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Jim Kenyon: A Debt, a Fight, Public Shaming and a Prosecutor’s Leverage

  • Dana Key at his business in Lebanon, N.H. on April 20, 2017. (Valley News - Jennifer Hauck) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. Valley News photographs — Jennifer Hauck

  • Thomas Hamel, of Lebanon, N.H., runs down a Lebanon street with his dog Lola on a skateboard on Dec. 24, 2013. Lola, 5, has been riding skateboards since she was about six months old. She pushes herself along and also glides with all four paws on the board. (Valley News - Jennifer Hauck) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

  • Valley News columnist Jim Kenyon in West Lebanon, N.H., on September 15, 2016. (Valley News - Geoff Hansen) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. Geoff Hansen

Published: 5/7/2017 12:35:06 AM
Modified: 5/9/2017 6:51:50 PM

It began with a knock on the front door of a Lebanon apartment around 9:30 in the morning.

Dana Key, a Lebanon contractor in his early 60s, had come to see Tom Hamel, a 24-year-old former employee, about an unpaid debt. In the doorway of the second-floor apartment, Key and Hamel had words. Punches followed; teeth were lost. Glass was shattered; blood was spilled. Both men required medical treatment; neither was hospitalized.

I’ve talked with Key and Hamel, separately, about the Feb. 23 incident on Pine Street. It was a personal dispute. Nobody else was hurt. Other than a $12 pane of glass, which Hamel has since replaced, there was no property damage. Still, both men were charged with crimes that, if proved, could send them to prison. They also face fines that potentially could reach a combined total of $8,000, plus court fees. Then there’s the lawyers to pay.

But regardless of how their cases turn out, Key and Hamel have already suffered everlasting consequences. Lebanon police made sure of that.

After Key and Hamel were arrested, police posted their mug shots and details of the altercation on the department’s Facebook page. If that wasn’t enough of a public shaming, Lebanon cops then allowed Facebook users to have at the two men online.

All for what end?

I imagine many people — particularly, law-and-order types — would disagree, but this didn’t need to become a criminal matter.

Key and Hamel injured only each other. In essence, both were victims. And since when did we start punishing victims? But there’s no going back. As a lawyer friend says, “Once you involve the police, you’re no longer in control.”

Key and Hamel now find themselves at the mercy of a criminal justice system that when not bent on locking people up is helping the state collect every dollar that it can.

The objectives are often achieved through a practice that’s known in the criminal justice world as “overcharging.” Police and prosecutors routinely bring charges that seem disproportionate to the alleged acts.

Authorities are aware that many defendants lack the resources to fight the original charges leveled against them. Other defendants forsake going to trial because the stakes — particularly if incarceration is a threat — are too high to risk a courtroom defeat.

So they agree to a plea bargain. Nationally, 95 percent or more of criminal defendants plead guilty in exchange for a lesser punishment.

Which brings me back to Key and Hamel.

Both men were stunned to learn that they’d been charged with offenses that carry prison sentences. Or, for that matter, any crimes at all.

But before I dive further into this cautionary tale of what might happen when police exercise questionable judgment in treating a personal dispute as a criminal matter, here’s some background:

A Sense of Responsibility

Key, a site-improvement contractor, was putting in a new sidewalk at Dartmouth-Hitchcock Medical Center in the spring of 2015 when a young man approached.

“I’ll do whatever you need me to do,” said Tom Hamel, who had been at the hospital with his girlfriend and their newborn son.

Hamel was completely candid. He’d had his share of brushes with the law, which cost him his driver’s license, and his freedom for a while. But he was trying to turn his life around.

“He had holes in his pants and his shoes,” Key recalled. “I could tell by the way he dressed that he was a hard worker.”

Key hired him, and was glad he did. If Key needed someone to work on Saturday mornings, he could count on Hamel. Knowing Hamel didn’t have a driver’s license, Key sometimes picked him up at his Pine Street apartment, a few blocks down the hill from the Lebanon Fire Station.

After regaining his driver’s license, Hamel started car shopping. On a job site, he found a homeowner who was selling a used Honda.

Over the years, Key has loaned money — interest free — to employees who were in a pinch. They’d repay him in installments out of their paychecks.

“If you ask Dana for help, he’ll help you,” said Ron Garvin, who has worked for Key for 18 years. “He’s good like that.”

When Garvin needed $2,500 to put toward a house, he turned to his boss. “I couldn’t have done it without him,” Garvin said. “I paid every dime back.”

About a year ago, Hamel asked to borrow $1,200 to buy the Honda, Key said. In the beginning, Hamel kept up his part of the bargain, making regular payments.

Last summer, Hamel found a job as a house painter, which he found more appealing. Hamel, who comes from a family of painters, sports a large tattoo of a paintbrush on his rib cage.

