Note: episode transcripts are radio scripts - please keep that in mind as you come across notations and errors in the text.
Previously on Bear Brook, Season 2: A True Crime Story:
[Neal Scott] Alright from the top again, Jason. When were you first contacted?
[Jason Carroll] July 27, 1988.
[Neal Scott] To do what?
[Jason Carroll] Kill Sharon Johnson.
[Neal Scott] [Officer] By whom?
[Jason Carroll] Tony Pfaff.
[Roland Lamy] I want you to explain to the jury if you will and I know it’s very difficult to do this but I must ask you // how does Tony Pfaff feel about having participated in the murder of Sharon Johnson?
[Tony Pfaff] I feel bad. And I’m sorry it took place. And I wish it’d never even happened.
[Cliff Kinghorn] Karen basically said to me, // “All kinds of promises have been made to him and I trust Roland Lamy explicitly” and we got into kind of a heated discussion. // I never doubted for a minute that she was made promises. Lamy made promises to her that he could never possibly keep.
…
By the year 1991, the state of New Hampshire had their story of who killed Sharon Johnson. They had arrested three people and charged them all with capital murder.
Ken Johnson, Tony Pfaff, and Jason Carroll waited in separate jails for their day in court. None of them could afford to pay for their own attorney, so the court assigned them each a different team of lawyers.
A judge also decided to try each of them separately. They faced different sets of charges in addition to capital murder. For instance, Jason and Tony were charged with kidnapping, since it was they who allegedly abducted Sharon from the mall. And Tony alone was charged with sexual assault for allegedly touching Sharon’s breasts during the attack. Though that particular charge was later dropped.
And so the stage was set for three trials. Each with a different defendant, a different set of defense lawyers, and a different jury. Ken was scheduled to be tried first. Then, Tony. Then, Jason.
[mux in]
For the defense teams, it was a complicated situation. Their interests were aligned – but only so long as they were all pleading not guilty and not testifying against each other. At any time, one of the three could try to cut a deal with the state and turn on the others.
Ken was represented by Buzz Scherr and Jim Moir.
[Buzz Scherr] What would you do in that circumstance if you were Carroll or Pfaff? You know, I think the odds were that one of them would flip rather than they’d both hang tough.
[Jim Moir] Right.
[Buzz Scherr] I mean, that was the anxiety on our part. It’s – it would be hard to believe when faced with a capital charge that you’re not going to flip to save your life.
[mux post]
But by the fall of 1991, about two years since they were all arrested, Jason and Tony hadn’t flipped.
One possible reason for that: the three defense teams joined together and successfully argued that New Hampshire’s death penalty law, as it was written then, was unconstitutional.
Back then, only juries could impose the death penalty in New Hampshire. So if a defendant pled guilty before trial, before a jury was seated, they’d be sentenced by a judge, and therefore escape the death penalty. The defense lawyers argued - and the courts agreed - that undermined defendants’ constitutional right to a trial by jury since by definition, that was the more dangerous route for them.
So the death penalty was now off the table for Ken, Tony, and Jason.
[mux out]
Ken’s trial was scheduled to start in just a few weeks. And the prosecutors were in a real bind. Unless Jason or Tony agreed to testify as witnesses, the state could not enter their confessions as evidence against Ken.
That’s because the sixth amendment to the constitution gives criminal defendants the right to confront witnesses who testify against them. If Jason or Tony words were going to be used to say that Ken was guilty, Ken’s lawyers had a right to cross-examine Jason and Tony.
But Jason and Tony didn’t have to testify because of the fifth amendment to the constitution – the right to remain silent and not incriminate themselves.
The lead prosecutor told a reporter he and his staff spent countless hours trying to find a way around this. But in the end, they couldn’t.
So in October of 1991, prosecutors did something they really, really did not want to do. They dropped all the charges against Ken Johnson. No matter how convinced they were that Ken was guilty, without Tony or Jason's testimony, they just didn’t have a case.
