By NANCY WEST, InDepthNH.org
CONCORD – A retired Nashua police officer has filed a professional conduct complaint against Attorney General John Formella for saying truck driver Volodymyr Zhukovskyy was guilty after a jury found him not guilty on all counts Tuesday in the crash deaths of seven motorcyclists three years ago.
Anthony Pivero, who has been a law enforcement watchdog since retiring in 2002, said Formella violated N.H. Rules of Professional Conduct Rule 3.6 regarding Trial Publicity.
“The rules state that lawyers are to avoid comments that are prejudicial to the defendant after being acquitted,” Pivero wrote in his complaint to the Attorney Discipline Office Thursday.
The rules further state that lawyers shall not make comments that are prejudicial to the administration of justice, he said.
The rules go further stating, “Lawyers holding public office assume legal responsibilities going beyond those of other citizens.
“It is apparent that AG Formella does not believe in our criminal justice system that has been in place for over 200 years. The Attorney General’s Office is charged with enforcing the rules and laws of the state of New Hampshire and should be held to the highest standards of conduct,” Pivero wrote.
When asked for comment, Formella’s spokesman Mike Garrity said, “The Attorney General appreciates the invitation, but would decline to offer comment.”
After the jury in Coos County Superior Court Tuesday found Zhukovskyy not guilty in the deaths of seven motorcyclists riding with the Jarheads Motorcycle Group on June 21, 2019 in Randolph, Formella issued a news release as did Gov. Chris Sununu.
Shortly after the verdicts were read Tuesday, Formella’s release said: “Our hearts go out to the victims and their families. Our trial team did an excellent job and we firmly believe that the State proved its case beyond a reasonable doubt. Mr. Zhukovskyy should have been found guilty of the charges in this case and held responsible for causing seven deaths and numerous injuries. We thank the Court and the jurors for their service, and while we are extremely disappointed, we respect the verdict and our system of justice.” John M. Formella, New Hampshire Attorney General.
The statement also raised concern among defense lawyers. Robin Melone, president of the N.H. Association of Criminal Defense Lawyers, issued a press release critical of the remarks by Sununu and Formella.
Melone said that upon announcement of the not guilty verdicts in the Zhukovskyy case, Sununu issued a statement that, “the fallen seven did not receive justice today and that is an absolute tragedy.”
The AG’s office issued a statement disagreeing with the verdict, stating that, “Mr. Zhukovskyy should have been found guilty of the charges and held responsible. . .”
Melone said: “These statements are irresponsible, dangerous, disrespectful to the jurors and damaging to the integrity of the criminal legal system. They are also contrary to rules designed to protect the rights of the accused and protect jurors from undue influence and harassment. While Governor Sununu is not a lawyer, the Attorney General is. The American Bar Association Criminal Justice Standards for Prosecution speak specifically to what a prosecutor may and may not say after a verdict.
“After discharge of a juror, a prosecutor should avoid contacts that may harass or embarrass the juror, that criticize the jury’s actions or verdict, or that express views that could otherwise adversely influence the juror’s future jury service.”
The standards further state that a prosecutor should “respectfully accept acquittals” and that public statements after a verdict, “should be respectful of the legal system and process.”
This isn’t the first time Pivero has butted heads with the Attorney General’s Office. It was Pivero’s complaint that forced the attorney general to investigate former Nashua Police Chief John Seusing in 2013, which although it found no wrong-doing caused Seusing’s name to be placed on the Laurie List. It is now called the Exculpatory Evidence Schedule and includes the names of police who have sustained discipline in their confidential personnel files for dishonesty and excessive force.
Pivero recently filed a motion for contempt against Formella because Pivero has been unable to get documents explaining why his name ended up being placed on the Laurie List in 2017, 15 years after he retired. He only learned of the placement last September when a new law required all officers on the list to be notified and told of the opportunity to file a lawsuit to argue why their name should be removed.
In a recent public records lawsuit, a judge ruled against Pivero’s right-to-know request for his documents related to the Laurie List, but ordered the attorney general to turn over the requested documents in the separate lawsuit Pivero filed trying to get his name removed from the list. The attorney general has yet to do so, Pivero said, adding he still has no idea why his name was suddenly placed on the list.
“The attorney general should have not made any comments in the Zhukovskyy matter. Those jurors had to listen to details in a horrific case that involved heightened emotions and deaths.
“That was very difficult for those 12 people and now the attorney general turns around and criticizes their decision. Those 12 people won’t forget. For the attorney general to basically kick them in the teeth saying they made the wrong decision is totally outrageous,” Pivero said.
