ACLU: Reconsider N.H. Police List Policy

Valley News Staff Writer
Thursday, July 12, 2018

West Lebanon — The American Civil Liberties Union of New Hampshire is asking the state Attorney General’s Office to revisit its recently revised rules that govern when a police officer is placed on the so-called “Laurie List,” which is a record of officers with credibility issues.

In an opinion piece published in the New Hampshire Bar News last month, ACLU Legal Director Gilles Bissonnette and defense attorney Robin Melone say the new guidelines issued in April by Gov. Chris Sununu and Attorney General Gordon MacDonald adopt “a police-centered approach” and one that could prove problematic for defendants.

The new guidelines state that an officer would only be placed on the Laurie List, now called the Exculpatory Evidence Schedule, once an investigation into his or her actions is “sustained.” Therefore, the officer wouldn’t be placed on the list during the investigation, according to the memorandum issued on April 30.

Instead, officers who are under investigation “must notify” the prosecutor ahead of time if they are under investigation and would be a witness, the memo states.

“This approach essentially asks defendants to trust that the officer being investigated for a credibility issue will make the required disclosure to the prosecutor,” Bissonnette and Melone wrote. “This ‘trust the police’ approach is not how our criminal justice system works and it puts criminal defendants’ due process rights in jeopardy.”

But in their memo, the governor and attorney general said that officers deserve the same due process rights as criminal defendants, something that wasn’t ensured before.

Bissonnette and Melone took issue with that.

“This view is incorrect,” they wrote in their piece. “The police are not entitled to rights equal to those held by defendants. This is because, in a criminal case, the government is attempting to deprive the defendant, not the police, of his or her liberty.”

In their opinion piece, Bissonnette and Melone referenced a few cases that show “the scope of cases individual officers touch” and reflect the risk of non disclosure. Two of the officers mentioned were former Claremont police officers Ian Kibbe and Mark Burch, who were fired for allegedly performing an illegal search and falsifying reports. The Claremont Police Department had to throw out at least 20 cases that involved those two officers, and that number continues to climb.

Kibbe has been criminally charged with conspiracy to commit perjury and attempted perjury, among other counts. He has pleaded not guilty. Burch hasn’t been charged.

Police organizations lauded the governor and attorney general’s new guidelines.

New England Police Benevolent Association New Hampshire State Director Stephen J. Arnold Sr. called them a “long overdue correction” to the Laurie List, as stated in an April news release from the Governor’s Office announcing the changes.

“We now believe that we have a reasonable and fair process to address the issue of exculpatory evidence without harming the career of wrongfully labeled police officers,” he said in the release.

The memo also addresses protocols for removing an officer from the Laurie List, acknowledging that some “sustained” findings in a case can be overturned. If the findings are overturned, such as through a grievance process, an officer’s name can be removed from the list with approval from the Attorney General or “designee.”

Bissonnette and Melone said the Attorney General’s Office didn’t speak with the ACLU or the New Hampshire Association of Criminal Defense Lawyers, to which Melone is a member, before publishing the memo.

The Laurie List, created in the state in 2004, followed a 1990s Supreme Court decision in State vs. Carl Laurie, a case where Laurie’s conviction was overturned because a prosecutor didn’t disclose that a key witness had credibility issues, something prosecutors must do.

Bissonnette and Melone called the former Laurie List system “already imperfect” because it is secret — the public can’t find out just who is on it.

“And, for those few officers who we know are on the list, the state has still failed to make constitutionally-required disclosures,” they wrote. “These systemic failures increase suspicion that defendants are not receiving all the evidence to which they are entitled and undermines confidence in the criminal justice system.”

Jordan Cuddemi can be reached at jcuddemi@vnews.com or 603-727-3248.