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Nashua judge hears case for vacating road-rage conviction over credibility issues

New Hampshire Sunday News

February 02. 2013 10:50PM

Cody Eller, 18, of Windham, is arraigned in Derry District Court on vehicular assault and second-degree assault charges. Police allege Eller drove a Ford Fusion into a Kawasaki motorcycle after the motorcycle tried to pass the car on Windham Road. The injured motorcyclist was identified by police as William Hawksley, 45, of Brentwood. May 12, 2011. (TIM JEAN/ Staff photo: The Eagle-Tribune.)

NASHUA - A Windham man wants a judge to throw out his road rage-related convictions because a week after jurors found him guilty last November, prosecutors admitted they had failed to disclose before trial as required that the arresting Pelham police officer had potential credibility problems.

The case of Cody Eller, 20, who was convicted of second-degree assault and reckless conduct for intentionally crashing his car into a motorcyclist to keep him from passing 20 months ago, has been shrouded in secrecy since the prosecutors' highly unusual admission two months ago.

Judge Jacalyn A. Colburn sealed related-court records and gagged the lawyers - and Eller's mother - from talking about it.

The public got its first glimpse into the matter Friday at a hearing in Hillsborough County Superior Court South in Nashua. Courts have generally held that such failures to disclose are very serious and may result in convictions being overturned.

Jeffrey Kaye, Eller's lawyer, is adamant about what should happen next because he wasn't told before trial that Pelham Master Patrolman Eugene Stahl - who provided key testimony against Eller - had a potential credibility issue.

Stahl, who declined comment for this article, had insisted from the start that Eller confessed to him at the scene minutes after the crash.

"My client's constitutional rights were violated," Kaye said. "At the minimum, this should result in a new trial."?Police characterized the incident as road rage. but Kaye insists Eller simply misunderstood Stahl's questions at the scene because he has a learning disability and a diagnosed auditory processing disorder. Jurors found Eller not guilty of the most serious charge, first-degree assault. The injured motorcyclist survived.

Eller, who attended Friday's hearing, said he has completed his associate's degree in graphic design at Hesser College, has found a job and hopes to move on with his life.

"I have been stressed," Eller said.

Prosecutors said they only became aware after trial that Stahl's name is on the Hillsborough County Attorney's confidential "Laurie" list.

Top prosecutors must maintain such lists of police officers for possible disclosure to the defense before trial because of a state Supreme Court ruling in 1995. The court overturned Carl Laurie's first-degree murder conviction because prosecutors failed to disclose the lead police investigator's propensity for dishonesty.

Kaye criticized the confidential Laurie system, which has been the subject of several Sunday News articles since last fall. There is no way to assure defense attorneys or the public that police and prosecutors fully disclose appropriate information from an officer's personnel file, Kaye said.

"The Laurie system is broken," Kaye said.

Kaye's opinion was bolstered at the hearing when it was revealed that Pelham police and prosecutors didn't fully comply with Judge Colburn's order to turn over Stahl's complete personnel file for her review.

Initially, Colburn chastised Kaye during the hearing for insisting there was more to Stahl's file than had been turned over to her. The records include an investigation into allegations of excessive force, but there was no mention of whether any conclusions were reached.

Colburn insisted she had no reason to believe any material had been withheld from Stahl's personnel record, until Kaye pointed out referenced attachments in one document that hadn't, in fact, been attached.

Assistant Hillsborough County Attorney Karinne Brobst then told Colburn she provided only a police summary of the investigation, not the full investigation.

Colburn said she was "not happy" that all materials had not been turned over for review to determine whether they should be released to the defense.

"Reach out to Pelham police and tell them I want everything ...," Colburn told Brobst.

Laurie issues could include findings that an officer lied under oath or during an internal investigation, although some prosecutors insist police chiefs err on the side of caution by reporting officers who have been disciplined for much less serious infractions, as well.

It has been up to a judge to decide what police personnel information should be disclosed, in which cases and how it will be used. But a law that went into effect virtually unnoticed last June has been interpreted differently by prosecutors and defense attorneys, adding confusion to the Laurie disclosure process.

Former state Rep. Brandon Giuda, R-Chichester, said he pushed the legislation last session after a police chief complained to another lawmaker that some police chiefs refused to turn over the names of police officers with potential credibility issues.

After initial reluctance and some confusion about which officers should be on their Laurie lists and for how long, county attorneys told the Sunday News last October there are about 60 sworn law enforcement officers on lists across the state.

Attorney Kaye said he fears that in the future, police departments will become more and more hesitant about reporting officers with credibility issues to county attorneys. But it is imperative that Laurie lists be accurately maintained and appropriate information be disclosed, he said.

Otherwise, people won't get a fair shake at trial, Kaye said.

"That means denying people's constitutional rights to all favorable evidence," Kaye said.

Eller is free on bail. Another hearing will be scheduled.

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