Two former state senators with little in common politically except their disdain for the state’s handling of the case against former Republican state Rep. Troy Merner disagreed on whether he should be allowed confidential criminal mediation that will be closed to the public and press.
Former state Sen. Peter Burling of Cornish was furious that Merner, 63, will take advantage of the little-known criminal mediation process behind closed doors on April 5 in Grafton Superior Court in North Haverhill.
Burling couldn’t understand why a prosecutor would participate given the criticism unleashed when the public learned that not only did Merner serve for the whole last session in the House after moving out of district, but House Speaker Sherman Packard and others in Republican leadership knew and did nothing to stop him. Packard later said they took Merner’s word for it that he hadn’t moved out of Lancaster even after being warned by the Attorney General’s Office that he had.
“It smacks of a furtherance of a cover-up,” said Burling, an attorney who hadn’t heard of criminal mediation before this case.
Allowing a closed-door criminal mediation “violates every principle of people’s right to know,” Burling said.
Former Sen. Mark Hounsell, a Republican turned Independent, teamed up with Burling on filing right-to-know requests to find out who knew what and when they knew it about Merner serving after moving out of his Lancaster district to Carroll. Hounsell remains very concerned about Speaker Packard’s actions after finding out about Merner before the session started, but less so about the mediation.
Hounsell said Friday he understands the process in criminal cases must be respected and adhered to in order to protect the accused who is presumed innocent.
“I have no problem with that,” Hounsell said. “However, the political tomfoolery from Speaker Packard and his minions is another matter. Packard’s refusal to explain why he allowed Merner to continue as an illegal poser is unacceptable. It is past time for the Republicans in the House to come clean and explain how they allowed our Constitution to be trampled on.”
Attorney Andru Volinsky approves of the criminal mediation process.
“While the mediation/negotiation is confidential, the plea still must be entered in open court after the usual colloquy. It’s a good idea,” Volinsky said.
Mike Garrity, Attorney General John Formella’s spokesman, said either party can request criminal mediation. In this case it was Merner who asked for it, Garrity said.
“Criminal mediation is an option for both parties as matter of course,” Garrity said.
Court spokesman Av Harris said New Hampshire is on the cutting edge nationally with criminal mediation.
It is one of a number of alternative dispute resolutions in the state.
“The whole idea is it is less adversarial and more cost effective,” Harris said.
Former Superior Court Chief Justice Tina Nadeau spearheaded criminal mediation during COVID-19 to reduce the case backlog the pandemic caused.
With criminal mediation, cases are heard by either a retired judge or a judge not involved in the defendant’s case, he said.
They are strictly confidential, more casual and take much less time than a trial. Some have been as brief as a half hour.
Criminal mediations are not binding unless all parties are in agreement and they are signed off on by a judge. Otherwise, the case continues forward toward trial and anything that comes out in criminal mediation remains confidential and can’t be used at trial.
Merner is charged with wrongful voting, theft by deception, tampering with public records and unsworn falsification.
The charges stem from Merner allegedly serving and collecting mileage during the whole last legislative session in the House of Representatives and voting in Lancaster after he moved outside his district to Carroll.
After the confidential April 5 criminal mediation at 11 a.m. in Grafton Superior Court, in North Haverhill, there will be a dispositional hearing at the same court on April 15 at 9 a.m. with 15 minutes allotted.
Merner resigned from the House and his seat on the Lancaster selectboard right after the Attorney General’s Office made public a Sept. 18, 2023, letter to House Speaker Packard detailing its investigation into Merner’s domicile.
The matter stirred controversy when Merner told some people that House leadership knew he had moved but wanted him to stay on in the House because the Republicans needed his vote with only a slim majority. He hasn’t said who in leadership told him to stay.
The indictment alleges that Merner knowingly voted for an office during the March 14, 2023, Lancaster town election and that he was not qualified to vote in Lancaster because he wasn’t living there.
As a class B felony, the wrongful voting charge carries a potential sentence of 3½ to 7 years in the State Prison and a fine of up to $4,000. If convicted, he would also lose the right to vote in New Hampshire.
Merner was arrested for the charge in late November 2023 along with a class A misdemeanor count of theft by deception, alleging on mileage cards that he lived in Lancaster when in fact, he resided in Carroll. That resulted in Merner receiving greater travel reimbursements to the State House from the state than he was entitled to receive, in an amount that did not exceed $1,000, according to a press release at the time from the Attorney General’s Office.
Merner was also charged in late November 2023 with misdemeanor A counts of unsworn falsification and tampering with public records in connection with falsely reporting his address on a General Court mileage card.
The Lancaster Board of Selectmen is still chasing Merner for $3,575 reimbursement for the stipend Lancaster paid him for 13 months as a selectman after he had moved before he resigned. There are no criminal charges pending in that matter.