06 November 2012

KingCast exclusive: Road rage or innocent mistake -- Cody Eller motorcycle crash trial jury view, opening statements and first witnesses on video.

The sentencing hearing is allegedly in February. The Motion for New Trial/Set Aside Verdict is still sitting in chambers with an attendant gag order. When you search Pelham Officer Eugene Stahl on this page you'll see the issue. The Union Leader is well aware of the issue and I may mention it next week when we tape Kevin Avard's show in Nashua: The Laurie List debacle is a matter of public interest, and with 60 cops on that list it is a game of Russian Roulette as to when one of them is going to potentially expose the State to some sort of liability. As I note in the video I am disgusted as a former State Attorney, as a former criminal defense attorney and as a past current and future motorcyclist. Anyway here are the State's closing argument segments that I caught on video, and you can clearly see that there is a heavy reliance on Officer Stahl's testimony and credibility. Too bad in the Saviano case a DUI charge was dismissed because of Stahl's conduct in questioning the suspect at the scene.... a similar issue to what is going on in the Cody Eller case. And from what I understand there is yet another more recent case that landed Officer Stahl on the Laurie List.

I say from what I understand because Cody Eller's Motion for a New Trial and to Set Aside the Verdict has been sealed and gag orders on the attorneys are in place. I find all of this to be completely unconstitutional and if I find the time and money I will sue over it. 

The Union Leader has no excuse. They have the time and they most certainly have the money. So where is the intellectual fortitude and Fourth Estate Integrity? On to the closing argument from Kent E. Smith, who is a heavy in the DA's Office.

"It's a simple case......" click to read 15 Jan 2013 journal entry.

Rut-ro folks.... Not so fast. As in the Liko Kenney (and read the windshield bullet entry) and Michael Paulhus cases, the State of NH has for lack of a better term... completely fucked up. They destroyed evidence and violated Mr. Paulhus' Civil Rights but AG Kelly Ayotte never punished any of the LE involved. As a former LE Attorney myself I found that ridiculous because it is ridiculous, dammit. 

In the present case I noted the rule 98 violation that kept their expert from testifying, now we have a 15 Nov. 2012 filing of Notice of Discovery violation. Officer Eugene Stahl has been dishonest, as noted above by way of information contained in a post hoc Laurie disclosure, 139 NH 325 (1995). If he has not been dishonest then he did something else that has put his credibility at issue in another case. The Court has sealed everything up for now (1 Dec. 2012) so we may never know exactly what it is. Stay tuned for a ruling on whether or not there are post trial orders relative to this matter up to and including a new trial or set aside the verdict.

So whether or not Stahl was dishonest in this instance I don't know but the Defense was denied the opportunity to cross him on it and it is axiomatic that truthfulness and credibility is always material when a witness is on the stand. For crissakes what if he lied about something even remotely similar to this case, then you could have a very different outcome if the Jury placed a fair amount of reliance on his testimony in reaching its Verdict. If I were in Attorney Kaye's position I would have a New trial motion and Demand for Full Disclosure in the Courthouse on Monday at 9:00 a.m. All I could find on Lexis on him however is Saviano v. NH DMV, 151 NH 315 (2004) see the comments. From the NH Bar Journal "Judicial Journey of David A. Brock," winter, 2007:
For many years courts have been plagued by questions concerning the use of exculpatory evidence in the trial of criminal cases. The prosecution’s duty when it is in the possession of such evidence and the materiality of the evidence provided the subject matter for State v. Laurie, 139 N.H. 325 (1995). In crafting the majority opinion for the court, Chief Justice Brock concluded that if a defendant could show that the government “knowingly withheld” exculpatory evidence, then the state would bear the burden of proving beyond a reasonable doubt that the disclosure of the evidence would not affect the verdict. Laurie, 139 N.H. at 330.
This my friends is the legacy of New Hampshire law enforcement that is fundamentally flawed from the top down and it all ties in with why former NH AG Kelly Ayotte hates me so much that she and Nashua PD banned me from her publicly-advertised campaign events. You simply do not get this type of detail and analysis in the mainstream press so people like Ayotte and her buddies John McCain and Joe Arpaio try to shut me down. We are in the Federal Court of Appeals over that after the lower court whitewashed the facts, here's my brief. The AG's office spends too much time going after innocent people like Cody Eller's other defense lawyer Ross McLeod and me (I crushed her when I was NAACP Legal Chair in NH, in part using Laurie Discovery) while ignoring the real criminals like Bruce McKay, sad to say.

Here is The Guilty Verdict Journal Entry.

It is going to be a while before this video is ready because I'm not at home with FiOS. Check back around 9p. Next week for the Day Three video. I'm busy and I'm tired.
Video by evening. Cody Eller was found guilty of Second Degree Assault and Reckless Conduct today by a Hillsborough South Jury. His license has been revoked and a pre-sentencing investigation and report will issue some time before spring. I take no great joy in any of this for the reasons stated in today's wrap-up video. Video from Day Three (yesterday) is still forthcoming, including closing arguments and rebuttal witnesses.

