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Convicted killer seeks new trial by alleging improper relationship between defense counsel, then-prosecutor Kelly Ayotte

James Dale found guilty. File photo from February 24, 1999. 

(Monitor file)

James Dale found guilty. File photo from February 24, 1999. (Monitor file)

A man convicted in 1999 of raping and killing a 6-year-old Hopkinton girl is asking for a new trial, alleging a romantic relationship between then-prosecutor Kelly Ayotte and his defense attorney, Nicholas Brodich, tainted his conviction.

Spokesman Jeff Grappone said yesterday that Ayotte, now a U.S. senator, and Brodich “did not interact socially at all during the trial, but they did so briefly afterward.”

He called James Dale’s accusation “false” and “a desperate attempt to get out of jail from a despicable child rapist and murderer who Sen. Ayotte prosecuted over 14 years ago.”

Brodich said he knew of the allegation but declined to comment further, citing the pending litigation.

Dale made the claim in a September court filing but offered no evidence or elaboration about the alleged relationship. He wrote his motion himself and has since filed a handwritten motion in Merrimack County Superior Court seeking a public defender.

The state has until tomorrow to respond to Dale’s motion. Senior Assistant Attorney General Jeff Strelzin declined to comment other than to say the office planned to respond in court.

Dale, now 56, was convicted of aggravated sexual assault and second-degree murder in the 1997 killing of Elizabeth Knapp and is in state prison. The earliest he could be released is 2042.

On Sept. 3, Dale filed a motion for a new trial, claiming Brodich, one of his two defense attorneys, was “involved in a romantic relationship” with Ayotte over the course of his murder trial.

In the motion, Dale asserts his attorney “did not pursue a powerful defense strategy” because of his relationship with Ayotte, who was not married at the time. He claims Brodich and his co-counsel Jim Moir refused to call two witnesses who Dale believes would have proved his innocence. In addition, he said his attorneys did not call an expert to rebut the state’s testimony about the cause and time of Knapp’s death.

The lawyers’ “overall ignorance of the DNA analysis and lack of preparedness rendered his innocence ineffective,” Dale wrote.

In his motion, Dale also claims his attorneys should have sought a mistrial because one of the state’s key witnesses was arrested during the course of the trial for drug use.

In a statement, Grappone denied Ayotte and Brodich had a personal relationship during the trial.

“This is a desperate attempt to get out of jail from a despicable child rapist and murderer who Sen. Ayotte prosecuted over 14 years ago. Sadly, it’s not the first time we’ve seen a convict try to use Sen. Ayotte’s public stature to try to get out of prison,” Grappone said. “Dale’s charge is false, they did not interact socially at all during the trial, but they did so briefly afterward.”

Brodich declined to comment on the motion.

“I know all about the allegation,” he wrote in an email. “And normally, I would feel free to comment. However, since Mr. Dale has raised it in a pleading, the issue will soon be litigated. And I don’t feel it fair or appropriate to comment in the press about pending litigation.”

Moir also declined to comment.

Dale was sentenced to 60 to 120 years for raping and killing Knapp.

The girl was found dead July 3, 1997, in the Hopkinton apartment she shared with her mother, sister and her mother’s boyfriend, Richard Buchanan. An autopsy found she had been raped and suffocated.

The police first charged Buchanan in the death, and Knapp’s mother told authorities she had witnessed him rape and smother her daughter with a pillow. DNA tests, however, cleared Buchanan and led officials to Dale, who lived in the same apartment building at the time of the murder. A month after Knapp’s death, Dale left New Hampshire. He was arrested in Arizona in December of that year for probation violations.

A jury convicted Dale on rape and second-degree murder charges even though investigators could not explain how he entered the home.

Questions continued to linger over Buchanan, and some alleged he had somehow been complicit in the murder. Knapp’s family, a former neighbor and a former police chief all urged the state to press for a second conviction in the case.

In April 2001, the state Supreme Court rejected an appeal from Dale, which claimed the trial judge had erred in her decisions about testimony and jury instruction. Dale took issue with the judge’s decision to exclude secondhand accounts of statements made by Buchanan, and not to instruct the jury about Dale’s alibi for the night of the murder.

Defense attorneys Brodich and Moir had asked the judge to remind jurors that evidence had been presented suggesting that Dale was not at the scene of the crime when it happened. The Supreme Court concluded the evidence was insufficient to establish an alibi.

In 2002, Dale was convicted of trying to kill a fellow inmate at the Pennsylvania prison where he was detained. Jurors found him and another inmate guilty of slashing the man’s throat with a razor blade fastened to a toothbrush. The incident occurred in 2000, roughly a year after his rape and murder conviction in the Knapp case.

Dale and the other man, Eric Thornton, were serving time in Pennsylvania as part of an interstate compact with New Hampshire. They targeted the victim after rumors surfaced he was a jailhouse snitch. The victim testified at the trial that he had been lifting weights when the men approached. Dale held him down while Thornton cut his throat, he said.

Dale and Thornton were each convicted of attempted first-degree murder, assault by a prisoner, aggravated assault, conspiracy to commit first-degree murder and conspiracy to commit aggravated assault. Dale received a sentence of 20 to 40 years for the attack.

In 1999, Ayotte was a prosecutor in the attorney general’s office. She became attorney general in 2004 and served in that job until 2009, when she resigned to run for the U.S. Senate. A Republican, she won her seat in 2010.

Now 45, Ayotte has been married to her husband, Joe Daley, since 2001.

They have two young children.

Brodich, now 51, works at the Concord law firm of Tarbell & Brodich. Recently, he has represented David Seastrand, the former New London police chief who left the department this spring amid accusations he had pressured a young woman to pose for nude photographs.

In 2004, when then-Gov. Craig Benson nominated Ayotte to become attorney general, she said prosecuting Dale had been difficult because of the nature of the case.

“When a child is a victim of rape and murder, it’s very, very troubling,” Ayotte told the Monitor. “I’ve seen a lot of horrific cases in our state. But a child victim, there’s something there that really bothers me.”

(Staff writer Ben Leubsdorf contributed to this report. Megan Doyle can be reached at 369-3321 or mdoyle@cmonitor.com or on Twitter @megan_e_doyle. Jeremy Blackman can be reached at 369-3319 or jblackman@cmonitor.com or on Twitter @jblackmancm.)

Legacy Comments1

lock that baby raper back in his cell and don't let him out till he's in a box

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