Executive Councilor David Wheeler Calls Nomination 'Disturbing'
"NH Dem Senate Candidate's Judicial Nominations Criticized"
Bill McMorris
October 16, 2015
New Hampshire Gov. Maggie Hassan tapped a public defender with a history of trying to get child rapists off on technicalities for a vacant judgeship.
Manchester public defender Dorothy Graham, whom Hassan nominated to the Superior Court, has twice attempted to reduce the sentences of child rapists on technicalities and, in one case, a "clerical error." She took those cases all the way to the New Hampshire Supreme Court with mixed success.
In 2011, she appealed the 2009 conviction of Hector Ortiz, who was sentenced to 25 to 50 years in prison for repeatedly raping and sexually assaulting his girlfriend's daughter.
"The pediatrician who examined the victim testified that he examined her 'to evaluate her for an allegation of sexual abuse.' The victim 'was about 10 years old' at the time. The pediatrician asked the victim if the defendant 'had put his penis inside her; she said yes.' He asked her 'if this had happened before, and she shyly said yes,'" the decision says.
She attempted to reduce his sentence to 10 years, citing a clerical error that led the judge to misread his punishment and also argued to waive the testimony of a retired detective. Graham did not dispute that Ortiz was guilty of the offenses. The Supreme Court affirmed the sentence and dismissed Graham's arguments.
Ortiz was not the only convicted child rapist Graham assisted.
She challenged a kidnapping charge against a man convicted of attempting to sexually assault a 7-year-old girl he lured away from her driveway. Daniel Casanova, then 37, was convicted in 2011 of attempted sexual assault and attempted kidnapping charges and was sentenced to between 10 and 20 years in prison.
Graham, then an assistant appellate defender in the Concord office, argued that it was unclear whether Casanova meant to "penetrate" or merely touch the child "for sexual gratification." The Supreme Court dismissed that claim, though agreed to dismiss the kidnapping charge by merging it into the sexual assault conviction. His sentence was not reduced.
Graham, who now serves as the managing attorney at the Manchester public defender's office, did not return request for comment.
Graham's history of defending child rapists caught the attention of Executive Council Republican member David Wheeler, one of five councilors responsible for approving judicial nominations. While he said he is sympathetic to the necessity of public defenders and that they do not get to pick and choose their clients, he saw Graham's pursuit of dismissals over "technicalities" as "disturbing.
"This is something that is very disturbing information and we need to look into it a bit further. The way I understand the facts is that this appeal was more of a minor technicality. If I was a defense attorney, my conscience wouldn't be able to handle that," Wheeler told the Washington Free Beacon. "The difference on [Graham's] case is whether the defendant's rights were violated in a serious way or whether it was really her trying to get a guilty person out of a penalty for his heinous crime."
Hassan nominated Graham and five other lower court judges and lawyers to important state posts on Oct. 6. She praised the public defender and her colleagues for their "experience, character and integrity."
"They have each demonstrated an unyielding commitment to public service and justice, while possessing the temperament and character needed to be an effective judge," she said in a press release.
Hassan's office did not return request for comment.
The nominations were vetted by a commission run by the New Hampshire Bar Association. Commission co-chairs Emily Rice and James Rosenberg did not respond to inquiries about whether the commission was aware of Graham's involvement in the child rape cases.
All judicial nominees must be approved by the 5 member New Hampshire Executive Council, which is made up of three Republicans and two Democrats.
Republican councilor Joseph Kenney said that they were caught off guard by Hassan's handling of judicial nominations. She gave the council no advanced notice of her choices, breaking from the traditional nomination process. Kenney said that the council has not yet been able to thoroughly vet the nominees, but will change that when Graham and her other potential appointees testify before the council on Monday.
"Quite frankly, we were caught off guard last Wednesday. We found out when she put forth a press release," Kenney told the Washington Free Beacon. "I would be inclined to slow down the process and review each applicant and give the public their due process to find out who these nominees are."
Neither of the two council Democrats returned requests for comment.
Graham will appear before the executive council on Monday. The council will issue its decision as soon as Wednesday.