This article is reproduced without permission under the fair use doctrine. Originally published online at http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20051004/REPOSITORY/510040306/1031
Copyright 1997-2005 Concord Monitor and New Hampshire Patriot.
Jurors in Joseph Haniffy's rape trial inadvertently saw evidence during their deliberations that might have been inadmissible. Yesterday, Judge Edward Fitzgerald questioned jurors and gave lawyers in the case until late October to argue whether the development should affect the verdict.
Haniffy, 25, was convicted two weeks ago of raping a woman in her Concord apartment in March while selling magazines door to door. Fitzgerald could let the guilty verdicts stand or decide the evidence was damaging enough to warrant a new trial.
At issue are items on the cell phone Haniffy used to photograph the woman while she performed oral sex on him. Jurors had the phone during deliberations because it was a piece of evidence. The phone's contents were not admitted at trial, but jurors saw them after getting permission from the court to turn on Haniffy's phone.
According to an order Fitzgerald issued yesterday, jurors saw the words "Joe Pimp" on the phone's screen. Fitzgerald suggested jurors may have seen other "potentially inadmissible"evidence on the phone as well, but he did not elaborate in his order.
Prosecutor David Rotman and defense lawyer Donna Brown have declined to discuss the issue because Fitzgerald has sealed the court file until the matter is resolved.
Local lawyers interviewed yesterday said Fitzgerald must ultimately decide not only what jurors saw on Haniffy's cell phone, but also whether it affected their deliberations and verdicts. In a move fairly uncommon in New Hampshire courts, Fitzgerald began by recalling jurors yesterday and asking them privately, one by one, what they saw on the phone.
The interviews, which lasted a little longer than an hour, were closed to the public.
Now Fitzgerald will hear from the lawyers. He has given Brown and her defense partner, Meredith Lugo, until Oct. 11 to file written arguments. They will presumably ask that Fitzgerald declare a mistrial. Rotman has until Oct. 21 to respond. Then Brown and Lugo will have until Oct. 26 to respond to issues raised by Rotman.
John Kacavas, a former prosecutor who is now a defense lawyer in Manchester, faced a similar issue during a trial he prosecuted for the state attorney general's office. During trial, not after, lawyers learned that a juror may have overheard a conversation in the parking lot that could affect the case.
The judge privately questioned the jurors and concluded that the case had not been compromised.
Kacavas said Fitzgerald will have to consider the relevance of the phone's contents and how damaging they were to Haniffy's ability to get a fair trial. Jurors "are supposed to base the guilt or innocence on admissible evidence," Kacavas said. "The defense counsel will have to show how this prejudiced the jury."
Lawyers are allowed to examine evidence before trial, but it was unclear yesterday whether Rotman or the defense team knew what was on Haniffy's cell phone before jurorsdid. It was also unclear whether either side objected when jurors asked during deliberations whether they could turn on the phone.
Jim Moir, a Concord defense lawyer, said it will be up to the lawyers to persuade Fitzgerald that jurors were affected - or not - by the phone's contents. If Brown asks for a mistrial and wins, Rotman and the Merrimack County Attorney's office would have to decide whether to bring charges again.
The office has trials pending against Haniffy's colleagues, Cassidy Coburn and Christopher Armstrong. Armstrong is set for trial Oct. 31.
If Brown asks for a mistrial and loses, she could raise this jury issue in an appeal to the state Supreme Court. Another option - and one Brown used recently in a murder case - is to tell the high court that Haniffy deserves a new trial because she did not adequately represent him by dealing with the phone's contents before deliberations.
It's possible no lawyer has faced this issue more than Mark Sisti, a Concord lawyer who has had over 300 jury trials. He recalled several cases yesterday in which juries were recalled after the verdict.
He's won - and lost:
Several years ago in Coos County, while waiting for a verdict, Sisti saw a juror and a police officer from the case go to the juror's car in the parking lot. There, the officer pried the juror's car door open so he could get his insulin.
Ten minutes after the juror returned to the deliberation room, the jury found Sisti's client guilty of assault. Sisti challenged the verdict, arguing the juror was swayed by a prosecution witness who'd just saved his life by helping get the insulin.
The judge questioned the one juror but did not call the others back for three to four weeks, too long, Sisti argued, to trust their memories. The trial judge upheld the verdict, but Sisti got it overturned by the state Supreme Court. The prosecutor declined to retry the case.
More recently, a Belknap County jury convicted a Gilford man of a prescription drug charge. Afterward, one of the jurors notified the court that the foreman had urged the other jurors to convict the defendant before they'd even had a chance to discuss the evidence.
Sisti challenged the verdict based on the juror's complaint, and the judge recalled the jury for questioning. The judge heard nothing to warrant setting aside the verdict and let it stand. Sisti did too after the sentencing hearing, in which his client got no jail time.
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