University of New Hampshire

School of Law

School of Law

UNH Law’s Appellate Defender Program to Argue Case before the US Supreme Court

On May 31, the United States Supreme Court granted a petition for review filed by the Appellate Defender Program. The Supreme Court has ordered that the case be briefed and scheduled it for argument this fall. The Appellate Defender is operated jointly by the New Hampshire Public Defender and the University of New Hampshire School of Law.

The case of Perry v. New Hampshire involves the admissibility of eyewitness identification evidence against the defendant, Barion Perry, who was accused of breaking into a car in Nashua in 2008. Criminal courts routinely review the reliability of eyewitness identifications resulting from police procedures. Although the Supreme Court has said in the past that trial courts should review the reliability of all identifications that arise from suggestive circumstances, the Court has never decided whether that rule applies even when the police did not orchestrate the identification. In Perry’s case the witness spontaneously pointed to Perry as he was being detained by a police officer. The witness later admitted she did not recognize Perry by his face. Nor did she identify Perry at trial.

Perry’s petition to the Supreme Court emphasized the conflict between state and federal courts on the issue. Most federal courts review identification evidence for reliability without regard to the involvement of the police. Most state courts, on the other hand, leave the matter of reliability up to the jury if there was no police involvement.

The Appellate Defender stressed the broad-ranging implications of the case: “Eyewitness identification evidence is used every day across the country. The due process principles regulating the admission of such evidence should be clear and consistent. At present they are not.”

Public Defender Richard Guerriero is Counsel of Record on the case. His co-counsel are Deputy Chief Appellate Defender David Rothstein, Chief Appellate Defender and Professor of Law at UNH Law Chris Johnson, and Assistant Appellate Defender Heather Ward ’06.

Johnson said this is the program’s first case, as far as anyone is aware, that has reached the US Supreme Court. “It’s certainly a milestone for the Appellate Defender and a testament to the great work of our staff and the staff of the New Hampshire Public Defender,” Johnson said. “The process of preparing and arguing this case before the Supreme Court will be a valuable experience for us all.”

The Appellate Defender Program, housed at the University of New Hampshire School of Law, is charged with the responsibility of handling virtually all of the indigent criminal appeals from New Hampshire state courts. The program files approximately 100 briefs per year in the New Hampshire Supreme Court, and orally argues some 80 cases per year in that court. The Appellate Defender also serves the UNH School of Law community by offering a clinic in which students assist Appellate Defender attorneys in writing appeals and in preparing oral arguments, thereby learning the essential skills of an appellate lawyer.