Prison guard loses appeal against 20 to 40 year sentence

Douglas Tower, 63, a former New Hampshire correctional guard at the Shea Farm halfway house in Concord, lost an appeal against his 20 to 40 year sentence for raping an inmate there. The appeal was based on the argument that New Hampshire prosecutors showed a conflict of interest when prosecuting Tower but defending themselves against civil lawsuits - lawsuits filed by 11 prisoners and a guard who were harassed and raped by Tower. The state is paying a $1.9 million dollar settlement reached in March.

Lothstein also argued that that conflict should have justified quashing the indictments against Tower before going to trial.

The state disputed any conflict, saying the civil suit did not exist when it first indicted Tower. Plus, the state said, it created walls between the civil and criminal bureaus to avoid a conflict or influence between the cases.

In its unanimous decision, the state Supreme Court said it could not consider Lothstein's argument, which cited the state's Rules of Professional Conduct for lawyers, because that was not the same argument made previously to Tower's trial judge.

The court requires that appeal issues be "preserved," meaning raised at the trial stage first so the trial judge has a chance to resolve them.

The justices found that Tower's trial lawyers had argued a conflict of interest at the lower level but did so by citing state and federal constitutional grounds, not the rules of conflict.

Lothstein has 10 days from the date of the order to ask the court to reconsider.

Tower faces a trial for the rapes of 11 other inmates, and was also convicted for the simple assault of a second female inmate.