[Jim Moir] The reason I remember this so well is that we picked him up from the jail, they were releasing him. And (sighs) my car was in the shop that day and I had borrowed my mother’s car. And my mother’s car had a unique license plate, it said “GRANNY.” And so we jumped in the car, // we went to pick him up from the jail, and there’s press all outside. // I’m in the car waiting, like the getaway car, and I think, Buzz, you got out and said, “Come on, Kenny, let’s go” and for some reason, Ken decided instead of getting in the car and driving away, walking across the street to Dunkin’ Donuts, with the press following him – the cameras, everything, following him. And we’re saying, “Come on, come on.” He got himself a cup of coffee.
Jim says Ken said nothing to the reporters. He just calmly bought a cup of coffee, and then walked back to the car.
[Jim Moir] My mother then saw it on channel 9 news that night and saw her car. She was really pissed. “What are you putting murderers in my car for?!”
Even the mother of Ken’s lawyer seemed to think he was guilty. But the state knew they couldn’t win at trial, so they let him go.
Ken, the state’s lead suspect almost from the moment Sharon was murdered, was a free man.
Now, it was just Tony and Jason - each facing life in prison.
This is Bear Brook Season 2: A True Crime Story. I’m Jason Moon.
[mux up and out]
…
[Mark Sisti] What did we walk into? // The fact-pattern was horrendous. I mean, a kidnapping, a brutal murder of a pregnant woman and you know, this is something that… You’re starting basically with two-and-a-half strikes against you before you step in the box.
This is Mark Sisti, one of the lawyers who defended Tony Pfaff. I talked with him and his former partner Paul Twomey. They worked together for decades. By their count, they defended as many as 80 people charged with murder. Talking to them feels like talking to two brothers who grew up together. They have lots of stories. Like the time their office burned down.
[Paul Twomey] The fire was a good story, too.
[Mark Sisti] Oh god…
[Jason Moon] Well, go on. //
[Paul Twomey] One of our clients is reputed to have set it, who –
[Mark Sisti] Was looking for something.
[Paul Twomey] No, no, no, he wanted a continuance – we were his sixth lawyers and the first five quit because they were afraid of him. And we were the stupid ones who took number six!
[Mark Sisti] Sure, we’ll take the case! (laughter)
[Mark Sisti] We took it on a Thursday and it burned down on like a Monday… (fade out)
[mux in]
For a time - and probably still today - Mark and Paul were among the most famous defense attorneys in New Hampshire.
Mark wears a ponytail and silver spectacles. Picture a Ben Franklin grizzled by dozens and dozens of homicide trials. It feels like he’s always on his feet in a conversation – always quicker than you are.
And Paul… Paul somehow managed to operate a small farm on his property while also practicing as an attorney. His tall face looks out at you from beneath a head of thick silver hair.
For years, all the high-profile cases seemed to go to Mark and Paul. Just a few months before they were to set to defend Tony Paff in trial, they defended Pamela Smart, who you might’ve heard of. Smart was accused of conspiring with teenage boys to kill her husband.
[Prosecutor] Do you want this jury to understand that Bill Flynn decided to kill your husband because you broke up with him?
[Pamela Smart] I want this jury to understand the truth.
Her trial attracted national attention. It was the first murder trial in the U.S. to be televised live from start-to-finish – which meant Mark and Paul were on TV a lot. People knew them.
And now, once again, Mark and Paul were appointed to a case where someone was accused of conspiring with teenagers to kill their spouse.
[mux out]
Tony’s trial would all come down to his confession. That’s because there was no other evidence against him.
Police found no physical evidence linking Tony to this crime. No fingerprints in Sharon’s car. No shoe impressions at the construction site. Nothing that proved he’d been with Sharon or was at the site where her body was found.
Police also couldn’t find evidence to corroborate key parts of Tony’s confession. Like the idea that Tony was paid by Ken to commit the murder. Or that Tony and Ken had talked on the phone in the days before they killed Sharon. Police couldn’t find any bank statements or phone records to back up either.
No physical evidence. No paper trail. Just Tony’s words on a tape – and whether 12 jurors would believe them.
The trial began on December 4th, 1991.
[mux in]
You already know what the prosecutors say happened. So I’m going to tell you about the case that Mark and Paul put on for the jury. As a story, it had two main themes.
