The New Hampshire Supreme Court decided an interesting case this week concerning the right of a party to participate in his civil case via telephone, when he is unable to attend the hearing in person, due to the fact that he is in prison.

According to the Bellingham Herald, in Washington state, Buzzard has been in prison since 2003 for sexually assaulting a child.  He will be eligible for parole in March, 2011.  The New Hampshire Supreme Court’s decision says that while incarcerated, Mr. Buzzard filed a small claim in Nashua District Court.  The small claim alleges that Mr. Buzzard ordered some magazines and photographs from the defendants, Ariel Shea and F.F. Enterprises, a now-defunct operation out of Nashua.  Mr. Buzzard alleged that the defendants took his $60.00 but failed to deliver the pictures and magazines as promised.

Not surprisingly, Mr. Buzzard was unable to attend the hearing in the Nashua District Court, as he was in prison.  He petitioned the court to allow him to appear telephonically, and even arranged with the Washington authorities to have a telephone available to him.  The Nashua District Court denied this request, and when Mr. Buzzard predictably failed to appear for his hearing, the court dismissed his small claim.

The Supreme Court accepted Mr. Buzzard’s appeal, and held that the Nashua District Court should not have dismissed his case.  The Court noted decisions from other state and federal jurisdictions in which courts have found that it was fundamentally unfair to prevent an inmate from being heard in court.   The Supreme Court ruled that the lower court was at least required to consider whether the “countervailing considerations such as expense, security, or logistics” were sufficient to preclude the imprisoned litigant from participating in his trial telephonically.

The Nashua District Court will now have to reconsider whether to allow Mr. Buzzard to phone in his case.

The implications of this case may be more significant than Mr. Buzzard’s interest in getting his pictures or the return of his $60.00, however.  A person does not forfeit his constitutional right to petition the court for a redress of grievances when he is imprisoned.  A criminal conviction and sentence strips a person of many of his rights, most obviously, his right to remain at liberty and be free.  However, inmates still have a fundamental right to access the court system.  This case requires that courts consider the various means available to allow even prison inmates to exercise this important right.

In a recently issued decision, the New Hampshire Supreme Court took the highly unusual step of reminding prosecutors that their duty is “to seek justice, not merely to convict.”

The case State v. Leveille, slip op. August 19, 2010, was an appeal from a conviction of first degree assault.  The case began as an unfortunate family dispute involving snow removal and allegations of improperly parked carse, and ended with gunshots fired.  Mr. Leveille was charged with attempted murder, first degree assault, and second degree assault.  Although the decision does not detail the facts, Mr. Leveille apparently introduced evidence that the gun discharged by accident and asked the judge to instruct the jury to acquit him of attempted murder and first degree assault if it believed that the gun discharged accidentally.  Despite the fact that there was evidence that the gun discharged accidentally, the prosecutor did not want the judge to instruct the jury that Leveille should be acquitted if the jury believed the gun discharged accidentally.

The superior court judge rejected the prosecutor’s efforts to limit the jury instructions, and advised the jury to acquit if it believed that the gun discharged accidentally.  The Supreme Court agreed with this decision, but was clearly not amused by the prosecutor’s attempt to prevent the jury from hearing the complete statement of law sought by the defense.  Since the Court did instruct the jury that an accidental discharge could lead to a not guilty finding, Mr. Leveille’s conviction was upheld.  Hopefully, the Court’s warning to prosecutors to seek justice will be heeded.

Jerry Ray Bowen was a felon and probable gang member who apparently shot his sawed-off shotgun at his girlfriend’s car as she drove away following a violent break up. Not surprisingly, the police wanted to locate Bowen and his sawed-off shotgun.  The police had heard that Bowen “might be staying at his foster mother’s home,” and obtained a search warrant for her home and any weapons found there.

