New Hampshire Prosecutorial Misconduct

A study of criminal appeals from 1970 to the present revealed 29 New Hampshire cases in which the defendant alleged prosecutorial error or misconduct. In three, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In one, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant.

Out of the three cases in which courts determined that the prosecutor’s conduct prejudiced the defendant, two involved improper trial argument or tactics and one involved the prosecution withholding evidence from the defense.

First assistant Hillsborough County Attorney Paul McDonough was responsible for one of the reversed convictions, as well as the case in which dissenting judges thought his conduct prejudiced the defendant.

In October 1987, the state Supreme Court reversed Richard Bujnowski’s aggravated felonious sexual assault conviction because McDonough told the jury he thought a defense witness was lying to protect her husband.

“In the present case, the prosecutor committed prosecutorial overreaching by causing, through gross negligence or intentional misconduct, aggravated circumstances to develop which in turn caused prejudice to the defendant,” wrote Justice Stephen Thayer. “Even though the prosecutor acknowledged his misconduct before the jury and retracted his improper statements, he continued to act improperly.”

In June 1982, the state Supreme Court upheld Frank Dustin’s criminal restraint conviction, but two dissenting judges would have reversed because McDonough encouraged the jury to convict Dustin based on the victim’s fears.

At trial, it was established that Dustin and his traveling companion picked up the victim, who was hitchhiking. They refused to let her get out of the car at her desired location but soon let her leave.

In his opening statement, McDonough said Dustin “had other intentions” for the victim. When the victim took the stand, she said she was afraid of being raped.

In his dissenting opinion, Justice William O. Douglas wrote that McDonough’s statements were “reminiscent of the spectral evidence admitted in the seventeenth century Salem witch trials.”

“The defendant was not charged with rape, attempted rape, conspiracy to commit rape, kidnapping or assault,” Douglas wrote. “Yet the court permits the prosecutor to obtain a conviction not on ‘what happened’ but on what went ‘through her mind,’ to use his own words.”

McDonough said he thinks the court’s majority made the correct decision in upholding Dustin’s conviction.

“It’s on a case by case basis,” McDonough said. “In sexual assault cases it can be difficult.”

He said it is especially difficult when there are “bad acts” committed by a defendant that cannot be mentioned at trail.

“Even though they may be relevant to the situation, they may have a prejudicial effect,” he said. “Sometimes it’s difficult to explain to victims that they can only tell part of their story.”  ¶ 8:48 AM