”

Without plea deals, the courts, jails and prisons would become clogged with defendants and inmates.

“As a practical matter, we would have to build 10 new courthouses in Keene if we took everyone to trial,” he said. “We would have to hire five times as many police officers and prosecutors. The judicial system would come to a screeching halt.”

A plea negotiation often hinges on the defense’s adeptness in arguing for a judge to exclude certain pieces of evidence from a case, or the prosecution’s ability to keep that evidence in court.

The defendant’s age, criminal history, willingness to accept responsibility and the extent of the damage he caused are also significant factors in plea negotiations.

In the end, though, it’s the judge who decides whether to accept or deny a plea deal.

If the case against a defendant is strong, he may agree to an open plea deal and essentially throw himself on the mercy of the court in hopes of leniency.

A defendant may also be offered a capped plea deal, which allows him to withdraw his admission of guilt if a judge doesn’t accept the sentence recommendation.

No matter the type of plea deal, people connected to both sides of the case are often left feeling slighted, Schweizer said.

“Plea bargaining is a negotiation where everybody walks away with a bad taste in their mouth, having not gotten what they wanted,” he said. “If one side gets everything they wanted, that’s not a compromise, it’s not a plea negotiation.”
***
Lost evidence and a pair of traumatized victims recently led to a plea deal for a 31-year-old Marlborough man.

Thomas L. Pickford pleaded guilty to abusing two underage girls for three years and was sentenced to one year in jail.

He could have been sentenced to 10 to 20 years in prison if he’d been taken to trial and convicted on the two counts of aggravated felonious sexual assault that he originally faced.

He pleaded instead to lesser charges of second-degree assault and indecent exposure with lewdness.

The prosecution’s case had been dealt a blow when Cheshire County Judge Brian T. Tucker agreed with the defense’s argument that Pickford’s statements to police about the abuse were made under duress and not admissible in court.

Heed called Pickford’s interviews with police “crucial” to prosecuting the case.

“There’s a huge difference between what we know or think we know,” he said, “and what we can prove in court.”

Further weakening the prosecution’s case was that the victims, now 11 and 13, did not want to be dragged through a trial.

“Our heart goes out to these victims,” Heed said. “These cases often rely on testimony from people that have gone through a difficult situation. Some of the hardest cases are sexual assault.”

Assistant Cheshire County Attorney Christopher D. McLaughlin, who worked for about 12 years defending the accused before becoming a prosecutor, said the courtroom can be a scary place for victimized adults and downright terrifying for abused children.

“Sometimes you’re asking a 6-year-old child to face a dozen strangers and talk about being abused in front of the person who did that to them,” McLaughlin said. “Calling it an intimidating atmosphere would be an understatement.”
***
A few weeks after Pickford was sentenced, a distraught Vermont woman contacted The Sentinel.

The woman said she’d just learned that her ex-boyfriend was being offered a plea deal.

He had been arrested in Hinsdale last year and charged with sexually assaulting their daughter.

Authorities said the girl was first abused when she was 7 years old, and that a second incident occurred when she was 11.

Identities are being withheld because it is The Sentinel’s policy not to identify alleged victims of sexual assault.

As part of the plea deal, court records show the man could receive a six-month jail sentence on one count of simple assault.

He will not have to register as a sexual offender.

“I was told there wasn’t enough evidence. That’s how the county attorney felt,” the victim’s mother said. “It’s just overwhelming and I’m really, really frustrated with the system.”

The woman said her daughter had been ready to testify during the trial.

Before plea negotiations, the girl’s alleged attacker was facing two counts of aggravated felonious sexual assault.

Hinsdale police Sgt. Todd Faulkner spent more than a year investigating the case.

“It’s out of our hands when it goes to the county attorney. … Most of the time a sexual assault case is one person’s word against another’s, which makes it difficult to prove in front of a jury,” he said. “I understand how upset (the victim and her mother) are.”

