Judge’s overturning of conviction led to prosecutor’s decision not to retry | Courts

“After careful review of our evidence we determined we could not prove the case beyond a reasonable doubt, given the legal standard the court adopted in its order setting aside the verdict,” Assistant Belknap County Attorney Adam Woods said.

Defense Attorney Harry Starbranch of Portsmouth, who represented Eric Weil, said the case “defied the norm in legal practice.”

During his 30 years working as a defense lawyer, Starbranch said, being lied to is part and parcel of the job. When he first met with Weil and heard him recount that in trying to help someone else he was charged with a crime, Starbranch said, he took it with a grain of salt.

“When I got the police report it exactly matched what he was telling me,” he said. “It was like falling down the rabbit hole.”

Last fall, following a 3 1/2-day trial, Weil, 50, was found guilty, but a judge voided the verdict less than a month later holding that the jury’s decision was not supported by the evidence. Woods had planned to retry the case, but formally dismissed the charge on Feb. 11.

Weil was indicted in Dec. 2017 on a Class B felony charge alleging that when he blew the drug into the air “in close proximity” to Alton Police Officer Jamie Fellows, his conduct “placed or may have placed another in danger of serious bodily injury.”

The wording of the indictment further charged that the drug was a deadly weapon, “which in the manner it was used, intended to be used or threatened to be used, is known to be capable of producing death or serious bodily injury.”

In his Nov. 1 ruling, Judge James D. O’Neill III held that the verdict was “conclusively against the weight of the evidence,” adding that the injuries claimed by Fellows were contradicted by his own testimony that his exposure to the fentanyl “caused slight, temporary harm.”

While noting the conflicting testimony regarding how far Weil was from Fellows at the time of the incident, the judge found that the state “offered no direct admissible/competent evidence that fentanyl could produce death or serious bodily injury in the quantity that was inhaled or from inhalation generally and presented only circumstantial evidence that any contact with fentanyl could produce injury.”

Weil testified that his troubles began when he agreed to take in a friend’s son who had just completed a substance abuse treatment program. After Weil’s girlfriend, Belinda McLin witnessed bizarre behavior by their house guest, she suspected drug use. Weil searched a cigarette pack belonging to the man and discovered a folded piece of paper that contained a powder he feared was a drug. He called 911 to summon Alton police to his Gilman Road home on Aug. 24, 2017.

When officers arrived, Weil tried to give the paper to police, but was ordered to put it on the ground, which he did. Frustrated by what Weil perceived as a slow response by police to secure the substance, he picked up the paper and, when some of the powder got onto his index finger, blew the substance off himself or off the paper into the air and toward Fellows.

“These are salt-of-the-earth type of people trying to do the right thing. It’s remarkable that they offered to take (a drug addict) into their home. That’s exactly the type of community-based activity that is needed,” Starbranch said.

“I admire them. I think they were trying to do the right thing. Substance abuse is a horrible plague on society,” Starbranch concluded.