Chad Evans Wrongly Convicted

Most of the documents here are scanned Adobe .pdf files (printed data file) through which you cannot do word searches with your browser "Edit" and "Find" functions.

The various steps in the appeals by Chad Evans and Amanda Bortner since 2001 are listed in the "Latest News" of this website.

[The transcripts are available by each trial day and all of the trial transcripts are consolidated here in one, WORD SEARCHABLE DOCUMENT.]

5 December, Wednesday. Witnesses: Steven Hamel (continued), Dr. Anthony Bock (York Hospital) and Amanda Bortner (both days)

Defense Exhibit A Amanda Bortner's handwritten list of day care

centers

Defense Exhibit B two phone reports (with same information as

Exhibit B, if not Exhibit B.)

6 December, Thursday. (pages scrambled after p 59) Witnesses: Amanda Bortner (continued, including both days), New Hampshire State Police Sergeant, James White and Jeff Marshall.

7 December, Friday. Witnesses: Jeff Marshall (continued), Patricia Hocter of the New Hampshire Division of Children Youth and Families, Joshua Bortner Conley, Jennifer Bortner Conley, and William Peirce, neighbor and landlord of Jeff Marshall.

10 December, Monday. Witnesses: Heather Hamilton, manager of Perfumania, employer of Jennifer Bortner Conley; Melissa Chick, friend of Amanda Bortner; Tracey Foley, friend of Amanda Bortner; Jeremy Hinton, friend of Chad Evans; Vanessa Mansson, friend of Chad Evans; Cory Merrill, fellow inmate of Chad Evans; Tristan Wentworth Evans, former wife of Chad Evans.

11 December, Tuesday. Witnesses: Tristan Wentworth Evans (Continued); Cory Merrill; Shannon Gagne, friend of Amanda Bortner; Travis Hunt, housemate of Chad Evans and Amanda Bortner; Irene Ricci, friend of Travis Hunt; and Herbert Leighton, Maine State Police detective.

12 December, Wednesday. Witnesses: Cathy Nuernberg, friend of Amanda Bortner, New Hampshire State Police Detective William Magee, Mary Bullard, friend of Chad Evans and Amanda Bortner, Maine State Police Detective Lance McCleish.

13 December, Thursday. Witnesses: Lance McCleish (Continued); Dr. Margaret Greenwald, Maine State Medical Examiner. The prosecution rested its case.

14 December, Friday. No witnesses. Arguments made to Judge Tina Nadeau about proposed content of jury instructions.

17 December, Monday. Witness: Dr. Michael Baden, pathologist. The defense rested its case. Prosecution rebuttal witness was Dr. John O'Connor, pathologist.

18 December, Tuesday. Including bench conference before closing arguments (separate) and then Judge Nadeau's Charge to the Jury at pages 13-37. (The judge's Draft of proposed jury instructions might be compared to the actual instructions.) Closing Arguments by State and Defense. Mark Sisti for the defense at pages 1-33, and Simon Brown for the prosecution, pages 33-61. See REKEYED WORD COPY of Mark Sisti Argument. See REKEYED WORD COPY of Simon Brown's argument.

Charge to the jury. Selection of three of the 15 jurors as alternates, who were then excused from deliberations. Jury began deliberations at 12:59 p.m.

Sentencing: Pre-sentencing letters sent to Judge Tina Nadeau, and pre-sentencing hearing and Judgment

Two questions presented: whether trial court erred when introducing hearsay "excited utterance" evidence and whether it was error to introduce "prior bad act" evidence.

State replied with question: "Whether the trial court properly exercised its discretion in admitting certain statements into evidence under the excited utterance exception to the hearsay rule..."

18 November 2002 Day 1 Jury Selection, Motion to Dismiss, and Court Ruling on Motion, Opening Statements by Prosecution and Defense. Witness for the prosecution: Jefferey Marshall.

19 November 2002 Day 2 Witnesses for the prosecution: Jefferey Marshall (continued), Detective Steve Hamel, Dr. Margaret Greenwald and Jennifer Bortner Conley.

