NH Coalition Against Domestic Violence: Former Senator's Innocence is a "Technicality"

Convictions reversed.

On March 23, 2023, the New Hampshire Supreme Court reversed the domestic violence convictions of former state senator Jeffrey Woodburn. The Court held that the trial judge refused to allow the jury to consider Woodburn's claim of self-defense. Woodburn claimed that his former partner had been abusive to him in the past, and in the incident in question, refused to stop her car when he wanted to get out, took his phone away from him, and refused to return it even as Woodburn was about to leave the car on a rural road many miles from civilization. All of that preceded the "assault" that he was convicted of - biting her in during a physical struggle over the cellphone, which unquestionably belonged to Woodburn, and which she had no right to withhold. The Union Leader covered the decision yesterday: 2023-03-24-UL coverage of Woodburn decision

Commentators Oversimplify.

The Union Leader coverage of this case amounts to a blizzard of misinformation in the wake of this important appellate court ruling. First, the NH Coalition against Domestic and Sexual Violence said that the jury "believed the victim" and that Woodburn "got off on a technicality." So many things wrong here.

First, a claim of self-defense is not a technicality. A person who reasonably uses physical force to defend himself from another's attack or, in this case, another's attempted theft of his property, is not claiming a "technicality." They are claiming absolute innocence. We have the right to defend ourselves, so the prosecution has to disprove self-defense beyond a reasonable doubt, and if the prosecution fails to do so, that person is innocent. When the accused successfully raises a claim of self-defense, the accused did not "get off on a technicality." The accused established his innocence.

Second, it's just plain wrong to say the jury "believed the victim," because the jury wasn't allowed to consider self-defense, so it had no need to determine the victim's credibility: Both sides agreed that Woodburn bit her hand, and the jury was prevented from learning why (to extricate his cellphone so he could leave the scene safely). What choice did the jury have under the circumstances, other than to convict? It wasn't a case of "he said, she said." It was a case of she said, and he wasn't allowed to respond. The lower court wrongly refused to allow the jury to consider self-defense, and the lower court wrongly prevented the jury from learning about the alleged victim's prior acts of aggression against Woodburn.

Third, why wouldn't the NH Coalition against Domestic Violence want to champion the right of self-defense, rather than mock and belittle that right by calling it a "technicality"? For example: When a battered woman raises her gun and shoots her abuser to stop or prevent another violent attack, don't we want our society to protect and cherish her right to self-defense? Wouldn't we expect victims' rights organizations to champion the battered woman's right of self-defense? In that regard, this case is another reminder that when politicians and advocacy organizations lecture us that we should "believe the victim", they oversimplify the complicated dynamics of relationship violence.

Don't get us wrong - we do not criticize the important work of people and organizations like the NH Coalition that help victims. Many if not most of our clients, including and especially our female clients, are themselves victims of domestic and sexual violence, in childhood, in adulthood, often in both. We just think that part of the important work of helping victims is to make sure that the law fiercely protects the right of victims to defend themselves against violence.

AG got it wrong too.

Finally, the Attorney General's Office said to the Union Leader that Woodburn will still have to serve his jail sentence because the appellate court did not reverse convictions for "criminal mischief" (damaging someone else's property). But that's not how sentencing works. The domestic violence convictions that were reversed were much more serious than the criminal mischief convictions, because they trigger lifetime revocation of 2d Amendment rights, and because the waiting period for annulment (destruction of the record of conviction based on good behavior) is 10 years, not the usual 2-5 years for most misdemeanor sentences. When the most serious convictions are reversed on appeal, the State either has to retry those charges, or Woodburn will have the right to a new sentencing hearing.

Important Precedent Reaffirmed

The court's decision reaffirms important legal concepts undergirding the right of self-defense that will help our future clients. In particular, the prosecution, in another misguided version of the "believe the victim" mentality, argued that if Woodburn's story did not match in every factual particular with his former partner's story, he shouldn't be allowed to raise a claim of self-defense. This is a "Bizarro World" version of the right of self-defense-- the more lies told by the accuser, the less likely that the accused will be allowed to claim self-defense. Fortunately, the court rejected that argument.

In our experience both as litigators and as people living our lives, the witnesses to a traumatic event almost always tell different stories about what happened. Sometimes because of lying, and sometimes because of the impact of trauma, and sometimes because of the "Rashomon" principle- people with different perspectives and different life experiences, perceive the same event differently, and tell a different story about the same event, without any intent to lie. Recognizing this, the Court held that Woodburn need not agree with every factual detail of the accuser's story in order to claim self-defense. He need only present or point to facts that support his claim that the physical contact he had with the accuser was necessary to defend himself. -- Ted