Paper work snafu results in overturned conviction

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BRATTLEBORO — A man who was found guilty of two counts of violating an abuse prevention order in 2014 had his conviction overturned by the Vermont Supreme Court.

According to a decision filed by the Supreme Court on March 1, the court in Windham County failed to mail a final protection order to Timothy O'Keefe as required by New Hampshire state law, where the original abuse prevention order was issued. Because the order was not mailed to O'Keefe's New Hampshire address, it was not "validly served," wrote Associate Justice Harold Eaton in the decision.

O'Keefe is currently being held in Vermont on a $25,000 bond as fugitive from justice in the state of New Hampshire.

The prosecution argued that the final protection order issued in Vermont had been served on O'Keefe's New Hampshire attorney, but Eaton noted that still wasn't enough.

"Nothing in New Hampshire law provides that service on an attorney meets the service requirements ..." wrote Eaton.

In 2014, O'Keefe, now 50, was cited with two counts of violating an abuse prevention order and one count of obstructing justice after he made contact at the courthouse in Brattleboro with a woman he was prohibited from contacting. The woman was at the courthouse for a custody hearing in relation to a child she had with O'Keefe.

In April 2012, O'Keefe was sentenced to two years in prison for aggravated stalking and had been prohibited from contacting the woman. According to an affidavit filed by an officer with the Brattleboro Police Department, while O'Keefe was incarcerated at the Lee Adjustment Center in Beattyville, Ky., he made phone calls to a relative asking him to find out where the woman was living. O'Keefe then asked the relative to get a gun and hold it for him until he got out of jail. The relative declined the request.

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O'Keefe allegedly contacted another relative, stating "I'll pay you to take a ... day off and go over there and beat her up, take her ... phone and unblock (my phone number)."

O'Keefe was also accused of sending a threatening letter to former Windham County Probation and Parole Officer Henry Farnum, stating he would "trim (Farnum's) family tree until it looks like a telephone pole."

As a result, a New Hampshire court, where the woman was living at the time, issued a permanent order of protection against O'Keefe. The state of Vermont argued that he violated the New Hampshire order when he approached the woman in Brattleboro, but O'Keefe said he didn't know that order was in force in Vermont.

"In a [violation of an abuse prevention order] prosecution, the State is required to prove there has been a violation ... after that order was properly served on the defendant," noted Eaton.

According to the Supreme Court's decision, an abuse-prevention order issued in another state is enforceable in Vermont if the defendant has received notice of the order in compliance with the requirements of the issuing state; the order is in effect in the issuing state; the court in the issuing state had jurisdiction over the parties and the subject matter under the law of the issuing state; and in the issuing state the law gives reasonable notice and opportunity to be heard to the person against whom the order is sought sufficient to protect that person's right to due process.

Because the state did not satisfy the Vermont statute, wrote Eaton, the New Hampshire abuse-prevention order was not enforceable against O'Keefe in Vermont and his case should not have been presented to a jury.

"In any event, the issue here is not actual, or even constitutionally sufficient notice, but rather compliance with the service requirements of the issuing jurisdiction, whatever those may be," wrote Eaton. "In the absence of evidence that the final order had been served on defendant by proof of mailing it to his last known address, the State failed to prove service in compliance with New Hampshire law... . As a result, the State has not established the final order was enforceable in Vermont pursuant to [Vermont statutes] and defendant's motion for judgment of acquittal should have been granted."

Bob Audette can be contacted at 802-254-2311, ext. 160, or raudette@reformer.com.


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