Valley Cemetery rape 'trial' slated for Tuesday start; still unknown: judge or jury?

Sep. 19—A judge is expected to rule Monday whether a jury or a judge will decide the fate of Amuri Diole, the accused Valley Cemetery rapist who dodged a criminal trial earlier this year and now faces commitment as a sexually violent predator.

The last-minute decision will come the day before Superior Court Judge Diane Nicolosi had scheduled as the start of two days of proceedings to decide Diole's commitment.

Nicolosi scheduled the trial just three weeks ago, sparking a scramble to bring a complex case to trial.

In July, Nicolosi declared Diole mentally incompetent to stand trial.

The sexually violent predator law calls for a trial before a judge in such a case. Diole's lawyers say the case is a first for New Hampshire — the commitment of a suspect as a sexually violent predator who has never had the opportunity to go before a jury.

That would make the commitment unconstitutional, they say.

"Every other person the state has sought to commit under the (sexually violent predator) statute has had the right to a jury trial," said public defender Kim Kossick. "The point is, he should be afforded the same right as everyone else."

But the prosecutor handling the case said it would be impossible to hold a jury trial so quickly.

"It's a very short timeframe to schedule and start a trial," said Shawn Sweeney, the first-assistant Hillsborough County prosecutor. "There's no possibility of getting a jury before Tuesday."

A trial will be complicated, also, with a jury or judge being asked to determine Diole's guilt, as well as whether his participation was essential to mounting a proper defense.

Pretrial filings list 16 possible pieces of evidence, everything from bloody underwear to the competency reports of three psychiatrists. Twenty-one people are also listed as possible witnesses.

The rush is on because state law requires that Diole, 29, be freed from Valley Street jail on Sept. 28. He has been jailed since April 2021 on charges stemming from the violent rape of a woman in the cemetery, which is across the street from the jail.

State law gives authorities 90 days to commit a person to a psychiatric facility after being declared incompetent. Diole was declared incompetent in July.

The rape occurred just days after he was freed from jail after being found incompetent to stand trial on an earlier assault charge. Prosecutors at the time said they couldn't find a psychiatrist to handle his commitment.

Diole's lawyers have also filed notice they may raise the defense of consent.

Police have described the rape in brutal terms.

The victim ran to the arms of police clothed in only a sweatshirt. She told police she endured a two-hour attack that included sexual assaults, a knife at her throat, and her head getting bashed against granite pillars.

If the judge grants the request for a jury trial on Monday, no one expects it will start on Tuesday, Kossick said.

Sweeney has until 10 a.m. Monday to file an objection to a jury trial. Nicolosi has scheduled a 3 p.m. hearing to weigh the arguments of both sides.

It also appears that the sexually violent predator commitment is the only route to keep Diole off the streets.

On Wednesday, Sweeney disclosed that he was unable to commit Diole through a less cumbersome Probate Court procedure, according to a court order written by Nicolosi last week.

Nicolosi ordered that the psychiatric report tied to the Probate Court effort, written by Dr. Daniel Lampignano, be turned over to the defense lawyers.

The judge also ordered other evidence in the case be shared with the defense lawyers. Her order also raises a potentially complicating detail: police may have never interviewed the victim after the attack.

Experts for the state and defense have differed over Diole's competency to stand trial. In jail, he kept containers of urine in his cell, hoping it would ferment and turn into alcohol.

The state's expert has said the actions show a deliberate effort to fulfill his desire for drugs, and Diole does not meet the clinical definition for schizophrenia.

But the expert for the defense said his rational thinking has been impaired due to chronic homelessness, trauma, unemployment, lack of family support and drug use.

Initially, Sweeney filed commitment papers for Diole under seal. But Nicolosi has not closed her courtroom in the case, and the New Hampshire Union Leader has intervened in efforts to guarantee that hearings and records remain open.

"The processes of the Court and the role of the County Attorney's Office in cases of this nature are matters (of) grave public interest and concern," wrote Katy Sullivan, who in 2007 convinced the New Hampshire Supreme Court to open hearings involving sexually violent predators.

Kossick made no efforts to close the hearing. "The public should know the way the state operates against its people," she said.