One: Tony’s confession is just not true.
[Mark Sisti] It wasn’t your typical confession case. Things just weren’t adding up. And it clearly appeared to be a coerced false confession case, right out of the gate. //
[Paul Twomey] I mean, it was clearly not true. It was clearly a not true confession.
Clearly not a true confession. To convince the jury of that, Mark and Paul directed their attention to parts of Tony’s confession where he says things that just didn’t line up with reality.
One example of that comes near the middle of Tony’s taped confession.
(fade up)
[Roland Lamy] What happens now?
[Tony Pfaff] We get in our vehicles and leave.
[Roland Lamy] OK, what vehicles are we talking about now?
(fade down)
By this point, Tony has told Detective Roland Lamy that he, Jason, and Ken all murdered Sharon at a construction site.
Tony says after that, he and Jason got back into Sharon’s green Subaru and drove it right back to the mall.
[Roland Lamy] What happens? You get in the car…
[Tony Pfaff] I shut the car- we get in the car, we go there back to the mall, we put the car back behind the mall by the food court and Sears, get out of the car, and put the keys in my pocket.
[Roland Lamy] Alright.
This statement is a big problem for the investigators.
Remember the mystery of the car from the early investigation? Sharon was murdered on a Thursday, but her car wasn’t found at the mall until Saturday. And yet, here in Tony’s confession, he’s saying they left it there on Thursday, the same night as the murder.
But it’s not just the wrong night. It’s also the wrong location. The part of the parking lot Tony just said he left the car in – between the food court and the Sears – is not the area where Sharon’s car was found. This is a mall parking lot, so it’s huge - goes around the whole building. And in reality, Sharon’s car was found on a whole different side of the mall, near the Sears automotive entrance.
So Tony’s story about the car has a few issues. And during the interrogation, it seems like Lamy knows it. A few minutes later, he circles back to this detail about the car.
[Roland Lamy] The car was moved again. Can you explain how that happened?
[Tony Pfaff] No.
(long pause) (mux out)
[Roland Lamy] You took the keys, you said. Where did you park it at the Sears parking lot?
[Tony Pfaff] I told one of the officers where I parked it. I don’t remember what aisle it was, but it was not exactly in front of the food court, it was in between the food court and Sears.
Again, this is not where Sharon’s car was actually found. Lamy tries again.
[Roland Lamy] Now, let me ask you a question, OK? I know you’re having a hard time remembering, and I don’t want to put any words in your mouth, but is it that you don’t remember if you went back and got the car again at this time, or is it that you simply do remember that you only left it there once and took the keys? Did you go back out to the car the next day, that night, later that night into the morning?
(long pause)
[Tony Pfaff] (off-mic) I went back to the car. (on-mic) I went back to the car.
[Roland Lamy] Ok could you please explain that and with whom?
[Tony Pfaff] It was by myself.
[Roland Lamy] Alright. Why did you go back to the car?
[Tony Pfaff] (off-mic) To make sure I didn’t leave anything– (on-mic) To make sure I didn’t leave anything behind.
[Roland Lamy] OK. Did you move it at that time? Did you go for a ride with it? Did you leave it someplace? Did you take it someplace and bring it back another day?
[Tony Pfaff] No. I didn’t go anywhere with it.
[Roland Lamy] Mmm-hmm.
Despite being asked about it repeatedly and despite the hints from Lamy, Tony’s story about Sharon’s car just doesn’t line up with what police know. Tony’s confession puts the car back at the mall on the wrong night and in the wrong location.
…
And there were plenty of other examples for his defense attorneys, Mark and Paul, to choose from.
Like how, in describing Sharon’s murder, Tony mentions a total of four stabs. Two from Jason, two from him. In reality, Sharon was stabbed 14 times.
Or how Tony says Sharon was fully clothed when she was stabbed. In reality, Sharon’s bra had been cut open with a knife in the front before she was stabbed.
Or how Tony says he left the keys to Sharon’s car underneath the seat. When police found her car, the keys were nowhere to be found.
And then there’s this story Tony tells about meeting with Ken after the murder. It’s maybe the biggest difference between Tony’s confession and the known facts.
