John Doe et al. v. New Hampshire Attorney General et al.

Whether the trial court erred or abused its discretion when it misinterpreted RSA 105:13-d in failing to apply the appropriate standard for determining potentially exculpatory evidence?

Whether the trial court erred or abused its discretion in failing to apply the New Hampshire Rules of Evidence in determining whether a matter is potentially exculpatory?

Whether the trial court erred or abused its discretion when it applied the standards retroactively?

Whether the trial court erred or abused its discretion when it failed to give full faith and credit to a prior judicial determination?

Whether the trial court erred or abused its discretion when it found that the alleged conduct was sufficiently probative of the Appellant’s general credibility to require placement on the EES.

Whether the trial court erred or abused its discretion when it failed to articulate with specificity and with probability how the Appellant’s conduct would be material to guilt or innocence?

Whether the trial court erred or abused its discretion when it failed to provide an instance when the alleged matter could be used for impeachment purposes in the future under N.H. R. Ev. 608?

Whether the trial court erred or abused its discretion when it failed to consider alternatives to placement on the Exculpatory Evidence Schedule, due to the permanent nature of placement?

Whether the trial court erred or abused its discretion when it failed to consider RSA 105:13-b in its analysis?

Whether the trial court erred or abused its discretion when it improperly deferred to the New Hampshire Attorney General’s Office in placement of the Appellant on the Exculpatory Evidence Schedule in violation of Duchesne v. Hillsborough County Attorney, 167 N.H. 774 (2015)?

11. Whether the trial court erred or abused its discretion in relying on several different drafts of the New Hampshire Attorney General’s memorandum to law enforcement from three different attorney general’s, which were inherently contradictory, as if they had the force of law?

On or about August 25, 2021, the Governor signed HB-471 into law. HB-471 amended RSA 105:13 to include a new section titled 105:13-d Exculpatory Evidence Schedule. As a result of the bill passing into law, the New Hampshire Department of Justice, Attorney General’s Office (“NHAGO”) was required to provide notice to all police officers that were currently on the list. The Appellants had been placed on the so-called “Laurie” list back in [J shortly after the misconduct, but were then removed from the list in If after a district court performed an in- camera review that determined that the misconduct in the Appellant’s personnel files was not exculpatory. At some point in a. the Appellants unofficially learned! that their names were again placed on the “Laurie” list, and this was eventually confirmed on September 24, 2021 when the Appellants received notice from the NHAGO that they were currently on the Exculpatory Evidence Schedule (“EES”).

Pursuant to RSA 105:13-d, the Appellants had 180 days? to file a lawsuit seeking removal of their names from the EES. Since the Appellants were seeking removal from the EES, they were required by statute to name both the police department and the NHAGO as parties to the case. On or about March 21, 2022, the Appellants filed a Petition for Declaratory Judgment on RSA 105:13- d and a Request for Permanent Injunctive and Other Relief, along with a Motion to Seal with the Merrimack Superior Court. See App. at 3-21. In the Petition, the Appellant was requesting that the Merrimack Superior Court make the determination that RSA 105:13-d provided police officers with a new cause of action that it also provided for a de novo hearing on whether a police officer’s

placement on the EES was appropriate. The Appellants further argued that they did not receive 2 RSA 105:13-d went into effect 30 days after its passage on September 24, 2021.

any due process rights prior to their placement on the Laurie list a second time back in 2014 in violation of the 14" Amendment to the United States Constitution and Part I, Article 14 and 15 of the New Hampshire Constitution. The Appellant further requested that the court use its equitable powers and determine that the Appellants’ misconduct back in | was not potentially exculpatory, and as such, issue injunctive relief ordering that that NHAGO remove the Appellants’ name from the EES. See App. at 3-21. The Honorable Judge Andrew R. Shulman granted the Motion to Seal later on the same day the petition and motion were filed.

On or about May 13, 2022, the Respondents filed a Motion to Dismiss, and argued the following: (1) “seeking a declaration that Petitioners’ names must be removed from the EES, must be dismissed because the Petition alleges a course of conduct that is potentially exculpatory and therefore proper for inclusion on the EES; ” and (2) “a request for permanent injunction, must be dismissed because Petitioners’ conduct does not warrant such relief; ” and (3) “a determination that Petitioners’ due process rights have been violated, must be dismissed because the Petition alleges a level of process that is deemed adequate and further process would not alter the admitted fact that Petitioners falsified information.” See App. at 22-24.

