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N.H. CO wins use-of-force case

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Posted over 8 years ago


Officer used pepper spray against rowdy inmate

By Margot Sanger-Katz

Concord Monitor


CONCORD, N.H. — A former Merrimack County jail guard accused of assaulting an inmate was acquitted of the charge in a jury trial last week.

Barry Lee of Tilton was found not guilty of one count of simple assault after about an hour of jury deliberation, according to his lawyer, Paul Maggiotto.

Lee was accused of spraying an inmate at the Boscawen facility in the face with pepper spray while he was "handcuffed, sitting and not posing a threat," according to the indictment. But Maggiotto disputed that description, saying the inmate, who had a history of run-ins with corrections officers, was belligerent, yelled and refused to sit down. Lee's use of the pepper spray was appropriate to ensure the safety of the officers, he said.

"Barry Lee used OC spray, as he was trained to do, which was used to prevent other corrections officers from being harmed by a threatening, noncompliant, somewhat out-of-control inmate," Maggiotto said in an interview yesterday.

Wayne Coull, an assistant Merrimack County attorney who prosecuted the case, said he respected the jury's decision but could not comment on the case, because of a related, pending court case.

Lee, who was a corporal at the time of his arrest, was fired after his indictment. Maggiotto said Lee had a 17-year career working for the county without any disciplinary problems. Lee will appeal his dismissal now that his court case is over, Maggiotto said.

"He shouldn't have lost his job, and I hope he gets his job back," Maggiotto said. "This poor guy is devastated."

Lee is one of four Merrimack County jail guards to face charges related to inmate discipline since February 2007. Shawn R. Cunningham of Franklin was convicted in May of two counts of simple assault for shoving an inmate and knocking him to the ground. In March, Aaron Little of Franklin was accused of fracturing a 59-year-old inmate's femur and hip in an assault.

Salvatore Mills of Gilmanton is scheduled for trial later this fall on charges that he was an accomplice to Lee's alleged assault and on witness tampering charges. According to court papers, Mills held the inmate's head while Lee sprayed his face and warned other guards to stay silent if they were asked about assaults at the jail.

Copyright 2008 Concord Monitor