Convicted in 2017 on felony rape charge, Nashua man wins new trial

CONCORD – The New Hampshire Supreme Court upheld a Superior Court judge’s order granting a Nashua man a new trial, agreeing that Jonathan Marden’s trial attorney “rendered ineffective assistance of counsel” by failing to object to some testimony by the state’s key witness.

The high court’s affirmation this week of now-retired Superior Court Judge Philip Mangones December 2017 order vacates the jury’s guilty verdict, and sets the stage for a new trial for Marden, 23, on one felony count of aggravated felonious sexual assault.

Jurors convicted Marden on the charge on Sept. 8, 2017, after about two and a half hours of deliberations. He was accused of having sex with a former girlfriend without her consent while the two were in her car, which was parked at a retail complex in south Nashua.

But before Marden was to be sentenced, he hired a new attorney, Donna Jean Brown, and began working on his motion for a new trial.

Once Mangones granted that motion, Assistant County Attorney Cassie Devine, the prosecutor who initially convicted Marden, moved for reconsideration but was unsuccessful.

Devine, along with state Attorney General Gordon MacDonald and Senior Assistant Attorney General Stephen Fuller, then filed the appeal asking the Supreme Court to overturn Mangones’ ruling.

Fuller, who crafted the appeal, focused on two points in Mangones’s order.

One questioned whether the failure by attorney Timothy Goulden, Marden’s trial lawyer, to object to certain testimony by a state expert witness “constituted ineffective assistance of counsel” to the level that it required reversal by the court.

The other asked the Supreme Court to consider whether Goulden’s “failure to give pretrial notice … or articulate an alternative theory for admission of the evidence” before he “attempted to elicit testimony regarding the victim’s recent consensual sexual activity” constituted ineffective assistance of counsel.

The Supreme Court justices in this week’s ruling agreed with Mangones’s conclusion that Goulden “had been ineffective” by not objecting to “inadmissible testimony” given by Dr. Gwendolyn Gladstone, a former paediatrician who now specializes in evaluating and treating children involved in sexual abuse and neglect cases.

The justices also found that Goulden should have objected to segments of Gladstone’s testimony, which, they stated, “ran afoul of our general prohibitions against offering expert testimony ‘to prove that a particular child has been sexually abused.'”

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