November 12. 2013 12:00AM

Addison's case first time court ruling on NH death sentence

Staff report

The New Hampshire Supreme Court's decision last week upholding the death penalty for convicted Michael Addison is expected to lead to multiple attempts by his attorneys to keep their client from being put to death by lethal injection.

In upholding Addison's conviction for the murder of Manchester Police Officer Michael Briggs, the state's highest court swept away challenges to the way the facts of the case were presented and judged, as well as objections to the fairness of the prosecution and possibility that the verdict was tainted by being rendered in the same community where the murder happened.

The justices also rejected efforts to strike down the death penalty on state constitutional issues.

"They have approved essentially the standards that the (death penalty) statute described; that it is not unconstitutional to have a death penalty in New Hampshire under the state constitution," said Albert Scherr, a professor at the University of New Hampshire School of Law.

The appeal to the state Supreme Court was mandatory under the law.

But Addison has another round in state court before taking his appeal to the federal courts.

The justices did not rule a mandatory "proportionality review" of the sentence, which is a look, required by state law, at whether the death penalty for Addison is out of proportion with penalties in similar cases elsewhere.

Legal analysts say last week's decision is significant because it was the first time the state's highest court has had to rule on the death sentence since the current capital punishment law was adopted.

Old penalty repealed

New Hampshire's old mandatory death penalty was repealed in response to the 1972 U.S. Supreme Court decision in a Georgia case that led to a moratorium on executions.

Last week's ruling was unanimous and issued "per curiam," Latin for "by the court," meaning it effectively spoke with one voice, since it was without dissent and without ascribing its words to an individual justice.

"It is clear that the court has spent an enormous amount of time thinking about this case and deliberating it," UNH law professor Erin Corcoran said. "They took their job very seriously, and a tremendous amount of resources were marshaled just to write the opinion."

Her colleague, Scherr, said clarity in the decision and its impact seems to have been a goal.

"They certainly intended to bring as much clarity to the issues that were in front of them so that going forward the same issues were not relitigated again," Scherr said. "It dealt with some of the basic issues; it's going to take something dramatically different to be relitigated."

A unanimous opinion may have had the same objective. Corcoran said decisions that are eventually overturned are often cases decided by small margins or in which there is vigorous dissent.

"To the extent that you have cases where there are unanimous views, there is an idea it is a stronger precedent," Corcoran said. "I think the court was able to come to a place where they all agree you have a sense the decision carries more weight."

But the justices decided not to rule on the "proportionality" review required by state law. Instead, the court ordered that issue to be briefed and argued again by defense and prosecuting attorneys. Procedural questions over the review were resolved three years ago, and the matter was addressed in both written briefs and oral argument prior to last week's decision.

The order that a new round of argument be conducted on proportionality triggered speculation about whether the court feared that an issue on which there could be dispute within its ranks could obscure its desire for clarity.

In a procedural ruling in the case issued in 2010, the court ruled that comparison of Addison's sentence to other cases is "restricted to cases in which a defendant committed the same kind of capital murder as the defendant," or murder of a police officer.

No premeditation found

That ruling means the court has said it will not compare the murder of Briggs to the murder-for-hire conviction of businessman John Brooks a few years ago. Brooks escaped the death penalty and was sentenced to life in one of only two other capital cases in New Hampshire since the new law was adopted.

The procedure favored by the court in the final stage of its review could set the stage for at least one federal appeal.

In sentencing Addison to die, jurors unanimously found that the murder of officer Briggs was not premeditated and was not intentional. If the penalty is upheld, Addison could seek to have a federal court rule his case should have been compared to cases in which no death penalty was imposed because the killer lacked premeditation, since the jury decided there was no premeditation in the murder of Briggs.

"To the extent that in cases in other states where someone is not given the death penalty because there is not premeditation, it could have an impact here," Corcoran said. "In New Hampshire, premeditation can be one way to get the death penalty, but another way to get the death penalty is to shoot an officer in the line of duty."

Scherr said last week's decision to uphold the verdict and the penalty doesn't necessarily mean that the death penalty won't be set aside in the high court's proportionality analysis, as unlikely as that would appear given the unanimous decision.

"What they've already done is not necessarily predictive of what they will do in the proportionality phase," Scherr said. "But hey, if they've gotten through all the issues ... and found that so far so good, one is never inclined to think they're willing to do something dramatically different this time around."