2014-0028, Jonathan Duchesne & a. v. Hillsborough County Attorney

See State v. Laurie, 139 N.H. 325 (1995). 1

their names from the so - called “Laurie L ist.” We reverse and remand. 1 denying their request for a declaratory judgment and an injunction to remove Michael Buckley, appeal a decision of the Superior Court (Garfunkel, J.) LYNN, J. The petitioners, Jonathan Duchesne, Matthew Jajuga, and

the brie f and orally), for the respondent. Hillsborough County Legal Counsel, of Goffstown (Carolyn M. Kirby on

o rally), for the petitioners. Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief and

No. 2014 - 028 Hillsborough - northern judicial district

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

We refer to the Hillsborough County Attorney using gender - neutral language. p. 2 2

county attorney violated RSA 105: 13 - b ( p. 2 2013) by refus ing to remove their the Hillsborough County Attorney, seeking: (1) a declaratory judg ment that the 2 The petitioners then filed suit in superior court against the respondent,

g eneral declined. remove t he petitioners from the “Laurie L ist” — a request that the attorney petitioners also asked the attorney g eneral to direct the county attorney to and there was “a sustained complaint of excessive use of force.” The “reported the incident as excessive forc e for the purposes o f the Laurie list,” county a ttorney declined, stating that there was an injured party, the chief arbitrator’s award, the petitioners be removed from the “Laurie List.” The the then Hillsborough County A ttorney requesting that, pursuant to the On January 31, p. 2 2012, after the arbitration decision, the chief wrote to

Hampshire law and no criminal charges are warranted.” final report concluded that the petitioners’ conduct “was justified under New Office conducted an independent crimi nal inves tigation into the incident. Its While this process was occurring, the New Hampshire Attorney General’s

information regarding the incident was removed from their personnel files. of this decision, the petitioners were compensated for lost earnings and [the petitioners] for actions taken or not taken” during the incident. As a result City of Manchester did not have just cause to take disciplinary action against final and binding arbit ration. After a hearing, an a rbitrator found that “the grievance s regarding the discipline imposed by the chief. The CBA provides for between the petitioners’ union and the City of Manchester, the petitioners filed Pursuant to the provisions of the collective bargaining agreement (CBA)

as having potentially exculpatory evidence in their personnel files or otherwise.” court described as “an informal list of police officers who have been identified attorney placed the petitioners’ names on the “Laurie List,” which the trial subject to disclosure under State v. Laurie.” Consequently, the county the petitioners had “engaged in conduct (excessive use of force) that may be the chief sent lett ers to the Hillsborough County Attorney’s O ffice stating that use of force, and each officer was suspend ed for a period of time. On August p. 2 2, several department al policies, including a prohibition against the unnecessary Following the investigation, the chief found that the petitioners had violated M anchester chief of police ordered a criminal and internal affairs investigation. Manchester. The incident was widely reported in the media, and t he 2010, while off duty, the petitioners were involved in an incident at a bar in petitioners are officers of the Manchester Police D epartment. On March 3, The trial court found, or the record supports, the following facts. The

from the peti tioners’ personnel files of information pertaining to the incident. implicated here inasmuch as the arbitrator’s decision resulted in the removal admissible at trial. The respondent also argues that RSA 105:1 p. 3 3 - b is not determine whe ther the incident must be disclosed to the defense and/or is at least may conclude that the incident should be disclosed to th e trial judge to petitioners’ involvement in the incident should be disclosed to the defendant, or facts of a particular case, its prosecutors may properly conclude that the attorney g eneral ’s report. The respondent asserts that, depending up on the that the county attorney’s office is not bound by the arbitrator’s award or the responsibility to disclose exculpatory evidence lies with the prosecutor, and future, hypothetical cases as the petitioners asked it to do. It argues that the The respondent contends that the trial court cannot look ahead to