He hadn’t finished repaying Key, but promised to keep up with payments. He did — for a while.

“He impressed me,” Key said. “I felt he was developing a sense of responsibility.”

When the loan’s outstanding balance fell to $100, however, Hamel stopped coming by Key’s office. Key called him a few times. With an infant son and all, Hamel told Key, he was short on cash, but he hadn’t forgotten.

Months went by. The cellphone number that Key had for Hamel stopped working. Over the winter, one of Key’s employees ran into Hamel on the street. Hamel said he was waiting for his income tax return to finish paying off the loan. (Hamel told me that he borrowed $700, not $1,200, but acknowledged that he still owed $100.)

On the morning of Feb. 23, a Thursday, Key was driving in Hamel’s neighborhood to check on a job. He pulled up outside the house on the corner where Hamel lived on the second floor with his girlfriend, Denine Daniels, who works at a Lebanon restaurant, and their son.

Key and his wife, Lori, were leaving for Austria the next day on a ski trip. Obviously, $100 wasn’t going to make or break him. So I had to ask: Why did he bother trying to collect from Hamel?

“I was trying to teach him about honoring his debts,” Key said. “I didn’t care if he couldn’t pay the whole 100 back at once. Ten or 20 bucks at a time would have been fine. But he didn’t want to hear it.”

Hamel told me that he didn’t appreciate Key showing up unannounced. “I told him to leave and he wouldn’t,” Hamel said. “I was going to give him his money as soon as I got my tax (return) check.”

While they argued, Daniels emerged from the bedroom. Their son, almost 2 years old, was nearby. When Hamel tried to shut the apartment door, Key blocked it with his foot, police said.

The two men differ drastically on what happened next.

Key said that Hamel threw the first punch, hitting him in the head. Key responded with a fist to Hamel’s jaw. “The first time in my life that I’ve ever thrown a punch at someone,” Key said.

Hamel disputes Key’s sequence of events. He said that Key threw the first punch, which broke a partial dental plate for two of his front teeth.

“Dana comes to my house over a hundred dollars and knocks out my teeth in front of my son,” Hamel said. “He’s got a powerful punch for an older guy.” (Nearly 40 years older but much bigger: Hamel, who is 5-foot-3 and weighs about 140 pounds, was giving away 8 inches and 50 pounds to Key.)

After exchanging punches at the top of the stairs, the fight ended — at least by Hamel’s account. Key started down the steep stairwell, but lost his balance and crashed into the glass door, Hamel said.

“I never touched him,” Hamel said.

Key is adamant that he didn’t trip going down the stairs. Instead Hamel pushed him from behind, hurling him headfirst into the glass door. With cuts to his face and forehead, Key was collecting himself outdoors when a neighbor across the street apparently spotted him and called police.

An Unexpected Ride

Two ambulances dispatched to the scene took Key and Hamel to Dartmouth-Hitchcock Medical Center.

While Key was getting his facial cuts attended to (no stitches were required), Lebanon police officer Zachary Lawrence waited outside the treatment room.

After getting patched up, Key agreed to talk with Lawrence. At the end of the interview, Lawrence asked if he wanted to press charges against Hamel.

“I don’t think so,” Key replied.

At that point, Key figured it was over — and the officer would give him a ride back to his pickup.

Key got a ride — just not the one he was expecting.

Lawrence informed Key that he was under arrest. The officer led Key out of the hospital in handcuffs and stuffed him into the back of a police cruiser.

“I was flabbergasted,” Key said. “It was so humiliating.”

At the police station, Key was fingerprinted and photographed. Before being released, Key learned that he would be charged with second-degree assault — a felony — for recklessly causing serious bodily injury to Hamel by knocking out two of his teeth.

If convicted, Key, who has no criminal record, faced a prison sentence of 3½ to 7 years.

Meanwhile, police were also talking with Hamel, who was treated and released at DHMC for the injury to his mouth.

Unlike Key, however, Hamel wasn’t escorted out of the hospital in handcuffs. He went home believing no one would accuse him of acting criminally in his altercation with Key.

“I had every right to defend myself,” he said.

But two weeks later police notified Hamel that he would be heading to court, too. He turned himself in at the police station, where he was booked on two simple assault misdemeanors for causing bodily injury to Key.

“I was a victim, and now I’m being charged,” Hamel said. “It makes no sense.”

I was curious why police waited two weeks before arresting Hamel.

Lebanon Chief Richard Mello and Ben LeDuc, the city’s prosecutor, told me they can’t discuss ongoing cases. Both said it’s not unusual, however, for criminal investigations to take weeks, sometimes months, to be completed.

Facebook Fallout

The decision to handle this matter criminally had immediate consequences for both men.

The ink was barely dry on Key’s fingerprints before Lebanon police posted a news release about his arrest on the department’s Facebook page. They included a blown-up version of his mug shot that prominently showed the cuts to his forehead, nose and chin.

