By Nancy West, InDepthNH.org
Kenneth Hart served his maximum 20-year sentence in state prison for rape rather than admit to his guilt and possibly serve a lesser sentence.
If he had admitted to the crime after serving his minimum of 10 years, he could have applied for parole.
But now that he has served the maximum, still not admitting his guilt, the state has moved to keep him locked up longer by having him civilly committed to the state psychiatric hospital.
Hart insists he is not mentally ill and that he never raped anyone. Further, Hart, who is black, says his conviction is a case of racism as well.
“It’s because I’m a black man,” Hart said. “And I’m intelligent.” Hart spoke to InDepthNH.org by phone and at the state hospital recently after his transfer from the prison.
The state successfully argued in a confidential Probate Court hearing that Hart is dangerously mentally ill because he would refuse to take medication for schizophrenia when released from the state prison. On Aug. 31, a judge signed a commitment order involuntarily admitting Hart for two years to the New Hampshire Hospital, the state’s psychiatric hospital, as a result.
And while Hart plans to appeal the admission order to the state Supreme Court, in a separate proceeding, Hart is finally getting the Supreme Court appeal he says he was denied almost two decades ago after his criminal trial and conviction.
Hart said he takes the medicine usually prescribed to schizophrenics because he gets forced injections if he refuses. The state says Hart suffers from schizophrenia, is sometimes aggressive and anti-social, and decompensates when he doesn’t take the medicine. He was transferred several times to the prison’s psychiatric unit, sometimes for long stays.
Hart maintains he has been the victim of racism in New Hampshire from the day he was accused of raping a 33-year-old white woman on Oct. 21, 1998, at the Cathedral Manor rooming house in Manchester.
Hart first talked about racism in 2000 while representing himself during an eight-day trial.
While Hart’s behavior prompted a psychiatric evaluation before trial, Dr. Albert Drukteinis then found him competent to stand trial, but also not competent to represent himself. Judge William Groff allowed Hart to represent himself anyway.
Hart agreed to share publicly the Probate Court documents that are usually confidential in civil commitments.
“My trial was not fair,” Hart said. “The woman definitely had problems and I was the only black person in court.”
Wearing the new sweatpants and new sneakers his mother sent him to wear when he was scheduled to be released, Hart carried the dog-eared notebooks containing his writings and legal work as he spoke with a reporter in a small visitor’s room at the state hospital.
Hart insisted on representing himself at trial and said he couldn’t file an appeal after his rape conviction because the state moved him to a Florida prison where he didn’t have access to New Hampshire law books. As a result, he missed the deadline.
He has been writing and filing complaints and pleadings since he was returned to prison in New Hampshire, but it was only last year that Judge Andrew Schulman referred one of his filings to the Public Defender’s office. And Christopher M. Johnson, the state’s chief appellate defender, took on the case marking the first time Hart had counsel to represent him in challenging his conviction.
Johnson argued last week before the state Supreme Court that Hart didn’t get a fair trial because he represented himself and wasn’t competent to do so.
“His trial wasn’t fair,” Johnson said in an interview. “They let him represent himself and shouldn’t have. His conviction should be reversed.”
If it is reversed, the state could opt to retry him, Johnson said.
Assistant Attorney General Sean R. Locke disagreed with Johnson. Setting a higher standard to self-represent would deprive mentally ill people of their right to represent themselves, Locke said.
Hart believes he has been treated unfairly in New Hampshire because he is a black man.
Although his pleadings and legal arguments have been described as rambling and sometimes incoherent, he is also described in court records as being intelligent and having completed some college work. The state has since diagnosed Hart with schizophrenia, although that wasn’t an issue years ago in the competency evaluation.
Hart is articulate and sure of himself when discussing his case. He insists he is not paranoid, but simply responding to things that have happened to him since his arrest in New Hampshire.
Hart said he was planning on finishing college in Vermont when he was arrested in 1998. He had left his job with the New York Transit Authority and had planned to stay only a few months in Manchester before the next semester would start, Hart said.
Now, he just wants his freedom after serving his maximum sentence, Hart said.
“I want to be free. I’ve been doing this for 20 years, fighting this, no justice,” Hart said. “I did the best I could. There’s no justice. New Hampshire screwed me.”
Hart has always maintained that the sex was consensual, and the woman filed a rape complaint because he didn’t loan her the money he had promised. The victim, however, convinced a jury at trial that she told Hart no, that she was “petrified, frozen, scared for (her) life.” She immediately reported the crime and underwent a rape kit test at a local hospital.
InDepthNH.org does not identify rape victims by name unless they want to be named and couldn’t immediately locate the victim for comment.
Hart thought he’d finally be a free man on Sept. 18 after serving his maximum 20-year sentence for aggravated felonious sexual assault. He was eligible to apply for parole after serving the minimum 10 years, but he would have had to admit to the crime and undergo sex offender treatment to apply. Hart said he passed a lie detector test at that point and refused sex offender treatment.
“Dr. Albert Drukteinis evaluated Hart and testified that while he believed Hart competent to stand trial, he did not believe Hart competent to represent himself or knowingly waive the right to counsel,” Johnson wrote in his Supreme Court brief.
Judge Groff made note in court records of Hart’s behavior while acting as his own attorney, according to Johnson’s brief.