request for attorney’s fees. inj unction and writ of mandamus, the ir constitutional arguments, or their argue that the tria l court erred by not addressing their request for an criminal case based up on the incident is un warranted. The petitioners also “Laurie List” or disclosure of their names to a court or defendant in a future of force were unfounded, and, therefore, inclusion of their names on the and the attorney general’s report establish that the allegations of exces sive use They further assert that, with respect to each of them, the arbitrator’s decision and decides if such records or information must be disclosed to the defendant. personnel files or other o f ficer background information f or exculpatory evidence They contend that the trial court — not the prosecutor — ultimately reviews the county attorney and not removing the petitioners from the “Laurie List.” On appeal, the petitioners argu e that the trial court erre d by deferring to

which was denied, and t his appeal followed. potentially exculpatory informatio n. The petitioners moved for reconsideration, and would relieve prosecutors of their legal and ethical duty to disclose determination would substitute the court’s judgment for that of the prosecutor, case that has not yet been brought.” The court reasoned that such a could not “prospectively determine if the information may be exculpatory in a level of p otentially exculpatory evidence.” T he court found, however, that it determination “that their involvement in [the] incident can never rise to the order, t he court stated that the petitioners asked for a prospective After a hearing, the trial cour t denied the petitioners relief. In its written

and requested an award of attorney’s fees. from the “Laurie List” violated their constitutional rights to due process of law, T he petitioners also argued that the county attorney’s refusal to remove them to compel the county attorney to remove their names from the “Laurie List.” from designating the incident as a “Laurie I ssue”; and ( p. 3 3) a writ of mandamus names from the “Laurie L ist”; (2) an injunction to prohibit the county attorney p. 4 4

protection than the federal standard and held that, “[u]pon a showing by the Laurie that the New Hampshire Constitution affords defendants greater the outcome.” Laurie, 139 N.H. at 328 (quotations omitted). We stated in A reasonable probability is a probability sufficient to underm ine confidence in disclosed to the defense, the result of the proceeding would have been different. standard only if there is a reasonab le probability that, had the evidence been Laurie, 139 N.H. at 328. “Favorable evidence is material under the federal information that is material to guilt or to punishment. Brady, 373 U.S. at 87; The prosecutor’s constitutional duty of disclosure extends only to

at p. 4 438 (quotation omitted). of all relevant information on each case to every lawyer who deals with it.” Id. be established to carry [the prosecutor ’ s] burden and to insure communication prosecutors ar e not relieved of their duty as “procedures and regulations can Although police may “sometimes fail to infor m a prosecutor of all they know,” the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). favorable evidence known to the o thers acting on the government’s behalf in in turn means that the individual prosecutor has a duty to learn of any that gives rise to the prosecution, see Theodosopoulos, 153 N.H. at 320. “This departme nts or other regulatory authorities, that are involved in the matter information possessed by certain go vernment agencies, such as police N.H. 57, 90 - 91 (2011), and we also hold prosecutors responsible for at least the impute knowledge among prosecutors in the same office, State v. Etienne, 163 unaware of the existence of the exculpatory information. On the contrary, w e satisfied merely because the particular prosecutor assigned to a case is 153 N.H. 318, 320 (2006); see also N.H. R. Prof. Conduct 3.8(d), and is not 405 U.S. 150, 154 (1972); Petition of State of N.H. (State v. Theodosopoulos), The duty of disclosure falls on the prosecution, Giglio v. United S tates,

Laurie, 139 N.H. at 329 (quotation and brackets omitted). counsel to ferret out concealed information, underlies the duty to disclose.” 682; Laurie, 139 N. H. at 327. “Essential fairness, rather than the ability of whether or not the def endant requests the information, Bagley, p. 4 473 U.S. at witnesses, Bagley, 473 U.S. at 676; Laurie, 139 N.H. at 327, and applies information and information that may be used to impeach the State’s CONST. pt. I, art. 15. The duty to disclose encompasses both exculpato ry 667, 675 (1985); State v. Laurie, 139 N.H. 325, 329 (1995); see also N.H. to ensure that de fendants receive fair trial s. United States v. Bagley, 473 U.S. arises from a defendant’s constitutional right to due process of law, and aims punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963). This obligation information favorable to the defendant that is material to either guilt or recognized proposition that, in a criminal case, the State is obligat ed to disclose background of the “Laurie Li st.” The starting point for our analysis is the well - Before turning to the specific issues before us, we examine the

