By NANCY WEST, InDepthNH.org
A judge has ruled that attorney Donna Brown can continue representing former state senator Jeff Woodburn on domestic-violence related charges after the state sought to have her disqualified because of a leaked photo that was under court seal of the alleged victim jumping on his car.
Senior Assistant Attorney General Geoffrey Ward argued in Coos Superior Court in Lancaster that Brown should be disqualified because she had a conflict. Ward said Brown and Woodburn were under investigation for criminal contempt for possibly leaking the photo.
The photo depicts Woodburn’s former fiancee, Emily Stone Jacobs, jumping on his car. It was 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 photo ended up on the Facebook page of Woodburn’s aunt, but had been in a public court record filed by Brown for several days before that filing was sealed.
On Oct. 28, Woodburn filed a sworn stipulation about how the photo was leaked in his objection to the state’s motion to disqualify Brown, Judge Peter Bornstein said in his order that was released in redacted form on Tuesday.
“It provides that (Woodburn) personally emailed copy of the image to (name of the person blacked out),” Bornstein wrote.
“The stipulation further provides that the defendant did not act on the advice of counsel when he disseminated the image to (blacked out) and that if he is charged with criminal contempt, he will neither argue nor assert that defense counsel advised him to disseminate the image,” Bornstein wrote.
The possibility of criminal charges being filed because of the leak stems from the July 1 order that said the state would share the digital photo with Brown and that she could make a copy for Woodburn to view, but it would be otherwise sealed under a protective order. “Any violation of the terms of this Order shall be deemed contempt of Court,” according to Bornstein’s order at the time.
On Tuesday, Ward declined to comment when asked if Woodburn will be charged with criminal contempt of court for leaking the photo. Ward also said the state is considering all of its options when asked if he will appeal Bornstein’s ruling to the state Supreme Court, something Ward previously said was likely.
The investigation into the leaked photo ended up delaying the trial, which had been scheduled for July 31. A jury had already been selected.
Bornstein’s ruling Tuesday also said Woodburn’s objection said disqualifying his lawyer would result in extreme hardship because discovery has been extensive, including more than 1,500 pages. It would also result in an unnecessary delay of the trial and hiring new defense counsel would impose severe financial burden on Woodburn.
Woodburn also filed a waiver of conflict of interest regarding trial counsel, in which he explicitly waives “any real or potential conflicts of interest that may arise by the defendant being represented by Attorney Donna Brown in the above captioned matter.” Woodburn prepared both the stipulation and waiver of conflict in consultation with independent counsel, Attorney Nicholas Brodich, according to Bornstein’s ruling.
Woodburn, a Democrat from Whitefield, pleaded not guilty to nine misdemeanor charges. They include biting Jacobs’ arm and hand, hitting her in the stomach, throwing a cup of water in her face, then throwing the empty cup striking her in the face, breaking her dryer by kicking the door, kicking the locked door of her home and trespassing.
Attempts to reach Jacobs’ attorney, Kirsten Wilson, were unsuccessful.
“To date, the State has not charged anybody with criminal contempt arising from dissemination of the image, and the State has not subpoenaed defense counsel as witness in any investigation or proceeding,” Bornstein wote.
Woodburn’s stipulation provides a detailed accounting of “how, why, and when the image was emailed to (blacked out name.)” and that he did so without consulting with Brown, Bornstein wrote.
“…the Court rules that defense counsel is not subject to an actual or potential conflict of interest and denies the State’s Motion to Disqualify Defense Counsel,” Bornstein wrote.