NASHUA - Failure to disclose a police officer's potential credibility issues may result in a new trial for a Windham man convicted of road-rage related incidents in November.
Judge Jacalyn Colburn is considering a motion to set aside the verdict in the case of Cody Eller, 20, of Windham. A hearing on the motion was held Monday morning in Hillsborough County Superior Court in Nashua.
Eller was convicted of second-degree assault and reckless conduct after striking a motorcycle that tried to pass his Ford Fusion on Windham Road in Pelham in May of 2011.
After the trial, prosecutors admitted they had not disclosed that the arresting officer, Master Patrolman Eugene Stahl, was on the Hillsborough County Attorney's confidential "Laurie" list. Prosecutors said they did not know Stahl was on the list until after trial.
The "Laurie" list is a record of law enforcement officials whose credibility may be questioned if they are called to testify. It is named for Carl Laurie, whose 1993 murder conviction was overturned by the New Hampshire Supreme Court after prosecutors failed to disclose information from a case detective's personnel file that might have brought his credibility into question.
When officers on the list are scheduled to testify, prosecutors are required to submit the files to the judge for review to determine if they should be released to the defense.
Defense Attorney Jeffrey Kaye said the court should dismiss Eller's conviction or grant him a new trial because of the failure to disclose.
"I believe that the scales of justice are not balanced in Cody Eller's case," Kaye said.
If the information had been available before trial, Kaye said he would have investigated all of Stahl's past cases to establish a history of lying and excessive force. He mentioned Stahl's involvement in the October nonfatal shooting of Grant Hebert and a 2004 case, Saviano vs. Director of N.H. Department of Motor Vehicles, involving Stahl's questioning of a DUI suspect. Stahl's actions were upheld in both cases.
"He's a rogue," Kaye said. "It's been going on his entire career."
If he had known of the potential credibility issues, Kaye said he may have reconsidered putting Eller on the stand and focused more on the officer's credibility.
"It's a credibility issue case," Kaye said.
Assistant Hillsborough County Attorney Karinne Brobst argued that the attorney general concluded Stahl acted properly in the Hebert shooting, and neither case would have been admissible in Eller's trial.
"The state admits that it made a mistake, but this verdict would not have been affected beyond a reasonable doubt," Brobst said.
The defense based its motion on a theory that Stahl is not telling the truth, Brobst said.
"It is not the liar list," Brobst said. "It is the Laurie list."
During today's hearing, the court was cleared during portions having to do with Stahl's personnel file. The file will remain sealed unless it is deemed admissible.
If the court denies the motion, Eller's verdict will stand and he will be sentenced.