Id. at 333. defendant’s asking, violated the defendant’s rights and necessitated a new trial. 332 - 33. The prosecution’s failure to disclose any of it, even without the cross - examine and impeach Laro, who was a key witness at trial. Id. at 327, on Laro’s general credibility and could have been used by the defendan t to case in any capacity.” Id. at 331 - 32 (quotation omitted). This infor mation bore tonight in Franklin, I would instruct you that Sgt. Laro not be involved in the attorney general’s office told the Franklin police chief: “If you had a homicide “inappropriate” use of firearms. Id. The file also included evidence that the “liar” and someone “not to be trusted,” and reports of incidents of county attorn ey. Id. There were reports from co - workers describing Laro a s a comply, claiming that his actions were authorized by the chief of police and the clients, Laro threatened to close a clinic and arrest its personnel if they did not D uring an other investigation, while seeking medical record s of one of its the content of his file and misrepresented his traini ng and schooling. Id. badge.” Id. (quotation omitted). The re was also evidence that Laro lied about psychologist who said that Laro “should not be entrusted with a gun and cases being tainted.” Id. at 331 (quotation omitted). Laro was sent to a determined that he was not being truthful in all cases, which “resulted in court was subjected to a polygraph examination concerning other incidents, it was of duty and for threatening a civilian with a weapon. Id. at 330 - 31. When he to physically harm people. Id. Laro also had been suspended both for neglect letters of complaint that detailed Laro verbal ly abusing, choking, or threatening credibility.” Id. at 330. For example, there w as information about numerous officer in Massachusetts that “reflect [ed] negatively on Laro’s cha racter and Frankl in Police Department and during his previous employment as a police records disclosed “numerous instances of conduct” during Laro’s time at the defendant allegedly spontaneously confessed to the crime. Id. at 332. The and paperwork for the case, and was the sole individual present when the the crime, was the affiant for a number of search warran ts, maintained the files Laro, who testified at the defendant’s trial. Id. at 327, 330. Laro investigated employment file s and records of a Franklin police officer, Detective - Sergeant evidence, which the prosecution poss essed prior to trial, consisted of the C onstitution, and we ordered a new trial. Laurie, 139 N.H. at 327, 333. The evidence violated the defendant’s due process rights under the New Hampshire In Laurie, we held that the prosecution’s failure to disclose exculpatory

file.” Id. discovery of all investigatory work or an examination of the State’ s complete that might influence a jur y, or that the defendant be permitted a complete 330. “This standard does not require that the prosecutor disclose everything doubt that the undisclosed evidence would not have affected the verdict.” Id. at the pro secution, the burden shifts to the State to prove beyond a reasonable defendant that favorable, exculpatory evidence has been knowingly withheld by p. 6 6

prosecutors. RSA 105:13 - b provides: requirements in order to explain h ow it affects the “Laurie L ist” as used by personnel files. No netheless, we think it helpful to discuss the statute and its all information related to the incident has been removed from the petitioners’ assertion that RSA 105:13 - b is not directly at issue in this case, inasmuch as the confidentiality of officer personnel records. We agree with the respondent’s defendants against the countervailing interest s of the police and the public in statute, RSA 105:13 - b, which is designed to balance the rights of criminal “Laurie L ist s” is of constitutional magnitude, the legislature has enacted a Although the prosecutorial duty that spawned the creation and use of