On or about May 24, 2022, the Appellants filed an Objection to the Respondents’ Joint Motion to Dismiss and Joint Memorandum of Law in Support of Motion to Dismiss. The Appellants argued in their objection: (1) “...the Petitioners set forth numerous factual and legal arguments to support the determination that the alleged conduct is not potentially exculpatory and removal from the EES is warranted.” (2) “...the Petitioners have yet to begin the discovery process of obtaining personnel/internal investigative files to determine if the alleged conduct was found to meet the conclusion of untruthfulness or some other determination.” (3) “...the injunctive relief

requested is intertwined and conditioned on this Court’s determination of Count I, therefore, the

Respondents’ request to dismiss is premature and not supported by future factual and legal determination.” (4) “...any internal investigation that occurred in | | failed to comport with the due process rights afforded to challenge their placement on the EES. First, the 2004 Heed/Laurie Memorandum was non-existent, second, the 2017 EES Protocol similarly was non-existent; and RSA 105:13-d had yet to be enacted. Simply stated, any internal discipline that occurred in I could not have envisioned placement on the Laurie List or EES, or due process mechanisms to challenge inclusion. The issue raised by the Petitioners is the lack of opportunity to meaningfully challenge their inclusion on the EES, because it did not exist back in a. See App. at 35-37.

On or about October 4, 2022, the Court granted the Respondents’ Motion to Dismiss stating that the Appellants’ misconduct was potentially exculpatory, and it also determined that the Appellants received adequate due process. See App. at 38-47. On or about October 17, 2022, the Appellant filed a timely Rule 7 Mandatory Appeal with this Honorable Court. This brief now

follows.

In QB, the Appellants were employed by the Department of Safety, Division of State Police as patrol Troopers, and they were assigned to the f barracks, which primarily covers Pp County. See App at 5.

During the above time-frame, the Appellants were required to maintain “activity logs” to document motor vehicle enforcement. It was expected that patrol Troopers perform a minimum level of traffic stops per shift. The traffic stops were recorded on “activity logs, ” which were reviewed by supervisors. To comply with the mandated number of traffic stops, the Appellants inflated their enforcement action on the activity logs. By way of example, the Appellants would include driver/vehicle information regarding traffic stops in situations wherein he was the back-up officer following a traffic stop initiated by a different Trooper, or record enforcement actions in what is commonly referred to as “rolling stops.” Rolling stops typically occur in situations when a Trooper observes a minor equipment violation and conducts a license check on the registered owner of the vehicle to confirm the owner has a valid license, but does not actually conduct a stop of the vehicle. See App. at 5.

The Division became aware of the above actions of the Appellants, and it conducted an internal investigation. The Appellants fully cooperated in the investigation and acknowledged that they inflated the information on their respective activity logs. The Appellants’ actions of inflating the number of traffic stops during their patrol shifts had no impact or effect on the integrity or outcome of any proceedings related to traffic summons issued. In fact, in most, if not all of the instances, the motorist would not have been issued a summons by the Appellants. See App. at 5-6.

The Appellants were disciplined for their actions at the conclusion of the investigation in

a. The Appellants each continued their employment with the Department of Safety, Division

of State Police. PF was a patrol Trooper until i at which time he was assigned

as the Po until his retirement in m7. FP continued as a patrol Trooper until his retirement in J. EN continued as a patrol Trooper until his promotion to detective in MJ). Thereafter, in [J he was transferred to the Po and subsequently became part of the Po until his retirement in a. See App at 6.

It is believed that an in-camera review of the misconduct was conducted by a Justice of the Merrimack District Court in I) (now 9" Circuit —~ District Division — Merrimack). Upon information and belief, the Court determined that the material in the Appellant’s personnel files was not exculpatory and did not require disclosure for impeachment purposes. In m7. the Appellants received correspondence from the [I County Attorney that their names were removed from the Laurie list. See App. at 6.

More than a decade later, the Appellants heard rumors that the Division determined that they would be put back on the Laurie list. The Appellants were unable to confirm their placement on the Laurie list until they received notice from the NHAGO that their names were included on

the EES in September of 2021. See App at 6.

The standard of review when considering a motion to dismiss is "whether the allegations in the plaintiffs pleadings are reasonably susceptible of a construction that would permit recovery.” Karch v. Baybank FSB, 147 N.H. 525, 529 (2002) (citation omitted). We "assume the plaintiff's pleadings to be true and construe all reasonable inferences drawn therefrom most favorably to [him].” Kelleher v. Marvin Lumber & Cedar Co., 152 N.H. 813, 853 (2005), “The court must vigorously scrutinize the complaint to determine whether, on its face, it asserts a cause of action.” Williams v. O'Brien, 140 N.H. 595, 597, 669 A.2d 810 (1995) (emphasis and quotation omitted), “We assume the [plaintiff's] pleadings to be true and construe all reasonable inferences in the light most favorable to [her]. We need not assume the truth of statements in the [plaintiff's] pleadings, however, that are merely conclusions of law. We then engage in a threshold inquiry that tests the facts in the petition against the applicable law, and if the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss.” Tessier vy. Rockefeller, 162 N.H. 324, 329-330 (2011).

