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Archive for February, 2010

O’Meara Closer to Disbarment

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.

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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.

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‘It’s Your Duty’

Former officer talks about pulling the trigger

By PHILLIP BANTZ
Sentinel Staff
The Keene Sentinel: February 06, 2010

A retired Keene police officer who shot a man during a confrontation in 1998 said he questioned himself after the shooting but quickly came to terms with what he did.

Carl Patten Jr., 53, of Troy agreed to speak with The Sentinel about the shooting to offer insight on what an officer goes through when he pulls the trigger.

On Tuesday, a Keene officer shot and killed 39-year-old Charles E. “Chuck” Turcotte during what authorities have described as a hostage situation and standoff. Turcotte was allegedly holding a knife to his ex-girlfriend’s throat when the officer fired a bullet into his head.

Patten shot David A. Ward, then 30, after Ward pulled a gun on him and another officer outside a city convenience store in September 1998. Ward, who was wanted for parole violations, aimed his gun at Patten and squeezed the trigger, but it misfired.

Patten returned fire, hitting Ward multiple times in his shoulder and legs.

When Patten saw Ward point a handgun at him, he said, he had a split-second to react.

“It comes down to training and instinct,” said Patten, who had 17 years of police experience when the shooting occurred. “You’ve got to make that decision and you can’t think about it for five minutes. You’ve got to do it now.”

Ward survived the shooting. He was eventually convicted of an array of charges and sent to prison.

After the shooting, Patten handed his gun, which had become evidence, over to a supervisor. Then he was interviewed by members of the state Attorney General’s Office.

“They want to know the facts about what happened,” he said. “The interview is long, an hour or two, and there could also be follow-up interviews. They also go out and interview everyone else who was involved so they can corroborate your story.”

Patten was placed on administrative leave for about two months. An avid outdoorsman, he said he spent the time hunting deer and pheasant. He also thought about the shooting.

“Everybody deals with it differently,” he said. “You run the scenario through your mind. You ask yourself if you could have done something differently.”

He returned to work after being cleared by a mental health counselor and the Attorney General’s Office, which determined that he was justified in using lethal force.

Under state law, officers may use deadly force if they are defending themselves or another person from what they reasonably believe is a lethal threat.

“Once you understand that you did what you had to do, what you were supposed to do, you move on,” he said. “You’ve taken an oath to protect lives and the safety of others. It’s your duty. It’s your obligation.”

Patten retired in 2004.

When N.H. State Police Trooper David Hinkell shot and killed Sasha A. Yuksel, 35, during a July 2006 traffic stop, Patten said he offered his support. Hinkell was being attacked by Yuksel and had tried to use his Taser and pepper spray before he shot the man.

Patten also contacted Swanzey police Cpl. Robert Eccleston after he shot Jeffrey E. Richardson, 24, while he was being dragged by Richardson’s car last July.

Eccleston and Hinkell did not return messages from The Sentinel seeking comment.

Patten said he would like to speak with the Keene police officer involved in the most recent shooting. The Attorney General’s Office is withholding the officer’s name until the preliminary investigation is released Monday.

“Most guys go through their whole career and don’t pull the trigger,” Patten said. “It’s an unfortunate thing when you have to do that, but I guess it happens every day across the country.”

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By PHILLIP BANTZ
Sentinel Staff

The Keene Sentinel: February 04, 2010

The man killed during a standoff with police Tuesday night in Keene was a father of four and the son of a veteran police officer.

A Keene police officer shot Charles E. “Chuck” Turcotte, 39, while he held a knife to his ex-girlfriend’s throat at her residence on 48 Spruce St., said Senior Assistant Attorney General Janice K. Rundles.

Turcotte died from a single gunshot wound to his head, according to N.H. Chief Medical Examiner Thomas A. Andrew. His death has been classified as a homicide.

The ex-girlfriend and homeowner, identified by property records and friends as Hae Kyong Whitcomb, was not injured and neither were her teenage son and daughter, who were inside the residence during the incident, Rundles said.

The Attorney General’s Office is withholding the identities of the ex-girlfriend, her children and the Keene officer who shot Turcotte during the standoff.

When asked to explain why the officer is not being identified, Rundles said: “We’re still conducting interviews. We’re still looking at records.”

The officer involved in the shooting has been placed on administrative leave, which is standard procedure in police-involved shootings.

One of the teens inside the residence called 911 at 9:42 p.m., and said Turcotte had broken into the house and was threatening Whitcomb, Rundles said.

Rundles said two officers were initially sent to Whitcomb’s house after the 911 call, and two others were there when the shooting occurred. She said the standoff was “fairly brief,” but declined to provide a timeline.

Witnesses said more than a dozen police cruisers were parked outside the house after the shooting.

Turcotte’s father, Roger A. Turcotte, was working as a lieutenant with the Stoddard Police Department and as a sergeant with the Roxbury Police Department when he died in March 2007. His law enforcement career began in 1995, when he was hired by the Cheshire County Sheriff’s Office. He went on to serve as a police officer in Nelson, Surry and Winchester.

Charles Turcotte worked as a carpenter and lived in Keene. He fathered two children, a son, 10, and a daughter, 8, with his ex-wife, Tracy, of Swanzey, according to court documents in a divorce and child support payment case at Cheshire County Superior Court.

Charles and Tracy Turcotte filed for divorce in May 17, 2005, citing irreconcilable differences. She could not be reached for comment.

Turcotte also had two daughters, ages 12 and 14, with a former girlfriend, Jennifer L. Garner of Swanzey.

In 1993, Garner filed for a restraining order against Turcotte. Details in the case were not available because the file at Keene District Court was destroyed in 2002.

Garner’s longtime partner, Greg Willette, said Turcotte was a loving father who relished the time he spent with his daughters.

“He enjoyed taking them camping,” he said. “The girls really looked up to him. He was greatly loved. Even Jen, who hasn’t been with him for years, still cared for him. … He had a lot of friends in the Keene area. He was a funny guy. He was good at lifting other people’s spirits up, except for his own.”

Turcotte and Whitcomb had dated for two years and lived together until last month, when their relationship fell apart and he moved out of her house, Willette said.

“I just think Chuck loved really hard and was having a hard time letting go,” he said.

An employee at a neighborhood market near Spruce Street said Turcotte came into the store last week and talked about having a bad breakup with Whitcomb.

“He wasn’t very happy about it,” said the employee, who requested anonymity.

Whitcomb was a regular at the market, where she bought lottery tickets.

“She came in probably twice a week,” the employee said. “She keeps to herself, but she’s a really nice lady.”

No one answered the door at Whitcomb’s house late Wednesday afternoon when the yellow crime-scene tape that had surrounded her property was gone and the police cruisers had driven away.

The Attorney General’s Office continues to investigate the shooting and is releasing few details on how the situation unfolded.

Keene police Lt. Shane C. Maxfield, who declined to speak about the shooting, but agreed to talk about police tactics dealing with deadly force, said officers are trained to aim for the center of a target. In an ideal situation, this would be a torso, he said.

“That’s general firearms training principle,” he said. “But if somebody is shooting at me and the only thing I can see is their knee, then I’m going to end up shooting at their knee because that is the only target that is available to me.”

Maxfield added that police are “not trained to shoot to wound people.”

“The thing about shooting somebody in the knee is if you shoot the knee you have no idea what that person is going to do afterward,” he said. “They’re usually still perfectly capable of doing most of the bad stuff they were planning to do.”

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