Lawyer argues Joshua Hart’s 2018 conviction for Orange murder had inconsistent verdicts

Joshua Hart, convicted in 2018 of killing Orange residents Thomas Harty and Joanna Fisher, appears in Franklin County Superior Court via Zoom from the Souza-Baranowski Correctional Facility on Tuesday afternoon.

Joshua Hart, convicted in 2018 of killing Orange residents Thomas Harty and Joanna Fisher, appears in Franklin County Superior Court via Zoom from the Souza-Baranowski Correctional Facility on Tuesday afternoon. STAFF PHOTO/PAUL FRANZ

Joshua Hart, convicted in 2018 of killing Orange residents Thomas Harty and Joanna Fisher, appears in Franklin County Superior Court via Zoom from the Souza-Baranowski Correctional Facility on Tuesday afternoon while legal counsel stands in the courtroom. Hart is represented by attorney Stephen Maidman, background, while Assistant District Attorney Cynthia Von Flatern is working the case for the state.

Joshua Hart, convicted in 2018 of killing Orange residents Thomas Harty and Joanna Fisher, appears in Franklin County Superior Court via Zoom from the Souza-Baranowski Correctional Facility on Tuesday afternoon while legal counsel stands in the courtroom. Hart is represented by attorney Stephen Maidman, background, while Assistant District Attorney Cynthia Von Flatern is working the case for the state. STAFF PHOTO/PAUL FRANZ

By DOMENIC POLI

Staff Writer

Published: 05-07-2024 8:07 PM

GREENFIELD — Spurred by a state Supreme Judicial Court opinion that pointed to inconsistent verdicts, the Franklin County Superior Court judge who oversaw Joshua Hart’s murder trial in 2018 has taken under advisement a defense attorney’s motion to set aside one of the verdicts.

Judge John Agostini heard arguments from attorney Stephen Maidman and Assistant District Attorney Cynthia Von Flatern on Tuesday afternoon and said he would promptly render a decision on the motion.

Hart, now 31, and Brittany Smith, both formerly of Athol, were convicted six years ago of crimes related to an Oct. 5, 2016, Orange home invasion and the murders of 95-year-old Thomas Harty and his 77-year-old wife, Joanna Fisher, who survived the attack but died from her injuries the following month. Hart and Smith were each sentenced to life in prison without the possibility of parole.

This motion was spurred by a state Supreme Judicial Court opinion that noted the convictions of attempted murder and murder in the first degree resulting from the attack on Fisher might constitute inconsistent verdicts, and that reversal of the conviction of murder in the first degree for Fisher’s death might be required.

Hart would still serve life in prison if the verdict in question is reversed.

The opinion notes that Agostini instructed the jurors that they had to find that “the defendant’s act did not result in the completed crime” in order to find the defendant guilty of attempted murder, but that “non-achievement of murder is not an element of attempted murder.”

The jury in 2018 found Hart guilty of attempted murder and murder in the first degree for Fisher’s killing. According to the Supreme Judicial Court, due to the instruction error, the jury found that the defendant’s attack did not result in murder. Yet the jury also found the defendant guilty of murder in the first degree and, therefore, found that the defendant’s attack resulted in Fisher’s death. If these are legally inconsistent verdicts, the highest court in the state opined, one of the two verdicts must be set aside.

Hart and Smith wanted to steal Harty and Fisher’s vehicle to flee the state because they had been arrested on car theft charges days earlier. Hart, who had warrants in his home state of Pennsylvania, wanted to avoid jail and Smith, who was addicted to heroin, did not want to go to drug treatment. The suspects targeted a home in Orange with an older model vehicle that did not have tracking technology.

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The suspects armed themselves with knives, entered the victims’ home at 581 East River St. through a door off the garage and immediately began attacking the victims, who were watching television, at around 7:30 p.m. on Oct 5, 2016. Fisher was struck in the head with a hard object and pushed out of her wheelchair.

Both victims were beaten and stabbed during the home invasion, which lasted approximately 30 minutes. Fisher told authorities her female attacker tried unsuccessfully to fatally cut her throat and asked the male attacker for help suffocating her. This, too, failed to end her life. Harty was suffocated with a pillow.

Hart and Smith ransacked the home in search of money after the attack and then fled, taking the victims’ credit and debit cards and the keys to the couple’s Toyota Matrix. After the attackers fled, Fisher crawled to attempt to call for help, but the suspects had disabled the phone and stolen Harty’s cellphone. Health care workers discovered Fisher during a regularly scheduled visit at roughly 9 a.m. on Oct. 6 and called the authorities. Fisher described to police the appearance of her attackers before she was airlifted to UMass Memorial Medical Center in Worcester.

A card stolen from Fisher was used to make a debit transaction at a Worcester-area Walmart within hours of the attackers fleeing. They were seen on video surveillance, and officers involved in the investigation recognized the man and woman as Hart and Smith, who also matched Fisher’s description. Hart and Smith were apprehended by the Rockbridge County Sheriff’s Department in Virginia when Rockbridge Sgt. Scottie Sorrells found the suspects in a U-Haul truck at the Rockbridge County Walmart. Harty and Fisher’s stolen vehicle was recovered in a different location in Virginia.

On Tuesday, Maidman argued that his client, who appeared via Zoom from the Souza-Baranowski Correctional Center, could not have both attempted to murder Fisher and also successfully murdered her.

“I think it’s clear they’re legally inconsistent verdicts,” he said.

Maidman said Hart “flatly denied” to Massachusetts State Police that he ever cut Fisher’s throat.

“The jury never knew … what attempted murder is,” Maidman said.

Von Flatern told Agostini the grand jury met several times and felt there was sufficient evidence to suggest the attempts to kill Fisher were separate acts, and enough to constitute both attempted murder and murder. She said Hart told a Virginia officer he cut Fisher’s throat and later tried to take all the blame and protect Smith, his girlfriend. Von Flatern also said he attempted to smother Fisher, who had multiple sharp-force injuries, with three different pillows but “couldn’t do it.”

Reach Domenic Poli at: dpoli@recorder.com or
413-930-4120.