Tony says sometime after the murder – doesn’t say exactly when – he drove to Ken’s house to talk with him.
[Tony Pfaff] And he asked me if I had told anybody and I said, “No, I haven’t told anybody.” And he asked me about Jason.
[Roland Lamy] Were you with anyone when you went to his house this time?
[Tony Pfaff] Nope, it was by myself. I was driving a ‘81 Malibu Classic.
[Roland Lamy] What color?
[Tony Pfaff] Blue.
Detective Lamy has been trying to pry specifics from Tony this entire tape recording. And here’s a rare instance where Tony delivers: He said he drove his car, a blue 1981 Malibu Classic to see Ken at his house after the murder.
Only, Tony definitively did not do that.
[mux in]
We know that because 12 days before the murder at 3:20 a.m. Tony was pulled over in his blue ‘81 Malibu Classic for a broken tail light. Tony was driving with a suspended license. He was arrested. His car was impounded. And Tony never got the Malibu Classic back.
So Tony’s confession includes a scene where he’s driving a car that in reality was held by the police at that time. By the Allenstown Police, in fact. The town that includes much of Bear Brook State Park. The cop handling Tony’s case for that arrest was someone you might remember: Ron Montplaisir.
[Ron Montplaisir] You talk about noise complaints, the country music was blaring! [laughs] Not that I don’t like country music. I do like country music…
[mux post & out]
…
Tony’s confession didn’t line up with the physical evidence. But that wasn’t the only thing Mark and Paul wanted to show the jury.
There were also all the inconsistencies between Tony’s confession and Jason’s. As far as Mark and Paul saw it, Jason’s confession was good for Tony’s case. If they were both there, why were their stories so different?
But they had a problem. Remember how prosecutors couldn’t bring in Jason’s confessions to a trial for Ken without calling Jason as a witness? Well, Tony’s defense couldn’t either.
In Tony’s trial, Jason’s confessions were legally considered hearsay – not allowed as evidence. The basic idea behind the hearsay rule is to keep unreliable gossip from leaking in through someone’s testimony.
But the hearsay rule has lots of exceptions and the arguments around them can get notoriously complicated.
And during the hand-to-hand legal combat of Tony’s trial, Mark and Paul successfully argued one of those exceptions did apply in this case.
[mux in]
The judge allowed the jury to hear Jason’s confessions partly because Tony’s confession was recorded after Jason’s. Tony heard Jason’s confession at the construction site, and Lamy referenced what Jason said while interrogating Tony. Mark and Paul argued that influenced what Tony said and whether it was reliable.
For the jury to fairly weigh that argument, they needed to hear Jason’s confessions, too.
[mux post]
And so, with that bit of clever legal maneuvering, Jason’s confessions entered Tony’s trial. It was a bold move for Mark and Paul. The judge told the jury Jason’s tapes were only to be taken to judge the reliability of Tony’s confession, and not for the truth of the matter. But still, the jury was going to hear Jason say Tony stabbed and strangled Sharon.
But Mark and Paul felt it was worth it. The inconsistencies were too glaring. And so they made sure the jury heard lots and lots of them.
[mux post]
Like the motive for the murder. Tony says in his confession that Ken wanted Sharon killed because he was deep in debt.
Jason says, at first, he wasn’t told why Ken wanted his wife dead. Then, later, Jason says it was because Sharon had caught Ken raping his daughter and doing “some very other criminal acts.”
At the construction site, Jason says Ken and Sharon had a big argument before they stabbed her. Tony says Ken emerged from somewhere nearby only after Sharon had been stabbed.
Then there’s the murder weapon. Jason says the knife they used to kill Sharon was his – a brown, folding pocket knife. Tony says the knife they used was white and silver and belonged to Lisa Johnson, Ken’s daughter.
The money. Tony says Ken Johnson paid them $10,000. Jason, at first, says he was paid $500. Then $2,000. Then, finally, he says they split 10 grand. Tony says Ken paid them at his house on the night of the murder. Jason says they were paid in the morning two days later.
[mux out]
…
Why didn’t Tony’s confession, Jason’s confession, and the physical evidence all line up?
