University of New Hampshire

School of Law

School of Law

UNH Law’s Appellate Defender Program Heads To US Supreme Court

On Nov. 2, UNH Law’s Appellate Defender Program will argue before the United States Supreme Court, marking a first for the school, the attorneys working on the case and their students, who have had a front-row seat to the case through the Appellate Defender clinic.

The case, Perry v. New Hampshire, centers on the question of eyewitness identification. The defendant, Barion Perry, was accused of breaking into a car in Nashua in 2008, when a witness spontaneously pointed to him as he was being detained by a police officer. The witness later admitted that she did not recognize Perry by his face, and she did not identify him at trial. Perry’s petition to the US Supreme Court points out the conflicts between state and federal courts on the issue of reliability of eyewitness identifications, and the high court’s decision on the case will have broad-ranging implications.

Public Defender Richard Guerriero is counsel of record on the case, and 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, who graduated from UNH Law in 2006. The Appellate Defender is operated jointly by the New Hampshire Public Defender and the University of New Hampshire School of Law.

"The Perry case affords the law students in the Appellate Defender clinic a rare, and I would even say perhaps unique, opportunity to participate in the preparation of a case and an advocate for oral argument in the United States Supreme Court,” Johnson said. “It is at the same time an opportunity to contribute to the development of constitutional law in a way that will affect cases around the country. How often can 2Ls and 3Ls say that they were involved in the representation of a party to a case that next year's 2Ls and 3Ls will study in their casebooks?”

Guerriero said it is an honor for the program to have the opportunity to make an argument at the US Supreme Court. “At this point in Perry, we are mostly reorganizing, refining our points, and trying to make sure we have answers to the questions we anticipate,” he said. “We’ll find out soon enough whether our expectations have been accurate.”

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 clinic allows students to assist Appellate Defender attorneys in writing appeals and in preparing oral arguments, thereby learning the essential skills of an appellate lawyer.