Lawyers call for judge to throw out bulk of Ayer evidence

By ANDREW WOLFE, Telegraph Staff

NASHUA – Lawyers for Daniel Ayer filed a series of motions Friday asking the court to throw out most of the evidence against him.

His lawyers argue that Ayer was so upset after shooting a city social worker, he was in no shape to understand when police read him his rights. Ayer also charges that police ignored his requests to consult a lawyer.

Ayer, 35, formerly of 78-B Kinsley St., is accused of shooting Mark Rowland, 36, of Manchester, on the morning of Aug. 20, 1999, after Rowland went to Ayer’s home for a scheduled visit.

Ayer was arrested shortly after the shooting and has been held without bail. He faces life in prison without chance of parole if convicted of first-degree murder.

On Friday morning, Hillsborough County Superior Court Judge Bernard Hampsey conducted an unusual, closed hearing in Ayer’s case. Bailiffs ordered a Telegraph reporter and any other members of the public to leave the courtroom, then locked the doors.

It is unclear what the hearing was about. Hampsey offered no explanation for closing the court and refused to hear the reporter’s objections. Each of the lawyers in the case refused to comment on the hearing afterward, and one said that Hampsey had issued a gag order.

Ayer’s case file wasn’t available from the court Friday afternoon, so it’s not clear whether Hampsey issued any orders related to the hearing.

Under New Hampshire case law, all pretrial proceedings in criminal cases are presumed to be open to the public, unless a "clear and present danger" to the defendant’s right to a fair trial can be shown.

The hearing lasted about half an hour. Present during the hearing were Ayer and his lawyers, public defenders Richard Guerriero and Julia Nye; the prosecutors, Assistant Attorneys General Kelly Ayotte and Simon Brown; and Nashua Police Officer Scott Anderson and James Donchess, an attorney who represents the police patrol officer’s union.

Anderson and Officer Matthew Eskridge arrested Ayer shortly after the shooting, after following his truck into Hudson.

Both officers reported that Ayer made various, spontaneous statements about the shooting shortly after his arrest, saying that he "had to" shoot Rowland "so that somebody would listen."

Anderson’s and Eskridge’s accounts differ as to exactly when Ayer made the statements and when Anderson read him his Miranda rights, Ayer’s lawyers stated in their motions.

"Daniel Ayer has no recollection of being read his Miranda rights at the scene of the arrest. Either warnings were not read or Mr. Ayer was incapable of understanding the warnings ... because he was under extreme emotional distress" at the time, his lawyers argue.

Because Ayer couldn’t knowingly waive his right to remain silent, his comments shouldn’t be used as evidence, his lawyers argue.

Ayer told police he shot Rowland because he was angry with the state Division of Children, Youth and Families, which he felt was breaking up his family, according to court records. Rowland worked for the Nashua Children’s Home, but he was working with the Ayer family through a service arrangement with DCYF.

Ayer also argues that police ignored his later requests to consult a lawyer during interviews with detectives.

Prosecutors hadn’t yet seen Ayer’s motions Friday afternoon, and Brown said he couldn’t comment on them.

Ayer contends that the detectives’ failure to tape-record the first hour and a half of their interview violated his rights because it prevents him from proving that he asked for a lawyer during that time.

City police routinely read people their rights and ask them to sign a waiver before taking tape-recorded statements. Ayer’s motion doesn’t mention whether he signed such a form, but he did give a taped statement after speaking with detectives for about 1½ hours.

During the taped statement, Ayer again said he wanted to consult a lawyer before talking about the shootings, his lawyers argue. Ayer’s motion doesn’t cite the detectives response, but the interview continued, his lawyers said.

Ayer argues that anything he said either before or during the taped statements shouldn’t be used as evidence.

Ayer also argues that the search of his truck was illegal because police relied on his statements to get the search warrant. He argues that the evidence police found during the search – mainly guns and ammunition – should be suppressed and not allowed into his trial.

Ayer’s trial is tentatively scheduled to begin July 11, while a hearing on his motions is scheduled for May 8.

Andrew Wolfe can be reached at 594-6410 or by e-mail at
wolfea@telegraph-nh.com.