All Sections

Home  Another View

Another View -- Robin Melone: New 'Laurie List' rules hurt defendants' due process rights

May 24. 2018 8:09PM

On April 30, Attorney General Gordon MacDonald, Gov. Chris Sununu, and law enforcement announced changes to how police officers with potential credibility problems are identified. The attorney general’s office created the “Laurie List” in 2004 to allow prosecutors to easily identify information concerning a testifying officer’s credibility that must be disclosed to a defendant. Proponents declared that these changes, memorialized in a memo from MacDonald, were needed because the police “deserve the same robust due process protections as any criminal defendant would have in court.”

This is simply wrong. The police are not entitled to rights equal to those held by defendants because, in a criminal case, the government is attempting to deprive the defendant, not an officer, of his or her liberty.

Criminal defendants are entitled to all potentially exculpatory evidence, which is information potentially favorable to the accused, including information going to the credibility of police officer witnesses found in their personnel file.

The Laurie List was created in an attempt to reconcile two conflicting principles, the defendant’s constitutional right to this exculpatory evidence in a police officer’s personnel file, and a New Hampshire statute stating that, absent a court ruling, a defendant is prohibited from reviewing a police officer’s personnel file to determine whether it contains evidence related to the case.

The stigma and concerns law enforcement find in the list are a product of their demand that their personnel files be given confidential status. These concerns could easily be eliminated altogether if New Hampshire, like Florida and Texas, transparently made disciplinary findings in police officers’ personnel files available to the public. Defendants and the public have a right to know this information about the officers patroling the streets funded by taxpayer dollars.

The current Laurie List protocol is already imperfect for defendants. The list itself is secret. And from Nashua to Pelham, there are multiple examples where disclosures have not been made to defense attorneys. A recent public records request also reveals that approximately 38 percent of police departments have not certified their compliance with existing Laurie List procedures.

This makes the police-centered approach of the MacDonald memo even more troubling. It is inconsistent with the government’s constitutional obligation to disclose potentially exculpatory evidence to defendants.

Under the memo, if an officer is the subject of an investigation concerning the officer’s credibility, that officer would not be placed on the list during the investigation. Instead, “officers who are under investigation must notify the prosecutor in any case in which they may be a witness that they are under investigation.”

This “trust the police” approach is not how our criminal justice system works, and it puts criminal defendants’ due process rights in jeopardy. Defendants will be less likely to get potentially exculpatory information about testifying officers that is necessary to receive a fair trial. When attorneys (and therefore possibly juries) do not get all the information they need, the government can wrongly convict defendants.

Of course, an officer should be notified of his temporary placement on the list during the investigation. But while a police department should give an officer the opportunity to fully rebut allegations, it is dangerous to not place the officer on the list until after the employment grievance process concludes. It may ultimately be appropriate for the officer’s name to be removed from the list if the investigation clears him. But simply trusting an officer to self-report is not enough to protect defendants’ due process rights.

We need look no further than current news headlines to see the volume of cases individual officers touch and the potential for disruption because of nondisclosure or delayed disclosure of potentially exculpatory information. Former Manchester police detective Darren Murphy’s firing forced the Hillsborough County Attorney’s Office to revisit closed cases and drop 35 felony drug cases. Claremont police officers Ian Kibbe and Mark Burch were fired for allegedly lying about the search of a suspect’s home in February 2017, resulting in at least 25 cases being dropped.

The MacDonald memo accommodates law enforcement concerns at the expense of further impeding criminal defendants’ access to evidence to which they are constitutionally entitled.

This is not how the Constitution works. The attorney general’s office must revise the MacDonald memo.

Robin Melone is a member of the New Hampshire Association of Criminal Defense Attorneys.

Crime, law and justice Public Safety State Government Guest Commentary

Newsletter Signup