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Bad Jury Instruction Clears Police Watchdog

(CN) - A jury was wrongly instructed when it found the founder of a police watchdog website guilty of felony wiretapping, the New Hampshire Supreme Court ruled.

Adam Mueller runs the website, a police accountability website that documents police misconduct.

"We do not 'hate cops,'" the website's "About" section says. "We believe that no one - not even those with badges - has extra rights. The failure to realize and act on that is to our detriment. By focusing the disinfecting light of transparency on public officials we safeguard not just our rights but those of future generations."

In 2011, Mueller called three people asking for their comments about an incident captured on video involving a student and a police officer at West High School in Manchester, N.H.

These people were Capt. Jonathan Hopkins of the Manchester Police Department, West High Principal Mary Ellen McGorry, and her assistant Denise Michael.

The video, posted on YouTube, showed Officer Darren Murphy roughly push 17-year-old Frank Harrington III onto a cafeteria table, the New Hampshire Union Leader reported. The student was charged with disorderly conduct and resisting arrest.

When making these telephone calls, Mueller videotaped himself, recorded the calls, and posted the recordings on - without asking his interviewees permission to record the conversations.

Months later, he told a radio interviewer that he had not asked for permission to make the recordings, and the police opened an investigation.

Mueller was charged with three counts of felony wiretapping, represented himself at a one-day jury trial, and was convicted.

But the Supreme Court of New Hampshire overturned the convictions Tuesday, because the trial court wrongly told the jury it must decide whether Mueller "purposely" recorded the conversations.

The statute defines felony wiretapping as "willfully intercept[ing] ...any telecommunication or oral communication."

"Here, the erroneous mental state of purposely merely required the state to show that the defendant had the 'conscious object' to record the conversations without the consent of all the parties. However, it did not require the state to prove that the defendant was either aware of or recklessly ignorant of the fact that recording the conversations without consent was against the law, the very proof that was required in order to establish that he acted willfully," Justice Robert J. Lynn said, writing for the five-justice panel.

While there was overwhelming evidence that Mueller intended to record the phone conversations, the evidence that he willfully violated the law is "far from overwhelming," the court found. "Thus, there is the very real prospect that the jury would have returned different verdicts had it been properly instructed."

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