New Doctrine Leads to Victory on Appeal
December 10th, 2014
Today, we won a partial victory in an appeal in the New Hampshire Supreme Court. I handled an appeal where the jury had found the defendant Charles Glenn guilty of second degree murder, and five additional felony charges: Criminal Threatening, Attempted Armed Robbery, Felon in Possession of a Firearm, and Falsification of Physical Evidence (two counts).
The case actually arose from a retrial. In the first jury trial, the prosecution charged Glenn only with first degree murder and second degree murder. The jury acquitted him of first degree murder and hung on the second degree murder. When there is a hung jury, the State can bring the defendant back to trial before another jury. (The doctrine of double jeopardy, of course, prevents the State from "trying again" on any charges for which the first jury acquitted the defendant).
In its "second try", the State changed its strategy, adding the five additional felony charges. In my experience practicing criminal defense in NH over the last 20 years, prosecutors do this all the time. As you will see, not any more!
Earlier in 2014, the New Hampshire Supreme Court adopted a doctrine called mandatory joinder, which requires the prosecution to file all charges at the beginning of the case so that all charges can be heard by one jury. Otherwise, prosecutors could keep coming back, even after acquittals, and see if a different jury will convict based on some other charging theory.
Retrials Heighten the Risk of Wrongful Conviction
Retrials are expensive, stressful and taxing for the accused, and the risk of a wrongful conviction rises if the prosecutor can keep coming back to Court with new theories, hoping to draw a new jury that might be more favorably disposed towards the prosecution.
Under this doctrine of mandatory joinder, the Court held that the lower court should not have allowed the prosecutor to bring the five new felony charges at the time of the retrial. Accordingly, the Court vacated all of those convictions, which reduced the amount of time that the defendant will have to serve in prison.
Read more about this and other successful appeals handled by Lothstein Guerriero, PLLC