"the only true surprise… that I’ve ever had in my life"

The New Hampshire Attorney General yesterday released a report concluding that Concord New Hampshire Police Sergeant Steven Smagula did not commit a crime when he shot Patrolman Joshua Levasseur during an unofficial and impromptu training exercise in the middle of the night in a building that was under construction. While I have no reason to dispute the report's conclusion that Sergeant Smagula did not commit a criminal offense, the report is illustrative of the differences between investigations of police officers and investigations by the police of the rest of us. The report also demonstrates the need for effective oversight of police activities - an issue that I will pursue in a later post.

The incident in question occurred on May 1, 2008. Sgt. Smagula, at the beginning of his shift, determined that he would try to arrange an impromptu building search training if it was a slow night. He had been informed of a new bank building that was unsecured and under construction and determined that the officers would use that building for the training. Smagula apparently did not obtain the owner's permission before using the building. The impromptu training occurred sometime after 2:50 a.m. and lasted until approximately 4:15 a.m.. At 4:22 a.m. Concord Police Headquarters was advised by Sgt. Smagula of the training accident.

Th Attorney General was notified of the shooting on May 1, 2008 and issued an preliminary report on May 12, 2008 preliminarily clearing Sgt. Smagula of any criminal wrongdoing. The final report was issued January 12, 2008.

At the outset the reader should understand that there is absolutely no evidence to support a claim that Smagula intentionally shot Off. Levasseur. He clearly did not intend to shoot his officer. The conclusion drawn by the Attorney General is based upon the lack of criminal intent. Nonetheless, it should be pointed out that most civilians involved with accidental discharges face far more immediate and serious consequences. While the state took 8 months to come to a final conclusion in this investigation of a policeman, civilians who accidentally discharge firearms are usually charged immediately.

In the Concord investigation every witness interview, including that of Sgt. Smagula, was recorded. Indeed policemen often claim that the recording of their statements at such inquiries is a right. However, this right is not afforded to the average citizen. Indeed, the New Hampshire Attorney General's Office and the New Hampshire Association of Chiefs of Police have steadfastly opposed legislation that would require the recording of such statements for average citizens. The New Hampshire Supreme Court has also found that no such right exists for the average citizen. See, State v. Barnett, 147 NH 334, 336 (2001)(rejecting the notion that due process requires the recording of custodial interrogations.)

Of course, it also appears as though these officers were trespassing on private property at the time of the accidental shooting. There is no mention of that small fact in the Attorney General's report.

The Attorney General's office also used a very liberal interpretation of the mental state required to commit the crimes of Reckless Conduct in violation of N.H.R.S.A. 631:3. I., and Simple Assault in violation of N.H.R.S.A. 631:2-a. The Attorney General opines that “the evidence supports the conclusion that Sergeant Smagula's conduct in firing the gun was an accident." The report goes on to state:

Although "accident" is not explicitly recognized as a defense in New Hampshire's Criminal Code, it is recognized in our criminal jury instructions and by case law as a defense that should be given at trial if the "theory is supported by some evidence." State v. Blackstone, [sic] 147 N.H. 791, 798 (2002). Here, there is ample evidence to support a claim that the shooting was the result of an "accident" and not criminal conduct.

How many times have defense lawyers and civilians, in general, heard from testifying police officers and state expert witnesses that "there is no such thing as an accidental discharge?" One need only consider the legion of hunting accident cases that result in charges of reckless conduct, simple assault and negligent homicide in this state to know that although we may get an "accident" jury instruction that theory has not stopped the state from bringing charges.
In 2002 I represented a young man, Andrew Kavanaugh, in the Hillsborough County Superior Court. Kavanaugh, believing that his firearm was unloaded, began to clean it and accidentally fired a shot through his apartment wall and into the shoulder of the octogenarian who lived in the next apartment. Clearly the discharge was accidental and there was copious circumstantial evidence of that fact. (More, I dare say, than in the Smagula case). Nonetheless, Kavanaugh was charged. He was ultimately acquitted by a jury but had to spend thousands of dollars to defend himself. Had the prosecutor used the Attorney General's interpretation of "accidental discharge" then, like Sgt. Smagula, Kavanuagh should not have been charged at all.