The standard of review for evidentiary issues is often referred to as abuse of discretion, but “Because the ‘Abuse of Discretion’ standard may carry an inaccurate connotation, we will hereafter refer to it as the "unsustainable exercise of discretion" standard. To show that the trial court's decision is not sustainable, "the defendant must demonstrate that the court's ruling was clearly untenable or unreasonable to the prejudice of his case." State v. Johnson, 145 N.H. 647,

648 (2000) (quotation omitted).

The Appellants filed a Petition for Declaratory Judgment and Injunctive Relief with the Merrimack Superior Court pursuant to RSA 105:13-d, and the Trial Court erred as a matter of law or abused its discretion when it granted the Appellees’ Motion to Dismiss.

The Appellants do appeal the declaration as to RSA 105:13-d requiring a de novo review, because the Appellants’ did not receive formal discovery in this case. Therefore, the Appellants do not know if witness testimony would be necessary in this case in order for them to prevail. The Appellants do argue that their names are not appropriate for placement on the EES, because their conduct does not rise to the level of “potentially” exculpatory evidence due to a variety of facts, such as the passage of time, their misconduct does not meet the EES protocol, and their case was already reviewed by a district court back in a. which resulted in their names being removed from any cheat sheet “aka Laurie List” that the county attorney’s office was using at the time.

The N.H. Rules of Evidence, specifically Rule 608 and 609, are on point with the Appellants’ alleged impeachment misconduct, because Rule 609 speaks to the passage of time. As the saying goes, time heals all, and it would appear that Rule 609(b) takes this into consideration. It speaks to the limit of using evidence that is over ten years old, because its probative value diminishes with the passage of time. Rule 609(c) speaks to annulments and pardons, which is not unusual in the criminal justice system. Former Attorney General Peter Heed took into consideration Rule 609(b) when he drafted the first Memorandum to Law Enforcement back in 2004, when he stated, “a report or other document that concerns an incident over ten years old is presumptively non-disclosable and may be removed from the file, provided that the officer

has not been the subject of any subsequent disciplinary action.” See App. at 49. In short, there has

to be a mechanism for removal from the EES after the passage of an adequate amount of time, because the information may no longer be relevant, material, or probative in value. A young police officer in his or her 20’s is not the same person in his or her 30’s or 40’s. The rule cannot be that an officer’s credibility can never be rehabilitated.

The Trial Court erred as a matter of law or abused its discretion when it failed to take into consideration that the Appellants’ misconduct does not meet the EES criteria. The integrity category of the EES is described as “A deliberate lie during a court case, administrative hearing, other official proceeding, in a police report, or in an internal investigation.” See App. at 60. The Appellants artificially inflated their activity report by including motor vehicle stops conducted by other Troopers and/or by conducting “rolling stops” where they conducted a quick motor vehicle

check on the driver without stopping the motor vehicle. The Troopers were present at those stops,

and they were not fabricated. The only issue was that those stops should not have been included as separate stops on their activity sheets. However, there is information and belief that there is no written policy on what is actually recorded on an activity sheet as a traffic stop, which leads to ambiguity’. The Division obviously had a different understanding, which is why the Appellants were disciplined. During the subsequent internal investigation, the Appellants were completely truthful, and they were not disciplined for any integrity violations connected with the internal investigation.

The Trial Court erred as a matter of law or abused its discretion when it failed to give full faith and credit to a prior judicial determination. The Merrimack District Court (9" Circuit Court — Merrimack District Division) conducted an in-camera review of the Appellants’ police personnel

files, and it determined that the actions of the Appellants were not exculpatory in nature. Granted this was only the decision of a district (circuit) court in a specific criminal case, but this was a normal review of a personnel file for exculpatory evidence prior to the enactment of an official Laurie list/EES. Therefore, it was not uncommon for a police officer to either be placed on a pre- Laurie list or taken off of said list after a review by any justice of the court system. That appears to have happened in this case, where the Division placed the Appellants on the pre-Laurie list out of an abundance of caution, but after a judicial review resulting in a determination that the conduct was not exculpatory, the FP County Attorney removed them of the list.

