NH Supreme Court Accepts Ademo’s Appeal and Michael Valentine’s Prosecutorial Misconduct
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According to the NH Supreme Court website Ademo’s appeal was accepted on October 26, 2012. See here.
This means that the NH Supreme Court will actually hear Ademo’s appeal. Whether or not the court even reaches the 1st Amendment arguments, it’s likely Ademo’s conviction will be overturned. Brandon Ross has handled the appeal extremely well, and if you read it you’ll see that based on the clear meaning of the statute, Ademo at most was only guilty of a misdemeanor.
Here’s the text of the wiretapping statute.
“570-A:2 Interception and Disclosure of Telecommunication or Oral Communications Prohibited. –
I. A person is guilty of a class B felony if, except as otherwise specifically provided in this chapter or without the consent of all parties to the communication, the person:
(a) Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any telecommunication or oral communication;
(b) Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
(1) Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in telecommunication, or
(2) Such device transmits communications by radio, or interferes with the transmission of such communication, or
(3) Such use or endeavor to use (A) takes place on premises of any business or other commercial establishment, or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment; or
(c) Willfully discloses, or endeavors to disclose, to any other person the contents of any telecommunication or oral communication, knowing or having reason to know that the information was obtained through the interception of a telecommunication or oral communication in violation of this paragraph; or
(d) Willfully uses, or endeavors to use, the contents of any telecommunication or oral communication, knowing or having reason to know that the information was obtained through the interception of a telecommunication or oral communication in violation of this paragraph.
I-a. A person is guilty of a misdemeanor if, except as otherwise specifically provided in this chapter or without consent of all parties to the communication, the person knowingly intercepts a telecommunication or oral communication when the person is a party to the communication or with the prior consent of one of the parties to the communication, but without the approval required by RSA 570-A:2, II(d).”
Essentially, the statute reduces the crime to a misdemeanor for a person who is a party to the communication (i.e. a participant). Of course this last little bit was left out of the jury instructions that Michael Valentine submitted to the judge and ultimately went to the jury. This omission was either gross incompetence on the part of Michael Valentine in that he couldn’t be bothered to read the entirety of statute, or intentional prosecutorial misconduct and a violation of NHBA rules of professional conduct specifically, 3.3(a)(1) and 3.8(a).
Knowing this, one can’t help but realize how dripping with arrogance and hypocrisy Michael Valentine’s closing statement was. As he railed Ademo for asking the jury to nullify his charge, hammering home the point that we must all obey the law, he had already submitted jury instructions that omitted a relevant part of the law so he could secure a felony conviction. This was a violation of his professional obligation as an attorney and as a prosecutor.