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Bills Would Change Rules On Police List

  • The State House dome as seen on March 5, 2016. (ELIZABETH FRANTZ / Monitor staff) ELIZABETH FRANTZ

Concord Monitor
Published: 12/31/2018 9:57:48 PM
Modified: 1/2/2019 11:58:35 AM

A Westmoreland, N.H., state representative is looking to change how the state handles a list of police officers who have committed misconduct.

Paul Berch has sponsored two bills that deal with the Exculpatory Evidence List, formerly known as the Laurie List. That list, managed by the state’s Department of Justice, includes officers who have engaged in conduct such as lying in court, falsifying evidence or using excessive force.

The list includes the department an officer works for and, in most cases, the dates and nature of the offenses. As of Nov. 15, the list included 249 officers in local and state law enforcement agencies. It exists as a way for prosecutors to let defendants know when an officer involved in a case has been found to have credibility issues. Created in 2004, it was maintained by the state’s various counties for years until the state Attorney General’s Office took it over in 2017.

The DOJ argues the names of the officers on the list are akin to personnel information, and thus aren’t subject to the state’s right-to-know laws.

Berch’s bills would change that.

One bill would define exculpatory evidence, clarify that prosecutors should have access to what they need to disclose exculpatory information and that police officers have a right to contest their placement on the list. It also would make it clear that the duty to provide exculpatory evidence lies with the prosecutor, Berch said.

Names are only added after an investigation and a decision from a police chief. A name can be removed from the list if a chief determines the allegation against the officer was not credible, and only remains after an officer has exhausted due process.

The second bill would make certain findings of police misconduct, like discharging firearms, causing death or serious injury, sexual assault, falsified report and lying, subject to right-to-know requests.

“At the heart of both of (bills) is the belief that the public is the employer,” Berch, a former public defender, said. “If the employee does some serious misconduct while in the course of their employment, the employer should know.”

The list is the subject of a joint lawsuit between the New Hampshire chapter of the American Civil Liberties Union and several news outlets, who are arguing the list should be public.

One of the state’s key defenses is that if the Legislature wanted the information to be public, they’d make it so.

But Berch said similar bills have passed through the state’s House of Representatives, only to fail in the Senate.

He said he’s aware of the ACLU suit; should it be successful, he said some parts of his bill may need to be reworked.

News media and the ACLU-NH are arguing that the EES List does not constitute personnel information because it was created by the DOJ and is maintained separately.

There is no constitutional requirement that the list be maintained.

The state has countered that the list isn’t always reliable, because it is periodically is updated with new names or names being removed.

As of November, 69 percent of law enforcement agencies had complied with a DOJ directive to update which of their officers should be on the list.

There is no mechanism that forces agencies to comply, however. A list provided by the DOJ shows that Concord, Berlin, the Coos County Sheriff’s Department, Hanover, the Liquor Commission, Manchester and Nashua, among others, have either not complied or are in the process of reviewing their members’ statues.

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