LACONIA — The former Belmont man who allegedly murdered his mother and brother with an ax in late May will appear in court today so his attorneys can argue for the release (discovery) of information that they say could assist them with his defense.
Lawyers defending 31-year-old Shawn Carter say state law allows them access to the state's information about the case before he is indicted by a grand jury, which has yet to happen.
N.H. Senior Assistant Attorney General Jeff Strelzin says the court's own rules do not entitle Carter's defense to the information until he has been indicted by a grand jury and the internal rules trump the state Legislature when it comes to setting internal time lines.
Carter, is charged with the ax murders of his mother Priscilla Carter and his brother Timothy Carter whose bodies were discovered on May 24 in their Sunset Drive home by Belmont Police while responding to a well-being check.
Carter was arrested by police about three hours after police found the bodies. He was driving his mother's car on Route 3 but, at the time was only charged with driving after his license had been suspended. He was held on $200 cash-only bail for the driving after revocation charge but was either unable or unwilling to post bond. He has since been found guilty.
On July 9, police charged Carter with four counts of second-degree homicide — two for each victim and each iterating a different theory of the same crime. To date he has not been indicted by a grand jury and is being held in a maximum security cell in the Belknap County House of Corrections without the possibility of bail.
The next round of indictments is due on October 3.
Carter's attorneys argue the state had obtained an arrest warrant for Carter for the murders on June 13 but didn't formally charge him until July 9 and the three-week time delay has violated his constitutional rights.
While his trial for driving after revocation was pending, Carter's attorneys repeatedly asked for the state's reasons for issuing a "be on the lookout" (BOLO) alert for him in the first place but were unable to get any information for the seven weeks until his actual arrests for the homicides.
Carter's defense team says state law allows for pre-indictment discovery and to date they have gotten nothing more than affidavits for his arrest from the state. They say the lack of information is interfering with Carter's constitutional rights to due process, to confront his accusers, and to hear the evidence against him.
During a probable cause hearing on August 6 for the homicides, Carter's defense team, as well as the public, heard from N.H. State Police homicide investigator Sgt. Joseph Ebert about the gruesome murders. The court ordered that the affidavits supporting Carter's arrest be released and his defense team was allowed to cross-examine Ebert.
Strelzin says court rules don't allow for pre-indictment discovery and the state law is inconsistent with more recent internal court rules regarding time lines.
He notes that the state Legislature passed the law allowing for pre-indictment discovery in 1971 but in May of 2004 then-N.H. Superior Court Justice Robert Lynn issued new rules for N.H. Courts saying that the Superior Court shall dismiss without prejudice and vacate all bail ordered in cases where a defendant has not been indicted 90 days after his or her arrest.
("Without prejudice" means the state, with a few exceptions, can re-charge a defendant with the same crime at a later date.)
"To the extent the purpose (of the state law) was to allow discovery in cases where the indictment was unduly delayed, the new administrative rule satisfies that purpose," wrote Strelzin in his argument against the pre-indictment discovery.
Strelzin also said that his department is well aware of its obligations to provide discovery, that the defense team has the affidavits supporting Carter's arrests, and the detailed testimony by Ebert at his probable cause hearing gives the defense team enough information to begin their own "independent investigation."
He also said the defense team has sole access to the only witness to Carter murders — Shawn Carter himself — and it's not the state's fault that Carter couldn't bail himself out, because he "killed his mother and brother and was unable to find anyone to assist him (with posting bail)."
"He, more than the state should be able to should be able to provide information about whatever 'potentially exculpatory evidence' the defense believes exists in this case," Strelzin continued.