By GAIL OBER, InDepthNH.org
HAVERHILL – An anonymous police officer who seeks to remove his name from the Exculpatory Evidence Schedule or “Laurie List” has hit a series of snags.
What started as a petition to the court, a granting of anonymity, and agreement between Officer A.B. and Grafton County Attorney Martha Ann Hornick that the petition should be granted changed significantly on Wednesday when Hornick filed a motion to withdraw from her stipulation and the ACLU-NH filed a motion to become a party in the case.
Further, Senior Assistant Attorney General Geoffrey Ward issued a statement saying that since the protocols surrounding inclusion on the EES were changed in 2017 and 2018, only his office has the ability to remove an officer’s name from the list.
“The protocol clearly states that removal of an officer’s name may only occur if there is an order or other determination which overturns the disciplinary finding which had caused the officer to be added to the EES,” added Ward.
Hornick’s expedited motion for withdrawal from the stipulation agreed that her office has no authority to remove Officer A.B. from the list. Officer A.B.’s attorney Gabriel Nizetic filed an objection to Hornick’s withdrawal. As of Friday morning, no hearings had been scheduled.
Additionally, federal and state law requires that any contents in an officer’s personnel file that could have a bearing on the officer’s credibility or that could be exculpatory in any way must be disclosed by the prosecutor to the defendant regardless of the existence of a list.
The Laurie List includes law enforcement officers who have been disciplined for dishonesty, excessive force or mental illness.
Examples of the discipline that could land an officer on the list include: a deliberate lie during a court case, falsification of records or evidence, any criminal conduct, egregious dereliction of duty, excessive use of force or mental illness or instability that caused the law enforcement agency to take some affirmative action to suspend the officer for evaluation or treatment as a disciplinary matter.
According to the original petition filed in Grafton Superior Court, Officer A.B, whose anonymity was granted by the court, pulled a weapon during a 2007 prisoner transport. The officer falsified the report by saying the prisoner had his hands in his pockets as if he was reaching for a weapon, justifying Officer A.B.’s use of force. The officer testified to the same in a trial involving the same defendant, according to court records.
In September of 2011, Officer A.B. self-reported the fabrication to his or her police chief who conducted an internal investigation and determined that Officer A.B. should be placed on a list of officers whose conduct must be disclosed in cases in which A.B. would be a witness. At the time, the Laurie Lists were kept by individual county attorneys.
The petition states that Officer A.B. has not been involved in any other incidents regarding his or her credibility or actions since 2007 but inclusion on the EES since 2011 has been a perpetual bar to career advancement.
A.B. also makes no claim that the discipline was unjust or inaccurate or that inclusion on the list was in error.
Officer A.B. goes on to say that continued inclusion on the EES violates the 14th Amendment of the U.S. Constitution that says no state shall deprive any person of life, liberty or property, without due process of law.
In its motion to intervene, ACLU-NH says it is already a party in a separate case arguing to make the unredacted EES list a public document and that the list was officially created by the Attorney General’s Office in 2017 to “help prosecutors comply with their obligations” to disclose under federal and state law.
ACLU-NH and media outlets have filed a public records lawsuit against the Attorney General in Hillsborough County Court South to make public the officer names on the list. They are presently all redacted.
The news outlets involved in the lawsuit are: InDepthNH.org, Keene Sentinel, Nashua Telegraph, New Hampshire Union Leader, Concord Monitor/Valley News, and the Portsmouth Herald/Foster’s Daily Democrat.
The state says the names of disciplined officers are confidential by law.
ACLU-NH says it should be allowed intervener or participatory status because the stipulation was contrary to the Attorney General’s protocols and it would like to file a brief or statement.
Additionally, ACLU-NH argues that its participation in the case is “necessary” because “there exists no party in this case that is equipped to zealously defend the rights of the defendants in criminal cases to receive exculpatory information – a right that would be harmed by the granting of the relief that (the) petitioner seeks.”
The ACLU-NH petition said Officer A.B. doesn’t agree with its attempt to intervene. An attempt to reach Nizetic was unsuccessful.