The Trial Court also erred as a matter of law or abused its discretion when it failed to acknowledge that failure to include an individual on the EES does not prohibit a prosecutor from exercising his or her professional discretion. Given the permanent and public nature of the EES, coupled with the Appellants’ constitutional property rights to good name, there should be a calculated hesitancy to placement of a police officer’s name on the EES. The EES should be relegated to those police officers who misconduct would be exculpatory in most cases in which he or she is a witness. Those police officers whose misconduct is very minor in nature, and routinely is considered not exculpatory in most criminal cases, should not be punished by having their names ona public list, which so drastically affects their property rights in their professional and personal lives. A prosecutor can still invoke RSA 105:13-b and request an in-camera review by the court in those rare cases where he or she believes that the misconduct is potentially exculpatory in that particular case. A prosecutor is still responsible for conducting his/her due diligence when reviewing a witness’ background for a criminal case and is not excused from the duty simply because he/she checked a cheat sheet (the EES).

Finally, the Trial Court erred as a matter of law or abused its discretion when it gave the

Memorandum to Law Enforcement, which there are several different versions and are at times

contradictory, the same force and effect of law. What is to say that one version is more correct than the other, or that the next attorney general will not issue another memorandum. At the end of the day, the EES is simply a cheat sheet for prosecutors, but that cheat sheet has a devastating

effect on a police officer’s professional and personal life.

Although, RSA 105-13-d does not specifically speak to a de novo review of the underlying facts and circumstances that led up to the police officer’s name being placed on the Laurie list or EES, it does speak to a review of the matter before the Superior Court. See RSA 105:13-d, II, (c), (d), and (e). The Statute is silent as to what the lawsuit or review of the records would entail. In some cases, a simple review of the relevant documents along with an offer of proof from the parties may be sufficient in satisfying the statute. However, in some cases, which may either lack documents, are so far in the past, or when there is a disagreement about the material facts of the case, a de novo hearing may be more appropriate.

In the current case at hand, discovery was in its infancy and not complete, therefore, it is not know if this matter could be settled by a simple review of the relevant documents along with offers of proof from the parties or if a de novo hearing would be more appropriate due to the age of the case and potential lack of documentation. Therefore, the Appellants would respectfully request that this Honorable Court address the issue of a lack of discovery and de novo hearing in its decision.

Since 1963, it has been the responsibility of the prosecution to provide exculpatory

evidence to the defendant. See Brady v. Maryland, 373 U.S 83 (1963). Under these federal

standards, “suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or punishment.” United States y. Agurs, 427 U.S. 97, 106-107 (1976). The rule also applies to impeachment materials, which “..1s evidence favorable to an accused...so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.” United States v. Bagley, 473 U.S. 667, 676 (1985). The federal standard, “does not demand that everything that might influence a jury be disclosed, or that there be permitted a complete discovery of all investigatory work or an examination of the state’s complete file.” State v. Breest, 118 N.H. 416, 419 (1978). New Hampshire followed the same standard as the federal government until 1995 when the Supreme Court issued its decision in State v. Laurie. See State v. Laurie, 139 N.H. 325 (1995), In State v. Laurie, the Supreme Court stated, “Upon a showing by the defendant that favorable, exculpatory evidence has been knowingly withheld by the prosecution, the burden shifts to the state to prove beyond a reasonable doubt that the undisclosed evidence would not have affected the verdict. This standard does not require that the prosecutor disclose everything that might influence a jury, or that the defendant be permitted a complete discovery of all investigatory work or an examination of the state’s complete file.” Jd at 330. This extra protection that was provided by State v. Laurie to defendants did not change how material was deemed exculpatory, it only shifted the burden back to the State to prove beyond a reasonable doubt that the undisclosed evidence would not have affected. the verdict.

When examining whether evidence is potentially exculpatory in nature, some relevant sections of the New Hampshire Rules of Evidence are 608 and 609, which are as follows:

Rule 608. A Witness's Character for Truthfulness or Untruthfulness.

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are - probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self- incrimination for testimony that relates only to the witness’s character for truthfulness.

Rule 609. Impeachment by Evidence of A Criminal Conviction

(a) In General. The following rules apply to attaching a witness's character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving - or the witness’s admitting - a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year, or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case; (2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence,

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if any appeal is pending. Evidence of the pendency of the appeal is also admissible.

