The Appeals Process

The same evidence sometimes means a different verdict



illustration by brittany inglese

Rain and fog could have dampened the mood, but with classes finished and Thanksgiving the next day many of the undergraduates at the University of New Hampshire were naturally in a celebratory mood. But it would end tragically — as two young men collided, sending one to prison and the other to his grave.

Just after midnight on November 21, 2004, Kevin Whittaker, then a 19-year-old freshman from Nashua, was behind the wheel trying to navigate the poor visibility with his brain clouded with alcohol. He was heading south on Durham’s Main Street at 35 mph. At the same time, Richard Hegerich, a UNH sophomore from Hanover, Mass., was walking back to his dormitory from his 20th birthday party. Clad in dark clothing, nearly as drunk as Whittaker (.16 blood alcohol level; Hegerich,.14) and in the roadway, not the crosswalk, Hegerich was hit and thrown 162 feet. He died at the scene of multiple blunt trauma to his head.

But Whittaker didn’t stick around; he panicked and fled the scene. Soon after, he was pulled over and charged with drunk driving. At 8:30 a.m., Whittaker told police that he never saw the victim until he “felt a thump.” He then said, “If my headlight wasn’t out, I might not have killed him. Six inches, that’s it. Six inches and the guy would have made it across the road and would be alive. He almost made it across the road. I saw him bounce off the corner of my car at the right headlight area.”

"Whittaker didn’t stick around; he panicked and fled the scene. Soon after, he was pulled over and charged with drunk driving."

The case was a tragedy to be sure, but legally it seemed like a slam dunk. The facts weren’t in doubt and the cause of death, which is the critical question for vehicle negligent homicide, seemed clear enough: the defendant’s impairment caused the accident. In other words, if Whittaker had not been drunk, he wouldn’t have hit Hegerich. In January 2006, following a five-day jury trial, Whittaker was convicted of two different negligent homicide charges and one felony count of conduct after an accident, scolded by the judge for showing “no remorse” and sentenced to 7 1/2 to 22 years in prison. 

While in prison, Whittaker and his family considered appealing the conviction and ended up at the Concord law office of Douglas, Leonard & Garvey, with Attorney Rick Lehmann, a former state prosecutor. Overturning a court decision is never easy. The process is arduous, expensive and entirely different from a trial court. There is a standard legal phrase that catches the spirit of the appellate court — “deferential standard of review” — that means the appellate courts tend to lean toward respecting or upholding a lower court decision. They are really an “error-correcting court,” says Joshua Gordon, a Concord lawyer who only does appeal work. 

An appeal can be filed 30 days after a ruling is issued. “It’s not a second bite at the apple,” Lehmann says, “There is no new evidence. You’re stuck with the facts.” The appeal must be narrowly focused around an error of fact or of law that significantly contributed to the ruling. The appeal also must demonstrate a “claim of preservation [of an error].” It must prove that the error was brought up and the trial judge was put on notice. Often this is the reason that attorneys shout out “objection,” but it can also be done quietly and privately to the judge. The thread of an appeal must be tied back to the case. While this is the beginning, for many it goes no further. 

Most states have “intermediate appellate courts” that handle appeals that don’t reach the level of the top court, but not New Hampshire. The five-member Supreme Court is the state’s only appellate court. Each year approximately 900 appeals are filed, but only around 170 are granted an oral argument. Many times parties can reach an agreement before the court rules on an issue. The court has discretion to pick cases that merit their review but some criminal cases — like first degree murder convictions — get an automatic or mandatory oral argument.

"Stone cold sober or intoxicated, you, me and Dale Earnhardt Junior could have been driving at the same time and the same thing would have happened."

The oral arguments themselves are short — with each side getting just 15 minutes, though they are very intense. Appellate courts are often referred to as “hot courts” because they don’t simply listen but aggressively engage attorneys in a legal game of pepper, where their positions must be defended. “Every time I feel beat up,” Gordon says, “[regardless] of outcome.” There is little relationship, he says, between the tone of questioning and the ruling.

Lehmann, Whittaker’s attorney, built an appeal on a mix of law and fact. First, by insisting that Whittaker’s former attorney failed to provide him adequate representation or what is called “ineffective assistance of counsel” and second, because he didn’t consult an accident reconstruction expert. The prior is a matter of law, the latter of fact. Lehmann asked for a new trial based upon expert testimony that said, based on all the conditions (fog, rain, dark clothing, traveling speed, etc.), the “earliest possible time” at which a driver could have seen a pedestrian was two seconds. “Stone cold sober or intoxicated, you, me and Dale Earnhardt Junior could have been driving at the same time and the same thing would have happened,” Lehmann says. But the same judge who convicted Whittaker was unmoved and turned down the request. The case was then appealed to the Supreme Court.

The Supreme Court agreed with Lehmann and said the state relied on “circumstantial evidence” and that the expert testimony “could have raised reasonable doubt as to whether the defendant’s impairment actually caused the accident.” They said the Superior Court erred, reversed the negligent homicide conviction and remanded the case back to them for a new trial. State prosecutors, seeing the writing on the wall, negotiated a deal where Whittaker pleaded guilty to a reduced offense and with four years served was released from prison. Even though this is a heart-rending case and drunk driving is socially unacceptable, Lehmann says justice was served. Whittaker is “still responsible for being drunk,” he says, “but not killing someone.”

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