By DAMIEN FISHER, InDepthNH.org

The judge in the upcoming Sununu Youth Services Center civil trial kicked a Boston lawyer off New Hampshire’s defense team Tuesday, citing a significant conflict of interest.

Attorney Thomas Hoopes of Libby Hoopes Brooks &  Mulvey, PC was hired by the New Hampshire Attorney General’s Office weeks ago to join the defense team in the first of 1,200 lawsuits alleging decades of widespread physical and sexual abuse against children in state custody at what was then called the Youth Development Center (YDC).

But with about a month to go before the trial starts, Rockingham Superior Court Judge Andrew Schulman ruled Hoopes cannot represent the state while his partner, attorney Douglas Brooks is representing one of the YDC victims in a Massachusetts criminal case, a man referred to in court records as J.D.

While the state argued it needed Hoopes for the defense team, Schulman notes in his order Hoopes is new to the case, and he would be joining an already full defense.

“The State Defendants were already, and are still, represented by five trial attorneys, e.g. three attorneys from Verrill Dana LLP, and two Assistant Attorneys General. Even OJ had only six lawyers at counsel table. Indeed, one of the many challenges in this case will be to find a sufficient number of chairs for the State’s existing team of lawyers,” Schulman wrote.

Lead YDC plaintiff David Meehan, represented by attorney David Vicinanzo with Nixon Peabody, is out to prove the state knew about the horrific sexual abuse at YDC, and did nothing to stop it. Part of his case may involve calling J.D. to testify about the abuse he suffered at the hands of the same rapist, a man referred to as Frank D. in the motion.

Former YDC staffer Frank Davis is one of only 11 people charged on the criminal side of the YDC case, and it is alleged he was one of the worst abusers at the center.

J.D. also recently filed his own lawsuit against the state for the abuse he survived in the 1990s at YDC. J.D. is currently in federal custody in Massachusetts waiting for a criminal trial on a serious charge that is likely to result in a long prison sentence, according to Schulman’s order.

If he is convicted or enters a plea agreement in the criminal case, J.D. will likely argue the YDC abuse as a child is a mitigating factor in his sentence, Schulman wrote. 

“If JD’s case advances to the stage of plea negotiation or sentencing, then he may wish to present evidence of his abuse at YDC and his resulting emotional harm in  mitigation of sentence. His attorney could be called upon to argue these facts in open court at a federal sentencing hearing. If such an argument is to prove effective, JD’s attorney would have to establish a nexus between the long-ago (alleged) abuse at YDC and JD’s current criminal conduct. In other words, JD’s attorney would have to show how Frank D and other staff members at YDC inflicted life-long damage on their (alleged) victims,” Schulman wrote.

With Brooks as J.D. ‘s criminal attorney, his partner Hoopes would be working to minimize potential monetary damages awarded to Meehan and J.D. in the civil lawsuits. The most direct way to do that, according to Schulman, is to downplay the impact the abuse had throughout the lives of the victims.

“The most obvious way to argue for lower damages is to attack the notion of life-long substantial factor causality,  i.e. to argue that, whatever Frank D did in the 1990s, by the 2010s Meehan had individual responsibility for his life,” Schulman wrote.

Damien Fisher is a veteran New Hampshire reporter who lives in the Monadnock region with his wife, writer Simcha Fisher, their many children, as well as their dog, cat, parakeet, ducks, and seamonkeys.