Black Lives Matter protester, sentenced to jail, wins new sentencing hearing; judge cites disparity in sentence given co-defendant

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A Market, a South Willow business, prepared for the worst with protective plywood, but also expressed solidarity with Black Lives Matter in preparation for anticipated protests in June of 2020. Photo/Jeffrey Hastings

MANCHESTER, NH – A Superior Court judge, who imposed a 30-day sentence on a Black teen from Nashua on a misdemeanor riot charge connected to last year’s Black Lives Matters protests, has vacated the sentence and ordered a new sentencing hearing because a co-defendant was given no jail time when facing the same charges.

Antwan Stroud, 18, of 1 Oneils Court, Nashua, contended he would never have pleaded guilty had he known co-defendant Kyle Toledo, 21, of Hooksett received no jail time in a plea bargain. Both men originally were charged with misdemeanor reckless conduct and felony riot but the sentencing outcomes were vastly different.

Defense attorneys argued that Stroud’s attorney, Justin Shepherd, should have inquired of the prosecution what was negotiated for a sentence in Toledo’s case.

Antwan Stroud/Photo via Facebook

The two men participated in the protest on June 2, 2020, on South Willow Street where about 100 people had gathered.  According to a police affidavit, people were yelling things like “fuck the police.”  

Police tried to clear them from the streets and a woman yelled “Kyle (Toledo) is lighting off the firework right now.”  She said she brought four or five fireworks and Toledo brought “them all.”  The male “holding the camera,” later identified as Stroud, encouraged Toledo to “light that shit.”

Toledo took the firework from his pocket, lit one and threw it over the heads of a group of people.  The firework landed in a parking space, prompting a nearby car to leave the area.  The group of people continued walking, stopping near the entrance of a shopping plaza.  A police officer, in an unmarked cruiser, was driving toward the exit and stopped at the red light.  While stopped, people in the group began yelling at the officer and Stroud and others spat on his cruiser.  

Stroud later uploaded a video of the incident in which people are seen moving toward an unmarked police cruiser, shouting profanities.

In a plea agreement, Stroud pled guilty to one count of misdemeanor riot and was sentenced to 12 months in the House of Corrections with all be 30 days suspended.  Because of COVID-19, Stroud was given until June 7, 2021, to begin serving his sentence.  In between, he filed a motion to withdraw his guilty plea.

Toledo pleaded guilty to one count of misdemeanor reckless conduct and was given a six-month suspended sentence, 50 hours of community service and had to write an apology letter to Manchester police. 

 “Of those sentenced thus far, Mr. Stroud is the only protester to receive jail time, pursuant to a “capped” plea urged by the State and a sentencing hearing in which this Court was deprived of necessary information,” the defense attorneys wrote in their 177-page filing earlier this year.  “The other sentenced protesters—all White—will not see a jail cell.  Mr. Stroud will.  The difference?  Mr. Stroud is Black.”

Hillsborough County Superior Court Northern District Judge N. William Delker was unaware of Toledo’s sentence at the time he sentenced Stroud to 30 days in jail. 

In vacating the sentence, Delker said the affidavits in support of the arrest warrants were the same for both Stroud and Toledo.  Toledo was charged with felony riot and his charge documents contained the exact same narrative description as Stroud’s initial felony charge.  Judge Amy Messer approved the negotiated plea resulting in community service and no jail time for Toledo.

Delker said the failure of Attorney Shepherd to inquire about Toledo’s status and learn of his plea negotiations “actually prejudiced the defendant; the defendant lost not only the opportunity to bargain for a lesser sentence but actually received a harsher sentence than his co-defendant.”

He said the New Hampshire Supreme Court long ago recognized that “disparity of sentencing…strikes at the fundamental basis of our penal system.  A convicted criminal should generally receive the same punishment as another with like background who has committed the same crime.  This is not a matter for executive clemency but justice to be rendered by the courts.”

The prosecutor, Assistant County Attorney Thomas Craig, also came in for some criticism. At Stroud’s hearing to withdraw his guilty plea, the state attempted to distinguish the two cases by asserting that Stroud pled guilty to more serious and dangerous conduct than Toledo’s crime, according to Delker.  

The judge said the state ultimately has the authority to determine which charges to nolle pross and which to pursue.

“The problem here, however, is that the state failed to justify why it allowed Toledo to plead guilty to reckless conduct while insisting that the defendant here plead guilty to riot.  The Gerstein affidavits in both cases are virtually indistinguishable.  As noted above, both men were charged with the exact same crimes for acting as accomplices to one another.  The state has presented no justification for dropping the riot charge against Toledo or not allowing the defendant to plead guilty to reckless conduct.  In light of the similarities in backgrounds between the two men and the overlap in factual allegations against them, the current disparity cannot rationally be sustained,” Delker wrote.

He said there were aspects of the state’s handling of the case that he found troubling.  The state, he wrote, represented to Shepherd in October 2020 that the plea offer was “the best [he] could do.”  Thereafter, the state reached a more lenient deal with Toledo without correcting its representation about its offer to Shepherd. 

In objecting to Stroud’s motion to withdraw his plea, the state represented to the court: “Kyle Toledo’s case had not resolved before Mr. Stroud’s Jan. 7, 2021 sentencing hearing.”  Delker said while that was technically true, it was “grossly incomplete.”  According to the status conference hearing on Dec. 16, 2020, the state and Toledo told Judge Messer they had reached a fully negotiated plea agreement.  Discussed was how best to present that to the court, i.e., with a formal hearing or by submitting a paper plea packet for the court’s approval. 

“Thus, by the time of the defendant’s plea and sentencing hearing, the state was well aware of the likely outcome in Toledo’s case. In fact, the state must have been so confident that the Toledo plea would be approved by the Court, that it nolle prossed the riot charge against Toledo on Jan. 7, 2021—the same day as this defendant’s plea and sentencing hearing,” Delker wrote.

The judge also said that when he sentenced Stroud to jail time, that he had made it clear the main objective was general deterrence.   He said the court’s “confidence in its deterrent message is gravely shaken by the information that the defendant’s co-defendant/accomplice was allowed to plead guilty and be sentenced to no incarceration.”

He said the disparate outcome of the Toledo and Stroud cases not only undermines the deterrent message, “but it casts grave doubt onto the criminal justice system’s ability to rehabilitate the defendant.  How could any defendant have confidence in the fairness of the criminal justice system when he knows that he will go to jail while his similarly-situated co-defendant, who was standing right next to him during the entire criminal episode, will do not time behind bars simply because the prosecutor decided to treat one man more harshly that the other?” Delker wrote.


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Pat Grossmith

Pat Grossmith is a freelance reporter.