“You can’t fix stupid,” commented a Facebook follower.

“I would like to see what the other guy looks like,” wrote another.

After Hamel turned himself in, police posted his mug shot and arrest information that drew more Facebook comments.

“Takes a real punk to hit an old guy from behind,” a Facebook user wrote. “What a coward.”

Police across the country use Facebook to publicize arrests to “let the citizenry know that the department is active” in combating crime, said Bobby Sand, an associate professor at Vermont Law School.

But it’s important to remember that arrests and charges are “nothing more than allegations,” Sand said. “The presumption of innocence is a foreign concept to many Facebook commenters.”

Mello, Lebanon’s chief since December 2015, disagrees with critics, like myself, who characterize police use of Facebook as a form of public shaming. He argues that it’s done to improve transparency about police matters.

Still, he was bothered that some Facebookers were using Lebanon’s police page to “ostracize people.” With that in mind, Lebanon police stopped posting information, including mug shots, on new arrests a couple of weeks ago.

Providing information on arrests through Facebook is more accepted in other communities, said Mello, who spent more than two decades in law enforcement in southern New Hampshire before getting his first chief’s job in Lebanon.

“I have to be able to adapt and course-correct when necessary,” he said.

But for Key and Hamel, the change in the way Lebanon police use Facebook comes too late. The damage was done.

“If this had been at the beginning of my career, it would have buried me,” Key said. “I would not have been trusted enough to develop a business in this town.”

A Different Lebanon

Key is what I call “old Leb.” He and his wife have raised their four children here. The son of a contractor, he moved to Lebanon from Rhode Island when he was just starting in business.

With a rented backhoe and $36,000 bank loan to buy a used dump truck and pickup, Key began from scratch 36 years ago.

His company, D.R. Key, now has a half-dozen employees who work out of a large construction yard near the Lebanon-Enfield line. The bulk of the company’s work involves the use of heavy equipment to install sewage, water and drainage pipes.

“Dana came to Lebanon and fit right in,” said Jim Vanier, who is about as “old Leb” as it gets. “He’s a hard worker who embedded himself in the community. He helps out wherever he can.”

Key is a regular contributor to Lebanon youth sports programs and sponsors basketball teams in the annual Karp’s Klassic, the city’s version of March Madness that’s been around for decades.

Vanier, a Lebanon High three-sport standout in the late ’60s, has worked for the Carter Community Building Association, the city’s nonprofit youth recreation organization, since 1973.

Over the years, he’s nurtured generations of Lebanon kids who would hang out at the rec center after school and during the summer.

Tom Hamel was among them. From an early age, Hamel had some “rough edges,” Vanier said, but “when he came here, he was fine. He wasn’t disrespectful.”

When I talked with Hamel at his apartment on a recent Saturday, he said he was a bit of a “skateboarding punk” as a teenager. Several criminal convictions, including breaking and entering, landed him in jail.

A former employer described Hamel as a “good kid and hard worker who just couldn’t seem to stay out of trouble.”

But the birth of his son two years ago led him to take stock of his life, Hamel said. “I’m straightening out,” he told Vanier when they crossed paths in downtown Lebanon.

“He’s really stepped up at home,” said Daniels, who I talked with over the phone. “He’s been amazing.”

Vanier recently saw Key outside the post office in downtown Lebanon. Vanier hadn’t seen the Lebanon police Facebook page, but he’d heard bits and pieces about the altercation the old-fashioned way — the city’s grapevine.

“It sounded so out of character for Dana,” Vanier said. After they talked, Vanier walked away shaking his head. The idea that Key and Hamel had both been arrested and threatened with imprisonment didn’t jibe with Vanier’s view of, well, old Leb.

“I can remember a time when two guys would get into a fistfight, eventually shake hands, and that was it,” he said.

Changing Times

Last year, Lebanon police made close to 1,400 arrests — an average of roughly 4 per day and a 15 percent increase in five years. Those arrests resulted in 1,649 charges being filed in Lebanon District Court. Less than 5 percent of the cases went to trial, which is in line with national statistics.

In 2012, The New York Times reported that 96 percent of state cases, nationally, end in plea deals, with defendants pleading guilty in exchange for lesser sentences.

Overcharging plays a big role.

“Overcharging is epidemic throughout the country,” said Norwich defense attorney George Ostler, who has been in practice for 34 years. “The key to any negotiations, whether it be in business or the criminal justice system, is leverage. Police and prosecutors know this.”

And how’s the leverage used?

“It helps orchestrate plea deals,” said Sand, the Vermont Law School professor. “Without plea agreements, the system would collapse. It’s the oil that greases the machine.”

Sand should know. He served as Windsor County’s state’s attorney, an elected position, for 15 years before moving into academia.

