State says convicted killer Dale has no grounds for new trial
The state claims James Dale’s window of time to ask for a new trial is up, brushing off the convicted killer’s claim of a romantic relationship between then-prosecutor Kelly Ayotte and his defense attorney as “salacious innuendo.”
State law allows a petition for retrial to be filed within three years of a case’s end. But Dale was sentenced in 1999 – more than 14 years ago – for the rape and killing of 6-year-old Elizabeth Knapp of Hopkinton two years prior.
In a document filed in Merrimack County Superior Court on Friday, Attorney General Joe Foster has also asked the judge to dismiss Dale’s motion to retry his case because Dale learned about the supposed romance between Ayotte and his trial lawyer, Nicholas Brodich, as early as 2002 – but he didn’t bring it up during the next two years when he was fighting his case in federal court.
If Dale didn’t mention the alleged conflict of interest at that time, the state claims he “should not be allowed to do so nine years after the conclusion of that litigation.”
In a statement last week, spokesman Jeff Grappone denied the now-U.S. senator Ayotte had any personal relationship with Brodich during that trial.
“Dale’s charge is false, they did not interact socially at all during the trial, but they did so briefly afterward,” Grappone said.
Brodich declined comment to the Monitor last week, but according to court documents, he also has denied being involved in any sort of relationship with Ayotte during the trial.
Dale, now 56, was sentenced to 60 to 100 years in state prison for his crimes. He lost his direct appeal to the state Supreme Court in 2001, and he filed a petition of his conviction in federal court later that year. A superior court judge dismissed that petition in 2004 when Dale refused to participate in a hearing by video conference.
Dale first heard about the rumored relationship from the first attorney who represented him in that 2001 petition, according to the state’s filing. His then-counsel, Ted Barnes, mentioned it to him in a letter in 2002.
“Barnes wrote to the defendant to advise him of his belief that Ayotte and Brodich were involved in a relationship during the trial,” the motion states.
The attorney general’s office has not yet obtained a copy of that note. Barnes acknowledged yesterday that he sent that letter to Dale, but he said he had only heard about Ayotte and Brodich through “jokes, joking commentary.”
“I was not close with either of them,” Barnes said. “I did not have any details.”
Barnes withdrew as Dale’s attorney in November 2002, and a document he filed at that time with the court cites difficulties “in obtaining necessary information and in ensuring Mr. Dale’s active participation” in the case.
Another lawyer was assigned to Dale, and Barnes said he looked no further into the rumor of Ayotte and Brodich’s relationship. Dale’s motion does not offer any evidence for his claim.
“I am probably the last person to ask about this stuff,” Barnes said. “What I had was, like I said, jokes, rumor, with no knowledge whatsoever of any time frame. It was something that if I was going to represent Mr. Dale, it was something I wanted to explore . . . but we never got that far.”
Some of Dale’s claims in this recent request for a new trial were actually included in his defeated petition in the early 2000s – so the state is arguing those points aren’t valid anymore, either.
For example, Dale has repeated an earlier criticism of Brodich and co-counsel Jim Moir for not calling the victim’s mother and sister to the stand during his trial.
By pushing the case to trial again, Dale would “disrupt the orderly administration of justice,” the state claims.
Dale’s new lawyers have 10 business days to file an objection to the state’s motion. Attorney Ghazi Al-Marayati, a partner at the firm that has been assigned to Dale’s most recent case, declined to comment yesterday.
“We’re not in a position to be able to say anything at this point,” Al-Marayati said.
Brodich, now 51, works at the Concord law firm of Tarbell & Brodich.
Now 45, Ayotte won her seat in the U.S. Senate in 2010. She has been married to her husband, Joe Daley, since 2001.
In his statement last week, Grappone called Dale’s accusation “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.
(Megan Doyle can be reached at 369-3321 or email@example.com or on Twitter @megan_e_doyle.)