Copyright 2018 Union Leader Corp.
All Rights Reserved
The Union Leader (Manchester, NH)
BRENTWOOD -- The judge presiding over the trial of a youth hockey coach charged with assaulting a police officer and criminal threatening after a scuffle with Salem police is taking a second look at a gag order issued in the case.
Judge Andy Schulman described the order as "overbroad" after hearing arguments from the defense of Robert Andersen of Wilmington, Mass., the prosecution and the American Civil Liberties Union of New Hampshire.
Andersen is being represented by former New Hampshire Attorney General Michael Delaney, who said his client was not present for the dispositional hearing at Rockingham County Superior Court on Wednesday because of a scheduling error on his part.
Delaney was attorney general from 2009 to 2013 and is now the director of litigation for the McLane Middleton law firm. Delaney was retained by Andersen this summer after Andersen parted ways with his first attorney in this case, Christopher DiBella.
The profile of the case rose in April after news reports citing several witnesses present at the Dec. 2 scuffle criticized Salem police for arresting and using a stun gun on Andersen. Several parents told media outlets that Andersen was attempting to mediate a verbal argument between parents from opposing teams following a game.
Soon after the news reports, police arrested two parents in May who were present at the Dec. 2 altercation; Christopher Albano of Reading, Mass., and John Chesna of Revere, Mass. Both men face misdemeanor charges of disorderly conduct, simple assault and criminal trespass.
Superior Court Judge Marguerite Wageling issued a gag order on any information from police reports being shared by parties involved in the case.
Last month, the ACLU weighed in with a Right-to-Know lawsuit against the town of Salem. It later withfrew its civil action and motioned to intervene on Andersen's criminal case with motions to lift the gag order.
Judge Schulman was new to the case and spent much of the hearing catching up on the backstory and hearing arguments for and against the order.
The concern expressed by Gilles Bissonnette with the ACLU was that the public has a right to know the basis of the allegations against Andersen and the police reports would aid in an investigation into whether the arrests of Albano and Chesna were an attempt to chill witnesses for the defense. Albano had previously spoken to the media defending Andersen and criticizing police.
"These are not routine orders in a criminal case," Bissonnette argued before the judge. He said the order was unconstitutional.
Delaney argued the scope of the order was so broad that it impacted his defendant's due process rights and hindered his own investigation and his ability to interview witnesses.
"It clearly limits the ability to adequately prepare a defense," Delaney said. "There is no reason whatsoever that there should be a restriction on a defendant's use of information."
Assistant County Attorney William Pate, representing the state in the case, said the reasoning for the order came after an initial news report by a Boston news channel. He said that extensive coverage risked tainting a future jury pool.
"If we make it fully public like this, we're going to try it in the news," Pate said. The order was an attempt to "keep some control of the criminal proceeding," he added.
Schulman said he would issue a new order soon. He didn't say what the order would be, except that it would at least enable Delaney to prepare his defense.
"My sense is this is an overbroad order and a sort of rare order," Schulman said.
During the hearing, Pate recounted portions of the police reports that the ACLU is trying to make public, stating that Chesna went onto the ice during the hockey game and threatened the timekeeper after his son was penalized.
Pate said Andersen was standing over a parent identified as "Mr. Griffin" with his arms raised when police arrived. He said the officer who first approached Andersen "doesn't know that Mr. Andersen is defending" the parent.
Andersen backed up and then walked toward the officer. That's when police detained Andersen, fired a stun gun at him, and with the help of three or four officers, brought him to the ground.
The second half of that scuffle can be seen in cellphone videos taken by parents who were there. The videos were shared with a Boston news station, which aired them.
While the defense's version of events closely mirrors what parents told the media this spring, Pate said the state received a "boon" from the media coverage in the form of evidence against Andersen that flowed in after, such as witness testimony stating Andersen was "out of control."
After the hearing, Bissonnette was careful not to call the decision a victory, saying he will wait to see what the new order states, but he was thankful for the opportunity to present his arguments before the court.
Andersen's trial is scheduled for May 6 and is expected to last at least five days.
Read More of Today's AB Headlines
Subscribe to Our Daily E-Newsletter