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Hate crime perpetrator appeals over mention of Martin Luther King at trial

The first man convicted of a racially motivated hate crime in Merrimack County is appealing to the state Supreme Court, arguing the prosecutor wrongfully capitalized on the fact that his trial fell just before the Martin Luther King holiday.

In opening statements during the January proceeding at Merrimack County Superior Court, prosecutor Wayne Coull said King would have been disappointed to know about 21-year-old Donald Freese’s trial, nearly 50 years after the civil rights leader “stood in front of the Lincoln Memorial and spoke of his dream of a world without racial prejudice, without racial bias, without racial hatred.”

“Dr. King would be sad if he were alive and here today because what I’m going to have to talk to you about and what the witnesses are going to be telling you about is racial hatred, bias and animus in its most ugly form,” Coull told the jury.

Freese was convicted at the end of that trial and ultimately sentenced to serve up to 12 years in prison for attacking Alhaji Kargbo, a black man, outside the Hooksett Market Basket. Witnesses to the July 2012 assault said Freese and his friend Joshua Peno kicked and punched Kargbo while repeatedly calling him a “f------ n-----.”

Freese’s lawyer, Ted Barnes, argued at the trial that racism wasn’t a factor in the fight and said the racial slur was simply a convenient insult. During the proceeding, he made several motions for mistrials based on the prosecutor mentioning King. Last week Barnes said the context of the trial – held before Martin Luther King Day and shortly after a racially charged presidential election – must be taken into account when considering the full effect of Coull’s comments.

He also said the jury was pulled from a county that overwhelmingly supported President Obama and rejected “the whole racist nature of the election.”

“In terms of how (the jury) approached this race-based hate crime I was concerned there was more than a little residue of generalized anti-racism, and I was concerned that the prosecutor may have exploited that,” Barnes said.

In response to Barnes’s concerns, Judge Larry Smukler did instruct the jury that they shouldn’t take into consideration how King would feel about the case. Barnes thinks the instruction didn’t do enough to quell possible bias. But Smukler, who in February denied a motion for a new trial and said he detected no “incurable injustice” during the proceeding, clearly disagreed.

Barnes is now taking the matter to the New Hampshire Supreme Court. In that appeal, he raises concern with Coull’s comments about King but also says witnesses to the assault shouldn’t have been allowed to testify about their personal reaction to Freese’s repeated use of the N-word.

During the trial, several witnesses described feeling shocked and sickened by hearing the slur. Barnes called those opinions “irrelevant” because a jury is supposed to consider only facts.

The appeal was filed last month.

(Tricia L. Nadolny can be reached at 369-3306 or or on Twitter @tricia_nadolny.)

Legacy Comments2

The whole idea of "hate crime" is ridiculous. A crime is a crime no matter the motivation. If someone attacks me based on the color of my skin it's no different than being attacked for any other reason.

My opinion is that this is not the first time Mr. Coull has won a case based at least in part on inappropriate and inflammatory statements. Judge Smukler should have known that the weak-tea instruction he gave the jury to ignore same was inadequate. How do they say it on "Law and Order" - "Objection, your honor, you can't un-ring a bell"? I doubt the tough-on-crime state Supreme Court will buy Mr. Barnes' argument, but something is not right that Mr. Freese will get what he richly deserves due to a failure of due process.

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