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This article is reproduced without permission under the fair use doctrine. Originally published online at http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20051019/REPOSITORY/510200322/1031
Copyright 1997-2005 Concord Monitor and New Hampshire Patriot.

Lawyers for the magazine salesman convicted last month of raping a woman in her Concord apartment have asked for a new trial because jurors inadvertently saw evidence they shouldn't have. The defense lawyers said the state's case was so weak that the evidence could have persuaded jurors to convict Joseph Haniffy.

Jurors discovered the words "Joe Pimp" on Haniffy's cell phone during deliberations, after a judge gave them permission to turn the phone on. Haniffy's lawyers did not object to jurors request to turn on the phone. But the discovery surprised lawyers, who had told jurors at trial that the phone only contained the victim's name and phone number and photos of her performing oral sex on Haniffy.

Judge Edward Fitzgerald, who has since examined the phone, has indicated that jurors may have been exposed to additional potentially inadmissible evidence, and he has questioned jurors privately about what they saw. But Fitzgerald and the attorneys have declined to discuss what that evidence includes.

Jurors took about eight hours to convict Haniffy of three counts of rape and acquit him of two related charges.

Prosecutor David Rotman of the Merrimack County Attorney's Office has until the end of the week to file a written response to the defense's request for a new trial. Haniffy's lawyers, Donna Brown and Meredith Lugo, will then be allowed to respond to Rotman before Fitzgerald decides whether to give Haniffy a new trial.

Meanwhile, the other two salesmen, Cassidy Coburn and Christopher Armstrong, still await trial. Armstrong was to go to trial at the end of the month, but his lawyer has asked the case be postponed. Yesterday, Rotman offered only general comments. "We disagree with the arguments and representations set forth in (the defense's) motion," he said.

To win a new trial, Brown and Lugo must show that the words "Joe Pimp" were damaging enough to have swayed jurors. In a motion the court released yesterday, Brown and Lugo cited several arguments for a new trial:

• Haniffy was denied his constitutional right to challenge the evidence because jurors saw it after trial. Haniffy said before and during trial that the sex with the woman was consensual.
• The words "Joe Pimp" were particularly damaging in this case, the lawyers said, because Rotman had characterized Haniffy as someone determined to get sex without regard for the victim. The word "pimp," Haniffy's lawyers said, suggests forceful sex, not unlike what Haniffy was accused of.
• The state's rules governing evidence prohibits lawyers from using "bad character" evidence or evidence of prior bad acts. "Our courts have consistently held that evidence of bad character or wrongs by the defendant is inherently prejudicial and can violate due process," the lawyers wrote.
• All the jurors, not just a few, saw the words "Joe Pimp."
• Rotman did not have a strong case, and this evidence could have tipped jurors toward guilty verdicts, Brown and Lugo said. There was no physical evidence that the woman had been raped. And according to their court filing, Rotman told Fitzgerald before the trial that if he was not allowed to call Haniffy's two colleagues, Coburn and Armstrong, as witnesses he might have to drop the case against Haniffy. (Coburn and Armstrong were allowed to testify but only about what they saw, not about what they had previously told the police.)

Rotman declined to respond to Brown and Lugo's allegation yesterday, but Dan St. Hilaire, the county attorney, disputed it. "We were prepared to go to trial with or without" Coburn and Armstrong, St. Hilaire said. "We met before trial to discuss the pros and cons of calling them, and it was never a given that they would be called."

It remains unclear why the lawyers were surprised by things on Haniffy's cell phone because lawyers are allowed to examine evidence before trial. Rotman has declined to discuss what was on the phone or how he prepared for its use at trial.

Brown and Lugo said in their motion that they had been told before the trial about only two things on the phone: the victim's name and number and the sexually explicit photos. In a phone interview yesterday, Brown said she did not have access to the phone before the trial.

Brown and Lugo argued in their court motion that it didn't matter how jurors learned about "Joe Pimp." They pointed to other examples where the prosecution, defense or jurors themselves were responsible for jurors seeing the wrong evidence. In each case, the judge had ordered a new trial regardless of how the disputed evidence came into jurors' hands.

Brown and Lugo said it's not only their responsibility to show Haniffy was harmed by jurors' discovery of "Joe Pimp." They said the prosecution must show those words didn't affect his case.

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