On re-direct: 
"Did you intentionally strike Mr. Hawksley's motorcycle while he was trying to pass you?" 


Day Three: Defense is claiming a fourth car (an SUV) was traveling northbound. See it there on the left in a video re-creation that I will post later along with the 911 call. No one on site contemporaneously said anything about the phantom SUV. Defense claims that Mr. Hawksley abandoned his pass because of this SUV and turned into the Eller car, as if his Kawasaki ZX-14 could not have made the pass. I heard that the Defense yesterday called into question whether there was pre-existing damage to the Kawasaki. Mr. Hawksley, who restores motorcycles and who has a collection of eight (8) of them bristles at such notion.

"There is no way that the damage that was done to (my motorcycle) happened in that accident" --- recounts Mr. Hawksley from yesterday's expert testimony. "That's what they actually said yesterday and that calls into question their professional integrity."

"That bike has been put down before.... that damage had been done prior to the collision."

--Jeffrey M. Kaye on closing argument

"Those experts were paid a lot of money to pull the wool over your eyes... I grew up when the experts said the bumble bee couldn't fly and yet it does, and it makes a little honey on the side....shame on all of us if we let them get away with it."

--Kent E. Smith on closing argument

"Pressure... pressing down on me, pressing down on you, no man ask for...."

--David Bowie with Freddie Mercury (RIP).

Well folks due to a family emergency in CT I will not have updates from Day Two

Urgent tangential update: Massive Nashua Exit 6 crash leaves biker down, cars bashed and strewn about, video late night. I didn't have the best lenses for this but you can make it out fairly well. All prayers for everyone involved. My old First Amendment pal Michael Brindley reports everyone was all right!

A place holder video for Defense Counsel Jeffrey M. Kaye. 
Yessir, we both love the Bonneville!

Judge Colburn and counsel looking rather contemplative 
at this morning's Cody Eller Jury view.
Brings back memories.... here's a 1997 KingCast Jury view, we won.
And yes it was a criminal First Amendment defense.

The State contends that Mr. Hawksley initiated his pass here in the passing zone.
The Defense contends that he started it later.
All accounts thus far have Defendant Eller gassing it as Mr. Hawksley tried to pass. 
For his part, Hawksley claims it was a "low speed pass."
The only other witness corroborated that assertion "35 mph" read below.
KingCast question: Regardless of where the pass initiated, who or what made Cody Eller the Judge, Jury and potential executioner? Stay tuned for Mr. Eller's Case-in-Chief.

Tete a tete
Video coming late night, stills for now. Funny how major media once covered this case but have since disappeared. Having worked for major and medium press I am thankful for the opportunity to follow up on stories that seem so ephemeral for them.

Be that as it may, basically the defense says he didn't mean to admit to intentionally striking Mr. Hawksley, pictured above. They claim auditory and cognition issues resulted in the purported admission, however the state's lead witness (Windham's Eugene Stahl) stated that Mr. Eller did not appear to have any cognition issues when questioned contemporaneously. Lunch is over and I am late to X/E of said witness, ciao.

2:30p -- Defense Counsel made issue of Mr. Hawksley's license plate = XPLSV.  Testimony today indicated that Mr. Hawksley commenced his pass at 10mph over the posted limit of 35 mph and completed the pass (or would have) approximately where the passing zone concluded. The Officer testified that the pass would have been completed but for Cody Eller speeding up. Defense counsel asked why couldn't Mr. Hawksley have returned back to the west side of the street as the cars proceeded southbound.  

Drugs and alcohol do not appear to be a factor but the officer testified he was not aware that those tests came back negative (thereby answering the question I posed two weeks ago). "The prosecutor gets that information if they feel it is appropriate they move on it... I do not know."

Also, the no-passing zone is today longer than it used to be.

2:40p -- William Hawksley on stand discussing the events of May 13 2011. He is a very experienced rider with a collection of motorcycles "something less than 10" at present. He has been riding 40+ years. 

I saw two cars moving slowly... I let them both turn out countedI proceed to initiate a pass, and passed the first car and attempted to pass the second and that is where things happened.

"Did you have any problems passing first car?"

"None at all"

"I made a normal pass nothing out of the ordinary next thing I know this car was coming right at me... drove me over and titled bike almost 45 degrees to left, countersteered hard and I was prepared to give chase...." 

"Where you in the passing zone when you started that pass?"

"Yes I was."

"What did you see"

"All I could see was the left front fender and it struck my leg."

"Did you suffer any injury?


"When I pulled over Mr Eller jumped out of his car and started screaming at me that I should not be passing at night."

"Could you get off of your bike?"

"No my leg was the point of impact. I knew it was broken."


Hawksley: "I initiated the pass (of Eller) well before Tallant road."

Atty: "The impact occurred in a no-passing zone."

Hawksley: "I initiated the pass well in advance of where the solid yellow line starts" 

Direct Examination Peter Chaisson, of Nashua (formerly Derry) Mr. Chaisson does stutter and has suffered a brain injury in an industrial accident in 1979. He was hospitalized for several months. 

