MANCHESTER - A Congolese immigrant escaped prosecution on six domestic-violence crimes when his lawyer convinced a city prosecutor that he lacked the cultural competency to participate in the American justice system, according to court and public records reviewed by the New Hampshire Union Leader.
The decision is one of several questionable actions highlighted late last month by Attorney General Gordon MacDonald in a widespread critique of domestic-violence prosecutions in Manchester. MacDonald's critique led to the abrupt retirement of veteran City Solicitor Tom Clark and has put Clark's office under heightened scrutiny.
One questionable decision dealt with the case of Augustin Bahati, 33, who was arrested last August. According to court paperwork, he was accused of striking, pushing, grabbing, kicking and pulling out the hair of a woman who was 27 weeks pregnant at the time.
His case ended when Manchester prosecutor Andrea Muller - the domestic-violence prosecutor singled out by MacDonald - dropped six misdemeanor charges against Bahati in early March.
How Bahati avoided prosecution was spelled out in handwritten notes of District Court Judge William Lyons.
"The parties agree that the expert reports and analysis indicates that the defendant:
. Not competent
. Not restorable
. Not dangerous
Consequently, the court must dismiss the charges," Lyons wrote on March 2.
New Hampshire law allows for charges to be dismissed when an expert determines that a mental illness or mental disability has rendered a defendant incompetent to understand the charges against him and assist in his defense.
But an associate attorney general wrote on June 12 that the law contains no provisions for findings of "cultural incompetence."
"This finding simply does not comport with the legal requirements for a finding of incompetency to stand trial and should have been aggressively litigated," wrote Associate Attorney General Jane Young.
In an interview, Young said her office is not aware of any widespread use of cultural incompetency defenses.
Mayor Ted Gatsas acknowledged that justice may not have been served when Bahati went free.
"Every victim of domestic violence deserves justice. We need to make sure we defend them," Gatsas said.
Gatsas, a self-made millionaire businessman with no legal training, took over day-to-day operations of the office nine days ago when Clark announced his retirement.
On Friday, Gatsas said he has twice met with the staff at the city prosecutor's office, and he expects the office will meet any deadlines and tasks spelled out by MacDonald on June 29.
"They're all pitching in to get things in place," Gatsas said. Seven lawyers, including Clark and Muller, comprise the city solicitor's office. Gatsas said he has had no contact with Hillsborough County Attorney Dennis Hogan, who did not return a telephone call seeking comment on Friday.
Gatsas said he will present aldermen with a plan for the solicitor's office when they meet on July 18.
MacDonald and Young have demanded that Muller be closely supervised and attend training sessions. But they have not publicly called for her termination from the $75,000-a-year job. Gatsas said Muller's future will likely be addressed July 18.
MacDonald's critique included a list of tasks that Gatsas must oversee.
Prosecutors must review all cases where domestic-related charges were dropped in exchange for promised counseling, therapy or similar actions. Protocols must be written for case management, employee supervision, record keeping and training. Checklists and forms must be created to better organize cases.
MacDonald set out a timetable for the organizational work, and he established a deadline for action in the Bahati case.
By July 14, city prosecutors must consult with MacDonald's office to determine if charges can be resurrected against Bahati, MacDonald wrote on June 29. Charges must be filed by Aug. 4 to avoid the expiration of the statute of limitations, he noted.
Bahati's case proceeded slowly after his arrest in August, according to court records. He was initially jailed, but released on his own recognizance in September. In November, his lawyer raised issues of competency and asked for an evaluation.
The state had to provide a Swahili interpreter for court hearings and the evaluation.
"The six domestic violence charges against this defendant were dismissed because Attorney Muller did not challenge the finding of the forensic examiner that Bahati, who is of Congolese origin, had 'cultural incompetence' with regard to the United States system of justice and was consequently not restorable," Young wrote on June 12.
Young went on to write that if the charges are resurrected, an assistant attorney general will assist Muller with the case.
Competency evaluation reports are considered confidential under state law and were not part of Bahati's public court file. A March 2 competency hearing lasted about 50 seconds when Muller asked Lyons to accept the examiner's report and dismiss the charges.
This week, Muller said she would not comment about the Bahati case.
In an interview, Young said she can't discuss cases that are under review and expressed concerns for victims in such cases. She emphatically refused to identify any case that MacDonald has raised with city prosecutors.
Young agreed to speak in generalities about competency evaluations.
To determine incompetency, a forensic examiner must show that:
. A defendant suffers from a mental disease or defect, and lacks the ability to rationally understand the case.
. The defendant cannot be restored to competency in 12 months.
. The defendant is not a danger to himself or others.
If all criteria are met, the case is dismissed.
"You have a constitutional right to due process," Young said.