Koski v. Samaha

• Decision Date: 23 June 1980
• Docket Number: Civ. No. 80-95-D.
• Citation: 491 F. Supp. 432
• Parties: Norma A. KOSKI v. Unwar J. SAMAHA, Clerk, Rockingham County Superior Court.
• Court: U.S. District Court — District of New Hampshire

491 F. Supp. 432

Norma A. KOSKI v. Unwar J. SAMAHA, Clerk, Rockingham County Superior Court.

Civ. No. 80-95-D.

United States District Court, D. New Hampshire.

June 4, 1980.

Addendum Opinion and Order June 23, 1980.

Benjamin Hiller, Cambridge, Mass., for plaintiff.

Peter W. Mosseau, Concord, N. H., for the State of New Hampshire.

OPINION AND ORDER

DEVINE, Chief Judge.

Habeas corpus petitioner Norma A. Koski is one of a number of persons who were arrested for criminal trespass on Monday, May 2, 1977, following a weekend-long demonstration at the construction site of the Seabrook, New Hampshire, nuclear power plant. On May 13, 1977, petitioner was found guilty of that offense by Hampton District Court Justice Douglas R. Gray, who imposed a fine of one hundred dollars ($100.00) and sentenced her to fifteen days imprisonment at the Rockingham County House of Correction. Following a trial de novo at the Rockingham County Superior Court, petitioner was again so convicted by a jury on May 23, 1979. Superior Court Justice Arthur E. Bean, Jr., then sentenced Ms. Koski to six months in the Rockingham County House of Correction (with three months suspended and 13 days credited for time already served) and ordered her to pay a fine of two hundred dollars ($200.00). On February 14, 1980, the New Hampshire Supreme Court (per Bois, J.) affirmed this conviction and sentence. State v. Koski, 120 N.H. ___, 411 A.2d 1122 (1980). The instant petition for habeas corpus was filed with this court on February 29, 1980, and both parties have since filed motions for summary judgment.¹ The Court has reviewed supporting memoranda filed by the parties as well as the record before the Supreme Court of New Hampshire in this matter (as certified and transmitted by the Deputy Clerk of the Supreme Court).

Petitioner points to a number of aspects of her superior court trial as being constitutionally infirm. Taken in order of their occurrence at trial, these alleged infirmities include (1) the trial court's refusal to allow a hearing on the use of the competing harms defense, (2) its refusal to allow defendant's mother to testify as to statements made by defendant prior to committing the act in question, (3) the wording of the court's charge to the jury as to the element of knowledge (both as to what is required by N.H. RSA 635:2 and as to the bearing of petitioner's belief, albeit mistaken, in the applicability of the competing harms statute, N.H. RSA 627:3), and (4) the nature of the sentence imposed. As to this last category, petitioner alleges that her superior court sentence is disproportionate to the offense committed and in comparison with sentences imposed upon others convicted of the same offense, that its harsher terms than those imposed by the district court are violative of due process as their intention and effect was to discourage pursuit of the right to a trial de novo, and that its harshness was based on an unconstitutional antagonism toward civil disobedience on the part of the court. As this Court finds for the reasons stated hereinafter that the writ of habeas corpus must issue on account of the actions of the prosecutor in threatening petitioner with a higher sentence if she pursued her right to a trial de novo, we do not address her other allegations.

Like many other states, New Hampshire has a two-tier system for adjudicating less serious criminal cases. See Colten v. Kentucky, 407 U.S. 104, 112, 92 S.Ct. 1953, 1958, 32 L.Ed.2d 584 (1972). As established under the authority of this state's constitution (N.H.Const. pt. II, art. 77), that system provides that a person charged with a misdemeanor such as criminal trespass (N.H. RSA 635:2) may be tried initially without a jury in the district court for the district wherein the offense was committed. State v. Handfield, 115 N.H. 628, 629, 348 A.2d 352, 353 (1975), appeal dismissed 427 U.S. 909, 96 S.Ct. 3196, 49 L.Ed.2d 1201 (1976); RSA 502-A:11.² If found guilty, a person so charged is given the right to appeal to the superior court with a trial by jury unless waived. Handfield, supra; RSA 592-A:2, RSA 502-A:12, RSA 599:1. The effect of such an appeal is to vacate the district court's judgment and transfer the whole proceeding for trial de novo on the original complaint, unless amended, or on an information substituted for the original complaint. State v. Green, 105 N.H. 260, 261, 197 A.2d 204, 205 (1964).