A Cheshire County judge will decide whether to accept or deny the man’s plea deal during a hearing this week.

“My main concern is that he’ll be out of jail in four months and will try to fight me for custody and visitation rights,” the victim’s mother said. “My kids are scared. They don’t know what he’ll do to them.”

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By PHILLIP BANTZ
Sentinel Staff

The Keene Sentinel: September 08, 2009

The armed teenager who was arrested while topless in downtown Keene did not break the law, according to police prosecutors.

Cassidy Nicosia, 18, of Manchester no longer faces a misdemeanor charge of indecent exposure and lewdness.

Nicosia was arrested Aug. 23 after police received complaint calls about a topless teenager standing near the Main-Marlboro-Winchester streets roundabout with a handgun holstered on her hip.

State law does not require residents to have permits to openly carry guns, and she was not charged with any firearm-related crimes.

Last week, police prosecutors D. Chris McLaughlin and Eliezer Rivera decided to drop the charge of indecent exposure and lewdness against Nicosia. The charge was dropped because walking down the street topless does not qualify as a crime under state law, Keene police Lt. Jay U. Duguay said.

The law states that a person commits indecent exposure and lewdness if he or she fornicates, exposes genitals or performs any other “act of gross lewdness … likely to cause affront or alarm” in public.

“She wasn’t fornicating or exposing genitals — breasts aren’t genitals,” Duguay said. “No one who complained about it said that it was gross lewdness.”

While towns and cities may enact ordinances that prohibit women from going topless in public, Keene has no such ordinance, Duguay said.

“The officer (who arrested Nicosia) did what he thought was right at the time,” he said, “but sometimes you take a second look at these things and realize the law is not really worded the way you thought it was.”

Two other factors played a role in the police prosecutors’ decision to drop the charge against Nicosia, according to Duguay.

They wanted to keep the N.H. Supreme Court from having a chance to weigh in on the law, which could have happened if Nicosia was convicted and appealed, Duguay said. If asked to examine the state law dealing with indecent exposure and lewdness, the court might find that the language in the statute is too broad and then drop the entire statute, he said.

Also, Nicosia went topless to make a statement about equality, which could be viewed as a form of expression or free speech that is protected under the First Amendment, Duguay said.

“I chose to do it because … one of the most important issues to me is equality,” Nicosia said while being videotaped before her arrest. “Men can walk down the street … and, you know, not get harassed at all but yet somehow this is dirty.”

Nicosia is a member of the Free State Project, an effort to convince 20,000 people to move to the Life Free or Die state and participate in various forms of activism and run for local and state office.

Attempts to reach Nicosia before press time were unsuccessful.

Ian “Freeman” Bernard, a talk radio host and outspoken member of the project, said other women were planning to go topless outside Keene District Court during Nicosia’s arraignment, which was scheduled for Wednesday. He wasn’t sure if the topless demonstration would still occur.

While Nicosia no longer faces a criminal charge, the dismissal prevents her from challenging the law and paving the way for other women to go topless in public without risking arrest, Bernard said.

“By dropping the charge they’ve really headed off any way to challenge what they’ve done and set a precedent,” he said. “Hopefully, if this happens again, if someone like Cassidy decides she’s hot and wants to act like her male counterparts, they can be left alone.”

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By PHILLIP BANTZ

Mark Gorham in 1980s, after murder of Linda Smith; Sentinel archive

Mark Gorham in 1980s, after murder of Linda Smith; Sentinel archive

Sentinel Staff

The Keene Sentinel: September 04, 2009

CONCORD — The family of a Massachusetts woman who was murdered nearly 25 years ago faced her killer for the first time Thursday during an emotional parole hearing.

They asked Mark P. Gorham, 49, why he bludgeoned and strangled Linda Smith after he was seen leaving a Troy dance hall with her Nov. 10, 1984. Hunters found Smith’s scorched body the next morning inside a smoldering stolen pickup truck parked on a logging trail in Richmond.

