THE STATE OF NEW HAMPSHIRE
SUPREME COURT
Petition of the State of New Hampshire
APPEAL PURSUANT TO RULE 11 FROM A JUDGMENT OF THE
MERRIMACK COUNTY SUPERIOR COURT
REPLY BRIEF FOR THE STATE OF NEW HAMPSHIRE
THE STATE OF NEW HAMPSHIRE
N.H. Bar No. 266273
Assistant Attorney General
Civil Bureau
New Hampshire Department of Justice
33 Capitol Street
Concord, NH 03301-6397
(603) 271-3650
TABLE OF CONTENTS
TABLE OF CONTENTS
2
TABLE OF AUTHORITIES
3
DISCUSSION
5
I. The respondents’ dissemination arguments fail as a matter of law
6
II. The Court should reject the respondents’ First Amendment and Part I, Article 22 arguments
12
CONCLUSION
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CERTIFICATE OF COMPLIANCE
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CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES
Cases Bond v. Utreras, 585 F.3d 1061 (7th Cir.2009)
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Brady v. Maryland, 373 U.S. 83 (1963)
6
Duchesne v. Hillsborough Cty. Atty., 167 N.H. 774 (2015)
9, 10
In re Petition of State, 153 N.H. 318 (2006)
10
N.H. Right to Life v. Dir., N.H. Charitable Trust Unit, 169 N.H. 95 (2016)
8
Nat’l Polymer Prod., Inc. v. Borg-Warner Corp., 641 F.2d 418 (6th Cir. 1981)
13
Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp., 307 F.3d 1206 (9th Cir. 2002)
14
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)
14
State v. Batista-Salva, 171 N.H. 818 (2019)
12
State v. Laurie, 139 N.H. 325 (1995)
6
United States v. Wecht, 484 F.3d 194 (3d Cir. 2007)
13
Statutes RSA 105:13-b
passim
RSA 105:13-b, I
7, 12
RSA 105:13-b, II
10
RSA 606:10, II(d)
9
RSA 91-A
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RSA 91-A:8
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Constitutional Provisions N.H. CONST., pt. I, art 22
5, 6, 12, 13
U.S. CONST. amend. I
5, 6, 12, 13
DISCUSSION The parties have extensively briefed whether materials in police personnel files remain confidential once disclosed to a defendant under RSA 105:13-b, but before they are introduced at trial. As set forth in the State’s brief, the answer to this question is yes. The statutory language and structure compel this conclusion, as do this Court’s past characterizations of RSA 105:13-b and, until now, the apparently unbroken practice of trial courts permitting disclosures under RSA 105:13-b subject to protective orders. The respondents improperly read the statutory language in isolation, elevating form over substance and leading to absurd and untenable results. In adopting a version of those arguments sua sponte, the trial court erred as a matter of law, and this Court should reverse. This reply addresses two related, but separate issues. First, it bears emphasizing that even if one assumes dubitante that information disclosed to a defendant under RSA 105:13-b is no longer per se confidential, this does not mean that the defendant may disseminate that information unconditionally. In arguing otherwise, the respondents urge this Court to adopt a policy-driven view of RSA 105:13-b that finds no support in the statutory text or precedent. Alternatively, they ask the Court to endorse the trial court’s attempt to inject fact-intensive right-to-know balancing into these criminal cases. The Court should do neither. Second, the Court should reject the respondents’ attempt to raise substantive First Amendment and Part I, Article 22 theories for the first time in their opposing brief. These theories were never preserved below. Moreover, the respondents waived any First Amendment claims by assenting to the protective orders in question. They cannot avoid these waivers by asserting the purported rights of others. And in any event, the remedy for the type of First Amendment violation the respondents assert here would merely be to require that the parties provide “good cause” for the protective orders, not inject right-to-know balancing into a criminal case. The respondents’ speech-based arguments are accordingly misplaced. I. The respondents’ dissemination arguments fail as a matter of law. The respondents argue in their opposing brief that any disclosure of exculpatory information under RSA 105:13-b is necessarily unconditional. See, e.g., DB 12–13, 18–23.1 In making this argument, the respondents notably overlook the purposes the disclosure requirements under RSA 105:13-b, Brady v. Maryland, and State v. Laurie are designed to serve. Despite what the respondents’ brief might be read to suggest, disclosures of exculpatory evidence are not mandated under the First Amendment or Part I, Article 22. Rather, the U.S. Supreme Court held in Brady “that the suppression by the prosecution of evidence favorable to an accused... violates due process where the evidence is material either to guilt or to punishment, irrespective of good faith or bad faith of the prosecution.”