To Mark and Paul, the answer was obvious: Detective Roland Lamy. His conduct – his character – that was the second theme of their defense.
[Mark Sisti] I mean, the facts he wanted to come out were the facts that he would’ve been comfortable with, with regard to the theory of his case, the way he looked at it. But sometimes that won’t match up with reality.
Mark and Paul knew Lamy well. They’d faced off with him before in court. They actually kinda like him. But, according to Mark and Paul, Lamy had a tendency to will his theory of a case into existence.
[Paul Twomey] I never got the sense that he tried to convict people that he thought were innocent. I mean, I never got that sense at all. But I think he would do what it took to get confessions and do what it took to convict people he thought were guilty and that’s a dangerous thing – I mean, it is.
I talked to a number of other defense attorneys who had clients Lamy investigated. And they all agreed Lamy had this reputation. But none of them could point me to a specific instance where Lamy crossed a line.
So whether that reputation was founded, I don’t know. But it’s what Mark and Paul saw here: a detective assured of his own theory, who through intimidation and insinuation, got Tony to confess to that theory.
[mux in]
Mark and Paul saw a whole alternate version of the story of Lamy’s investigation. One that answered the question: Why did Tony say all of this if it weren’t true? What would motivate him to do that?
That’s after the break.
[mux out]
[OUTSIDE/IN “THE UNDERDOGS” PROMO BLOCK]
************************MIDROLL***************************
Mark Sisti versus Roland Lamy was the main event of Tony Pfaff’s trial. A showdown between two veterans of their trades. Cop versus lawyer. Interrogator versus cross-examiner.
[mux in]
Mark cross-examines Lamy for hours. One of the things he hones in on is how Tony acted during the investigation. Behaviors that Mark says just don’t make any sense if Lamy’s theory is true.
Remember how when Lamy first makes contact with Tony, Tony agrees to help in the investigation and they go down to the motel in Rhode Island and try to get Ken to incriminate himself?
I don’t have the audio of Tony’s trial, but it’s not hard to read the sparks into the transcript of the courtroom back-and-forth between Mark and Lamy on this.
Mark is basically saying, it’s crazy to think that Tony would volunteer to fly up to New Hampshire to help police catch the guy who paid him to commit murder. Why would Tony be trying to entrap his own co-conspirator, who could just as easily take Tony down with him?
Mark says, “That’s absolutely ridiculous isn’t it?” Lamy fires back, it’s not ridiculous if Ken knew police were listening.
Mark says, “Okay. Now, we're going to hear some objective fact that Ken Johnson knew the police were listening. Tell the Jury the objective fact.”
Lamy says, “It's just a conclusion.”
Q. [Mark Sisti] It's a conclusion without any support, right, Sergeant?
A. [Roland Lamy] Pretty much.
Q. [Mark Sisti] Could we - we call that speculation, right?
Lamy is forced to answer, “yes."
[mux post & out]
If Tony really killed Sharon, why did he agree to fly from North Carolina to New Hampshire to help in the investigation – twice? Once in March of ‘89 when he tried to entrap Ken Johnson. And again about eight months later when he walked right into Lamy’s trap at the construction site.
Lamy said it was because Tony was conning them – trying to throw police off the scent. But Mark and Paul had a different story about a 19-year-old kid under the thumb of state police. About serious incentives for Tony to make stuff up that were just off-stage in the police’s telling of the story. And about a detective who was willing to lie to make his theory of the case come true.
[Mark Sisti] And that was everything. That was the beginning to the end: You’re going to see a lying cop. Can you stick with us on this?
[mux in]
Let’s rewind the clock and hear the story of Lamy’s investigation as told from Mark and Paul’s perspective.
Sharon Johnson is murdered in July 1988. For six months, police can’t solve it. They can’t figure out who this “Bob” is that Sharon was supposed to be meeting the night she was killed, and they can’t figure out who moved Sharon’s car.
Lamy takes over the case in January of 1989. By March, he has a hunch that Tony might know something. But he has a hard time finding Tony. So he calls some of his relatives.
Lamy talks to a couple: Deborah and George Gagnon. They will become key characters in Lamy’s alleged manipulation of Tony.
