On Tuesday the New Hampshire Supreme Court overturned the wiretapping conviction of Adam Mueller (who calls himself Ademo Freeman), founder of Copblock.org, a group created promote police accountability. News reports portrayed the decision as one based on a technicality. That is true, though it is only part of the story. The ruling also was a rebuke of the prosecution.
On Oct. 4, 2011, Mueller interviewed three Manchester officials over the phone: Manchester Police Capt. Jonathan Hopkins, then-West High Principal Mary Ellen McGorry, and McGorry's assistant Denise Michael. He did not tell them he was recording the conversations. State law says audio recordings cannot be made without the consent of all parties.
Mueller was convicted after the trial court gave the jury improper instructions. The jury was told that Mueller would be guilty of a felony if he "willingly" made the recording, when the law actually requires prosecutors to prove that he "purposefully" broke the law.
The court overturned his conviction and sent the case back for a new trial. It also admonished the state for the novel legal arguments it used to prosecute Mueller, who represented himself at trial. The state appeared to take advantage of Mueller's lack of representation by asserting theories designed to have the jury infer Mueller's guilt without the state having to prove it. "We are aware of no authority supporting the proposition," the court wrote in response to one of the prosecution's arguments. In his new trial, Mueller should get a lawyer.