The important aspect of the N.H. Rules of Evidence is that it recognizes that evidence which is over ten years old may no longer be material, relevant, or probative in value. This is important when examining potentially exculpatory evidence in a police officer’s personnel file that is more than ten years old, because the passage of time has made that evidence stale. Common sense would seem to indicate that it cannot be the rule that a police officer’s credibility can never be rehabilitated. Police officers are human beings, just like everyone else, and contrary to recent public opinion they are not infallible. A young police officer in his or her early 20’s is not the same police officer in his/her 30’s or even 40’s. That can be said for almost any human being. The criminal justice system and the N.H. Rules of Evidence 609 takes into consideration that defendants can be rehabilitated, and in many instances, can have their crimes annulled. However, the NHAGO believes that any minor infraction can place a police officer on the EES permanently with no chance of removal beyond RSA 105:13-d. The NHAGO claims to be “just the keeper of the list, ” but will fight hard against anyone that believes his or her name should be removed from the EES. In fact, the statute authorizing the creation of the EES left it within the discretion of the

NHAGO to discontinue it any time. See RSA 105:13-d, I.

In the current case at hand, although the Appellants artificially inflated their activity logs’, there was nothing illegal about their actions, nor did their actions violate any defendants’ rights. It should be noted that times do change, and as such, so do standards and the emphasis of certain policing tactics. Back in the early 2000’s, the Division of State Police placed a lot of emphasis on motor vehicle stops, specifically on quantity and less so on quality. Now over twenty years later that paradigm has shifted to where the Division of State Police is now placing more emphasis on quality as opposed to quantity. There are even certain political groups that are pressuring politicians to move forward on policy changes that emphasize less on motor vehicle enforcement. Therefore, it would appear that the Appellants alleged misconduct back in J would not even have occurred given today’s standards and practices within the Division of State Police and law enforcement in general.

Due to the passage of time, any relevance that the Appellants alleged misconduct may have had back in | has long since dissipated. Therefore, this Honorable Court should adopt the concepts of the New Hampshire Rules of Evidence, Rule 609 as outline the Memorandum to Law Enforcement issued by former Attorney General Peter Heed, which stated in part, “A report or other document that concerns an incident over ten years old is presumptively non-disclosable and may be removed from the file, provided that the officer has not been subject of any subsequent disciplinary action.” See App. at 49. In reference to the EES, the competing interests of both the defendant and the police officer can be accomplished in that the police officer’s name should be

removed after ten years have passed, provided that there are no further incidents that may affect his or her general credibility. In rare instances, the prosecutor could always invoke RSA 105:13- b if he or she felt that something in the police officer’s personnel file may still be potentially exculpatory in a specific case.

When the Trial Court granted the Respondents’ Motion to Dismiss, it stated in part, “Once the court issues a ‘final order, after exhausting any applicable appellate rights, ’ the officer’s ‘name and corresponding information will become public unless’ either of the following occurs: (1) ‘ a court issues an order that the underlying misconduct is not potentially exculpatory, ’ or ‘(2) [a] court issues an order finding that the law enforcement agency erred in recommending that the officer be placed on the’ EES. RSA 105:13-d, H(d) (emphasis added).” See App. at 42-43. In examining the first determination, the Trial Court noted, “The Petitioners’ conduct is potentially exculpatory such that their placement on the EES is appropriate. By their own admission, the Petitioners submitted activity logs with false information in an effort to show compliance with Division policy that required a minimum number of traffic stops per shift.” See App. at 43-44. In so ruling, the Trial Court misinterpreted the new statute, and committed an error of law. Interpretation of statutes is reviewed de novo by this Honorable Court. See Bendeston v. Killarney, Inc., 154 N.H. 637, 641 (2006).

In coming to its conclusion, the Trial Court failed to take into consideration several factors. First, the Appellants did not engage in an activity that was completely fraudulent. They were

present at motor vehicle stops as back-up Troopers and/or conducted “rolling stops” of other motor

vehicles with minor equipment violations. They did the work, granted it artificially inflated

internal activity logs, but they did not commit any crimes nor did they violate any individual’s rights. This was simply a difference in the interpretation of what constituted a “motor vehicle stop” for the purposes of recording on their weekly duty reports. The Appellants believed that stops where a Trooper was the backup Trooper could be counted, as well as, those rolling stops that were conducted. The Division of State Police obviously believed otherwise?.