on it. is no mechanism for an officer to be removed from the “Laurie L ist” once placed exculpatory or admissible. It also appears that, as the petitioners argue, there even if a court in a prior case has fou nd that the information was not evidence is material or exculpatory and fully intends to argue as much, and disclosure to the court, even if the prosec ution does not believe that the merely being on the “Laurie L ist” is enough to trigger that preliminary as evidence at the trial. Based up on the record before us, we understand that defense, or that, if it is disclosed to the defense, that it should not be admitted relevant to the particular case and therefore need not be disclosed to the the prosecutor may then argue either that the information is not exc ulpator y or officer appear s as a witness. After the court has been given the information, L ist,” such information is routinely disclosed to the trial court any time th at this court, the respondent represented that when an officer is on the “Laurie information exists. Both at the hearing before the trial court and in its brief to police chief or another source notifies the county attorney that such in their personnel files or e lsewhere. Officers are added to the list when a an E xcel spreadsheet, of police officers with potentially exculpatory information established that t he Hillsborough County A ttorney keeps a list, in the form of “Laurie L ist” exi s ts in the Hillsborough County A ttorney ’s O ffice. That is, i t was “Laurie L ist” exists, it is clear from the record that a t least a county - wide the term “Laurie L ist” is a misnomer because no comprehensive state - wide use them. Although the respondent argues, and the trial court accepted, that “Laurie L ist s” actually function in practice, or how different prosecutor s ’ offices “Laur ie L ists.” It is not entirely clear, based upon the record bef ore us, how (quotation omitted). O ne aspect of these procedures is th e creation of so - called on each case to every lawyer who deals with it.” Kyles, 514 U.S. at 438 prosecutor ’ s] burden and to insure communication of all relevant information Hampshire have developed “procedures and regulations . . . to carry [the may act as witnesses for the prosecution. Since Laurie, prosecutors in N ew enforcement agencies to share information that pertains to police officers who Our decision in Laurie demonstrated the need for pros ecutors and law

defendant’s conviction. contained in the personnel files of police witnesses is an ongo ing duty that does not end with a Paragraph I also makes clear that the State’s obligation to disclose exculpatory evidence 4 in the present version of the statute. See RSA 105:13 - b (1992). between exculpatory information and non - exculpatory (albeit relevant) information that is found Prior to the 2012 amendment of the statute, RSA 105:13 - b did not contain the clear distinction 3 defendant. RSA 105:13 - b, I. Next, paragraph II covers situations in which 4 evidence, paragraph I requires that such information be disclosed to the First, insofar as the personnel files of such officers contain exculpatory exist with respect to police officers who appear as witness es in criminal cases. The current version of RSA 105:13 - b addresses three situations that may

b.” Id. at 321; compare RSA 105:13 - b, I and II, with RSA 105:13 - b, III. obtained through the . . . proc edure set forth in [paragraph III of ] RSA 105:13 – other information contained in a confidential personnel file that may be disclosed to the defendant under the State and Federal Constitutions, and distinction we have recognized “between exculpatory evidence that must be However, particularly as amended in 2012, the statute explicitly codifies the 3 right to obtain all exculpatory evidence.” Theodosopoulos, 153 N.H. at 321. (Emphasis added.) “RSA 105: 13 – b cannot limit the defendant’ s co nstitutional

returned to the police department employing the officer. remainder of the file shall be treated as confidential and shall be applicable rules regarding evidence in criminal cases. The case shall be released to be used as evidence in accordance wit h all portions of the file which the judge determines to be relevant in the contains evidence relevant to the criminal case. Only those the file in camera and make a determination as to whether it the officer to deliver the file to the judge. The judge shall examine cause exists, the judge shall order the police department employing relevant to that criminal case. If the judge rules that probable that probable caus e exists to believe that the file contains evidence that criminal case, unless the sitting judge makes a specific ruling purposes of obtaining or reviewing non - exculpatory evidence in witness or prosecutor in a criminal case shall be opened for the III. No personnel file of a police officer who is serving as a

is exculpatory, an in camera review by the court shall be required. II. If a determination cannot be made as to whether evidence

