By NANCY WEST, InDepthNH.org
The state has made a confidential deal offer to former Republican Rep. Troy Merner on criminal charges related to moving out of the Lancaster district he was elected to serve in the House, but it contained an “illegal condition,” according to a motion filed by Merner’s attorney William Dolan.
Merner’s confidential criminal mediation was scheduled for last Friday but has been postponed now until May 8, with a dispositional conference scheduled for April 15.
“The parties continue to confer,” Dolan wrote in a motion to continue the mediation due to a scheduling conflict. “The State revised their offer after counsel objected to an illegal condition.”
The motion filed April 1 doesn’t say what Dolan considered an “illegal condition,” and he didn’t respond to InDepthNH.org’s phone messages. Dolan lists his address as Chelmsford, Mass., on the motion, likely his business address. Dolan is also listed as a Democratic state Representative in New Hampshire who represents Nashua.
Assistant Attorney General David Lovejoy objected to the allegation in his response motion, but it, too, provided no details and said only:
“The State also disputes the Defendant’s characterization in paragraph 10 of his motion that the State’s initial offer contained an ‘illegal condition.’”
When asked about the “illegal condition,” Mike Garrity, spokesman for the Attorney General’s Office, said, “We would not be in a position to try and interpret any pleadings filed by defense counsel.”
Secrecy
Secrecy has been at the heart of the Merner case since Attorney General John Formella issued a news release about arresting him on Nov. 28, 2023. The arrest affidavit revealed that Republican House leadership was informed on Dec. 6, 2022, before the last House session started, that Merner had moved out of the Lancaster district he was elected to serve to Carroll.
The arrest affidavit can be read here: https://indepthnh.org/wp-content/uploads/2023/11/merner-affidavit-signed.pdf
Merner, 63, has reportedly told people that House leadership asked him to continue serving in the House because the number of Democrats and Republicans was so close his vote was needed, but he hasn’t said publicly who told him that.
Criminal Charges
Merner has been charged with one class B felony count of wrongful voting for voting at the March 8, 2023, Lancaster town election after moving to Carroll. He had also served as a Lancaster selectman, but no criminal charge was filed regarding the $3,575 stipend he was paid for 13 months by the town after he moved, although the town has asked him to pay it back.
Merner was also charged with a class A misdemeanor theft for allegedly misrepresenting on House mileage cards that he resided in Lancaster when he lived in Carroll, resulting in receiving greater travel reimbursements from the state than he was entitled to; the amount that did not exceed $1,000.
Merner was also charged with misdemeanor A counts of unsworn falsification and tampering with public records for allegedly falsely reporting his address on a House mileage card.
The wrongful voting charge carries a potential sentence of 3½ to 7 years in state prison, a fine of up to $4,000 and lose the right to vote in New Hampshire.
The class A misdemeanor charges each carry a potential penalty of up to one year in the House of Corrections and a fine of up to $2,000.
Criminal Mediation
The confidential process of criminal mediation started in New Hampshire in 2021, but there is no mention of it on the court website. The court provided no written protocol about it, but court spokesman Av Harris agreed to respond to written questions from InDepthNH.org.
Only the defendant, prosecutor and a judge, one who is not sitting on the case, try to resolve certain criminal cases without a trial. Criminal mediation is not open to the public or the press. A victim may choose to attend, but is not required to, Harris said.
If both parties and the judge agree to settle the case, the judge may sentence the individual and the outcome will be noted in court records, he said.
“Yes. the mediating judge is authorized to accept a plea and impose sentence if that is the result of the mediation,” Harris said, adding it will be filed in court and become a public record.
If no settlement is reached, the case continues to trial.
Harris said the information about criminal mediation that will become public would be: At the conclusion of the mediation session, the mediating judge will file a report indicating:
Case settled, plea and sentence completed;
Case settled, negotiated plea and sentence to be scheduled;
Case settled, capped plea and sentence to be scheduled for ____ hour(s);
Case did not settle, parties continuing to engage in meaningful negotiations; or
Case did not settle, proceeding to trial.
“Criminal mediation is a way for both sides in a criminal case to resolve the case without going to trial,” Harris said. “It is similar to felony settlement conferences in some respects, but different in other respects. In general, it involves the defendant admitting some responsibility for some of the criminal acts alleged by the charges, even though the admission or plea may be less than what they were initially charged with.”
“If the defendant accepts some responsibility for criminal acts and pleads guilty to something, then the sentence imposed can be less severe than what would be applied if they were convicted on the original charges or if they pleaded guilty to the original charges,” Harris said.
One key difference between criminal mediation and felony settlement conferences is that either the defendant or the prosecution can request it. In this case, Merner requested it.
“The main motivation for having a criminal mediation option available to both sides in a case is to provide another, less formal means to resolving a criminal case that takes much less time and is less costly than going to trial,” Harris said.
Criminal mediations are confidential because of an administrative order issued in 2021 by then Chief Justice of the Superior Court Tina Nadeau.
When asked why the court system hasn’t announced the criminal mediation process publicly or posted information about it on its website, Harris said: “This option for resolving criminal cases has been available in New Hampshire for a few years and attorneys (prosecutors and defense) are well aware of it.”