By DAMIEN FISHER, InDepthNH.org
CONCORD — It’s been more than two years since two alleged sexual assault victims brought a civil lawsuit against Grafton County and former Corrections Officer Max Fournier, but the trial in that case is still years away at best.
United States District Court Judge Paul Barbadoro expressed frustration on Monday at the slow pace in the civil lawsuit, and the still pending criminal trials. Barbadoro, a former prosecutor, said the criminal cases against Fournier may not wrap up until March of 2025, almost three years after he was first charged.
“I prosecuted murders in much less time than these criminal cases,” Barbadoro said.
Fournier was removed from his position in the jail in 2020 as an investigation was underway. The allegations first surfaced in late 2019, but Fournier was not removed until May of 2020 after the criminal probe started. However, he was not indicted until the spring of 2022.
Barbadoro heard from Fournier’s civil defense attorney Bryan Cullen on Monday, as the lawyer was seeking another stay in the civil case. A court stay in civil cases that have related, open criminal cases are common. Essentially, stays allow the civil lawsuits to get filed and then the parties wait for the outcome in the criminal case without being penalized for the delay.
But Fournier’s criminal charges have been delayed numerous times already. The last delay was this summer a week before the scheduled trial when the prosecutor, Assistant Belknap County Attorney Sheldon Nason, said there was a problem with at least two of the indictments.
Nason told Judge Lawrence Macleod that during trial prep the alleged victim gave a different time frame for two of the alleged assaults than what had been alleged in the original indictments. Macleod allowed the state to nol pros, or drop, the two problematic indictments and then bring the two allegations to a new grand jury. Fresh indictments were handed up in September, but the setback to the criminal trial pushed any possible resolution until the new year.
Cullen said without the stay in place until the end of the criminal trial, his client could be asked to sit in depositions with the criminal charges hanging over his head. In effect, no stay will force Fournier to plead his Fifth Amendment rights against self-incrimination throughout the civil trial’s discovery. That could result in the civil jury inferring he had something to hide.
But Barbadoro does not want the trial delayed much longer. Prepping a civil trial can take between 12 and 18 months as it is, he said, when considering getting depositions from all the witnesses and obtaining evidence in the discovery phase.
Barbadoro issued a temporary stay, until April of 2025, at which time he is inclined to push forward with the trial schedule whether or not the criminal cases are done. Barbadoro said the civil case can focus on the other witnesses and evidence if the criminal cases are still open.
“We can do most of the case [without Fournier], everything else can be done,” Barbadoro said.
Fournier can plead the Fifth during the discovery phase if his criminal charges are still open, and Barbadoro can issue another stay once the other parts of the trial evidence are prepared. Fournier can begin cooperating once the criminal charges are resolved without any adverse information being presented to the civil jury, Barbadoro said.
Fournier was indicted in 2022 for the alleged assaults of two different female prisoners, called Jane Doe 1 and Jane Doe 2 in the court files. He’s charged with one class B felony for felonious sexual assault, and three special enhanced felonies for aggravated felonious sexual assault. The three aggravated felonious sexual assault charges are enhanced due to Fournier’s position of authority over the woman. Fournier was a corporal and responsible for training other corrections officers as well as making sure prisoners had basic needs met.
Fournier’s criminal defense attorney, Mark Sisti, maintains his client’s innocence.
