Defense: Jail time for Black protester while White accomplices go free a matter of ‘manifest injustice’

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A group of protesters marched from Elm Street to South Willow on June 2, 2020, and as more people joined in, the event turned from peaceful to what police characterized as a “riot.” Photo/Jeffrey Hastings

MANCHESTER, NH – A Black teen from Nashua, sentenced to 30 days in jail on a misdemeanor riot charge connected to last June’s Black Lives Matters protests, wants to withdraw his guilty plea because co-defendants sentenced so far – most of whom are White – received no jail time.

Defense attorneys Donna J. Brown and Michael G. Eaton said in their motion filed Wednesday in Hillsborough County Superior Court Northern District their client, Antwan Stroud, 18, of 1 Oneils Court, Nashua, never would have pleaded guilty had he known the outcome of the other defendants’ cases.

More than a dozen people, mostly Whites, were arrested overnight June 2 and 3, 2020, when a crowd of about 100 gathered on South Willow Street in protest of police killings of African Americans.

Law enforcement and prosecutors described the incident as a riot.  

The defense attorneys say Stroud should be allowed to withdraw his plea because of ineffective counsel and because the prosecution did not provide the defense with information concerning the other defendants’ sentences.

“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.  “The other sentenced protesters—all White—will not see a jail cell.  Mr. Stroud will.  The difference?  Mr. Stroud is Black.”

He pleaded guilty in a plea bargain involving a “capped” plea.  Under that agreement, Stroud pleaded guilty to misdemeanor riot and the lawyers made their argument to the judge as what would be an appropriate sentence.  Had it exceeded 30 days, Stroud could have refused the deal.

Hillsborough County Attorney John Coughlin as of Friday had yet to see the pleading but said Assistant County Attorney Thomas Craig, who prosecuted the case, will be filing an objection.

“The color of someone’s skin is not an issue,” said Coughlin who was a member of the New Hampshire Commission for Human Rights for 13 years, chairing it for eight of those years.  “What is the issue is the fact of the case and the equal application of the law.  That’s what we look at.”

A Market, a South Willow Street grocer, prepared for the worst with protective plywood, but also expressed solidarity with Black Lives Matter. Photo/Jeffrey Hastings

The defense attorneys, in their motion, cited the case of White defendant Kyle Toledo, 20, of Hooksett, who lit a firework, sending it above a crowd of people.  Stroud is accused of telling Toledo to “light that shit.”  

Citing a police affidavit supporting a warrant for Stroud’s arrest, the defense attorneys recounted that on the night of June 2, 2020, to the early morning of June 3, 2020, there was a “period of civil unrest” on South Willow Street.  A large group had gathered on the streets, yelling things like “fuck the police,” a classic and historic protest against police brutality.

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, said such things as “light that shit.”

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

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 of that plaza and stopped at the red light.  While stopped, people in the group began yelling at the officer and spitting on his cruiser.  

Stroud and Toledo were accused of participating in those actions.  Stroud later uploaded a video of the incident in which people are seen moving toward an unmarked police cruiser, shouting profanities.

The attorneys said comparing Stroud and Toledo’s cases is particularly troubling.  The two were alleged accomplices who were accused of approaching a police cruiser with a large group of people who spit on the cruiser and threatened violence on the officer.

Stroud and Toledo are accused of the exact same conduct although, the attorneys contend, Stroud merely told Toledo to light a firework where Toledo actually lit it, placing “another in danger of serious bodily injury.”  For lighting the firework and participating in the protest, Toledo pleaded guilty to reckless conduct, his riot charge was dropped, he received no jail time and he had to do 50 hours of community service, enroll in Job Corps and write a letter of apology.

Stroud was sentenced to 30 days in jail.  When he pleaded guilty, however, he did not know about the disparities, nor did his counsel.   

Craig prosecuted both cases and, according to the defense, worked out the deal for Toledo weeks before Stroud’s sentencing.

Days after the protest, the ACLU-NH contacted then Hillsborough County Attorney Michael Conlon to notify him of complaints it had received regarding how “people of color who were arrested were charged with ‘riot,’ while the white individuals arrested were only cited with disorderly conduct.”

According to the defense attorneys, prosecutors, therefore, were aware of the disparities in how Black and White protesters were treated by the state; initially it was charging disparities, but those later led to plea agreement and sentencing disparities.

“Yet the State never shared the charging and sentencing disparities with Mr. Stroud and Mr. Stroud’s counsel never asked.  If Mr. Stroud had known of these sentencing disparities, he would not have agreed to a ‘capped’ plea; he could have charge-bargained to a lesser charge such as disorderly conduct or, like Mr. Toledo, reckless conduct.  He would have been able to persuade the State to agree to a plea deal similar those granted to the White protesters who engaged in similar and, in some case, worse conduct; or he could not have pled guilty at all.”

Defense attorneys say his plea was not knowing, intelligent and voluntary, and it was the product of ineffective assistance of counsel and Brady violations (when a prosecutor fails to turn over evidence favorable to a defendant.) 

“It has resulted in manifest injustice, particularly where his White co-defendants, some of whom actually engaged in acts presenting a significant danger to others, got to skate by with community service and suspended sentences while Mr. Stroud, a young Black man, will go to jail,” according to the pleading.