[mux post]
To the Gagnons, Tony was technically an “ex-step-nephew.” But not technically, Deborah and George were like parents to Tony.
Deborah Gagnon testified at Tony’s trial that when Lamy called looking for Tony, he asked her “if we thought if Tony was asked to move a car from point A to point B, if he would do it, and I said yes.” In his own testimony, Detective Lamy agreed this is what happened.
This means that Lamy had the notion in his head that Tony moved Sharon's car before he ever even talked to Tony. When Lamy finally gets Tony on the phone, lo and behold, Tony tells him Ken asked him to move Sharon’s car.
[mux out]
But why would Tony say even that much, if it weren’t true? In Mark and Paul’s story, the answer is leverage. Lamy had leverage over Tony.
Tony had several warrants out for his arrest when Lamy first called him. Motor vehicle violations that Tony had failed to appear in court for. He also owed child support payments to Lisa Johnson, Ken’s stepdaughter.
Mark and Paul argued that all of this provided a powerful incentive for Tony to play along with whatever Lamy had in mind, since Lamy could arrest him at any moment on his outstanding warrants.
The implication from Tony’s lawyers was that he was just trying to say or do whatever he thought Lamy wanted so he could avoid consequences. Like, maybe say he moved a car when he really didn’t.
And whether this view of events is accurate, once Tony starts cooperating, Lamy does pull strings for him. He calls the local PD that held Tony’s arrest warrants and they put the warrants on an inactive status. Tony learns: Play along with the cops, get favors.
And Mark and Paul weren’t arguing here that Lamy was knowingly planting a false story in Tony. Instead, they implied Lamy just got fooled. A kind of confirmation bias. He squeezed Tony. Tony talked. And what Tony said matched Lamy’s preexisting theory.
[mux in]
And Detective Lamy wasn’t shy about squeezing people, as this next moment shows.
In the fall of 1989, Lamy is looking for Tony for the second time. By this point, Lamy believes Tony was directly involved in the murder. He thinks Tony was playing him during their trip to Rhode Island. But again Lamy can’t find Tony.
When Lamy calls Tony’s parental figures, Deborah and George Gagnon, they tell Lamy they’re not sure where he is either. But Lamy doesn’t believe them. And to provide a little extra motivation for the Gagnons to find Tony - he lies to them.
Lamy tells the Gagnons he thinks Tony has AIDS.
[mux post]
Remember, this is 1989 when Lamy says this – just a few years before the peak of the AIDS crisis in America. Deborah testifies she was so frightened, she drove her entire family to the doctor’s office and asked to have them tested.
By the way, Lamy lying to people like this: totally legal. And, eventually, it seems to work; he does get Tony on the phone again.
And Lamy, who still has the same leverage over Tony, the inactive arrest warrants, the child support payments, convinces Tony to come back to New Hampshire once again.
Only this time, Lamy is luring Tony into a trap. At the construction site, Tony is confronted by Jason and his confession. Tony says Jason is crazy. He says none of that ever happened. He tries to tell Lamy he didn’t even move the car like he originally said.
But now it’s too late. Lamy is convinced Tony is guilty.
[mux up & out]
Police interrogate Tony for three hours before they turn the tape recorder on. At one point, Tony asks to see Deborah and George Gagnon. Lamy calls them and they drive to the police station. They arrive about an hour-and-a-half into Tony’s interrogation.
At Tony’s trial, Deborah testifies when they arrived Tony’s eyes were wide and bloodshot. She says he looked liked a wild animal. George says he looked like death warmed over.
Deborah testifies Lamy kept telling Tony over and over again, “It’ll be easier if you cooperate.” Deborah testifies Tony kept saying he had nothing to confess to.
Deborah testifies that at one point during the interrogation, Tony leaned onto her and whispered, “I'm just going to tell them what they want to hear because they're not going to let me out of here unless I do."
Finally - and this is according to the police report - Tony threw up his arms and said, “I’m ready.”
And that’s when the detectives turned on the tape recorder.
[Neal Scott] Tony, are you aware that this is being recorded?
