Attorneys describe romance between trial attorney and then-prosecutor Ayotte
Attorneys for a man convicted 15 years ago of raping and killing a young Hopkinton girl have provided new details about the romantic relationship between his trial lawyer and then-prosecutor Kelly Ayotte.
The trial lawyer, Nicholas Brodich, has previously denied that he and Ayotte were romantically involved during the trial. A spokesman for Ayotte, now a U.S. senator, said in December that they did see each other briefly but only after the case against the man, James Dale, had closed.
Brodich declined in December to comment on the relationship, citing Dale’s pending motion for a retrial. That motion was replaced Friday with a petition from Dale’s newly appointed counsel that argues he is unlawfully imprisoned, in part because of the relationship.
According to the petition, Brodich said in an interview in January that he waited “two to four weeks” after Dale was sentenced in the spring of 1999 before asking Ayotte out. A month after the sentencing, he filed an appeal on Dale’s behalf – the conviction was subsequently upheld – and a request to withdraw as his attorney, the petition states.
The relationship lasted through the fall, Brodich said, according to the petition. During that time, Ayotte “continued to represent the State of New Hampshire in connection with Mr. Dale’s appeal,” the petition states.
Robin Melone, one of Dale’s attorneys, wrote in the petition that Ayotte did not return calls or emails requesting information. She indicated that a request to depose the senator is forthcoming.
The attorney general’s office has previously disputed Dale’s request for a retrial, arguing in December that the window for it closed years ago, and that Dale knew of the romantic relationship as early as 2002, yet said nothing about it at the time. Criminals in New Hampshire have three years from the date their case closes to request a retrial.
The attorney general’s office has yet to respond to the new petition, which makes several other previously argued claims about Dale’s defense. It asserts that Brodich and his co-counsel, James Moir, failed to call key witnesses, adequately cross-examine a jailhouse snitch, object to questionable DNA evidence or present a defense theory other than “Dale didn’t do it.”
Dale first filed a petition contending unlawful imprisonment in 2001, but it was dismissed in 2004 when he refused to participate in a hearing by video conference. Melone is now disputing that ruling. In a second motion filed Friday, she said Dale’s mother recently provided her with a letter from his 2004 attorney, Brian McEvoy, in which McEvoy told Dale he was “free not to ‘attend’ by video.”
Melone said there is no audio tape or other evidence that McEvoy informed the judge in 2004 about what he had told Dale in the letter. In a subsequent letter to Dale in December of that year, he said he had advised him to attend.
“Your decision to not attend was your own,” McEvoy wrote in the letter, dated Dec. 13, 2004, and included in the petition. Melone said McEvoy had not returned her firm’s calls or emails.
The petition could come into play, Melone said, if the first petition fails.
Dale, who is 56, was sentenced to 60 to 100 years in prison for the killing. He is incarcerated at the state prison in Berlin.