Even assuming arguendo, the Appellants alleged misconduct back in i is no longer material, relevant, or probative in value, and as such, no longer necessitates their names inclusion on the EES, As stated in the Laurie case, “The evidence is material unless the state demonstrates beyond a reasonable doubt that the undisclosed evidence would not have affected the verdict.” State v. Laurie at 332. Furthermore, all of the Appellants are now retired, and the likelihood of any one of them being a witness in a criminal case moving forward is zero. Police officers are not infallible, they are just like everyone else. To hold them to such a high standard only serves to destroy their reputations and contributes to the recruitment and retention issues that are being experienced in the law enforcement field today. Therefore, placing the Appellants’ names on the EES will serve no purpose other than to sully their reputations after honorably retiring after long careers and adding to the recruitment and retention issue currently experienced by the law enforcement community.

When examining if the Appellants’ alleged misconduct back in | as have any bearing on trials now, the Court should examine the standard laid out in State v. Laurie, which states, “Favorable evidence is material under the federal standard only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome.” State v. Laurie, at 328. This Court further stated, “...the New Hampshire Constitution

affords defendants greater protection than the federal standard and held that upon a showing by

the defendant that favorable, exculpatory evidence has been knowingly withheld by the

prosecution, the burden shifts to the State to prove beyond a reasonable doubt that the undisclosed

evidence would not have affected the verdict. This standard does not require that the

prosecutor disclose everything that might influence a jury, or that the defendant be permitted

a complete discovery of all investigatory work or an examination of the State’s complete file.” Jd at 330. (Emphasis added). New Hampshire did not provide its citizens with more protections. under State v. Laurie when it came to what was considered exculpatory evidence. It still follows

the federal standard when determining what information is considered exculpatory in nature.

Therefore, it is hard to fathom that any reasonable person would find that the Appellants’ conduct

back in | | is still material, relevant, and probative in value for impeachment purposes that would

necessitate the placement of the Appellant’s name on the EES. Not to mention, the likelihood of any of the Appellants being called as a witness for a criminal trial now is nearly zero.

The issue that the Trial Court failed to examine in this case, is whether the plaintiffs’ one instance of misconduct over 20 years ago is probative of their truthfulness or untruthfulness. The court should have considered several factors “[w]hen assessing the probative value of the evidence under the N.H. Rules of Evidence 608(b).” State v. Brum, 155 N.H. 408, 413 (2007). Those factors examine whether: (1) “the testimony of the witness...is crucial or unimportant; ” (2)”the evidence is probative of truthfulness or untruthfulness; ” (3) “the evidence is also probative of other relevant matters; ” (4) “the act of untruthfulness is connected to the case; ” (5) “the circumstances surrounding the specific instances of conduct are similar to the circumstances surrounding the

giving of the witness’s testimony; ” (6) “the nearness or remoteness in time of the specific instances

to trial; ” (7) “the alleged specific instances...conduct in fact occurred; ” (8) the “evidence is cumulative or unnecessary in light of other evidence already received on credibility; ” and (9) “whether specific-instance evidence is needed to rebut other evidence concerning credibility.” Jd. Considering these factors, the Appellants’ sole instance of alleged misconduct and their truthfulness during the internal investigation that followed, has little probative value as to the Appellants general credibility. There is nothing in the Appellants’ personnel files to suggest that, after the State Police disciplined the Appellants for the alleged misconduct, the Appellants continued to be untruthful or otherwise engage in actions that would reflect poorly on their character.

The Trial Court also erred as a matter of law or abused its discretion when it reviewed the facts of the case and came to the conclusion that the information contained in the Appellants’ files back in J was still material, relevant, and probative in value that it warranted the Appellants’ names to be included on the EES, even though no reasonable person would have come to the same conclusion. As such, it would be hard to imagine when the Appellants’ alleged misconduct would ever be potentially exculpatory.

The Merrimack District Court (9" Circuit Court, Merrimack District Division), conducted

an in-camera review in J of the Appellants actions, and it concluded that the alleged

misconduct was not exculpatory and did not require disclosure for impeachment purposes®. Furthermore, in a. the Appellants received correspondences from the J) County Attorney’s Office that their names were removed from the Laurie list’.

To add insult to injury, the Appellants heard rumors that their names were added back on the Laurie list for some unknown reason in I but they never received any official notification from the Division of State Police, the NH Attorney General’s Office, or any county attorneys’ offices, It was not until on or about September 24, 2021 that the Appellants received official notification that their names were on the EES pursuant to RSA 105:13-d, which had just gone into effect.

