Convicted murderer Eduardo Lopez Jr. is seeking a new trial because prosecutors failed to tell him 22 years ago that a Nashua police detective who testified against him had previously been disciplined for lying to his superiors.
Lopez and two other convicted murderers were notified two years ago of their right to seek a new trial because discipline against Nashua Police Chief John Seusing much earlier in his career wasn’t disclosed before he testified against them decades ago.
Public Defenders Paul Borchardt and Pamela Jones filed Lopez’ motion for a new trial arguing Seusing’s testimony played an important role in his conviction. A hearing on Lopez’ motion is set for Oct. 13 in Hillsborough County Superior Court South in Nashua.
“Specifically, the state did not disclose impeachment evidence of prior bad acts by then-Detective John Seusing,” Borchardt wrote in Lopez’ motion for a new trial.
Had the defense known that Seusing had been disciplined for lying before Lopez’ 1993 trial, “they could have responded to Seusing’s testimony with a simple line of cross that Seusing had lied in the past when it benefited the Nashua Police Department, so he was doing the same in the Lopez trial,” Borchardt wrote.
Senior Assistant Attorney General Jeffery Strelzin asked the court to deny Lopez’ motion, arguing Seusing’s testimony had little significance to the issues at trial.
Prosecutors must notify defendants of all favorable, material evidence – called Brady material – or risk losing convictions, even decades later.
That includes evidence that can be used to impeach the testimony of police officers who had been disciplined for dishonesty or use of excessive force.
“Lopez’ trial focused on two issues: first, whether Lopez was the shooter; and second, whether Lopez was so intoxicated that he could not form the requisite intent,” Borchardt wrote.
“The state relied heavily on Seusing’s testimony to rebut the defense’s intoxication claim,” Borchardt wrote.
Impeachment of a vital state witness would change how the jury weighed the intoxication defense, he said.
“Average jurors believe police officers,” Borchardt wrote.
Lopez’ motion said Seusing lied to his superiors years before Lopez’ trial when he told them he didn’t arrest Norman Belair, who was filing a civil lawsuit against Seusing, three other officers, the city and police department.
Belair’s lawsuit sought $275,000 claiming Seusing and the other officers used excessive force when they arrested him during a melee at the Bounty Lounge in 1986, Borchardt wrote. Seusing later corrected the lie.
Belair claimed then that he wasn’t part of a group that was fighting at the bar that night when he was arrested. Belair’s suit was settled in 1991 and was subject to a confidentiality agreement.
Attempts to interview Seusing, who retired in January, were unsuccessful.
Nashua Police Commissioner Robert Valade declined to talk about the pending case, but praised Seusing’s 32-year career.
“I think a lot of the man,” Valade said. “He was a very good gentleman and a very good chief.”
Strelzin said that the only time Seusing’s discipline was reviewed by a judge was before the unrelated 1995 homicide trial of Michael Monroe and it was ruled inadmissible.
Judge Bernard Hampsey said in his ruling then that Seusing’s discipline had occurred seven years earlier and noted that Seusing had corrected his lie before being questioned about it, Strelzin wrote.
Hampsey went on to say that Seusing’s prior discipline lacked probative value, would unnecessarily prolong the trial and would serve to confuse the jury. That ruling was unsealed in 2013.
“It is likely that the incident was not disclosed in any other criminal case given that the pleadings and order were all under seal,” Strelzin wrote.
The failure to disclose Seusing’s discipline came to light two years ago when the Attorney General’s Office investigated allegations by retired Nashua police officer Anthony Pivero regarding Seusing ’s failure to disclose the 15-day suspension in the late 1980s.
In a news release dated Aug. 22, 2013, Attorney General Joseph Foster said Seusing’s discipline was disclosed in the Monroe case, but was never disclosed again as required in every case in which he testified.
It was a matter of misunderstanding, not malfeasance that Seusing’s discipline was only disclosed once and not for the rest of his career, Foster said. (see press release)
http://doj.nh.gov/media-center/press-releases/2013/20130822-nashua-police-chief.htm
Pivero filed the complaint against Seusing after reading a quote Seusing made to the Nashua Telegraph in March of 2013 responding to questions about “Laurie” police, officers who could be flagged for untruthfulness if they are going to testify.
In New Hampshire, police officers who have been disciplined for dishonesty are called Laurie officers because of the 1995 state Supreme Court case State v. Laurie that overturned a murder conviction because a dishonest officer provided key testimony in Carl Laurie’s murder trial.
Pivero remembered becoming upset when Seusing was quoted as saying if anyone in his department engaged in Laurie misconduct it was likely that person would no longer be employed.
“It was so hypocritical,” Pivero said.
The resulting investigation by the Attorney General’s Office prompted after-the-fact notification of Seusing’s discipline to Lopez, Timothy Brown and Ronald Schultz who were all convicted of unrelated murders after Seusing testified in their trials.
The Hillsborough County Attorney in 2013, Patricia LaFrance, said she didn’t have the resources to make disclosures of Seusing’s past discipline to defendants in the many felony cases in which he testified that were prosecuted by her office.
“In light of all this evidence, disclosure of Detective Seusing’s stale disciplinary matter, even if admissible at trial, would not have affected the verdict,” Strelzin wrote.
Lopez, now 41, was 17 when police said he shot Robert Goyette to death in Nashua. Goyette and a friend were waiting in a car for Goyette’s wife when Lopez approached on March 23, 1991.
A summary of the events in court records shows:
Goyette rolled down the window to see what Lopez wanted.
Lopez was mumbling incoherently. As Goyette tried to speed away, Lopez chased the car and shot Goyette point-blank in the neck.
Lopez had already shot a homeless man who later recovered, then tried to assault the police officer who arrested him.
Legal background
The U.S. Supreme Court ruled in Brady v. Maryland in 1963 that all material favorable evidence must be turned over to the defense. The New Hampshire Supreme Court ruled in State v. Laurie in 1995 that all favorable, material evidence must turned over.
The New Hampshire Supreme Court provided even more protection for defendants in its Laurie ruling: If a prosecutor knowingly withholds Brady/Laurie evidence, the state would then have to prove beyond a reasonable doubt that the failure to disclose wouldn’t have affected the outcome or punishment.
Laurie issues include discipline for dishonesty such as lying in an official proceeding, falsifying evidence or stealing, but can also include excessive use of force. The defense could then use the information to impeach an officer’s testimony if a judge rules it admissible.
“Under Laurie, the state must prove, beyond a reasonable doubt that its error in not disclosing Seusing’s material did not affect the verdict. In this case, it cannot do so,” Borchardt wrote.
In concluding the 2013 investigation into Seusing’s past discipline, Attorney General Foster thanked Seusing and the department.
“In order to satisfy our legal and ethical obligations, this office will continue to apprise defendants of this incident involving Chief Seusing, and we will continue to vigorously argue, as this office successfully did in 1995, that this incident is not proper impeachment evidence,” Foster stated in the release.
Lopez is serving his sentence as a New Hampshire prisoner at the Massachusetts Correctional Institution in Norfolk. Lopez is also awaiting word from the U.S. Supreme Court on a case that would require he be afforded a new sentencing hearing in New Hampshire because he was a juvenile when sentenced to life in prison without parole.