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New Hampshire Victories on Appeal
New Hampshire appeals attorneys Ted Lothstein and Richard Guerriero have litigated over 100 appeals in the New Hampshire Supreme Court, United States Court of Appeals, and even the United States Supreme Court.
But that’s not all.
Richard Guerriero received national attention as one of New Hampshire’s few attorneys to have argued a case in the United States Supreme Court. Perry v. New Hampshire, 132 S.Ct. 716 (2012).
Ted Lothstein’s cases have set a number of important precedents, cases that will be cited by New Hampshire appeal attorneys and lawyers for decades to come. His appeals have been reported in national legal reporters including the Bureau of National Affair’s Criminal Law Reporter, and the Bureau of National Affair’s White Collar Crime Reporter. Read about this cutting edge litigation.
Appeals case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case.
10/12/2018: In our most recent and perhaps our greatest victory, we won an appeal granting a new trial to a beloved and esteemed therapist wrongfully accused of sexual assault by a client. On October 12, 2018, the New Hampshire Supreme Court upheld a critical victory we had already won in the Superior Court - a victory that freed a therapist from prison who had been wrongfully accused of sexual assault by a client, and cleared his name. The Court held that the Superior Court was right to vacate the jury verdicts and sentences, and grant a new trial, for the therapist because juror bias infected the proceedings, resulting in an unfair trial. On October 17, 2018, the Merrimack County Attorney's Office issued a press release, announcing the State would not bring the case to trial again. Instead, the State dismissed the charges. Read More about Dr. Afshar's Case Read More
In State v. Stephen Socci, No. 2013-182, a decision released on July 8, 2014, the Court held that police officers and state troopers with the Rockingham County Drug Task Force, Kingston Police Department, and Rockingham County Sheriff Department violated Mr. Socci’s Fourth Amendment right to be free of unreasonable searches and seizures. The officers had marched onto his property without a search warrant, and searched around his garage, finding evidence that he was growing marijuana in the garage. The trial court held that the police did not violate Mr. Socci’s constitutional rights, and upheld the search, causing Mr. Socci to be convicted of two felonies. The Court reversed both felony convictions and remanded for further hearing. Right Vindicated: This case is a huge vindication for the fundamental right of people to be left alone, free of intrusion by the government, on their own property. It’s also Ted Lothstein’s 15th win in the NH Supreme Court! Read the Court’s Opinion in State v. Socci. Read the Appellant brief in State v. Socci. It’s the first brief filed by the Lothstein Guerriero, PLLC firm and our first brief to incorporate color photographs, bringing our firm’s appellate litigation into the 21st century. Read More
In State v. Charles Glenn, a published opinion decided December 10, 2014, the New Hampshire Supreme Court vacated a number of serious felony convictions arising out of the retrial after a hung jury, because the prosecution did not bring the charges in a timely fashion. In the first jury trial, the State charged Glenn only with first degree murder (acquitted) and second degree murder, which resulted in a hung jury. Before the second jury trial, the State added five more felony charges: Criminal Threatening, Attempted Armed Robbery, Felon in Possession of a Firearm, and two counts Falsification of Physical Evidence. The second jury convicted Glenn on all charges. The Court vacated all of the convictions, except for second degree murder. The Court held that the doctrine of mandatory joinder requires the prosecution to join all charges from the beginning of the prosecution. As you can see from the Court’s opinion, this ruling cut Glenn’s sentence by 10 years. Read the Court’s opinion in State v. Glenn (N.H. Dec. 10, 2014). Read More
On April 8, 2009, in a landmark decision, the NH Supreme Court reversed convictions arising out of a tragic automobile accident, because the evidence failed to establish that the victim was born alive. Right Vindicated: Although a very close case, here the prosecution failed to Prove Guilt Beyond a Reasonable Doubt. Read NH appeal attorney Ted Lothstein’s Brief on Appeal Read the Court’s Decision Overturning the Conviction. State v. Joshua Lamy (2009). Read Coverage of this Victory in the Concord Monitor Read More
On November 3, 2009, the Court summarily reversed a jury verdict from the Hillsborough Superior Court North in Manchester for sexual assault.The Court held that the assistant county attorney’s prosecutorial misconduct during closing argument violated the accused’s right to a fair trial. Specifically, she argued that “only two people” (the accuser and accused) knew what happened, but the jury “only heard from one of them.”…These types of arguments are improper – an inappropriate comment on the defendant’s exercise of his right to remain silent.Read the Court’s Decision Overturning the Conviction. State v. Martin (2009). Read More
