By former state Rep. Paul Berch, a Democrat from Westmoreland
As I was reviewing what we know of the timeline of the Merner Affair and the Speaker’s improbable version of events, an admonition from Sherlock Holmes came to mind – the absence of an event can be as important as the occurrence of one. Investigating the theft of a racehorse in a story titled “Silver Blaze,” the famous fictional detective Sherlock Holmes notes “the curious incident of the dog in the night-time.” When a Scotland Yard detective protests “the dog did nothing in the night-time,” Holmes responds, “That was the curious incident.”
Let’s look at the timeline with care. It teaches us that there were TWO completed investigations, separate but related.
The first complaint related to Merner improperly sitting and voting in the NH House. That complaint was received by the Attorney General on Nov. 16, 2022. A report, oral and by email, was made to House COO Pfaff on December 6, 2022. During those 20 days, the AG’s office vigorously investigated the matter. They talked with tenants and landowners; they interviewed Merner and the Town Manager. A busy 3 weeks and then a report to House leadership.
The Speaker suggests he was told that the investigation was not complete, no conclusions had been drawn. But that cannot be correct. How do we know? Sherlock Holmes provides the answer. Look at the dog that didn’t bark. Look at what did not happen. From December 6th, when the AG informed the House leadership of the results to March 22, 2023 (107 days), the AG’s Office did no further work on this matter. No interviews; no site visits; nothing. As far as the AG’s office was concerned, this investigation was concluded. This directly contradicts what the Speaker claims.
What changed on March 22nd? The AG received a different (yet related) complaint – that Merner had improperly voted at a local Town Meeting, because he was no longer a resident. Again, the AG’s Office did a prompt and vigorous investigation. They went to both claimed residences; talked to tenants, interviewed Merner’s nephew, re-interviewed Merner as well as the purchaser of his sold home, re-interviewed the owner of Merner’s office, and notified both House Clerk Smith and the Speaker of their results.
The Speaker argues, without producing the e-mail, that he was told by the AG’s Office that the investigation of the first complaint was incomplete and ongoing. That is not consistent with the energetic efforts on both complaints by the AG and the lack of any investigation of the first complaint after notifying House leadership.
There is a second problem for the Speaker. In civil law, it is called the “Adverse Evidence Rule”. It is not complicated. Simply stated, the rule states that when a party has relevant evidence within their control which they fail to produce, that failure gives rise to an inference that the evidence is unfavorable to them. A party who has evidence that will support their position will naturally produce it; if not produced, it is proper to assume it would not be favorable.
Speaker Packard claims that he took no action on this referral from the AG because the matter was still in flux, based on the email he received. The timeline, sworn under oath by the Attorney General’s Office, contradicts that account. The Speaker could clear this up by producing the email. That he refuses to do so can only lead to the presumption that the email will not support his lack of action.
It is time for the Speaker to stop stonewalling and release the actual email.
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