CONCORD — The N.H. Supreme Court ruled late last month that criminal defense attorneys are entitled to review the state's case against their clients through a process called discovery before their client is indicted.
The case came to the forefront in the aftermath of the double ax murder of Priscilla and Timothy Carter in their home in Belmont sometime on May 23 or May 24, 2013.
Police arrested Shawn Carter, 33, who was Priscilla's son and Timothy's brother, around 2 p.m. on May 24 — about three hours after Belmont police found the bodies after going to the home for a well-being check.
Carter was initially charged with one count of driving after revocation and was held in the Belknap County House of Corrections on $200 cash bail. He was either unwilling or unable to post the bail.
On July 9, 2013, the state formally charged Carter with four counts of second-degree homicide — with two counts for each victim. The case was bound over from the 6th Circuit Court, Franklin Division to the Belknap County Superior Court however Carter was not indicted by a grand jury until October.
Other than the affidavits that were made available to Carter's defense team and the public during Carter's probable cause trial on August 6, 2013, with no indictment, his team had no evidence.
In September of 2013, Carter's defense team filed a motion with Judge James O'Neill requesting that he order the discovery (evidence) be provided them. They argued that the state legislature provides for pre-indictment discovery according to RSA 604:1-a (2001).
O'Neill refused, agreeing with N.H. Senior Assistant General Jeff Strelzin that court rules don't allow for pre-indictment discovery and that the state law is inconsistent with more recent internal court rules.
Upon request, O'Neill did allow the defense team to file an interlocutory appeal (an appeal to the Supreme Court while a case is still pending).
The justices unanimously agreed that the intent of the legislature was to allow pre-indictment discovery and that the recourse was to have the legislature change the law.
Carter was indicted by a Belknap County grand jury in October of 2013 and his case is ongoing. Presumably, his defense team has the discovery it was seeking.
Local criminal attorney Matt Lahey, who has no involvement in the Carter matter, said the Supreme Court ruling is critical to defense lawyers — especially those representing clients in serious cases with lots of physical evidence.
He also said that in his experience, prosecutors are inconsistent with discovery.
"Sometimes I get it right away without even asking and sometimes I have to wait until after the indictment," he said. "Now it appears there will be some consistency."
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