A police officer's lie to his superiors 25 years ago should be made known to criminal defendants in all cases since then in which he testified, two defense experts say. The Attorney General's Office says it intends to do so in three homicide cases, but Hillsborough County Attorney Patricia LaFrance says she doesn't know if she can, or will, follow suit.
The officer in question is now Nashua's Chief of Police, John Seusing. Associate Attorney General Jane Young said that Seusing has had a "stellar" career and she would not hesitate to call him to the stand to testify in any case. "This incident happened a quarter of a century ago," Young said.
In the incident, Seusing told superiors that he hadn't made an arrest that led to an excessive-force lawsuit. He later corrected the record on his own and was disciplined.
Young has identified three murder cases in which Seusing testified over the years subsequent to being disciplined and will soon make the disclosure to defense counsel. She declined to name the defendants convicted in those cases, adding they could now seek post-conviction relief from the court. County Attorney LaFrance said she didn't know in how many cases Seusing may have testified at the county level.
"I am not sure at this point," she said, "how to go about finding out this information. The records only go back so far." She said she will decide in the next month whether to proceed.
LaFrance wouldn't say whether Seusing has been placed on the highly secretive "Laurie list" of law enforcement officers with potential credibility issues. But Associate Attorney General Young said "that's a reasonable assumption."
In a news release, Attorney General Joseph Foster announced that he had determined complaints claiming Seusing had fabricated a report and provided false testimony in a case during the mid-1980s were unfounded. The complaints were filed by Anthony Pivero, a retired Nashua police officer and union activist. The state's investigation did show that Seusing had lied to his superiors, however.
The AG's report said it had determined that Seusing's falsehood was subsequently disclosed to the defense, as required, in the 1995 murder trial of Michael Monroe, but was ruled inadmissible and "inconsequential." But Seusing's discipline and 15-day suspension were not disclosed to the defense in every case after that in which Seusing testified, the AG said.
"Police departments are required to inform prosecutors if a police officer has information in his or her personnel file that could materially impact a jury's assessment of the officer's credibility as a witness. Prosecutors in turn have a constitutional obligation to disclose such information to a criminal defendant," the AG said.
They are called "Laurie issues" because the state Supreme Court reversed a first-degree murder conviction against Carl Laurie in 1995 because prosecutors failed to disclose before trial a key police investigator's propensity for dishonesty.
Charles Temple, director of the Criminal Practice Clinic at the University of New Hampshire School of Law, said the Laurie case makes it clear that prosecutors now must alert all defendants in all cases in which Seusing has testified, all the way back to the date of the discipline.
Prosecutors have a duty to produce all evidence favorable to the defendant before trial, especially important information relative to a law enforcement officer's truthfulness, Temple said.
"If the attorney general is doing it (disclosing in past cases involving Seusing), why wouldn't county attorneys have to do the same?" Temple asked, adding that he thought a number of criminal cases could be affected.
"This case just goes to the whole troubling nature of this issue and their obligation to disclose exculpatory evidence, that is evidence favorable to the accused, including evidence that goes to the credibility of the police. It's a constitutional requirement." Temple said.
Concord attorney Jim Moir, who represented Carl Laurie at trial, agreed that all cases involving Seusing testimony should be disclosed to the defense.
"The fact that in 2013 we are only now looking at the failure of a department to disclose potential impeachment material to a defendant over a period of 25 years underscores the lapse in the current Laurie disclosure system," Moir said.
Laurie lists are supposed to be kept by all police departments and names on them are supposed to be shared with defense counsel if a named officer is to testify. But the Union Leader and New Hampshire Sunday News have found law enforcement reluctant in many cases to even acknowledge how many names are on their respective lists.
Pivero said his basic complaint that Seusing had a potential undisclosed Laurie issue had proved largely correct. "I think Chief Seusing should resign," Pivero said. "How can you run a police department when you yourself have a major documented truthfulness issue in your past?"
Seusing did not comment for this story but last Thursday he told the New Hampshire Union Leader: "Twenty-seven years ago I was a young officer with a few years on the job and I made a terrible mistake, one that I certainly regret to this day. I can't change that, but I owned up to it on my own. I was disciplined for it, and the discipline was well-deserved."
Thomas Pappas, chairman of the Nashua Police Commission, backs Seusing. "I think (Seusing) can effectively lead the department. The chief continues to have my complete confidence."
Pappas said the fact that a judge 25 years ago in a first-degree murder trial found Seusing's discipline "inconsequential" and not admissible was "a pretty strong indication how that judge felt."