Judges urged to reinstate conviction in fatal New Hampshire accident

Anthony Dilboy was convicted on charges related to a deadly 2006 crash. He is still incarcerated, although the Supreme Court vacated some of the convictions. Department of Corrections via AP

CONCORD, N.H. - A prosecutor argued yesterday that the state Supreme Court should reinstate the convictions of a man who ran a red light while on a mission to buy heroin and killed two people in Dover six years ago.

Last year, the US Supreme Court vacated the manslaughter and reckless homicide convictions of Anthony Dilboy, 53, on constitutional grounds and sent his case back to New Hampshire’s Supreme Court.

Yesterday, Assistant Attorney General Nicholas Cort asserted that the evidence against Dilboy varies greatly from that in a New Mexico case on which the high court based its order vacating Dilboy’s convictions.

Both cases involve criminalists testifying about the results of tests that other analysts had conducted.

Dilboy was convicted in the March 2006 crash that killed Marc Vachon, 34, and his nephew, Alexander Bean, 17. Dilboy remains incarcerated.

Dilboy told officers at the scene that he was a heroin addict and had taken drugs that morning to ease withdrawal symptoms. He was on his way to Portsmouth to buy heroin when the accident occurred, prosecutors said.

Cort stressed that in Dilboy’s case, Dr. Michael Wagoner analyzed the raw data before testifying about trace elements of morphine and Clonazepam, an antiseizure drug, detected in Dilboy’s blood and urine.

But Associate Justice Carol Ann Conboy asked if the Dilboy case is “more problematic’’ than the scenario before the US Supreme Court in Bullcoming v. New Mexico. In that case, the high court overturned a drunken driving conviction against Donald Bullcoming because it was based on a lab report that prosecutors admitted through an analyst who had not generated the report.

“In this case, Wagoner has to assume the [lab] protocols were followed,’’ Conboy said.

“No one ever doubted the lab protocols were followed,’’ Cort replied. “The defense expert agreed. The defense expert said there’s no point in retesting the sample. The results are clear.’’

“How do we know the analyst who actually did this didn’t have an ax to grind against the defendant,’’ Associate Justice Robert Lynn asked.

Cort told the judges that the drug test evidence had no bearing on Dilboy’s manslaughter convictions, but was relevant to the jury’s verdicts on reckless homicide and whether Dilboy was impaired at the time of the accident.

Public defender Stephanie Hausman asserted that Wagoner testified that he had not done the testing and that he was the only person from the forensic lab who testified at trial.

“His testimony conveyed both his opinion and the opinion of the missing analysts,’’ Hausman said. “The testing process is important and can only be testified to by the person who performed the test.’’

Chief Justice Linda Dalianis noted distinctions between the Dilboy and Bullcoming scenarios, but acknowledged that some of her colleagues would differ with her.

The New Hampshire judges did not indicate when they would rule on the case.