373
U.S. 83, 87 (1963)
22
arguments are therefore not preserved for review. But even if they were, the arguments are waived. All three respondents assented to the protective orders at issue in this case. SD 51– 52, 62–68, 75–77. “[A] party may, by consenting to a protective order or otherwise, waive [his First Amendment] rights.” Nat’l Polymer Prod., Inc. v. Borg-Warner Corp., 641 F.2d 418, 423 (6th Cir. 1981)
4
The respondents cannot avoid this fact by asserting the rights of
others. True, an assented-to protective order is not immune from a third-
4The respondents assert that their assent was involuntary because a bargaining disparity
exists between a criminal defendant and the State. If any of the respondents believed that
the State was improperly conditioning Brady/Laurie disclosures on the relinquishment of
First Amendment rights, then he could have sought relief from the trial court. That this
did not occur only further confirms that the respondents’ speech-based arguments were
party challenge. See, e.g., United States v. Wecht, 484 F.3d 194, 203–04 (3d
Cir. 2007). But that does not mean that a party who unequivocally waives
his own First Amendment rights may nonetheless invoke the rights of a
non-party, particularly for the first time on appeal. And in any event, “there
is no constitutional or common-law right of public access to discovery
materials exchanged by the parties by not filed with the court.” Bond v.
Utreras, 585 F.3d 1061, 1066 (7th Cir. 2009). For these reasons, too, the
respondents’ First Amendment and Part I, Article 22 claims necessarily fail.
Finally, even if the respondents’ speech-based arguments were
viable, the remedy still would not be what the trial court sought to impose
here. When a protective order is “entered on a showing of good cause, ...
is limited to the context of pretrial... discovery, and does not restrict the
dissemination of the information if gained from other sources, it does not
offend the First Amendment.” Seattle Times Co. v. Rhinehart, 467 U.S. 20,
37 (1984).5 The protective orders here are limited to pretrial discovery and
do not restrict dissemination of information gained from some other source.
The State believes that the record likewise reflects ample good cause to
issue the orders. But even if it did not, “good cause” merely requires “the
party seeking protection” to “show[] specific prejudice or harm will result
if no protective order is granted.” Phillips ex rel. Ests. of Byrd v. Gen.
Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002). This is a far cry from
the fact-intensive inquiry the trial court sought to require. Accordingly,
even if this Court does not reverse the trial court’s judgment—and it should
for all of the reasons stated above and previously— then it should still
vacate the trial court’s orders and direct the trial court to apply the correct
CONCLUSION
For the foregoing reasons, and those stated in the State’s petition and opening brief, this Court should reverse the trial court’s judgment.
THE STATE OF NEW HAMPSHIRE
September 16, 2021 /s/ Samuel R. V. Garland
Bar No. 266273
Assistant Attorney General
Civil Bureau
N.H. Department of Justice
33 Capitol Street
Concord, NH 03301-6397
(603) 271-3650
samuel.rv.garland@doj.nh.gov
CERTIFICATE OF COMPLIANCE
I, Samuel Garland, hereby certify that pursuant to Rule 16(11) of the New Hampshire Supreme Court Rules, this brief contains approximately 2, 925 words, which is fewer than the words permitted by this Court’s rules. Counsel relied upon the word count of the computer program used to prepare this brief.
September 16, 2021 /s/ Samuel R. V. Garland Samuel R. V. Garland
CERTIFICATE OF SERVICE
I, Samuel R. V. Garland, hereby certify that a copy of the State’s reply brief shall be served on the following parties of record, through the New Hampshire Supreme Court’s electronic filing system: Alexander J. Vitale, Esquire, counsel for Jacob Johnson Peter R. Decato, Esquire, Henry R. Klementowicz, Esquire, Gilles R. Bissonnette, Esquire, Albert E. Scherr, Esquire, and Robin D. Melone, Esquire, counsel for Jeffrey Hallock-Saucier Carl D. Olson, Esquire, counsel for Nicholas Fuchs
September 16, 2021 /s/ Samuel R. V. Garland Samuel R. V. Garland