As we noted in Tsoumas v. State of New Hampshire, 472 F.Supp. 1134, 1135 (D.N.H. 1979), aff'd, 611 F.2d 412 (1st Cir. 1980), approximately 1400 anti-nuclear demonstrators were arrested following the demonstration in which petitioner was a participant. As indicated in the July 3, 1979, Opinion and Order Re 1977 Trespass Cases of the Rockingham County Superior Court, the prospect of having to conduct de novo superior court trials in each of these cases as is mandated by the above two-tier arrangement placed a severe strain upon that county's judicial and prosecutorial resources. Appended to petitioner's brief before the Supreme Court of New Hampshire are four documents that reveal the prosecution's response to this situation.

In the first of these documents — a newspaper story — the opening line reports that "Anti-nuclear demonstrators appealing convictions on criminal trespass charges may end up with stiffer sentences by the time they leave Superior Court, Assistant County Attorney Peter McFarlane said yesterday." Referring to the 30-day-sentence/$100-fine dispositions that had been previously meted out in most cases by the district court, McFarlane (who reportedly prosecuted most of those cases at that earlier stage) was quoted later in the article as stating "I can do a lot worse by them than that. If they're found guilty here (in Superior Court) I'll recommend a six month jail sentence."³ The second document is a sworn affidavit by petitioner herself executed on October 1, 1979, wherein Ms. Koski states that

I was in Rockingham Superior Court on May 21, 1979, about to go in for the drawing of the jury, when Assistant County Attorney Peter A. McFarlane pointed his finger at me and said, "Remand now back to District Court. We're slapping them with six-month sentences. I don't care if you're a nun, or what, we're slapping them with six-month sentences. Remand now."

The third document is a sworn affidavit dated October 1, 1979, of one Scott F. Brown, an anti-nuclear demonstrator who, like petitioner, was arrested during the weekend of May 1, 1977, and whose case was processed within the two-tier system described above. Mr. Brown relates that during the morning of March 12, 1979, when he was at the Rockingham County Superior Court on matters related to his arrest,

Mr. McFarlane turned to me and said that he did not see why people were carrying forward with appeals in these cases since the issues had already been decided by the verdicts of four juries in previous cases of similar origin, and by certain findings in the State Supreme Court. He then suggested to me that the correct thing for individuals to do would be to withdraw their appeals and return to the District Court for imposition of sentence. He further stated that the County Attorney's office was recommending six month jail sentences for convictions in these cases. I told him that I felt he was mistaken, and that in any case individuals had a constitutional right to a jury trial. He continued to say "I understand that the District Court is suspending sentences in these cases, and that people are not serving time."

The net effect of this interchange, and I believe that this was calculated on Mr. McFarlane's part, was to make the excercise sic of my right to an appeal and a jury trial if necessary seem to carry an inordinate risk. I was further confused because I had checked with John Clark, clerk of the Hampton District Court, on the previous Friday and had been given much different information. I believe that Mr. McFarlane's remark was part of a calculated attempt on the part of the County Attorney's office to discourage appeals in Seabrook cases. I say this because on a number of other occaisons sic both Mr. Eldredge and Mr. Pudloski echoed Mr. McFarlane's remarks, although without the attempt at boldfaced deception concerning the suspension of the senttence sic at District Court. While this incident in particular did not cause me to withdraw my appeal, it was one of many incidents which occured sic between March and June which eventually intimidated me to the point of doing just that.

The fourth document, also a sworn affidavit, was executed on October 3, 1979, by Benjamin Hiller, a Massachusetts lawyer who sat with and advised petitioner with her pro se defense in the superior court and who has acted as her attorney for purposes of Supreme Court appeal and this habeas corpus petition. With regard to his experiences at the Rockingham County Superior Court in connection with the cases similar to petitioner's, Mr. Hiller states as follows:

I was present in Rockingham County Superior Court on a number of occasions during the period from January thru May of 1979. My presence in the Court coincided with the arraignments, motion sessions, and trials of numerous persons who had been arrested for protesting construction of the Seabrook Nuclear Power Plant during 1976 thru 1978.

On at least three occasions statements were made to me or in my presence by Assistant County Attorney Peter McFarland sic which relate to the matter before this Court. At those times, and I have been informed, at other times, Mr. McFarland sic, who was largely responsible for the prosecution of the Seabrook cases, urged defendants to remand their cases back to District Court for imposition of sentence. He made plain the threat that for those who went forward with trials in Superior Court there would be greatly increased jail sentences.

I am personally aware of a number of persons who remanded their cases back to District Court and

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