21 November 2002 Day 4 Witnesses for the prosecution: Heather Lavalley, Catherine Nuernberg, Tristan Evans, Melissa Chick, Tracey Foley, Amanda Donnell, MSP Detective Angela Blodgett

22 November 2002 Day 5 Witnesses for the prosecution: MSP Detective Angela Blodgett, NHSP Detective James White

25 November 2002 Day 6 Witness for the Defendant: Travis Hunt, and closing arguments.

3 January 2003 Sentencing Hearing Witnesses: Jefferey Marshall, Janis M. Marshall-Colby, Jennifer Bortner Conley, Kathy Jackson, Terry Kenny, Amanda Allard, Amanda Bortner.

Sentencing: Pre-sentencing letters sent to Judge Tina Nadeau, and pre-sentencing hearing and Judgment

16 June 2010. Chad Evans applied to the U.S. Court of Appeals for a Certificate of Appealability of the U.S. District Court's decision. See the MOTION.

20 July 2010. The First Circuit Court of Appeals approved Chad's Certificate of Appealability in part. See the Court's ORDER.

29 July 2010. Chad Evans, through his attorney, David Rothstein, Deputy Chief Appellate Defender, Appellate Defender Program, filed an APPEAL of the U.S. District Court's Summary Judgement with the First Circuit.

22 July 2011. The Federal First Circuit Court of Appeals in Boston denied Chad's appeal of the 15 year supplement to his minimum sentence of 28 years. See OPINION

   627:6 Physical Force by Persons With Special Responsibilities. –
    I. A parent, guardian or other person responsible for the general care and welfare of a minor is justified in using force against such minor when and to the extent that he reasonably believes it necessary to prevent or punish such minor's misconduct. [but this justification of force is limited by.....]
    IV. The justification extended in paragraphs I, II, and III does not apply to the malicious or reckless use of force that creates a risk of death, serious bodily injury, or substantial pain.

A DHHS hearing officer had ruled that Jane Doe had committed child abuse by hitting her son as discipline. There were two relevant incidents. First, in 1985, Jane Doe hit her 21-month old son “...in the area of the mouth because, during mealtime, John persisted in throwing food. This punishment cut John's lip, causing it to bleed and swell.” In the second incident 17 months later, the mother slapped her son "with the back of her hand, hitting him in the temple area. The slap left a bruise on John's temple, which lasted approximately two and one-half days. Jane was wearing a ring at the time, a factor which may have contributed to the bruise."

The New Hampshire Supreme Court explicitly referred to NH Law Chapter 627:6 which exempts parents from criminal liability for using reasonable force during the disciplining of their children and reversed the finding of child abuse.

The case is presented on pages 555-559 in Fundamental Principles of Family Law by Lynn D. Wandle and Laurence C. Nolan, 2006.

The New Hampshire Supreme Court reversed a Superior Court’s finding of child abuse where a mother had “observed her seven-year-old son, Ethan, throwing food at the dinner table. When she commanded Ethan to behave, he allegedly ignored her. In response, she took Ethan to a bedroom and struck his bare buttocks approximately six times with an imitation leather belt.” The court explicitly cited New Hampshire Revised Statutes Chapter 627:6.

The New Hampshire Supreme Court upheld the conviction of Daniel Leaf for second degree assault of his 10-year old stepson for “having caused bodily injury in the form of multiple bruises to his stepson by striking his back, buttocks and thighs with a belt.” The court concluded, “From the defendant's own admission that he had intended at the outset to strike the child only three times, the jury was warranted in concluding that the defendant himself did not reasonably believe that the force used was necessary. Viewing the evidence in the light most favorable to the State, we conclude that a rational jury could have found beyond a reasonable doubt that the defendant's use of force was excessive, unreasonable, and not justified under the statute.” The court implied, therefore, that three strikes may have been reasonable and justified by Chapter 627:6 of the New Hampshire Revised Statutes.

The New Hampshire Supreme Court upheld the conviction of Keith Lowe for the second degree assault of his four-year old daughter, who had bruises on her “legs, arms, back and spine.” The daughter had told her pediatrician that her father had hit her because she was crying after a nightmare. The Court was asked to reverse the Superior Court’s ruling because of inadmissible hearsay and failure to grant a motion to dismiss. There was no reference in the court’s opinion to the reasonable force exception of RSA 627:6.

The New Hampshire Supreme Court reversed a Superior Court’s granting of a domestic violence petition on the grounds of lack of evidence of violence against the spouse. The lower court had found that the father had struck Mrs. Seufert’s son, but there were no specifics in the opinion, and that striking was irrelevant as it was explicitly excluded from the domestic violence statute. The court noted that violence against one’s children was covered by other statutes, including Chapter 627:6.