Q: "After the motorcycle shop was there a car in front of you" 
A: "I really couldn't tell you. I pulled over, I didn't come to a complete stop I did pull over" 

Q: "And did the motorcycle pass you?" 
A: "Yes." 

Q:  "Was there anybody else in front of you?"
A:  "No."

Q:  "When the motorcycle passed you was there another car in front of you?" 
A:  "Yes" 

Q:  "What did the MC do when it passed you?" 
A:  "As far as I know... he just kept on going" 
Q:  "Did he try to pass the car in front of him?" 
A:  "Yes he did. It looked like the person driving the car didn't want him to pass." 

 Court: == It is a follow-up question to the extent witness is recounting his observations he may do so. 
Q:  "Why do you say that?" 
A:  "Because it looked like they were... the person in the car was pushing on the gas a little bit so the MC could not make a complete pass." 

"How far away were you?" 
"3-4 car lengths" 
"You could see them in the headlights." 
 "Yes I could." 
"What else did they do." 
"The car veered off to the left and the MC hit the car but the rider stayed on the bike." 
"Veered -- how far?" 
"Beyond the double yellow line" 
"They were in the NB lane?" 
"Yes they were." 
 "If there was traffic coming in the NB lane what would have happened?" 

OBJ -- Overruled. 

"They would have collided." 


A: "(Defendant said) Why are you putting the cuffs on me I didn't do anything wrong.....He admitted to the police officer that he did it intentionally." 
Q: "Do you remember the words exactly." 
A: "I do not." 


X/E 4:10p 
A:  "I believe it happened after Tallant road..... The motorcycle attempted to pass in a passing zone." 
Q:  "How fast was the motorcycle going?" 
A:  "I would say about 30-35 (miles an hour)."

Q:  Statement read into record "I didn't start pulling over until the double yellow line."

Summation: The Defense is trying to make certain that they can establish that the pass started in the no-passing zone. If proved, this will malign the integrity of the rider. That having been said, if he was breaking the law then it could be fodder for the argument that crossing the double-yellow line upset Cody Eller and that is why he was purportedly yelling at Mr. Hawksley when he said "You shouldn't be passing at night like that!"

I missed that part of the testimony on video but I heard it straight out and so did the Jury. 


Christopher King said...

Now here is the subtext as far as the First Amendment and the purported concerns of accuracy and "bloggers" is concerned:

My courtroom coverage of this case smokes not only the non-existant major press coverage; it would smoke any major press coverage, period.

And all counsel and Her Honor are completely comfortable with my presence and conduct. In point of fact during part of one of the Jury view vids you can hear Mr. Eller's lawyer Jeffrey M. Kaye chide me for not (yet) owning a Triumph Bonneville.... because he rides one!

So let this be a lesson to the NESR and ADV Rider retards who booted me from their Lord of the Flies chat boards and any other naysayers:

I am safely navigating the waters for citizen journalists to break new ground in terms of maintaining a vigorous Fourth Estate.

You can curse me now all you want to, but in the end when you point a finger at me you got 3 pointing back at yourselves.


Christopher King said...

All I could find in Lexis on him is Saviano v. Dir., N.H. DMV, 151 N.H. 315 (2004) where there was a question as to how he advised a DUI suspect about his breath test but it was not a material issue.... if that is the basis for the Laurie list then there's not a whole lot there IMO"

"....The plaintiff then took and failed three field sobriety tests. Officer Stahl then asked the plaintiff to take a preliminary breath test (PBT), advising him that "[it] was not his breath test, [and that] it was unofficial." He informed him that it was just to prove or disprove [***5] what he had already witnessed while conducting the field sobriety tests. The plaintiff agreed to take the test. The PBT revealed a Blood Alcohol Content of 0.141, confirming Officer Stahl's suspicion that the plaintiff was driving while under the influence of alcohol. See RSA 265:82 (Supp. 2003)."

"The plaintiff also argues that admitting the result of the PBT at the ALS hearing violated his due process rights. He asserts that the officer's advice regarding the PBT "would have led a reasonable person to believe that the result of the PBT would not be used against him," and that his advice was "lacking in fundamental fairness and offensive to the universal sense of fair play."

"In this case, it was not fundamentally unfair to admit the PBT result at the ALS hearing because before administering the PBT, Officer Stahl had informed the plaintiff that it would be used to "prove or [**1283] disprove what [Officer Stahl] had already seen [while] conducting the field sobriety tests." Indeed, the hearings officer concluded that the State was "not offering it as . . . proof of the ultimate fact, but . . . just . . . [to] bolster[] . . . the officer's observations." Although certain parts of Officer Stahl's comments to the plaintiff downplayed the significance of the PBT, a fair reading of his statement indicates that the plaintiff was warned of the one purpose for which the PBT would be used. Accordingly, and contrary [***12] to the plaintiff's assertion, a reasonable person would not have concluded that the result of the PBT would not be used against him for that limited purpose."