The Appellants understands that the 9" Circuit Court ~ Merrimack District Division’s ruling is limited to that particular criminal case. However, back in the early days of the Laurie list, it was not unusual for prosecutors to request that a judge conduct an in-camera review of the police officer’s misconduct in order to determine if it was exculpatory in nature or not. More often than not, that judge was usually a district court judge, since almost all criminal cases went through the district courts. Once the prosecutor received a decision from the judge, that police officer was either kept on the Laurie list or was removed from it. In other words, that review was conducted for the purpose of determining whether the information contained in the police officer’s file was considered exculpatory or not in all cases. The Merrimack Superior Court should have given some consideration to Judge fF decision, even if it did not give it full faith and credit since the decision came from a Circuit Court. Therefore, the Trial Court erred when it failed to give some consideration or deference to this prior judicial determination.

This Court recognized in the Duchesne case, that some officers’ conduct may be so egregious that any time they are a witness in a court case their file will be turned over to the court for a review. The Court stated, “For an officer such as Laro, being placed on a ‘Laurie List’ and having the adverse information automatically disclosed to the court every time that officer is to be a witness makes sense and upholds the prosecutor’s legal and ethical responsibility.” Duchesne v. Hillsborough County Attorney, 167 N.H. 774 (2015). Therefore, the EES may be helpful with officers, such as Sgt. Laro, whose conduct is so egregious that it will most likely be deemed as exculpatory in almost any criminal case. However, there are many officers on the EES, whose conduct has been reviewed by the courts, and the courts have issued decisions that deem the information in those officers’ personnel files to be not exculpatory in nature in those individual criminal cases and not to be released to the defense. As noted earlier, the internal investigation back in | | was reviewed by the Merrimack District Court (9" Circuit Court — Merrimack District Division) in a. which determined that the information contained in the file was not exculpatory, and therefore, need not be released to the defendant. So, why should those officers, like the Appellants, have their names included on the EES, if courts have routinely reviewed the files and have found the information to not be exculpatory in nature?

Furthermore, both this Court and the Professional Rules of Conduct support the fact that the courts can make a prospective ruling that information contained in a police personnel file is not exculpatory in future litigation. In the Duchesne case, the Supreme Court noted, “It makes no sense that the threshold determination — that something was thought to be potentially exculpatory and worthy of an in camera review by the court, but has now been shown not to be of that character — should follow the petitioners every time they appear as witnesses.” Duchesne, 167 N.H. at 777.

The Professional Rules of Conduct, Rule 3. 8 states, “ make timely disclosure to the defense of all

evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (emphasis added). See App. at 79,

RSA 105:13-d allows the Department of Justice to maintain a voluntary list of police officers whose records may contain potentially exculpatory information. The EES has the propensity to destroy officers’ reputations and careers for those officers placed on this schedule. See Duchesne. (Also, recent press coverage). Therefore, the Appellant urges this Honorable Court to limit placement on the list of only those individuals whose actions would be potentially exculpatory in a majority cases. The term "potentially exculpatory" should be read narrowly to identify those officers in which it is more probable than not that the information would be material to guilt or innocence in a majority of cases.

However, the NHAGO appears to take the position that “potential” means that somewhere, somehow in an unknown case yet to be discovered this information might be exculpatory. The word “potential” is not that broad and does not contemplate fanciful hypothetical scenarios. The word potential is defined as, “Existing in possibility not in act. Naturally and probably expected to come into existence at some future time, though not now existing; for example, the future product of grain or trees already planted, or the successive future installments or payments on a contract

or engagement already made.” Blacks Law Dictionary, 6" Edition at page 1168. The courts have

recognized a difference between exculpatory evidence and possibly helpful evidence which does not require disclosure. Illinois vy. Fisher, 540 U.S. 544, 547-48, 124 S. Ct. 1200, 157 L. Ed. 2d

1060 (2004) (per curiam). The NHAGO reasoning would have EVERY act of misconduct, either

off or on duty, require placement on the EES. Taken to its legal conclusion, if a police officer ripped a tag off a pillow, he would be subject to a EES designation. Infractions may be relevant, but it is not exculpatory. RSA 105:13-bdD.

In the event that the sustained misconduct is of minor significance, such as being more than 20 years old and more probable than not of being found either immaterial or not exculpatory in a majority of cases, the Court should exercise its discretion and the officer’s name should not be placed on the EES. The narrow reading is necessary due to the gravity of the individual being placed on the schedule, the permanent nature of the placement, and the fact that the schedule will be made public.

Prosecutors would still be able to invoke RSA 105:13-b in the appropriate cases for those matters which may be potentially exculpatory in few, if any, future cases. The placement on the schedule must be deliberate and based upon a sustained finding of misconduct that would be exculpatory in a majority of cases that the officer may testify in the future. A broad reading of "potentially exculpatory" would render many good officers scarred with a bad reputation that they do not deserve, as is the case here. Again, taken to the extreme any misconduct no matter how minor could be argued to be POTENTIALLY exculpatory. The reality is that officers make hundreds, if not thousands, of, public contacts every year and an expectation that a mistake is not going to be made is not realistic.