[Tony Pfaff] Yes.
[Neal Scott] Would you speak up, please?
[Tony Pfaff] Yes!
[Neal Scott] Thank you.
(fade out)
So this is the alternate version of the story that Tony lawyers, Mark and Paul are putting forward during the trial.
Lamy bullied a 19-year-old Tony into confessing to his pre-existing theories of the case.
It was by no means a sure thing. There’s still a taped confession where Tony Pfaff says he stabbed Sharon Johnson. A lot of what the Gagnons testified to was disputed by police testimony. The inconsistencies in Tony’s confession could be explained as simple mistakes in his recollection. And convincing a New Hampshire jury that a state police detective was a liar? Remember, it’s 1991. It would be hard to pull off today, even harder then.
But then Lamy does something that will change the course of the trial. Something that plays right into Mark and Paul’s strategy.
After a long day of being cross-examined by Mark, Lamy goes home and takes a phone call.
[mux in]
At the beginning of just about every criminal trial, the judge issues an order which says witnesses are not allowed to talk to each other until the trial is over.
[Mark Sisti] It’s important so that they don’t get together and, you know, meld their stories – make ‘em right.
It’s a pretty basic rule, common to virtually every criminal trial. But on this night, when Lamy gets home and picks up the phone, he breaks that rule. He gets a call from another potential witness in the case. His partner, Detective Neal Scott.
[mux post]
According to Lamy, he and Neal talked about the fact they would be questioned about Jason Carroll – which they were not expecting. Lamy says he told Neal he was going to have to “spend the night reading” their old reports. Lamy said, "I'm afraid I might screw up and not remember the details.” Neal allegedly told Lamy he wouldn’t remember either if he was called to testify. They say they weren’t trying to coordinate their testimony, though at one point, Neal acknowledged they weren’t supposed to be talking about that.
We’ll never really know what was said on that phone call. The only reason we know it happened is because the prosecutor handling the case accidentally interrupted it. He called Lamy that night while Lamy was on the phone with Neal. When Lamy switched lines to answer the call from the prosecutor, he said, “Hold on, I’ve got Neal on the phone.”
Maybe Lamy blurted that out because he didn’t think it was a big deal. Or maybe he didn’t think the prosecutor would actually tell the judge.
But he did.
[mux out]
[Mark Sisti] It turned into a trial inside of a trial. Which was a great opportunity for us, actually.
It became the most significant moment in the trial. Witness testimony was postponed for a week while hearings about this phone call were held. Detectives Lamy and Scott were forced to hire their own lawyers. Mark and Paul tried to have the whole case dismissed – the judge didn’t go for that. But still, it was more than Mark and Paul could’ve hoped for.
[Mark Sisti] I think it was huge. I mean our whole thing was that he was a dirty cop, and then he got to prove it in front of the jury. //
[Paul Twomey] The judge // he was just furious. And the jury could tell he was furious. And he gave them an instruction that Roland had disobeyed a court order and they were free to disregard everything he said, which, you don’t hear that instruction very often from judges.
[mux in]
In his closing argument, Mark had no mercy for Lamy. He called him a liar. He said he’d shamed police work. And Mark did not let the jury forget how Lamy had violated the court order.
Mark said, “At the beginning of this case, we asserted he couldn't be trusted and guess what? He proved it himself last Tuesday. Not to somebody on the street, but to you, to the judge, to everybody in this court.”
The prosecutor, Michael Ramsdell, fought back by arguing Lamy and Neal’s phone call was a moot point since Neal wasn’t even called as a witness. He said the defense had attacked Lamy from the beginning to distract jurors from the real evidence: Tony’s confession.
[mux out]
And with that, after 15 days, Tony’s trial ended. Now it was up to the jurors.
In the legal world, jurors are known as finders of fact. They are burdened with a profound, almost magical power and responsibility to decide what actually happened. To transform a story into a verdict.
[Robert Hoglund] And I said– one time, by the way, I had told them that they could take the Robert’s Rules and shove ‘em where the, uh, where the sun don’t shine.
Robert Hoglund was not impressed by the magic of being a juror. He especially did not like the way the jury foreperson ran the deliberation.
