COVID cases postpone hearing on Hanover shooting, tangle court dockets

NORTH HAVERHILL — A two-day evidence hearing in the case of two men charged with shooting a visiting college student in Hanover was postponed Thursday after one of the defendants and at least two witnesses tested positive for COVID-19.

And with COVID-19 cases surging in the Twin States, the infections in the shooting case is the latest in a series of challenges for a court system trying to steer cases to trial in the pandemic.

“I think it’s definitely a problem,” said Lebanon attorney Albert J. Cirone Jr., who served as a Circuit Court judge for 25 years and now deals mainly with estate and probate law in private practice. “I think the courts are really struggling.”

Richard Guerriero, the attorney for defendant Gage Young and the president of the New Hampshire Bar Association, said, “What we’re seeing is that the courts are proceeding as carefully as they can, but at the same time trying to hear as many cases as they can.”

Guerriero said he’s had other cases that were delayed by COVID-19 cases and noted, “We’re doing the best we can in these circumstances. ... The courts are doing business, it’s just harder to do and it’s slower.”

The two-day hearing scheduled for Grafton Superior Court was to focus, in part, on video footage taken by surveillance cameras from four locations in downtown Hanover.

Prosecutors want to use “enhanced” versions of the video to help prove that Young and co-defendant Hector Correa were in Hanover around the time Providence College student Thomas Elliott was wounded in a drive-by shooting on Nov. 2, 2018, as he walked with friends on School Street.

Bruce Jasper, Correa’s attorney, has filed a motion asserting that New Hampshire’s rules of evidence allow only duplicates of an original recording, and that an enhancement should not be considered a duplicate. Guerriero has also objected to several pieces of evidence, including video footage, that prosecutors want to present at trial.

The trial is scheduled for February. Both Young, 25, and Correa, 20, have pleaded not guilty to charges of first-degree assault with a firearm, second-degree assault with a firearm and reckless conduct with a deadly weapon in the shooting. Elliott was struck in the back but recovered. The two defendants were arrested about 90 minutes after the shooting, off Route 10 in Lebanon, after allegedly attempting to escape from police and crashing the car they were in. Correa, who police say was driving, has been charged with reckless conduct with a deadly weapon in connection with the crash; Young has been charged with reckless conduct with a deadly weapon and falsifying physical evidence because police allege he threw the gun that was used in the shooting from the vehicle when it crashed.

However, Correa, who is being held in the Grafton County jail, contracted COVID-19 and was being held in isolation “with symptoms of the sniffles, no taste and no smell,” Jasper, his attorney, said in a motion filed earlier this week seeking a continuance. The county jail, which is behind the courthouse in North Haverhill, has been dealing with an outbreak that as of Monday had affected seven inmates and four staff.

“The hearings are evidentiary, and the Defendant needs to be present at the hearings to confer with counsel, so having the Defendant appear by video will not work,” Jasper, said in the filing. In addition, one of Jasper’s family members has a compromised immune system, so he said he has “been careful not to create risk for (the relative’s) health.”

Meanwhile, Deputy County Attorney Paul Fitzgerald filed a motion reporting that the technician from the state laboratory that enhanced the video, and whose testimony was expected to “dispel any concerns as to the authenticity of the enhanced images and the trustworthiness of the enhancements,” also has COVID-19.

Fitzgerald also filed motions indicating that a former Lebanon police officer who is on the witness list has COVID-19, and that the wife of another witness related to surveillance video from a downtown business in Hanover also tested positive.

Grafton County Attorney Marcie Hornick said via email that the COVID-related delay is “a frustrating thing — for sure,” but that the jail had done a good job in reining in outbreaks.

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“I am not sure how things will shake out as we move forward because we are still dealing with quite a backlog of cases,” Hornick said. “I admit, however, that I remain optimistic that we will not have to go into any kind of a lockdown again — especially with the courts being more in tune to how to continue operations with the options of online or telephonic hearings.”

Susan Warner, communications manager for the New Hampshire Judicial Branch, said via email that judges will grant motions to continue trials or hearings when attorneys, defendants or witnesses test positive for COVID-19.

“Since the judicial branch resumed jury trials in August 2020, there have been several postponements as a result of COVID-19, though we do not specifically track COVID-19-specific requests to continue trials or hearings,” Warner said. “While the prevalence of COVID-19 in the community may result in rescheduling of trials, the judicial branch is not presently considering postponing trials and/or hearings.”

The New Hampshire Department of Health and Human Services on Thursday reported 1,134 new positive test results and said there are now more than 8,250 current COVID-19 cases in the state.

Cirone, the former judge from Lebanon, said courts, like other employers, are also struggling with staffing issues and that when continuances in a trial or hearings are granted, finding the time to reschedule them for the sake of continuity can be difficult.

“You need to get them back quickly,” he said.

In Vermont, judicial branch officials have dealt with a variety of factors, including HVAC problems at the courthouse in White River Junction, which have required Windsor County hearings and jury trials to be held in the Windham County courthouse in Brattleboro.

Windsor County State’s Attorney Ward Goodenough said he knew of one case scheduled for trial last month that was delayed after a defendant failed to appear and his attorney said it was because he had COVID-19.

“Anecdotally, it’s not a widespread thing,” Goodenough said.

Vermont court officials on Thursday said they were planning to restart in-person jury trials at the Orleans County Courthouse in Newport, Vt., next month.

Two hours later, the Vermont Department of Corrections reported 16 new COVID-19 cases had been detected at the Northern State Correctional Facility in Newport. Since the outbreak began on Nov. 10, 40 people who are incarcerated and 14 staff there have tested positive, DOC said.

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