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Jonathan Marden

Other New Hampshire exonerations
On the evening of October 26, 2016, 20-year-old Jonathan Marden reached out on social media to his 16-year-old former girlfriend to find out what time she got off work at a Target department store in Nashua, New Hampshire. She told him 9:30 p.m.

Marden was waiting in his car parked on the top level of the parking structure adjacent to the store when the girl came out. They talked and she got into his car. They began to kiss and ultimately engaged in sexual intercourse.

A security official monitoring surveillance cameras saw what was going on. He notified Target and two employees came to the car. They would later testify that the girl did not seem upset, and they told Marden and the girl to leave.

Marden began driving down the parking lot ramp and the girl asked to get out. She went back into the store where a supervisor asked if she was all right. The girl began crying, fell to the floor, and said she had been raped. “He raped me. I don’t want to lose my job,” the girl said.

Police were notified and the girl was taken to a hospital for an examination. Meanwhile, police went to Marden’s home and woke him and his family up around 1:30 a.m. They began questioning him there. Marden’s mother expressed concern that Marden was groggy and not in good physical condition to answer questions. She asked that the questioning be stopped, but the officers said that was Marden’s decision and he agreed to continue being questioned. When Marden’s mother attempted (unsuccessfully) to call a lawyer, the police said they would question him at the police station. They assured Marden’s mother he could refuse to speak to them at the station.

At the station, Marden’s mother said Marden had changed his mind and did not want to be interviewed. However, one officer told her it was too late. “We are going upstairs where Jonathan will make his statement.”

Less than a half hour later, police had a video recording that the officers said was a confession—that Marden admitted the girl told him to stop, but he did not stop. Marden was released, but on November 21, 2016, he was arrested on a charge of aggravated felonious sexual assault.

In September 2017, Marden went to trial in Hillsborough County Superior Court. The victim testified that she and Marden were kissing and then he climbed on top of her, took down her leggings and underwear, pulled down his pants, and inserted his penis in her. She said she pushed his chest and told him to stop, but he did not until the Target officials knocked on the window. When questioned about her statements at the time that she feared she was going to lose her job, she said, “Yes. It’s not okay to do that in a public parking lot.” She said she was afraid she would lose her job for “something that wasn’t true.”

The Target employees testified that when the girl came back into the store, she was hysterical and upset, and she repeatedly said she feared losing her job. One employee said that in the parking lot, he told Marden to leave and that he was banned from the store for a year.

Dr. Gwendolyn Gladstone, a pediatrician specializing in child sexual abuse, testified that she met with the girl and explained that the genital irritation she was having probably was the result of antibiotics prescribed at the hospital. Gladstone said the girl said that she had lost weight, had little appetite, her grades had fallen, and she frequently cried and did not want to go out. Gladstone said she recommended that the girl get further counseling. She said the girl’s symptoms were significant evidence of sexual abuse.

A police officer testified that there was some redness on the girl’s neck.

Jenny Ruiz, a sexual assault nurse examiner, testified that she examined the girl at the hospital and took swabs. Ruiz said she noticed “some redness” in the girl’s pelvic area, but no injuries. During cross-examination, Marden’s defense lawyer asked Ruiz if she asked the girl when she had last engaged in sex prior to the evening in question. The prosecution objected to the question, citing the rape-shield statute and the judge barred Ruiz from answering. The defense attorney failed to explain that he was seeking to introduce the evidence to explain the red marks on the girl’s neck—that the marks could have been left after a recent sexual encounter with the current boyfriend.

The prosecution played the tape of Marden’s interrogation during which a detective asked: “And then, you started making out? And she is making out back, I guess…?”

“Yeah, she was okay with that part,” Marden said. “She was okay with making out, and then, a little bit before the Target employees came [inaudible], she was saying, ‘Stop.’”

“All right, did you stop?” the detective asked.

“It was the same time as the Target employees knocked on the door,” Marden said.

“Okay,” the detective said. “So, she tells you ‘stop’ a little bit before the Target employees knock on the window?”

“Yes,” Marden said.

“Did you stop at that point or do you keep going?” the detective asked.

“I stopped when the Target employees knocked on the door,” Marden said.

“So, you kept going after she said, ‘Stop?’”

“Yeah,” Marden said.

Marden testified and denied raping the girl or that she told him to stop until the Target officials came to the car. He said that he had withdrawn his penis and ejaculated on the seat of the car when he heard the girl say the word “stop.” At that moment there was a knock on the car window.

He told the jury that the word “stop” and the knock on the window were “at the same time.”

He said that as he drove down the ramp of the parking garage, the only thing the girl said was, “Oh, great. I am going to lose my job.”

On September 8, 2017 the jury convicted Marden of aggravated felonious sexual conduct and he was taken into custody pending sentencing.

Not long after, Marden obtained a new attorney, Donna Brown, who filed a motion for a new trial claiming that Marden’s trial defense attorney had failed to file timely notice to seek the admissibility of the girl’s prior sexual activity. The motion also claimed that the attorney failed to object to Dr. Gladstone’s testimony about the “symptoms of significance.”

On December 14, 2017, Judge Phillip Mangones vacated the conviction and ordered a new trial. The judge ruled that Dr. Gladstone’s testimony improperly bolstered the girl’s testimony and was inadmissible. The judge ruled that the trial defense attorney had provided an inadequate legal defense by failing to object to Dr. Gladstone’s testimony.

The judge noted that while Marden’s statements to the police “could be seen as inculpatory, those statements were not definitive admissions of guilt of a crime, and, given added context of the defendant’s live testimony, could also be interpreted in the defendant’s favor.” The judge said there were two interpretations—the girl said stop and tried to push Marden away to stop a sexual assault, or she may have done so “because she could see the Target employees approaching the vehicle.”

The judge did not rule on the issue of the failure to seek a pretrial hearing on the admissibility of the girl’s prior sexual activities.

Marden was then released on bond pending a retrial.

The prosecution filed motion asking Judge Mangones to reconsider his ruling. In February 2018, that motion was denied.

Before the case came back for a retrial, Brown consulted with a pharmacologist who was prepared to testify that Marden, who had taken a sedative before he was awakened by the officers, was medically impaired when he was interviewed by police. Brown then filed a motion to bar the prosecution from using Marden’s statements at the retrial.

“Jonathan Marden’s statements to the police are inadmissible because the police woke the defendant up in the middle of the night to be interrogated, the defendant was taking medication at the time of the interrogation, the defendant had a learning disability and all of these factors interfered with his ability to knowingly, intelligently and voluntarily waive his right to remain silent and his right to the assistance of counsel,” the motion said.

On November 1, 2019, while the motion was still pending, the prosecution dismissed the case.

– Maurice Possley

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Posting Date: 2/10/2020
Last Updated: 2/9/2021
State:New Hampshire
Most Serious Crime:Sexual Assault
Additional Convictions:
Reported Crime Date:2016
Sentence:Not sentenced
Age at the date of reported crime:20
Contributing Factors:False Confession, Perjury or False Accusation, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No