Harden Law Offices

104 Main Street, Lancaster, NH 03584 603.788.2080
15 Main Street, Littleton, NH 03561 603.444.2084
199 Heater Road, Lebanon, NH 03766 603.448.3737

Monday, April 25, 2016

Tom Brady Suspension Decision Vacated

Appeal from a judgment of the United States District Court for the Southern District of New York (Richard M. Berman, Judge). Following an investigation, the National Football League imposed a fourgame suspension on New England Patriots quarterback Tom  Brady.  The suspension was based on a finding that he participated  in a scheme to deflate footballs used during the 2015 American  Football Conference Championship Game to a pressure below the  permissible range.    Brady requested arbitration and League  Commissioner Roger Goodell, serving as arbitrator, entered an  award confirming the discipline.  The parties sought judicial review  and the district court vacated the award based upon its finding of  fundamental unfairness and lack of notice.    The League has  appealed.  

We hold that the Commissioner properly exercised his broad  discretion under the collective bargaining agreement and that his  procedural rulings were properly grounded in that agreement and  did not deprive Brady of fundamental fairness.    Accordingly, we  REVERSE the judgment of the district court and REMAND with  instructions to confirm the award.

NFL v. Tom Brady Complete Decision

Will the entire Second Circuit review?  Will the US Supreme Court intervene?  Either en banc or Supreme Court review are very rare. 

Thursday, April 14, 2016

NH Seeks To Replace 20 Year Old Breath Machines

 Intoxilyzer 5000EN

I had the honor of testifying about the bill to remove breath test captured samples from NH breath testing on behalf of the New Hampshire Association of Criminal Defense Lawyers.  See the related story in the Union Leader:  http://www.unionleader.com/article/20160414/NEWS07/160419616

The law in NH currently requires that a person who submits to a breath test be given samples of their breath for independent testing.  The current law means that a person who provides a breath test is capable of challenging and disputing the indirect measure of a person's blood alcohol content.

The new proposed law would eliminate the captured samples and instead permit a person to get a blood sample after they have provided a breath sample.  It is my position that blood testing is the best solution and to eliminate breath testing all together.  Blood testing is simply more accurate, more reliable and more precise.  Blood testing also permits a person to have the sample retested to ensure that the testing was done properly.

The Intoxilyzer 5000 was first manufactured in 1982 and has been used and continues to be used extensively in the United States.  New Hampshire purchased 88 Intoxilyzer 5000 units in 1988 for $490,280.00 and continued to purchase the improved Intoxilyzer 5000EN. Four units were purchased for $22,300.00 as recently at July of 2007.  The Intoxilyzer 5000 has undergone significant changes since the initial purchase: going from 3 filters to 5 filters, increasing the sample chamber size, changing the wavelengths measured, increasing the chamber temperature and improving filters to detect interferents.  The most modern breath testing devices from CMI, Inc., the manufacturer of the Intoxilyzer machines, are named the Intoxilyzer 8000 and Intoxilyzer 9000. They both use a smaller sample chamber with a pulsed light source and measure different IR wavelengths than the Intoxilyzer 5000EN.

Saturday, March 19, 2016

Jury Nullification in NH


A jury is probably the most democratic form of a decision making body that exists in the United States. A group of randomly selected citizens from voting lists and driver's licenses will form a jury in NH to decide the fate of a fellow citizen.  This group decides if a crime has been committed and neither the executive branch (police and prosecutors) nor the judiciary (judges) are able to force them to make a finding.

These 12 jurors will hear evidence and vote directly on whether a person is guilty or not guilty based on the evidence presented and their moral conscience.  NH is unique in that the legislature has passed a law which allows defense lawyers to explain jury nullification.   RSA 519:23-a Right of Accused. – In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.

NH has implicitly allowed for jury nullification and courts have long given an instruction which is referred to as a Wentworth instruction, where a judge tells the jury the following:

"If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the State has proved all of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. State v. Wentworth, 118 N.H. 832, 839 (1978)."

In 2014, the NH Supreme Court largely attempted to gut the power of defense lawyers from making jury nullification arguments.  The court ruled that the defense may argue for nullification but that the court is not required to give any instruction regarding nullification.  State v. Paul.  In that case the NH Supreme Court ruled:

"that RSA 519:23-a represents simply a codification of pre-existing law regarding the function of the jury in criminal cases, we briefly summarize that law. It is well established that jury nullification is neither a right of the defendant nor a defense recognized by law. State v. Sanchez, 152 N.H. 625, 629 (2005). Rather, jury nullification is the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence. Id.; see also State v. Mayo, 125 N.H. 200, 203 (1984) (recognizing jury nullification to be “an historical prerogative of the jury” (quotation omitted)). The trial court ordinarily gives the Wentworth instruction, which is the equivalent of a jury nullification instruction. Sanchez, 152 N.H. at 629. The defendant is not entitled to a more specific jury nullification instruction, and the decision to give such an instruction, when requested, lies within the sound discretion of the trial court depending on the facts of a particular case. State v. Bonacorsi, 139 N.H. 28, 31 (1994); State v. Brown, 132 N.H. 520, 527 (1989). Here, the court gave the Wentworth instruction, and, as discussed above, nothing in RSA 519:23-a required the court to do anything more. 
In conclusion, although RSA 519:23-a requires the trial court to allow the defendant “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy,” it does not require the court to allow the defendant to inform the jury that it has the right to judge the law or the right to ignore the law. In other words, it is not a jury nullification statute. Further, it is of no moment that the court’s instructions may have contravened or undermined the defendant’s jury nullification argument because the statute gave the defendant no right to make such an argument." 

Jury nullification has a long history in the United States, which includes famous cases involving sedition, slavery and prohibition.  Increasingly courts have attempted to restrict this awesome power to acquit by restricting or denying the right to even inform a juror of this power.

Recently the NH House has passed a bill that would require courts to provide a jury nullification instruction.  This bill is headed to the senate and governor.  If this bill became law, it seems very likely that the NH Supreme Court will be asked to determine if jury nullification is constitutional.  The future of jury nullification is uncertain.

I had a jury trial this past week where I argued for jury nullification because the police had enforced a law in a draconian manner against any sense of normal enforcement.  I don't know if the jury decided my client was not guilty based on nullification, but having the power to explain it is essential to putting check on police powers.

All jury deliberations are secret so I may never know the reasoning of the jury, but having the ability to tell a jury to do the right thing is very powerful and in the right case, essential.  I know that my client and I felt empowered by arguing jury nullification.  The fact that the jury took less than 20 minutes to vote not guilty may have had everything or nothing to do with nullification.  However, being able to inform the jury about their power to vote their conscience even if you they believe the state has proven each element provides another level of protection for american citizens accused of committing a crime.  In my opinion, it is important that a jury be given the knowledge that even when a law may be broken there exists a way to reign in strict enforcement that would be immoral.

Questioning the War on Drugs

Huffington Post Article