“The criminal code gives prosecutors extraordinarily broad latitude,” Sand said. “Often, there’s an array of charges that could be brought.

“Every charge filed in court implicitly involves a subjective assessment by the prosecutor. A lot depends on the philosophy they’ve adopted. A prosecutor who is broadly supportive of (court) diversion and other non-punitive models will route more cases that way than a more punitive prosecutor who philosophically supports a more traditional approach.”

LeDuc, the city’s prosecutor, takes exception to the belief that overcharging drives plea negotiations. “I never file charges just to gain leverage,” he said. “I file charges based on what happened; what the facts are and what I can prove.”

Although officers on the street usually file the initial charges, LeDuc has “complete autonomy” in deciding whether charges should be reduced, ramped up or dropped before entering the court system, Mello said.

LeDuc was hired as Lebanon’s city prosecutor in 2015. He’s the city’s first full-time prosecutor with a law degree. Around the courthouse, LeDuc, 34, is known for his professionalism and fairness. In my dealings with him, I’d certainly agree.

But it’s still important to keep in mind the role he plays. “In general, prosecutors file charges with almost always the goal of obtaining a conviction,” Sand said.

Which makes plea deals the key to success.

With less than 5 percent of Lebanon cases going to trial, LeDuc said, he’d like to think that’s an “indication of reasonable offers” to defendants on his part.

Last year, only 33 of LeDuc’s cases — less than three a month — ended in a district court trial. They resulted in 31 guilty verdicts and five not-guilty decisions. (Some defendants faced multiple charges, bringing the number of decisions to 36.)

LeDuc acknowledged that if more defendants sought trials, the city would be hard-pressed, financially, to keep up. Even with 95 percent or more of cases being plea bargained, the city could use another full-time prosecutor, Mello said.

Questions Worth Asking

I’ve been looking into the altercation between Key and Hamel for several weeks. I still don’t understand how justice is being served.

Why did Hamel get hit with two charges and Key with one? Why was Key charged with a felony, and not Hamel?

Why was Key arrested at the hospital, and not Hamel?

Why did police ask Key if he wanted to press charges if that had no bearing on what they ultimately did?

If nothing else, the cops could have spent more time trying to sort it out. Slapping handcuffs on Key at the hospital smacks of overzealous policing. In a lengthy conversation at his office last week, Mello reiterated that he couldn’t talk about the case because it’s still working its way through the court system.

But, generally speaking, officers are trained that if they can “establish a crime has been committed, they take the person into custody,” he said. “We give officers appropriate training and the discretion to make those decisions. Sometimes, people don’t like those decisions.”

And sometimes, I’d argue, people wish police had used their discretion more judiciously.

Playing the Game

The Key and Hamel cases give a glimpse how the system works depending on where you stand on the socio-economic ladder.

After his arrest, Key hired Lebanon attorney Peter Decato, who has practiced in his hometown for 44 years, which qualifies him for “old Leb” status.

The means to hire a private attorney gave Key an advantage.

Unlike the vast majority of people who get arrested in Lebanon, Key had a veteran lawyer who could negotiate on his behalf.

Prior to Key’s first court appearance last month, LeDuc offered to reduce the felony charge to a “Class B” misdemeanor, which carries no jail time, Decato said. In exchange, Key would forfeit his right to a trial in Lebanon District Court.

“It’s a game, as prosecutor, that he gets to play,” Decato said. “I don’t condemn him for it. I’m grateful the offer was made. It eliminates the risk of a felony conviction.”

As of Friday, the two sides were still working out the details of the plea bargain. Key is amenable to paying for Hamel’s two front teeth to be replaced.

Last Monday, Hamel made his first court appearance — without an attorney. Since he’s been charged with “Class A” misdemeanors, which carry the potential of a combined two years behind bars, he’s entitled to a public defender, providing he meets certain income guidelines.

The court granted Hamel’s request, with the understanding that he’ll pay at least $275 toward his legal expenses. Taxpayers will pick up the rest.

A hearing is scheduled for June 13 — the day after Hamel’s 25th birthday. When we talked outside the courtroom Monday, Hamel was pretty adamant that he would seek a trial.

Something tells me that won’t be the case. By charging — or overcharging, as I see it — Hamel with two “Class A” misdemeanors, Lebanon police and LeDuc left themselves room to negotiate.

You might even call it leverage. The charges could be reduced to “Class B” misdemeanors, which don’t carry jail time. The maximum fine for each offense would also drop from $2,000 to $1,200.

So the state still collects, and the city can chalk up another criminal conviction.

“I can’t believe this whole thing has escalated over $100,” Hamel told me. “It’s a lot more than that now.

“It’s just bad for both of us.”

Jim Kenyou can be reached
at jkenyon@vnews.com.




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