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.
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:
That is why the framers of our State Constitution in New Hampshire phrased the right in as the broadest possible terms:
Part I, Article 35 of the New Hampshire Constitution.
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
© 2019 Lothstein Guerriero, PLLC