Nashua police photo Jonathan Marden, 21, 5 Blackstone Drive, Apt 27, Nashua

NASHUA – A Superior Court judge has ordered a new trial in the case of Jonathan Marden, the 21-year-old Nashua man convicted in September of rape following a two-day jury trial, ruling that Marden’s trial attorney should have raised objections to much of the testimony by a key prosecution witness and that he failed to introduce in timely fashion evidence that the victim had sex two days before the alleged rape.

In a 22-page ruling filed recently in Hillsborough County Superior Court South, Judge Philip Mangones agreed with assertions by Marden and his new lawyer, Attorney Donna Jean Brown, that Attorney Timothy Goulden’s representation was “Constitutionally ineffective,” and ordered the case returned to the court docket to be scheduled for another trial.

Marden, of 5 Blackstone Drive, went to trial on one count of aggravated felonious sexual assault, a felony. He was accused of raping a former girlfriend, now 17, in his car, while it was parked in a retail complex parking lot near the teen’s workplace.

A jury found him guilty on Sept. 8 after about 2 1/2 hours of deliberations. He had been scheduled for sentencing on Dec. 29, but the hearing was made moot by Mangones’s

ruling.

Among the points the judge raised in his ruling was the fact that Goulden did not object to “inadmissible testimony” given by Dr. Gwendolyn Gladstone, a former pediatrician who now specializes in evaluating and treating children involved in sexual-abuse and neglect cases.

“The court finds that Attorney Goulden had been ineffective for failing to object” to that testimony,” Mangones wrote.

Further, he wrote, the fact that Marden’s statements to police in post-arrest interviews were, in the judge’s opinion, “subject to varying interpretations,” it “cannot be said with sufficient certainty” that the jury “would have reached the same conclusion” had Gladstone’s testimony not been admitted.

Mangones also wrote that by themselves, Marden’s statements to police “were not definitive admissions of guilt of a crime,” and suggested that the “added context” of Marden’s “live testimony could have been interpreted in (Marden’s) favor.”

As an example, Mangones cited a segment of trial testimony in which Marden indicated that “while the (victim) was OK with kissing, and initially seemed fine with having sex, at some point she put her hands on his shoulders and tried pushing him off and said ‘stop’ … but (Marden) also said that this happened immediately prior to (store) employees knocking on the car

window … .”

He referred to the two men who walked up to the car after noticing on surveillance images that it was parked in an otherwise empty parking lot and there appeared to be people inside.

The alleged victim, who worked at the store, went in after the incident and told co-workers she had been raped.

“Further,” Mangones wrote, Marden “testified that the (victim) did not tell him to stop until after they had already stopped having sex … .”

Also in his ruling, Mangones ordered the reinstatement of Marden’s pre-trial bail of $250 cash and $10,000 personal recognizance, on which he remains free pending his new trial.

The parties are next due in court on Wednesday, Jan. 17, for a status conference. The case summary indicates that Judge Charles Temple will preside over the hearing in place of Mangones, who retired effective Dec. 31.

Dean Shalhoup can be reached at 594-1256, dshalhoup@nashuatelegraph.com or @Telegraph_DeanS.

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