By NANCY WEST, InDepthNH.org
The New Hampshire Association of Criminal Defense Lawyers has asked to intervene in the case against former state senator Jeff Woodburn in connection with the state’s attempt to stop Manchester attorney Donna Brown from continuing to represent him on domestic-violence related charges against his former fiancée, Emily Jacobs.
The motion was filed Friday in Coos Superior Court on behalf of the 200-plus member nonprofit group of defense lawyers. On Thursday, Brown filed an objection to the state’s motion to disqualify her from representing Woodburn, a Democrat.
Nashua attorney Chuck Keefe, president of the NHACDL, said in a telephone interview, “We object in any instance to the state seeking to remove or disqualify counsel for the defendant.”
To do so would violate defendants’ constitutional right to a lawyer of their own choosing, he said. “On behalf of the criminal defense bar in New Hampshire, we fully support a defendant’s Sixth Amendment right to counsel,” Keefe said.
Senior Assistant Attorney General Geoffrey Ward claims Brown has a conflict because prosecutors may call her to testify against Woodburn in a new criminal contempt investigation.
The state recently launched the new probe to find out how a photo of Jacobs jumping on Woodburn’s car that was filed under a protective order ended up on the Facebook page of Woodburn’s aunt.
The photo is part of a text message between Woodburn and Jacobs that was obtained from Jacobs’ cell phone while defense was preparing for trial. Woodburn had deleted his copy of the message and photo at Jacobs’ request, Brown wrote in her objection to the state’s motion to disqualify her.
“The legal issues presented by this motion could possibly affect numerous criminal cases and the role of defense counsel in future criminal cases at both the Circuit Court and Superior Court levels,” the defense attorneys group motion states.
“NHACDL seeks to appear as Amicus to address the issues of the legal standard to be used by a court in determining whether to disqualify defense counsel and the procedure that a Court should use in addressing this issue if raised by the state.” Amicus briefs are filed by non-defendants who have a strong interest in the subject matter.
The motion was signed by attorneys Alan Cronheim and Michael Iacopino. If allowed, NHACDL would file its memorandum of law by Aug. 30.
Senior Assistant Attorney General Ward raised the conflict issue at a hearing July 18. Ward told Judge Peter Bornstein that Brown should be disqualified because she has a conflict and could be called to testify against Woodburn in the new criminal contempt of court investigation and ultimately at the Woodburn trial that was scheduled to start July 31. After picking a jury, the trial was delayed so both sides could file written briefs on the disqualification question.
No new trial date has been set. It will be up to Judge Bornstein whether NHACDL can intervene. He could decide any time whether Woodburn needs to hire a new lawyer if he rules that Brown should be disqualified. The question could end up being argued to the state Supreme Court, which could cause further delays.
Woodburn, 53, of Whitefield, was arrested Aug. 2, 2018. He has pleaded not guilty to nine misdemeanor charges, including four counts of simple assault, two counts of domestic violence, two counts of criminal mischief and one count of criminal trespass.
“The publication of the protected image by the defendant’s aunt on the eve of trial in this matter, and following the selection of a jury for that case, clearly was an attempt to intimidate and harass the victim in this matter,” Ward wrote.
“Therefor as this investigation proceeds, the state can reasonably foresee counsel for the defendant being called as a witness before a grand jury investigating this matter or in another future criminal proceeding concerning this matter.”
Brown’s objection said the state’s claim that she and Woodburn are the only two suspects in the criminal contempt investigation is unfounded and speculative. “Using this same type of speculative reasoning, Mr. Woodburn could argue that it may have been the state who distributed the image as a ploy to gain a continuance. Using this type of speculative reasoning, Mr. Woodburn could argue that Emily Jacobs may have distributed the image in order to have the defendant accused of being in contempt of this court’s order and or gain a continuance in order to avoid imminent trial.
“He is not making the allegations as there is no evidence to support these speculations just as there is no evidence to support the state’s speculations that undersigned counsel distributed the suspect image and or advised defendant to distribute it,” Brown wrote.
According to Brown’s objection, some time on July 13, Jacobs was apparently monitoring the Facebook account of Woodburn’s aunt and found the image, sent it to her attorney, Kirsten Wilson, who sent it to Attorney General’s Office.
The image was included in a separate motion filed July 8 with prior notice to the state of her intent to include the photo, Brown wrote. The state did not seek to seal the motion until eight days later after being contacted by Jacobs’ lawyer, Brown wrote.
Brown also argued the motion to disqualify her would deny Woodburn his constitutional right to counsel of his choosing. The state hasn’t proven there is reasonable cause to believe there is an actual conflict of interest, she wrote.
“A threat by the prosecution to either subpoena an attorney to trial or to grand jury proceedings brings with it the potential for abuse because it comes from the very party seeking to prosecute the defendant and further this threat implicates the attorney-client privilege, a privilege traditionally deemed worthy of maximum legal protection,” Brown wrote.
Jacobs, through her attorney, has repeatedly declined to comment to InDepthNH.org. Woodburn has also declined to comment, except one comment after the July 18 hearing to say he looks forward to defending himself.
“I just want to tell my side of the story,” Woodburn said.
Ward said filing the motion to remove Brown was necessary to protect the integrity of any conviction on appeal. After the July 18 hearing, Ward said he didn’t know if there were other cases in which the state tried to remove the defendant’s lawyer.
“The state didn’t raise this issue lightly,” Ward said. “We are duty bound to raise this.”