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.”