One of the errors that many courts appear to fall victim of is that they seem to give the

NHAGO’s Memorandum to Law Enforcement documents the same weight as if they were law.

There were several different drafts of each document that span from 2004 all the way to 2018.

Attorney General Peter Heed was the first Attorney General to try to address the issue of exculpatory evidence within a police officer’s personnel file, and he issued the first memorandum back on February 20, 2004. In his memorandum, Attorney General Heed took into consideration the New Hampshire Rules of Evidence when he stated, “However, a report or other document that concerns an incident over ten years old is presumptively non-disclosable and may be removed from the file, provided that the officer has not been the subject of any subsequent disciplinary action.” See App. at 49. Former Attorney General Heed further stated in the memorandum, “The probative value of information diminishes with the passage of time. Any incident more than 10 years in the past should be presumed immaterial, unless it involved particularly egregious conduct that is highly probative on the issue of truthfulness.” See N.H. R. Ev. 609. See App. at 52.

On January 3, 2017, former Attorney General Joseph Foster issued an updated Memorandum to Law Enforcement, however, many police chiefs raised some concerns that they had with the new memorandum. As a result, that memorandum was amended and the March 21, 2017 memorandum replaced it. This new memorandum created the current system of the Exculpatory Evidence Schedule, but it made a significant change to the process as outlined in the Heed memorandum, The new memorandum stated, “The new protocol eliminates the ten-year rule for maintaining an officer’s name on the EES.” See App. at 58. The Foster memorandum went so far as to state, “To the extent that institutional knowledge permits, an officer who was taken off the Laurie list because the conduct was more than ten years old should be placed back on the EES. Hereafter, no officer will be taken off the EES without the approval of the Attorney General or designee.” See App. at 63.

On April 30, 2018, Attorney General Gordon MacDonald issued another updated version

of the Memorandum to Law Enforcement, which focused primarily on the removal process of an

officer. However, in this memorandum, only an officer’s whose misconduct is overturned or “not sustained” can have his or her name removed from the EES. There is still no effective way® for an officer to petition to come off the EES if his or her misconduct is sustained, but he or she does not believe that the misconduct is exculpatory. Once on the list it is virtually impossible for an officer to have his or her name removed from the list. Even today, the NHAGO often states that it is just the “keeper of the list, ” and that it is not an adjudicatory body. However, the NHAGO will fight tooth and nail to keep an officer on the EES, even if the chief of a police department requests that the officer is removed from it.

Therefore, the Trial Court erred as a matter of law or abused its discretion when it failed to give the Appellants’ petition serious consideration, given the gravity of the Appellants’ constitutional property rights to their good names, the permanent and public nature of placement on the EES, while deferring to the NHAGO and its memorandums.

For the reasons set forth above, the Appellants respectfully requests that this Honorable Court reverse and remand the decision of the Trial Court and find that the Trial Court either erred as a matter of law or abused its discretion when it granted the Appellee’s Motion to Dismiss.

The Appellant requests a 15-minute oral argument to be presented by Marc G. Beaudoin, Esq.

{Signatures on the following page}

® No other removal process except under former Attorney General Gordon MacDonald’s EES memorandum, which only allows for “Unfounded” or “Not Sustained” misconduct to be removed. The only other removal process is under RSA 105:13-d.

In accordance with New Hampshire Supreme Court Rule 16(7), the undersigned hereby certifies that an original Brief of the Appellant has been uploaded to the Supreme Court electronic filing system on this 21“ day of March 2023.

In accordance with New Hampshire Supreme Court Rule 16(10), the undersigned hereby certifies that opposing counsel, Emily C. Goering, Esq. and Samuel R.V. Garland, Esq. of the New Hampshire Attorney General’s Office, have been copied on the Supreme Court filing system.

In accordance with New Hampshire Supreme Court Rule 16(10), the undersigned hereby requests that this matter be heard on oral argument and, further, that Marc G. Beaudoin, Esq. be designated as the attorney to argue its merits on behalf of the Appellants. Counsel respectfully requests fifteen (15) minutes for argument.

In accordance with New Hampshire Supreme Court Rule 16(11), the undersigned hereby certifies that the brief does not exceed 9, 500 words, exclusive of pages containing the table of contents, table of citations, and any other addendums.

Date: March 20, 2023 /si Mare 0G. Beaudoin Mare G. Beaudoin, Esq.