Memo gets a look in ’88 murder case

NASHUA – A controversial 2004 internal memorandum by a state Attorney General’s office paralegal regarding allegations of police perjury in a 1988 Nashua murder trial may contain information important to the defense, and prosecutors should therefore turn it over for review, a judge has ruled.

The ruling is one of six that Judge Jacalyn Colburn handed down last week in the cases of Anthony Barnaby and David Caplin, co-defendants in the brutal murders of two Nashua women in their Mason Street apartment nearly 28 years ago.

Colburn’s ruling agrees in large part with Barnaby Attorney Mark Sisti’s position that the entire memo, not just a short excerpt he received in March, "is clearly exculpatory evidence" that prosecutors should be compelled to turn over to him and co-counsel Alan Cronheim.

Colburn, stating in her ruling that the defense "has established a reasonable probability" that information in the memo is relevant to the defense, gave prosecutors 10 days to turn over the memo for an "in camera," or private, review by the parties.

Colburn deferred ruling – pending the outcome of the in camera review – on a related motion in which Barnaby seeks to depose several Nashua police officers involved in the investigation of the double murder. Their testimony, Barnaby claims, may shed more light on his allegation that now-retired Capt. Paul Goupil coerced him to confess during an interrogation that was not recorded.

The state objected, arguing that Barnaby deposed all the officers in his first of three trials, which all ended in hung juries.

A third motion, to extend deadlines, is also subject to the course that the in camera review takes, Colburn ruled.

Caplin, like Barnaby, is also asking Colburn to compel the state to produce the entire 2004 memo and to allow him to depose the officers.

Where the two men’s motions differ, Colburn wrote, is that Barnaby seeks the memo’s contents in order to challenge the validity of his confession, while Caplin seeks it to challenge the validity of his extradition to New Hampshire from Quebec, Canada.

Caplin, Colburn wrote, "suggests that the (NH) attorney general may have knowingly misrepresented certain facts to the Canadian attorney general."

Colburn sided with the state in another finding contained in last week’s orders, in which she grants prosecutors’ request to test four pieces of evidence obtained from the original crime scene for the presence of nuclear DNA.

Prosecutors said they brought the motion in large part because it’s possible their testing process may "entirely consume … any blood evidence" that remains on the items, and they wanted to give the defense the opportunity to object to "the potentially consumptive testing."

Finally, Colburn scheduled a hearing for June 24 on the state’s request to depose, or interview, 11 witnesses currently living in Canada in order to "preserve their testimony." The fact that "foreign witnesses" are not required to travel to the U.S. to testify is the basis of the motion.

Up in the air, though, is whether both defendants and all their attorneys would travel to Canada for the interviews, or conduct the depositions via video or audio conference.

Caplin and his attorneys have objected to a "video conference" format, claiming it "would change the nature of the jury trial from one of assessing witnesses face to face in the solemn confines of the Superior Court to a sort of TV game show where witnesses are evaluated by video (snippets)."

Dean Shalhoup can be reached at 594-6443, dshalhoup@nashuatelegraph.com or@Telegraph_DeanS.