In the end, I am glad that Sgt. Smagula does not have to face criminal charges. He is a dedicated public servant who was just doing his job. I am sure that May 1, 2008, was, in fact, the "worst day of his life." The Attorney General's Office was right to spare him the agony of a criminal trial.

Hopefully, the same level of factual and legal analysis will be used in the future when civilians accidentally discharge firearms. Hopefully, police and prosecutors will use the same means to protect civilian rights that they used to protect the rights of Sgt. Smagula. Hopefully "equal justice under law" means that the same rules applied to Sgt. Smagula also apply to you and me.

(In my next post I will address the need for more effective oversight of police standards and procedures.)

Moving On in 09

Well, my six year tenure as President of the New Hamsphire Association of Criminal Defense Lawyers has ended. I should have more time for other things - like blogging maybe?

My letter to my brothers and sisters of the New Hampshire criminal defense bar:

Dear Sisters and Brothers,

It is now 2009 and my tenure as President of the New Hampshire Association of Criminal Defense Lawyers has come to a close. Over the past six years you trusted me to represent you, your interests and the interests of our clients. I thank you and hope that I lived up to that trust. NHACDL represents everything that is good about the criminal justice system in New Hampshire. Over the past six years I had the privilege to observe and support you all as you did your jobs. I saw you represent the impoverished, the middle class and the wealthy. I can confidently claim that when it comes to the effort of this bar - there is no disparity between rich and poor. (That is not to say that we don’t face detrimental institutional and financial disparity in our
system generally.) Likewise, there is no disparity in effort based on the alleged seriousness of crime. I saw mundane questions such as the effect of a reckless operation charge on a Maine commercial drivers license - pursued with the same level of diligence as major Fourth, Fifth and Sixth Amendment issues. You truly represent the best of the legal profession. It was a distinct honor to serve as your president.

Over the past six years we have tried to address systemic issues in our criminal justice system. We have tried to raise our level of exposure in the legislature and within the labyrinth of court rule making. We have steadily increased our legislative presence. Whether it is the death penalty or administrative license suspensions; sex offenses or underage possession; discovery or DWI; we have provided a voice in the legislature where one did not exist before - a voice for the poor, the forgotten and the despised. People sometimes ask me why I bother to "bang my head against the wall" in Concord. Call me an optimist, but having seen the spirit, intensity, and passion that you all bring to our bar, I can’t help but think that, with the right institutional framework, we can truly make New Hampshire a place where justice is done right - not from revenge and retribution but from evidence based principles that work to keep us free, safe and fiscally sound. A place where liberty remains our most valued possession and is treated with reverence. If that flame did not burn bright within this organization, then our efforts might reasonably be called a waste of time. But so long as NHACDL brings that passion for fairness and justice to Concord then our endeavors are worthwhile and we will continue to be "liberty’s last champions."

In addition to our legislative efforts we have grown in size and sophistication over the past six years. Your support, active, moral and financial, has helped us provide high quality continuing education programs, an active list serve, a valuable web site and an array of services to assist the criminal defense lawyer in the trenches. Our strike force has assisted our sisters and brothers who found themselves in harm’s way. Our amicus briefs have addressed perennial issues that disadvantage the common man charged with a crime. Through hard work and perseverance you have made NHACDL an effective and influential voice in the legal community and in the community at large.

Although no longer President of this stalwart organization, I hope to hang in and help with the NHACDL legislative agenda and in any other way that serves the organization, its members, and our clients. Under the leadership of our new President, Andy Schulman, and our board of Directors, your passion for liberty, fairness and justice will continue to burn. I wish Andy the best of luck as he leads us into a new era. And I thank every one of you for allowing me the privilege of serving this great Association.

Respectfully,
Mike