[Robert Hoglund] She said, “You’re out of order” to me one too many times. And I said, “I’m not out of order.”
[mux in]
According to Robert, when the jury sat down to deliberate, everyone else was ready to acquit. He was the lone holdout.
[Robert Hoglund] I thought he was guilty. I thought there was no question about whether he was guilty or not. // The jury would’ve come back with a not-guilty within 15 minutes if it wasn’t for me.
Robert says for his fellow jurors, and even for him, the hang up was Detective Lamy. Mark and Paul’s plan to go after the character and conduct of Lamy – it worked.
[Robert Hoglund] This guy was– these people didn’t like that sergeant. And I didn’t like him either. I thought he was an idiot.
[mux post]
[Jason Moon] Do you think that was the number one factor why they voted not guilty?
[Robert Hoglund] Yes. It really was. // There was one person on the jury… Once the jury was handed the case, he walked into the room, he threw his coat down in a corner, got down on that coat and layed there, and said, “You guys can discuss, do whatever you want. Let me know when you’re done. He’s not guilty and I’m not going to change my mind.” // I finally gave in and I shouldn’t have. I knew he was guilty. And I ended up voting not guilty, and that was the final vote. And the judge came in and congratulated us and said we did the right thing and all this crap. And I was sitting there going, shaking my head. //
[Jason Moon] So basically, you voted not guilty just cause it seemed hopeless and you wanted to get out there.
[Robert Hoglund] Basically.
[mux out]
After 6 hours and 46 minutes of deliberation, the jury acquitted Tony Pfaff of all charges. He was free to go.
In the end, the jury didn’t buy the state’s story about Tony. They didn’t believe his confession. And they didn’t trust what Lamy had to say.
And it went beyond the jury. After the acquittal, the Union Leader newspaper, the biggest paper in the state, known for its conservative editorials, published an essay titled “The Lamy Controversy.” The editorial referred to Lamy’s “perceived credibility gap.” It said Lamy’s role in the case should be carefully reviewed. But Lamy’s superiors sprang to his defense. They said he did a QUOTE “excellent job” and that no action would be taken against him.
[mux in]
Jason Carroll’s trial was scheduled to start just two months after Tony Pfaff’s acquittal. Tony’s lawyers publicly called on the state to drop the case after what happened in Tony’s trial. To them, Jason’s confession was even more problematic than Tony’s.
[Mark Sisti] I think that Paul and I think that anybody that knows anything about that case, would say that the big sore thumb sticking out in Carroll’s case is that confession. You can’t shake it. As a professional, you’re looking at, you can’t shake it. I think if you had a police officer today listen to that, they’d go – they’d be horrified. They would never conduct an interrogation like that. // Paul, at the beginning of this, said, “I felt sorry for Jason Carroll.” Now, whether or not he is a murderer or not, OK, I felt sorry for him. And we had a codefendant. And if we could dump it on Jason Carroll to get our guy off, we would’ve, but we didn’t even go in that direction. I mean, that confession was terrible.
[mux post]
The state’s case was falling apart. Ken was released. Tony was acquitted. The only defendant left was Jason.
Remember, in the state’s theory, Jason got involved in the murder plot because of Tony – who a jury just said was not guilty, to carry out a murder for Ken – who the state had just let go because they didn’t have enough evidence.
So how does another jury find Jason guilty?
That’s next time on Bear Brook Season 2: A True Crime Story.
[mux up]
A True Crime Story is reported and produced by me, Jason Moon.
It’s edited by Katie Colaneri.
Additional reporting and research by Paul Cuno-Booth.
Editing help from Lauren Chooljian, Daniela Allee, Sara Plourde, Taylor Quimby, Mara Hoplamazian, and Todd Bookman.
Our News Director is Dan Barrick. Our Director of Podcasts is Rebecca Lavoie.
Fact-checking by Dania Suleman.
Sara Plourde created our original artwork, as well as our website, bearbrookpodcast.com.
Photos and videos by Gaby Lozada.
Original music for the series was created by me, Jason Moon.
Bear Brook is a production of the Document team at New Hampshire Public Radio.