Gorham, who was living in Troy and working at a local sawmill, met Smith, 40, of Gardner, Mass., the night of the murder.

“What did she do that made you so mad, so nutty?” asked Sandra Higgins, one of Smith’s three sisters who attended the hearing. She clutched a photo of Smith as she confronted Gorham.

“Nothing,” Gorham replied.

“Why?” Higgins asked again.

“I don’t have an excuse for what I did that night,” Gorham said, his voice trailing off. He wore a gray suit and a deadpan expression as he sat next to his therapist during the hearing.

Gorham was arrested six days after Smith’s body was discovered. He later pleaded guilty to second-degree murder and was sent to prison for 25 to 50 years.

After hearing tearful pleas from Smith’s family to keep Gorham behind bars, the parole board decided to let him stay at a halfway house until May 2010 and review his case again.

If Gorham’s parole was granted Thursday, he would have been eligible for release Nov. 5, Smith’s birthday.

The parole board is an independent agency comprised of seven members who report to Gov. John H. Lynch. The board members who handled Gorham’s case are Robert E. Hamel, Megan C. DeVorsey and Pierre J. Morin.

Gorham told the trio that he stayed out of trouble in prison, but his disciplinary record, which was available to the parole board, told a different story, said N.H. Attorney General’s Office victim-witness advocate Jennifer L. Hunt.

“His record is horrific,” she said during the hearing.

Between 1985 and 1988, Gorham was disciplined 37 times for various infractions, such as being disruptive and provoking or threatening other inmates or guards, Hunt said.

Because of his behavioral problems, he was transferred from New Hampshire to a prison in Massachusetts before being sent to federal prison and then to a Florida prison, Hunt said. He was returned to the Granite State in 1995, she said.

Gorham said he became a new man during his experiences in lockup, which included substance abuse counseling and religious classes.

“I’m a born-again Christian,” he said. “I’m not the same person I was 25 years ago. I’m not the same man.”

Gorham’s therapist, Donna Moore, agreed that Gorham had changed for the better. She’s had 17 sessions with Gorham since April at the halfway house on the prison grounds where he resides. She said he has a “spiritual foundation” and “deep remorse.”

“I think he’s ready to be a contributing member of society,” she said.

Gorham has found work as a welder since he was allowed to leave prison for the halfway house and has had no disciplinary problems. He told the parole board he was an angry young man when he killed Smith, and apologized for the slaying.

“I know my apology doesn’t help you,” he said to Smith’s family, “but I hope someday it does.”

Smith’s family rejected Gorham’s apology and his story of rehabilitation. They said they wanted him to be executed, or at least stay in prison for the rest of his life.

“I feel he’ll do it again. What would you tell the next victim’s family?” Smith’s sister, Brenda Fontaine, told the parole board before Gorham entered the room. “It’s a scary thought …”

One of Smith’s two daughters who attended the hearing, Kelly Bennett, said she believed Gorham called her home the night of the murder and the next day. She said he made derogatory sexual comments during the calls.

“It was the same voice I heard while I was in court,” she said, also while Gorham was not in the room. “I’m scared. I don’t want him to know who I am.”

Smith’s youngest daughter, Tammy Bowler, faced Gorham during the hearing and said she is haunted by her mother’s violent end.

“I go to bed and every night I think about what my mother’s last words were,” she said, choking back tears. “I just remember that night, that morning when my mother didn’t come home.”

When the parole board announced its decision, Smith’s sister, Donna Morse, became enraged and was asked to leave the room.

“This decision was made even before we came in and spoke,” she screamed. She also cursed at Gorham as she made her way toward the exit.

After the hearing, Gorham went to lunch with his counselor from the halfway house, Stephen Nelson, and his brother, Shane, who attended the hearing but did not speak.

Smith’s family members, who live scattered throughout New England, also went to a restaurant. They planned to reminisce about Smith’s life.

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