Federal prosecutor facing new accusations of misconduct

By CASSIDY JENSEN

Monitor staff

Published: 02-07-2022 5:10 PM

A prosecutor on the case that led to the creation of the state’s once-secret list of problem police was accused of withholding evidence in two recent federal cases.

Assistant U.S. Attorney John Davis was part of the prosecutorial team that abruptly dropped a federal case against Concord contractor Nathan Craigue this summer after the defense argued the government’s failure to provide information about a key witness’s relationship with the Concord Police Department amounted to professional misconduct.

Davis has also been accused of withholding evidence in a case against Windham resident Imran Alrai, prompting a mistrial.

Newly unsealed court records show that the government dropped the charges against Craigue on the fifth day of the trial in June once defense attorneys discovered that the Concord Police Department had paid witness Nick Ford $80 after he testified before a grand jury, information that had not been disclosed before trial. Defense attorneys were also not told Ford had assisted police with other criminal cases.

The case was suddenly dropped the morning after a rare 9:15 p.m. video conference between attorneys and the judge. The case file was initially sealed but has now been made public.

“The government’s failure to learn of and disclose these facts was patent prosecutorial misconduct,” Judge Landya McCafferty, chief justice of the U.S. District Court for the District of New Hampshire, wrote in her order to unseal the records.

“The fact that highly similar misconduct has happened at least twice in this United States Attorney’s Office within a short time span raises concerns about the seriousness to which the government takes its constitutional disclosure obligations.”

Ford was working alongside Kenneth McKenna on Aug. 28, 2018, the day the 51-year-old fell off a roof and died while on a job for Craigue’s company, Craigue and Sons Home Exteriors. Craigue had been accused of making false statements to a federal agent following the accident.

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Davis was also a trial lawyer in the case State vs. Carl Laurie, the case that led to the creation of the Exculpatory Evidence Schedule, a list of police officers with credibility issues also known as the Laurie List. A court overturned Laurie’s murder conviction in 1995 because prosecutors withheld evidence that the officer who took Laurie’s confession had been disciplined for dishonesty.

After that case, prosecutors kept a secret list of police officers who had been disciplined for issues like lying, using excessive force or planting evidence. Through public pressure and a lawsuit by the ACLU of New Hampshire and most of the state’s media outlets, the list became public last year.

That kind of reversal of a murder conviction is rare, said Albert “Buzz” Scherr, a former defense attorney who defended Laurie and is now a professor at the University of New Hampshire Franklin Pierce School of Law.

“There’s a long history with John Davis in terms of prosecutorial misconduct,” Scherr said. “I think the U.S. Attorney is going to have to take a long hard look at John Davis’ behavior if they’re responsible.”

Davis’ career has spanned beyond New Hampshire. He was also involved in the investigation of Richard Jewell, a security guard who was falsely accused of carrying out the Centennial Park bombing at the 1996 Summer Olympics, and the investigation into Khalid Sheikh Mohammed, who is believed to be one of the people behind the 9/11 attacks. Davis declined to be interviewed for this story.

The Craigue case

Craigue was charged with falsely telling federal investigators in 2018 that McKenna was a subcontractor and not a full-time employee, but the pandemic delayed his trial until June 2021.

Ford testified for the first time on June 9. On the morning of June 10, prosecutors told Judge McCafferty that they had learned from the defense team that Ford had a prior relationship with William Carroll, a former detective who worked for the Concord Police Department between August 2011 and September 2019.

At the time of the trial, Carroll was working as a federal probation officer in the same courthouse where the trial took place.

Prosecutors interviewed Carroll on June 10 and confirmed that he had paid Ford $80 on May 16, 2019, the day following Ford’s grand jury testimony. Ford had previously been a source of “corroborated information” for the Concord Police Department.

Concord Police Chief Bradley Osgood wrote in an email to the Monitor Friday that Carroll’s supervisor and commander were aware of the payment, as well as “possibly one other officer.” Osgood wrote that there were no other incidents of cooperating witnesses being paid as a result of court testimony, according to his records dating back to 2010.

Paying “cooperating individuals” comes from the police department’s Special Investigation Fund, which is approved by City Council. In the current fiscal year budget, $20,000 was appropriated to this fund. Osgood was unable to say how many informants Concord police currently has since the number of cooperating individuals is “constantly fluctuating.”

After information about Ford’s relationship with Concord police came to light, Craigue’s lawyers, Assistant Federal Defenders Dorothy Graham and Behzad Mirhashem, were prepared to file a motion to dismiss the case for prosecutorial misconduct.

“The difficulty in these cases is they have an obligation to go and look,” Mirhashem said in a morning conference on June 10. “This case we’re going to be asked to be dismissed for prosecutorial misconduct because we would have had two years to investigate this guy. Now he’s testified like a Boy Scout.”

At a video conference that evening at 9:15 p.m., McCafferty denied a motion by prosecutors to strike Ford’s testimony. The next morning, she approved a motion by the government to dismiss the charges with prejudice, meaning Craigue cannot be tried again.

“Questions ofprosecutorial misconduct”

The sealed transcripts were made public after attorneys for Windham resident Imran Alrai intervened in the Craigue case.

In June, U.S. District Court Judge Joseph Laplante ordered a new trial for Alrai after prosecutors turned over evidence that had been withheld during the trial. Alrai had been was found guilty in 2019 of defrauding his employer, the United Way.

Although Ford publicly testified in the Craigue case, his name and other identifying information was redacted from the unsealed trial transcripts.

In an order that became available in January, McCafferty wrote that the public had a right to know about “several questions of prosecutorial misconduct” raised by the circumstances of Ford’s testimony.

U.S. Attorney John Farley wrote in a statement that issues in the Alrai and Craigue cases do not indicate a broader problem within his office.

“As prosecutors, our mission is not to win at all costs, but to ensure that justice is done. Every prosecutor in my office is fully committed to that mission,” Farley wrote. He would not comment on any “internal actions” that might be taken as a result of the Craigue case, including reviewing cases involving Davis or Carroll.

“The Craigue case involved an unusual circumstance in which the prosecutors in the U.S. Attorney’s Office did not have certain information prior to trial.

When that information came to light during the Craigue trial, the prosecutors immediately disclosed the information and then took corrective action by moving to dismiss the indictment,” Farley said.

Prosecutors rarely face professional sanctions for misconduct.

An Innocence Project survey of 660 cases in five states over a five-year period in which courts had confirmed prosecutorial misconduct led to the discipline of just one prosecutor.

The New Hampshire Supreme Court Attorney Discipline System reviews grievances against attorneys and investigates violations of the Professional Rules of Conduct adopted by the New Hampshire Supreme Court. Discipline can mean a reprimand, public censure, suspension or disbarment.

According to the system’s search tool, which can access 454 public decisions released between 2004 and 2022, no New Hampshire attorneys have faced professional discipline for violating a rule called “special responsibilities for prosecutors,” including a requirement that prosecutors must “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”

Craigue and his attorneys declined to comment for this story.

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