CONCORD - A judge denied Concord attorney Jim Moir's request to order the prosecutor to scour personnel records of four law enforcement officers who will testify against his client in a drunken-driving case in search of information favorable to the defense, including discipline involving police dishonesty.
Judge Larry Smukler denied Moir's request last week: "Because the plain language of RSA 105:13 does not impose an affirmative duty on all prosecutors to examine the personnel files of all law enforcement witnesses."
Moir had hoped to resolve a difference of opinion between the state Attorney General's Office and the defense over who is responsible for finding and disclosing to the defense police officers with integrity issues since a change in the law last year.
"I'm still not sure how a prosecutor is going to find out the contents of an officer's personnel file without reviewing it," Moir said after reading Smukler's ruling. "There seems to be a disconnect here."
Since the New Hampshire Sunday News reported last fall that secret lists contained the names of more than 60 law enforcement officers across the state who had been disciplined for matters that could hinder their ability to testify truthfully, the newspaper has reported two cases in which such officers did, in fact, testify without disclosing as required. In a third case, the police issue was disclosed to an attorney, but not to the defendant.
Moir argued three weeks ago in Merrimack County Superior Court that the law that went into effect last June changes the procedure for reviewing police personnel files when officers are to testify, shifting the burden from a judge directly to the prosecutor.
The case at hand involves Timothy Bailey, who is accused of driving after being deemed a habitual offender and driving while intoxicated subsequent offense.
"The new statute appears to give a prosecutor the affirmative obligation to examine personnel files of any officers who may testify to determine whether it contains exculpatory evidence," Moir said.
"Exculpatory" means evidence that favors the accused. If it is not disclosed before trial, the remedy may lead to the court reversing a conviction.
Assistant Merrimack County Attorney Joseph Cherniske, who is prosecuting Bailey, disagreed.
"The defendant's arguments amount to no more than an unsupported speculation that the prosecutor or police will fail to comply with (disclosure required by courts) unless their procedures for ensuring compliance are micromanaged by the judiciary," Cherniske said in his objection.
Moir said he has no reason to believe the four officers who will testify against Bailey have discipline problems that should be disclosed, adding that he would have no way of knowing because police personnel files are confidential by law.
The Attorney General's Office viewed the law differently from defense attorneys after learning about it last November, but recently said the whole police personnel disclosure issue is under review.
Bailey's case could have wider implications, according to legal expert Charles Temple, the director of the University of New Hampshire School of Law Criminal Practice Clinic.
Even though Smukler's ruling won't have the weight of a state Supreme Court decision, it will set the tone at the trial level, at least for a time, Temple said.
"At some point . it may well end up in front of the Supreme Court," Temple said.
Prosecutors across the state have continued to follow a 2004 memo by then-Attorney General Peter Heed, in which county attorneys keep a confidential list of officers with potential credibility issues detailed in their personnel files, then ask a judge to determine whether the personnel information should be turned over to the defense, if that officer is to testify.
The defense could then use it to impeach an officer's testimony.
County attorneys rely on information provided by police chiefs on which officers should be placed on confidential lists for possible disclosure.
Former Rep. Brandon Giuda, who pushed the law through, has stated he was concerned that some police chiefs were not identifying such officers to county attorneys, depriving defendants of information that could help their cases.
Moir told Smukler at the hearing: "I believe the Legislature determined the law that was in place wasn't working."
Should be public access
Moir believes the lists should be public so ordinary people and defense attorneys will know which police officers have been disciplined for integrity matters. Heed's memo said those could include officers who have lied under oath, been convicted of fraud or theft, or other ways they have been shown to be dishonest.
At the hearing, Moir explained his history with police personnel records. He represented Carl Laurie when Laurie was convicted of first-degree murder more than 20 years ago. After Laurie was imprisoned, Moir learned through casual conversation with the then-county attorney that the Attorney General's Office was aware the lead police investigator was known to be dishonest but never disclosed that to the defense.
In 1995, the state Supreme Court reversed Laurie's murder conviction because the evidence involving police dishonesty favorable to him was withheld. Laurie pleaded guilty to a lesser offense.
Jane Young, head of the Attorney General's Criminal Bureau, wouldn't discuss the ongoing case, but did indicate disclosure protocols under the new law are being reviewed.
"Given the new law, the Laurie decision, guidance in 2004 given by Peter Heed and statutes involving the confidentiality of personnel files, the entirety of the Laurie issue is under review."We are looking at the case law and the statute to see if guidance in the memo should be updated," Young said.