This article is reproduced without permission under the fair use doctrine. Originally published online at http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20051011/REPOSITORY/510110315/1221
Copyright 1997-2005 Concord Monitor and New Hampshire Patriot.
The defense lawyer for one of the two magazine salesmen still awaiting trial in the alleged rape of a woman in her Concord apartment has asked a judge to remove his case from the Merrimack County Attorney's office because he believes staff there could use evidence not allowed at trial.
At issue is the testimony Cassidy Coburn was forced to give last month at the trial of his sales manager, Joseph Haniffy. Even though Judge Edward Fitzgerald ruled that prosecutors couldn't use what Coburn said at Haniffy's trial against him at his own trial, lawyer Ted Barnes believes Coburn's testimony could indirectly influence how prosecutor David Rotman prepares his case against Coburn.
Barnes also argued in a motion filed last week that Coburn's alleged victim, who listened to him testify, and the police could change their own testimony based on what Coburn said on the stand. Coburn, 20, of Utah, distanced himself from his initial statement to the police during his testimony at Haniffy's trial. There, he said the group sex with the woman, which he had initially told the police had gone too far, was consensual.
Rotman declined to comment on Barnes's request when reached Friday. His office has asked the court for an extension until the end of the month to file a written response. Coburn is scheduled to go to trial in February. The trial for Christopher Armstrong, the third salesman, is scheduled to begin Oct. 31 with jury selection.
Haniffy was convicted of raping the woman last month. His verdict, however, is under question because jurors inadvertently saw "potentially inadmissible" evidence during deliberations. Fitzgerald has given both sides an opportunity to argue the significance of that evidence in written motions, the first of which is due today from the defense.
Both Coburn and Barnes objected to Rotman's request to call Coburn as a witness in Haniffy's trial. When Fitzgerald ruled that Coburn (and Armstrong) would testify, lawyers who followed the case wondered how Rotman would hear Coburn's statements without ultimately being influenced by them when he prosecuted Coburn. In his motion, Barnes shared that skepticism and cited federal and state law that he says forbids Rotman to use what Coburn said - even indirectly.
"The prosecution has the burden of showing more than merely that its evidence is untainted, but that it is derived from a legitimate source wholly independent of the compelled testimony," Barnes wrote. "The defendant and the prosecution were to be left in the same positions after the (compelled) testimony as they would have been if the defendant" had not testified at all.
Barnes warned that leaving the case with the Merrimack County Attorney's office could be problematic at trial.
Barnes wrote that if Rotman so much as calls his witnesses in a different order or if Coburn's alleged victim changes her testimony, he will ask the judge to stop the trial, dismiss the jury and ask for a hearing to determine whether Coburn's forced testimony had influenced the changes.
Barnes also faulted Rotman and his office for not anticipating a problem by asking his staff, witnesses and the alleged victim to leave the courtroom when Coburn testified.
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