June 28th, 2018

On June 27, an oral argument in one of our appeals received widespread coverage in the news - front page of the Concord Monitor, Union Leader, and WMUR.

The Oral Argument and Lower Court Ruling

In an oral argument before all five Justices of the New Hampshire Supreme Court, Attorney Ted Lothstein argued that the Court should uphold a ruling by the Superior Court granting a new trial to a therapist who was accused of sexual assault by a client.

The Superior Court ruled that the therapist's right to a fair and impartial jury was violated when two jurors who themselves had been the victim of sexual abuse, withheld that information during the jury selection process. They withheld that information by answering "no" to written questionnaires that asked whether they had ever been the victim of a crime, and then answering "no" when the trial judge asked them if they had ever been the victim of any crime, even if the perpetrator was never charged, prosecuted, or even identified by the authorities. You can read the whole story about this amazing case here.

The Right to a Fair and Impartial Jury

Even young schoolchildren know that a trial before a biased decisionmaker is nothing more than a sham. That is why the right to a fair and impartial jury is one of our most fiercely protected rights, as evidenced by judicial statements found in court opinions across the country like this one from the Second Circuit Court of Appeals:

  • "Trying an accused before a jury that is actually biased not only transgresses the express guarantee of the Sixth Amendment but also violates even the most minimal standards of due process."

That is why the framers of our State Constitution in New Hampshire phrased the right in as the broadest possible terms:

  • "It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit."

Part I, Article 35 of the New Hampshire Constitution.

Stay Tuned

We now await a ruling from the Court - are two jurors who withheld during jury selection the fact that they had suffered the exact same crime that the accuser in the therapist's trial claims he suffered, "as impartial as the lot of humanity will admit"? The answer from the Superior Court was an emphatic "no", and the New Hampshire Supreme Court will now decide whether that ruling was within the broad discretion of the trial judge.

-- Ted Lothstein