The mother of Craig T and Megan T was found by a Superior Court to have neglected her children because the children’s father had spanked the three year old son, Craig, and hit him on the head several times. The mother was found neglectful because she did not protect her son. The incident occurred at a retail store where Craig was touching some expensive items. The children were place in foster care. The Supreme Court upheld the finding of parental neglect. There was no reference in the opinion to the reasonable force provision of Chapter 627:6.

A Superior Court placed nine-year old Samantha in the custody of DCYF upon evidence of many injuries which required several weeks of hospitalization, including two weeks in intensive care. The mother’s explanations of the injuries as being caused by accidents were not believed by the court. There was no assertion that parental discipline was involved and there was no invoking of the reasonable force provision of Chapter 627:6.

According to a Boston Globe article about Thomas Ball’s suicide in June, 2011, he slapped his three-year old daughter three times in 2001 for her refusal to go to bed. The slapping drew blood. Criminal charges were brought against him, but a “Superior Court judge later dismissed the case, saying the slaps were inappropriate but not criminal.” The judge was likely relying upon Chapter 627:6.

A Superior Court dismissed a petition for abuse and neglect by a three year old child’s mother and DCYF against the child’s father who allegedly slapped the child in the face, and causing bruising. The mother appealed to the Supreme Court, and that Court affirmed the Superior Court’s dismissal, as there was insufficient evidence. There was no assertion in the appeal that parental discipline was involved and there was no invoking of the reasonable force provision of Chapter 627:6.

The New Hamsphire Supreme Court upheld Chad's conviction for murder and the five assault charges for causing bruises to Kassidy by "grabbing and squeezing her face," and the single charge of assaulting Amanda. There was no challenge on appeal to the assault charges, and thus no reference to the reasonable force provision of Chapter 627:6.

Wilder was convicted of three assaults on his nine year old son for holding his shoulders and holding his mouth on two occasions, one of which caused bruises. The Supreme Court reversed Wilder’s convictions and concluded, “Maine's present Criminal Code sets a standard, noted in the 1975 Commentary to the Code, that proscribes physical discipline of a child only for ‘extreme punishment’ or an action which ‘cruelly treats’ a child. Because the parental control justification was generated by the evidence, the limited evidence in this record is insufficient for any rational factfinder to find the parental control justification disproven beyond a reasonable doubt.”

"Prosecutorial intransigence, a galling inability to acknowledge that initial judgments were incorrect, is the hallmark of almost every wrongful conviction case I am familiar with. Mr. Vance is entitled to kudos for not turning a failing case into a travesty.
    And the standard that Mr. Vance and his assistants employed in deciding to dismiss the case is noteworthy and laudable. “If we do not believe her beyond a reasonable doubt,” the prosecution wrote in its motion to dismiss, referring to Ms. Diallo, “we cannot ask a jury to do so.”
    This is not the bar all prosecutors set in deciding whether or not to go forward. Ethical rules prohibit lawyers from calling a witness whose testimony they know to be false; but the rule is not the same when the testimony is possibly true but dubious. Particularly in urban criminal courts, where caseloads tend to be overwhelming and the police sometimes push cases aggressively, prosecutors are often not convinced beyond a reasonable doubt about the truthfulness of particular testimony. Frequently they leave it to jurors to determine the credibility of a particular witness. In trying to talk prosecutors out of weak cases, I have been told more than once, “I wasn’t there, man, and neither were you. Let the 12 of them figure it out.”
    In practice, this means that even defendants who are probably innocent must endure the anguish of trial. I once represented a young man in a gang murder case who had been arrested and indicted along with eight other people, even though his name was never mentioned in the grand jury testimony. Although it seemed clear that the police had mistaken this young man for his brother, both the prosecutors and the judge told me to “put it on,” meaning go to trial; the client sat in court for several days, in jeopardy of a lengthy prison term, before the case against him was finally dismissed.
    Given these realities, the ultimate test of equality in Mr. Vance’s office will be whether his prosecutors universally apply the demanding, but appropriate, standard they used to decide whether to proceed with the Strauss-Kahn prosecution. Let’s hope they do, in fact, require themselves to be convinced — beyond a reasonable doubt — in all of their future cases, a vast majority of which will involve defendants who don’t have the power or eminence of Mr. Strauss-Kahn."