“It is my opinion that you would continue to examine a witness for hours on end with no appreciable thought to any questions,” Groff told Hart during his trial. “It is obvious to me that you don’t even know half the time what your next question is going to be; that there are great pauses which don’t appear in the record between each one of your questions . . . . It was obvious (with respect to the prior witness) that you had no . . . you didn’t even really know whether there were any more questions to ask and what you asked on the whole were either irrelevant or asked and answered, and that’s why I imposed the restrictions.”
Drukteinis said, “I don’t think he understands how his own abilities coupled with his paranoid thinking are going to prevent him from doing anything close to what needs to be done.”
In his appeal, Hart contends that a higher minimum standard of competency applies to defendants who want to represent themselves than to defendants who will stand trial while represented by counsel.
Hart argues that the U.S. Constitution establishes that higher minimum standard and in the alternative, contends that the New Hampshire Constitution affords greater protection in establishing the higher minimum competency standard for self-representing defendants.
“…while Hart may have been competent to stand trial if represented by counsel, he did not meet the higher minimum standard applicable to self-representing defendants,” Johnson wrote, explaining some other states allow for the higher standard.
Johnson also argued that Hart never knowingly waived his right to counsel.
“As a result, the prosecution of Hart led to a trial that failed both as a reliable test of the prosecution’s case and as a demonstration of respect for a criminal defendant’s dignity and autonomy. The law neither requires nor permits New Hampshire courts to countenance such trials,” Johnson wrote.
Hart delivered a rambling opening statement, Johnson wrote, interrupted several times by objections to improper comments.
After Groff told Hart that, although his allocated half-hour had expired, the court would allow him five minutes to conclude, Hart continued his opening statement: ‘“Hum. Hum. It is very extremely hard to be black. It is too hard to be black. An experience that you have never felt before until you have experienced it. When you grow up and you don’t know nothing about it you keep growing up and one day you find out that there is something because you are black, you see people and they go . . . they don’t know why….”
Hart then continued talking about race.
On several occasions, Hart asked questions that hurt his defense, Johnson wrote.
“For example, he elicited from the doctor who examined (the victim) her belief that (the victim) told the truth in alleging rape,” Johnson wrote.
Hart unsuccessfully tried to withdraw the question. “He then asked about the basis for her belief, which led her to testify that, in her twelve years in emergency medicine, it was not her experience that a person will undergo a rape kit procedure in order to make a false allegation,” Johnson said.
Hart later elicited from a police officer the testimony that (the victim) seemed “very genuine, she appeared very upset, visibly upset, and I had no other reason not to believe her.”
When Judge Groff told Hart it was his turn to make a closing argument to the jury, he tried unsuccessfully to admit into evidence a newspaper article about an unrelated rape case in Italy.
Groff then asked him to continue with his closing.
“I did not rape (the woman) Thank you. That’s it, Judge,” Hart said.
Assistant Attorney General Locke argued to the Supreme Court that there should be no heightened standard for people with mental illness to be allowed to represent themselves.
“This Court has never before mandated such a requirement and instead has erred on the side of protecting the autonomy of criminal defendants and allowing them to direct their defense,” Locke wrote in his brief.
To do so would “strip a segment of criminal defendants of their ability to exercise their Constitutional rights, their autonomy and their dignity.
“It also invites trial courts to discriminate by forcing counsel upon them against their wishes simply because they suffer from mental illness,” Locke argued.
The Attorney General’s Office civil bureau, handled Hart’s civil commitment. When asked how often prison inmates are involuntarily committed to the state psychiatric hospital after they have finished serving their sentence, the office’s spokesman, Kate Spiner, said:
“We do not keep a list that would be categorized this way.”
Hart’s attorney in Probate Court, Shane R. Stewart of Concord, said he hasn’t seen a similar case in his practice.
“When someone does their time, usually they are done,” Stewart said.
New Hampshire has a dangerous sex offender statute that is rarely used allowing the state to hold a sexual predator past his completed sentence, but that definitely wasn’t applied in Hart’s case, Stewart said.
Court records show Hart had a history of arrests for petty crimes in several states including New York, New Jersey, Massachusetts and only one conviction for a misdemeanor assault in 1995 in which he served 30 days. There were no prior allegations of sexual assault in his record.
Stewart said: “The state seems to have argued that Hart would be a danger if released because he would refuse to take his medication.
“Kenneth has a guardian who decides his medications for him. He doesn’t get to decide his meds.”
To be civilly committed, the state had to prove that Hart was both mentally ill and dangerous to himself or others, Stewart said.
“How can he be dangerous by refusing to take medications when someone else has that decision?” Stewart asked.
In her order for involuntary admission, Judge Barbara A.M. Maloney wrote: “The court finds by clear and convincing evidence that Kenneth Hart is presently in such a mental condition as a result of mental illness as to create a potentially serious likelihood of danger to himself or others …”
Maloney stated that Hart acknowledged to a psychiatrist that he grabbed another inmate around the throat for touching his radio cord.
“The court-appointed psychiatrist testified to his opinion that Kenneth Hart meets the dangerousness standard in that the danger stems from Kenneth Hart’s lack of insight and judgment regarding the need for medication,” Maloney wrote.
Stewart argued in a motion to reconsider, which Maloney denied, that the court didn’t apply or enforce the rules of evidence.
“And made findings based on the testimony of three experts (two psychiatrists and one social worker) who had no relevant personal knowledge of the alleged dangerous acts … and their testimony violated the rules of hearsay,” Stewart wrote.
Stewart said the state may be trying to play it safe in case Hart was released and committed a crime.
“It’s a safe play. I’ve never seen it. I don’t like it,” Stewart said.