By PHILLIP BANTZ
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.”