In 2008, Ted Lothstein won a reversal on appeal where the accused was charged with Aggravated Felonious Sexual Assault (alleged sexual assault of an adult), and the trial judge in Merrimack County Superior Court refused to allow cross-examination of the complainant regarding her prior false accusation of rape against another man. The reversal in State v. Kornbrekke was the first time that the Court had ever reversed a rape conviction based on this type of limitation of the right to confront one’s accuser at trial. Read NH appeal attorney Ted’s Brief on Appeal Read the Court’s Decision Overturning the Conviction. State v. Karl Kornbrekke,156 N.H. 821 (2008). Read More
The defendant — accused of shooting the unarmed victim five times — faced homicide charges for shooting his brother after his brother had gone on a rampage in the family home, destroying property, bullying their mother and threatening to kill not only his family, but any police officers that might try to intervene.The trial judge in Sullivan County Superior Court refused to allow the defendant to claim he acted in self-defense, however, because when he shot his brother five times, his brother was unarmed.The Court reversed the conviction for Manslaughter!Right Vindicated: The right to defend oneself and one’s family with deadly force when terrorized in one’s own home.Read NH appeal attorney Ted Lothstein’s Brief on AppealRead the Court’s Decision Overturning the Conviction. State v. Ethan Vassar,154 N.H. 370 (2006). Read More
Simple Assault - alleged Domestic Assault. Right Vindicated: The Double Jeopardy Right – the principle that the government cannot try and re-try the accused in forum after forum until it gets the verdict it wants. Read Ted’s Brief on Appeal Read the Court’s Decision Overturning the Conviction. State v. Ernest Solomon,156 N.H., 943 A.2d 819 (2008). Read More
Narcotics Distribution – Sale of Cocaine.Multiple drug sale convictions overturned on appealRight Vindicated: Fair Trial – Requiring Severance (separate trials) of 4 drug salesRead the Court’s Decision Overturning the Conviction. State v. Sean Brown, 156 N.H. 440, 938 A.2d 909 (2007). Read More
Possession of Child Pornography - court holds prosecution of accused for “collaged” images violated First Amendment. In this landmark First Amendment decision, the first of its kind in the United States, the Court held that the government could not prosecute a man for the “thought crime” of collaging together images where no child was actually exploited or harmed. This is precisely why people turn to appeal attorneys in New Hampshire and elsewhere. Right Vindicated: First Amendment — Freedom of Speech and Freedom of Thought Read Ted’s Brief on Appeal Read the Court’s Decision Overturning the Conviction. State v. Marshall Zidel,156 N.H. 684, 940 A.2d 255 (2008). Read More
On June 9, 2009, in an appeal briefed by Ted Lothstein, the Court reversed these serious felony convictions because the Manchester Police went into the accused’s home without getting a warrant from a judge. “The search of a home is subject to a particularly stringent warrant requirement because the occupant has a high expectation of privacy. To have it otherwise would be to obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.“ Read Ted’s Brief on Appeal Read the Court’s Decision. State v Scott Robinson Read More
Aggravated felonious sexual assault (alleged sexual assault of a child) convictions reversed.Right Vindicated: Court reverses convictions based on Attorney Lothstein’s argument that erroneous decision to admit prejudicial prosecution evidence deprived accused of a fair trial.Read Ted’s Brief on AppealRead the Court’s Decision Overturning the Conviction. State v. Donald Morrill,154 N.H. 547, 914 A.2d 1206 (2006). Read More
Right Vindicated: Writing Check on Empty Bank Account is Not Necessarily a Crime.Read Ted’s Brief on AppealRead the Court’s Decision Overturning the Conviction. State v. John Reed Stewart,154 N.H. 678, 921 A.2d 933 (2007). Read More
The Court agreed with Ted Lothstein that it would be unfair and prejudicial to combine into one jury trial, 15 separate instances of alleged fraud perpetrated by a substance abuse center.Ted’s victory on appeal made the national White Collar Crime Reporter and cemented his reputation as a major influencer among appeal attorneys in New Hampshire.Read the Court’s Decision: Petition of the State of N.H. (Joseph San Giovanni),154 N.H. 671, 919 A.2d 762 (2007). Read More
Right Vindicated: Fair Trial – Jury’s Option to Convict on Less Serious OffenseRead the Court’s Decision Overturning the Conviction. State v. Clyde Gauntt,154 N.H. 204, 908 A.2d 771 (2006). Read More
