By DAMIEN FISHER, InDepthNH.org
A former Lisbon police officer who ended up on the state’s Exculpatory Evidence Schedule, also known as the Laurie List, after he claims he was targeted by his chief, won the right to a new hearing this week.
The New Hampshire Supreme Court found in a case order released Thursday that the Lisbon John Doe never got a chance to dispute his placement on the state’s list of police officers with credibility problems. Under the 2021 law making the list public, officers placed on the EES had a right to challenge placement in Superior Court to make sure they were afforded due process before their names would be public.
The cases were filed as John Doe or Jane Doe in Superior Court. Before the 2021 law, the 274 names were not public. “Under the circumstances of this case, we cannot conclude, as a matter of law, that the process was adequate,” the justices ruled in the unanimous order.
The most unusual aspect to Doe’s case is that no one seems to be taking responsibility for placing Doe on the EES in the first place.
Doe was fired in January of 2021 after he was accused of lying about his physical fitness test. All New Hampshire police officers are required to take a physical fitness exam once every three years. Doe took his three-year test with the Bethlehem Police Department in October of 2020 instead of the Lisbon department.
According to information in the Supreme Court order, and a federal civil rights lawsuit Doe filed against the town, Doe was accused of lying to his sergeant about getting former Lisbon Chief Benjamin Bailey’s permission to take his test in Bethlehem. Bailey resigned his position in 2024 and has since been replaced by Sgt. Derek Sullivan.
Doe had a difficult relationship with Bailey and the town ever since he clashed over his ballistic vest. Doe started with Lisbon in 2009, and in 2011 he bought himself a new ballistic vest for his duties. The town refused to reimburse him for that vest, according to his lawsuit. In 2016, Doe’s vest needed to be replaced, and the town again denied his request for reimbursement. However, Lisbon had reimbursed other officers in the department for their vests, including Bailey.
When Doe complained about not getting reimbursed for the vest, he was disciplined. He finally hired a lawyer and forced the town to reimburse him for the vest, his lawsuit states.
In 2020, Doe decided to take his three-year fitness test in Bethlehem, which was closer to his home. Officers commonly take their fitness tests at other departments for various reasons. Doe sent his test results to the New Hampshire Police Standards and Training Council, which approved him for continued certification.
When Bailey was informed via letter that Doe had taken the test in Bethlehem, he contacted Police Standards and Training and had the results invalidated, according to the federal lawsuit.
In early December, Doe was given a written warning over his supposed failure to take the test, despite passing the Bethlehem test months prior. He got another warning for failing to turn out some lights. A week later he was informed he was subject of an internal investigation, his lawsuit states.
Doe was fired after a closed-door disciplinary hearing with selectmen in January of 2021. Doe was never told that the disciplinary hearing would also be used as an EES determination hearing, according to the records. The same day Doe was fired, Bailey sent a letter to the New Hampshire Department of Justice stating that a “determination has been made” that Doe’s name should be added to the EES.
Curiously, a footnote in the Supreme Court’s case order casts doubt on who made the call to put Doe on the list.
“The Chief stated under oath during discovery in this case that the Town did not make the EES determination because that responsibility belongs to the county attorney. The county attorney denied making the EES determination. The DOJ also denied making that determination, maintaining that its role in maintaining the EES is merely administrative,” The Supreme Court’s order states.
Aside from the lack of proper notice, the justices also found that Judge Lawrence MacLeod’s original decision in Lisbon’s favor came before the state Supreme Court set the rules for the new Laurie List law. In the case of three State Troopers accused of lying, the Supreme Court set the standard that judges need to consider the age, relevance, and nature of a particular action in deciding if an officer belongs on the EES.
The list is meant to contain the names of testifying officers who have records with “potentially exculpatory” evidence – evidence that is favorable to the defendant – that must be turned over to the defense in criminal cases. That includes if they have been convicted of crimes, were caught lying in their official duties, or caught using excessive force. However, judges can now consider factors like the age of the conduct versus the total, overall record of the officer in question. Judges can also consider if it is necessary to place a retired officer on the list, if they are unlikely to be called as witnesses in active cases.
MacLeod will now determine what next steps are taken in Doe’s case, including if there needs to be a new fact-finding hearing.