Augusta Millender, the foster mother, and other members of her family were home when the SWAT team arrived to execute the search warrant.  At 5:00 a.m. they were ordered to leave their home while the police searched for Bowen and his sawed-off shotgun, neither of which were found at the Millender home.  What police did find, however, was Ms. Millender’s own (not-sawed-off) shotgun, and a box of .45 caliber ammunition.  These items were seized.

Ms. Millender, who had been at home sleeping when the SWAT team burst through her front door, filed suit against the police for violating her Constitutional rights, specifically, her right to be free from unreasonable searches and seizures under the Fourth Amendment.

Civil rights claims against police can be uphill battles, but in the right circumstances, the cases are definitely worth pursuing.  Often, the existence of a search warrant forecloses suit under the Fourth Amendment and allows the police to rely on “sovereign immunity” to avoid responsibility for their misconduct. In the Millender case, however, the 9^th Circuit Court of Appeals held that the police were not immune from suit because even though a judge signed the search warrant, the evidence that Bowen or his shotgun would be found in the Millender home was so scant that no reasonable officer should have believed that there was probable cause in the first place.

Victims of civil rights violations by police officers face a tough battle when they seek compensation from the government.  Pursuing these claims requires skill and experience.  At Douglas, Leonard & Garvey, we have brought cases against police officers and other governmental officials to protect our clients’ constitutional rights.

If you’ve been watching the news lately, you may have seen a story concerning the tragic death of 15 year-old high school student, Phoebe Prince, in Massachusetts. Phoebe was the victim of a vicious bullying campaign waged against her by at least 6 other students at South Hadley High School.

Everyone knows that growing up is hard, and that some amount of getting picked on from time to time is a part of every adolescent’s life experience. However, serious bullying can cause lasting psychological and, in some cases, physical harm to vulnerable children. In addition, the students doing the bullying can face serious negative consequences themselves when it gets out of hand. The bullying students in Phoebe’s case have been charged criminally for her death. Phoebe’s case is an extreme example of how bad it can get when schools do not step in to prevent bullying from getting out of hand, but lasting harm can and often is done even in less serious cases.

New Hampshire’s Supreme Court has held in the past that schools have a duty of reasonable supervision to oversee the welfare of the students in their care. That means that once a school becomes aware of unsafe conduct affecting the welfare of its students, it must step in and take reasonable measures to alleviate the dangerous situation. In the context of bullying, that means that once a student makes school officials aware that he or she is the target of bullying, the school must work to put a stop to it. Schools that fail to take prompt and effective measures to prevent bullying from continuing may face liability for damages caused to the bullied student for their failure to do so.

click here to read the People Magazine article

The rise of computer technology has created new challenges for courts and lawyers concerning the scope of privacy protection afforded by the Fourth Amendment. When the Founding Fathers wrote that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” they had no idea that the future would enable people to carry their “papers and effects” with them everywhere they went. Yet “flash” or “thumbdrive” technology allows them to do just that. A recent Federal case out of Florida provides an example of the difficulties that new technologies present for court attempting to apply constitutional protections written well over 200 years ago.

In United States v. Durdley, the government wanted to use evidence obtained from a flash drive that Mr. Durdley had accidentally left in a computer at his place of work. The flash drive had some work-related documents, but it also had evidence that the government used to convict him of a crime. This evidence was found when a co-worker sat down at Durdley’s computer terminal and began searching through the non-work-related files. The co-worker alerted the authorities, who then used the evidence to convict Durdley of the crimes.

Durdley argued that he had an expectation of privacy in the contents of the thumb drive. He never loaded the incriminating evidence onto his work computer and never made it available for public viewing. The co-worker realized that Durdley had left the thumb drive behind and began searching through it, then alerted police. The court found that by leaving his thumb drive in the computer, Durdley forfeited his Fourth Amendment rights.

This is yet another example of a case in which the government, criminal defendants, and courts are struggling to figure out how to apply constitutional protections drafted in the 18th century to the digital age.