The entire New Hampshire Attorney General's office should disqualify itself from death row inmate Michael K. Addison's appeal and turn the case over to a special prosecutor given the state may have accessed key defense strategies and privileged documents when it recruited one of Addison's defense attorneys to work for its office last July.
In a 40-page motion filed Monday, defense attorney Andrew R. Schulman asked the state Supreme Court to order the Attorney General's office to immediately remove itself from all direct or collateral appeals of the state's first modern-era death penalty case.
Failing that, Schulman seeks a court order disqualifying anyone employed by or associated with the Attorney General's office in the two-month period when former New Hampshire Public Defender Lisa Wolford joined the office until she was effectively "screened" from prosecutors handling Addison's direct appeal last September.
Not only was Wolford not "screened" to ensure prosecutors could not gain access to confidential information and strategies related to Addison's appeal, but Wolford also brought with her at least one confidential document related to the appeal with her to the Attorney General's office and installed it on its computer network, Schulman wrote. That document dealt with aggravating factors — an issue that has yet to be argued on appeal.
New Hampshire Attorney General Joseph A. Foster said Thursday he has yet to review the motion.
"I knew the issue was out there and a motion might be filed. We will be reviewing it and filing an appropriate objection. Other than that, I can't comment yet," Foster said. Foster was sworn in May 15 as Attorney General to succeed Michael A. Delaney, whose term ended March 31.
Addison, 33, is the first and only person sentenced to death since the state's capital murder law went into effect in 1977. A Hillsborough County Superior Court North jury in 2008 found the former Boston street gang member, guilty of capital murder in the 2006 shooting death of Manchester Police Officer Michael L. Briggs, 35, and imposed the death penalty.
Addison's appeal of his conviction and sentence has been briefed and argued before the state Supreme Court. An order is pending. If Addison does not prevail in this phase of the process, the appeal would proceed to the third stage to explore the issue of proportionality review.
Wolford joined Addison's appellate defense team in 2009 while his appeal was pending. She met at least once with Addison on death row, was his attorney of record in the Supreme Court and worked extensively with his defense team in brainstorming and drafting legal strategies related to proportionality review and the sufficiency of aggravating factors needed to impose a death sentence.
Addison's attorney claims Wolford was privy to what arguments the defense would make, what responses from the state it feared most and other critical strategies.
"In poker terms, she not only knows the defense team's hand, but how the defense intends to play it. In chess terms, she knows how many moves ahead the defense has thought and how it is likely to react to the prosecution's moves and the court's rulings. In football terms, she has her old team's playbook," Schulman wrote.
"In our profession's terms, she has confidential and privileged information including not only privileged client communications but also attorney work product consisting of the mental impressions of the defense team," he added.
Schulman claims then Attorney General Delaney failed to implement an adequate screening procedure when Wolford joined his staff even though he was warned of this in writing by then Executive Director of the Public Defender Program Christopher Keating on June 11, 2012, about a month before Wolford became a prosecutor.
While Delaney replied that he would "ensure Lisa Wolford is screened from any matter in which she had involvement as a public defender," Schulman claims Delaney failed to follow through on this promises. It was only two months later that screening measures were enacted, he claimed.
If the court denies the defense request to disqualify the Attorney General's office from the appeal, the defense asked that a special master be appointed to supervise discovery and conduct fact finding to determine if any confidences were betrayed.