guilt. paragraph is an ongoing duty that extends beyond a finding of evidence that should have been disclosed prior to trial under this disclosed to the defendant. The duty to disclose exculpatory officer who is serving as a witness in any criminal case shall be I. Exculpatory evidence in a police personnel file of a police p. 8 8

circumstances. prosecutors, we have no occasion to consider the application of RSA 105:13 - b in such indication from the record that any of the petitioners here have served or will serve as police By its ter ms, paragraph III also covers police officer s who serve as prosecutors. As there is no 5

may be understandable from the prosecutors’ perspective, given the information that must be turned over to the defense. Although this practice file to be submitted to the court to determine whether it contains exculpatory placed on the “Laurie L ist,” prosecutors routinely cause t he officer’s personnel being found to have failed in their Brady obligations, once an officer’s name is acting out of an abundance of caution and in order to preclude the prospect of to the court for review. The consequence of this paradigm appears to be that, potentially exculpatory information about an officer that should be submitted the basis for making a threshold determination as to whether there is the basis for the listing. As a result, prosecutors often use the “Laurie L ist” as officer ’s inclusion on a “Laurie L ist,” or to have only minimal information as to it is not uncommon for prosecutor s either to be unaware of the basis for an is placed under seal by the police department before delivery. Thus, apparently in cases in which the file passes through the hands of the prosecutor, it often disclosure is made directly to the court by the police department, and that even files are submitted to the court in connection with a particular case, the designation. We infer from this statement that sometimes, when personnel L ist,” the prosecutor frequently does not know the reason for the “Laurie” is information in an officer’s file that warrants placing the officer on the “Laurie personnel files, when a prosecutor’s office is notified by a police chief that there According to the respondent, b ecaus e of the confidentiality of police

which employs the officer. Id. the file must be treated as confidential and re turned to the police departm ent of the file which are relevant to the case. RSA 105:13 - b, III. The remainder of directed to review the file in camera and order the release of only those portions his case . . . .”). If the judge does make such a finding, the judge is then must establish probable cause to believe the file contain s evidence relevant to review of a police officer’s personnel file under RSA 105:13 - b, the defendant Puzzanghera, 140 N.H. 105, 107 (1995) (“[I]n order to trigger an in camera contains evidence relevant to the particular criminal case. See State v. makes a specific finding that probable cause exists to believe that the file file to examine the same f or non - exculpatory evidence unless the trial judge with our case law, this paragraph prohibits the opening of a police personnel nonetheless be relevant to a case in which an officer is a witness. Consistent 5 Finally, paragraph III covers evidence that is non - exculpatory but may

came r a review. Id. uncertainty exists, the evidence at issue is to be submitted to the court for in files is, in fact, exculpatory. RSA 105:13 - b, II. It directs that, where such there is uncertainty as to whether evidence contained within police personnel p. 9 9

would likely have been admissible in any case in which Laro testified. See N.H. Laurie was probative of Laro’s general credibility as a witness, and, as such, examination of Laro.” I d. at 331. In short, the adverse information at issue in incompetency “plainly would have been useful to the defendant upon cross doubt that evidence of Laro’s long - demonstrated history of l ies, deception, and character and credibility.” Laurie, 13 p. 9 9 N.H. at 330. I n particular, there was no “disclose [d] numerous instances of conduct that reflect [ed] negatively on Laro’s his personnel files. Instead, we simply observed that the files at issue did not differentiate among the various types of information contained within Laro that the State knowingly failed to disclose was so egregious, in Laurie we Laurie. Perhaps because the totality of the adverse information about Detective To reach this conclusion, we re - examine, and clarify, our decision in

List.” discretion and that the petitioners are entit led to be removed from the “Laurie (1 p. 9 987). Here, we conclude that the trial court unsustainably exercised its exercise of discretion. See UniFirst Corp. v. City of Nashua, 130 N.H. 11, 14 tainted by error of law, clearly erroneous findings of fact, or an unsustainable discretion of the trial court, we will uphold the court’s decision unless it is Because the issuance of an injunction is committed to the sound