The Court held a local police chief broke the law when he stopped a driver who drove through deep water in the road during a flood.Right Vindicated: To be Free of Unreasonable Searches and Seizures.Read Ted’s Brief on Appeal.Read the Court’s Decision Overturning the Conviction. State v. Craveiro, 155 N.H.423, 924 A.2d 361 (2007). Read More
Conviction: Felony Fraud committed against a nursing home.Read the Court’s Decision Overturning the Conviction. State v. Huffman, 154 N.H. 678, 918 A.2d 1279 (2007). Read More
The prosecutor may not vouch for police officer’s credibility by arguing that if police officers lied, they would lose their jobs. News of this decision was published in the Criminal Law Reporter. State v. William Mussey, 153 N.H. 272, 893 A.2d 701 (2006).Prosecutor may not cross-examine the accused in an unfair and misleading manner by asking if prosecution witnesses lied to the jury. State v. Lopez, 156 N.H. 416, 937 A.2d 905 (2007). Read More
In State v. Morrill, 154 N.H. 547, 914 A.2d 1206 (2006), the Court reformed the “opening-the-door” doctrine, which had been much abused by trial courts. The purpose of this doctrine is to ensure that both sides get a fair trial and neither exploits the rules to mislead the jury. However, in this case as in many others, the trial judge used the doctrine to inject prejudice into the trial rather than alleviating prejudice. Based on Ted Lothstein’s arguments on appeal, the Court took what had little more than a label or mantra — “opening the door” — and transformed it into a carefully defined and limited doctrine. As a result, the Court reversed Mr. Morrill’s conviction for aggravated felonious sexual assault, and granted him a new trial. Read More
In State v. Ernest Solomon, 156 N.H. _, 943 A.2d 819 (2008), for the first time in any American court, the NH Supreme Court held that the accused’s right to be free of double jeopardy was violated when, in the middle of his trial, his trial judge departed for military duty overseas and another judge declared a mistrial with intention to begin the trial anew. Read More
In State v. Marshall Zidel, 156 N.H. 684, 940 A.2d 255 (2008), the NH Supreme Court became the first in the nation to hold that a prosecution for child pornography for “collaged” images violated the accused’s free speech and privacy rights. Read More
In State v. Ethan Vassar, 154 N.H. 370 (2006), for the first time, Court held that defendant accused of assault may introduce the ‘victim’s’ prior violent acts to bolster accused’s self-defense claim. Read More
The prosecutor wanted to use the trial court’s Contempt power to put probationer in jail even after he finished the maximum sentence under law.The Court said no. State v. Hancock, 156 N.H. 301, 934 A.2d 551 (2007). Read More
In State v. Newcomb, 161 N.H. 666 (2011), an appeal won by Ted Lothstein, the New Hampshire Supreme Court reversed a lower court's order upholding the warrantless search of the locked cargo area of a rented U-Haul truck. The Kensington Police had arrested the U-Haul driver for criminal trespass. Like most police departments, Kensington has a policy allowing so-called 'inventory searches' which are post-arrest searches of vehicles in order to make a list of the driver's personal property in the vehicle. This is supposed to protect the driver from theft by the tow company or other third party that takes custody of the vehicle, and protect the police from false claims of theft. Kensington's policy allowed only searches of "unlocked areas and containers," with two exceptions: a locked glove compartment, and a locked trunk. The lower court had reasoned that the cargo area of a U-Haul truck is the equivalent of the trunk of a passenger vehicle. But the Supreme Court held that the lower court literally 'stretched' the analogy too far -- a trunk is defined as the "luggage compartment of an automobile," while a U-Haul cargo truck is "much larger than the average trunk and is intended to carry significantly more cargo," and unlike any car's trunk that I have ever seen, the U-Haul's cargo area is locked with a padlock. Accordingly, Mr. Newcomb faced only the relatively minor misdemeanor offense, criminal trespass, and was saved from the much more serious charges that arose from the unlawful search of his U-Haul truck. State v. Newcomb, 161 N.H. 666 Read More
On April 1, 2021, we won a major victory in the NH Supreme Court that made the national news, receiving coverage in the ABA Journal, NH Public Radio, the Union Leader newspaper, and elsewhere. In In re Blaisdell, decided on April 1, the New Hampshire Supreme Court overturned prior precedent and held that a same-sex extramarital affair constitute adultery. 18 years ago, in 2003, a divided Court had narrowly held in the Blancheflower case that same-sex affairs do not give rise to a fault-based ground for divorce. In our case, In re Blaisdell, the Court recognized that the Legislature fundamentally transformed the marital laws when it adopted civil unions, and then gay marriage, just six years after Blancheflower. How could the Legislature have granted gay people the privileges, but not the responsibilities, of marriage? And thus, the Court unanimously overruled Blancheflower, and made its ruling retroactive. Read more here. Read More
On March 30, 2023, in State v. Tufano, a case briefed and orally argued by Ted Lothstein, the NH Supreme Court reversed a conviction for cruelty to animals arising out of a very unusual fact pattern. The accused was seen by neighbors in a manufactured home park spraying water into a large plastic bin. Inside the bin, was a Havahart trap. Inside the trap, was a very vocal cat. A neighbor saw this happening, confronted the accused about it, but did nothing. But a few days later, another neighbor told him that the accused had a history of trapping cats, and that she had confronted him about it years prior. The neighbors went to the police and eventually, our client was charged with Cruelty to Animals and brought to trial. The case in the lower court. In the jury trial, Mr. Tufano was skillfully represented by former counsel Stephen Brown of Rochester, NH. But over Attorney Brown's objection, the prosecutor was allowed to introduce evidence that according to the neighbors, the accused had a history of trapping cats, which one witness described as "a history of being hostile towards cats." But the NH Supreme Court reversed, finding that this evidence was precluded under NH Rule of Evidence 404(b), which prevents the introduction of “propensity” or character evidence. This rule says that a prosecutor, or a party in a civil case, cannot introduce evidence that the defendant or opposing party committed a similar crime in the past, and then argue: He did it before, he must have done it again. Rule 404(b) is critical to ensure a fair trial. The prohibition on the use of character evidence to prove a person's propensity to commit crimes or propensity to do bad things is a critical legal principle of equal importance in civil and criminal cases. There are exceptions of course, like a serial killer who commits his murder in a unique manner, such that evidence of his past crimes helps identify him as the perpetrator. The exceptions apply when the evidence is admissible for a purpose other than propensity, such as, in our example, to prove identity. But otherwise, all of us can appreciate the purpose of this rule: We have all made mistakes at some point in our past, but we don't think that our mistakes should define us forever. But more importantly, propensity evidence leads to wrongful convictions, because even if the evidence is thin, the jury may convict out of fear they will let a person "get away with it again." Accused Hired Ted Lothstein and Lothstein Guerriero, PLLC for his Appeal. On appeal, Mr. Tufano hired Ted Lothstein and our firm to represent him before the NH Supreme Court. This is common in our practice: A person will be represented by another lawyer or firm in the trial court, and then we handle the appeal. A new lawyer on appeal can see things from a different perspective. And of course on top of that, we are highly experienced, having handled well over a hundred appeals in State and federal courts. Ted Lothstein prepared the brief, and presented oral argument, which you can listen to here. You can read Attorney Lothstein's brief here: 2022-03-14-Tufano-FINAL BRIEF Victory on Appeal. On March 30, 2023, the New Hampshire Supreme Court issued a published opinion, reversing (overturning) Mr. Tufano's conviction. The court held that the lower court's ruling allowing the prosecution to use propensity evidence to prove guilt was "clearly untenable", even taking into account the substantial discretion allowed to lower courts in making rulings on evidence. The ruling inflicted prejudice, meaning that the unfairly-admitted evidence influenced the jury's decision. And the court rejected the prosecution argument for "harmless error" - the argument that other evidence of guilt was overwhelming. It was not. Our firm has now had at least 78 published decisions in State and Federal appellate courts, and dozens of appellate victories, far more than most law firms in NH. Click here to learn more about our firm's appellate litigation practice. Click here to learn more about Ted Lothstein, who has co-chaired the NH Bar's Appellate Litigation seminar several times in recent years. Read More
It’s important for appeal attorneys in New Hampshire to be honest with the public about the reality of the criminal process. All appellate attorneys, regardless of reputation or skill, lose more cases than they win. New Hampshire’s Superior Court has a great roster of judges who generally provide both sides a fair trial, leaving few errors to be corrected on appeal — and because no trial is error-free, the mere existence of error does not mean you get a new trial.
But would you rather have a lawyer who says he or she can win your case, or an NH appeals attorney with a proven track record of actually winning high-profile cases?