State v. Veale, 158 N.H. 632, 63 p. 9 9 (2009). standing with those with whom they work and interact on a regular basis. Cf. criminal case, thus potentially affecting their reputations and professional courts and/or defendants or their counsel any time the officers testify in a all but guarantees that information about the officers will be disclosed to trial List” is not available to members of the public generally, placement on the list death list” for the officers on it or “is given that stigma.” Although the “Laurie the hearing before the trial court that “the Laurie list is considered a kind of a reputations and damage their careers. The respondent acknowledged during property interests, inasmuch as a “Laurie” designation can tarnish their placement on the “Laurie List” affects significant constitutional liberty and “Laurie L ist” maintained by the respondent. The petitione rs argue that their are entitled to the relief they have requested — that is, to b e removed from the Turning to the cas e before us, we must determine whether the petitioners

L ist.” kind of adverse information should result in an of ficer’s placement on a “Laurie the judgment of prosecutors with respect even to the threshold issue of what competing interests, basic fairness demands that courts not invariably defer to grounds for doing so. As thi s case demonstrates, i n accommodating the se insuring that their names are not placed on the list when there are no proper L ist” carries a stigma, police officers have a weighty countervailing interest in respondent ’s acknowledgment in the trial court that inclusion on the “Laurie p. 10 10

witnesses. of that character — should follow the petitioners every time they appear as worthy of an in camera review by the court, but has now been shown not to be determination — that something was thought to be potentially exculpatory and placement on the “Laurie L ist.” I t m akes no sense that the threshold determined to be unfounded, there is no sustained basis for the petitioners’ personnel file s. Given that the original allegation of excessive force has been references to the incident have no w been removed from the petitioners’ force in the incident was justified. As a result of these determinations, investigation, the attorney general also concluded that the petitioners’ use of hearing conducted pursuant to proced ures agreed to in the CBA. A fter an decision was overturned by an arbitrator, a neutral factfinder, following a full disciplined by the police chief for their alleged excessive use of force, the chief’ s Second, and more importantly, although the petitioners were initially

the defendant in any case in which the officer may testify. as the basis for automatically disclosing the information to the trial court or bearing on the propriety of maintaining the officer’s name on a list that is used type usually admissible to attack the officer’s general credibility has a strong that adverse information regarding a police officer’s background is not of the presentation of the defendant’s cas e.” (quotation omitted)). However, the fact (“It is sufficient for us to find t hat the evidence is material to the preparation or prosecutor ’ s disclosure obligations under Brady. See Laurie, 139 N.H. at 332 admissibility of evidence at trial does not necessarily mark the bounds of the condu ct. See N.H. R. E v. 404(b). We recognize, of course, that the not be admissi ble simply to show a petitioner ’s propensity to engage in such use of force was made against one of the petitioners, t he prior incident would 608(b). Indeed, even if a future case were to arise in which a claim of excessive use of force is not probative of t ruthfulness or untruthfulness. See N.H. R. Ev. impeach the petitioners’ general credibility because an instance of excessive that the petitioners lied or misrepresented the facts) would not be admissible to accusation were true, this i ncident, without somethin g more (such as evidence that they attempted to lie about or cover up their conduct. Even if the in a single incident of alleged excessive use of force, and there is no suggestion untruthfulness, the only conduct at issue here is the petitioners ’ involvement presented in Laurie. First, unlike Laro’s pattern of misconduct and T he situation with respect to the petitioners is quite different from that

prosecutor’s legal and ethical responsibility. court every time that officer is to be a witne ss makes sense and upholds the “Laurie L ist” and having th e adverse information automatically disclosed to the testimony given by a witness). For an officer such as Laro, being placed on a to attack a witness’s general credibility and evidence used to impeach specific State v. Mello, 137 N.H. 597, 600 (1993) (distinguishing between evidence used be inquired into on cross - examination if probative of untruthfulness); see also R. E v. 608(b) (providing that specific instances of the conduct of a witness may p. 11 11

DALIANIS, C.J.