Records show trooper lied under oath in 2008, but kept jobBy NANCY WEST
New Hampshire Sunday News
October 06. 2012 8:13PM
New Hampshire State Police Trooper Derek Holston continued to provide sworn testimony for at least a couple of years without disclosing to defense lawyers that he had lied under oath at a March 2008 hearing, according to the appeal he filed seeking to overturn the 11-day unpaid suspension he ultimately received.
Because personnel records are by law confidential, it is unclear when prosecutors began telling defense attorneys that Holston had a credibility issue that may have required disclosure to the defense.
The N.H. attorney general and county attorneys are supposed to keep a list of officers with personnel matters involving lying under oath, stealing or other egregious conduct that could affect their credibility.
A judge could decide that information - called potential 'Laurie' issues - should be turned over to the defense if the officer is to testify in any court or administrative hearing. The defense would then be free to use it at trial in an effort to impeach the officer's testimony.
Holston's case outraged former Strafford County attorney Lincoln Soldati, who was defending a man who was fighting to keep his driver's license after being charged with drunk driving at the 2008 Administrative License Suspension hearing where Holston was accused of lying under oath.
An internal investigation determined that Holston lied at that hearing when he said he hadn't received a prior notice to appear at an earlier hearing on the same matter.
'If this were Joe Schmoe, the county attorney or the attorney general would have prosecuted for perjury, but not a trooper. They are apparently allowed to lie,' Soldati said in a recent interview. Charles Temple, a law professor and the director of the Criminal Practice Clinic at the University of New Hampshire School of Law, was concerned when told about Holston's case.
If Holston testified in cases after state police determined he had lied under oath and it wasn't disclosed to the defense, Temple said, all of those cases should be reviewed to determine whether after-the-fact disclosure is now required.
'If a Laurie issue has now been disclosed that should have been disclosed years ago, if I had clients in cases involving him, I would want to review the cases and file a motion to vacate the convictions,' Temple said.
The stakes are high if the existence of potential Laurie material isn't turned over to the defense, he said.
The 1995 state Supreme Court case State v. Laurie overturned a homicide conviction because such evidence about one of the police officers who investigated and testified at trial wasn't turned over to the defense.
The courts have consistently held that all evidence favorable to a defendant must be turned over, Temple said.
And if a defense lawyer is aware of an officer's potential Laurie issue, he would be obliged to tell his client, Temple said.
Holston's attorney, John S. Krupski, filed arguments with the Personnel Appeals Board on April 22, 2011, indicating Holston had continued to testify in court, at least up to that point.
'The alleged event occurred on March 20, 2008, and since that time, over three years ago, Trooper Holston has been able to perform his job at or above expectation, has issued summonses, has testified and has performed all other duties of a road trooper,' Krupski wrote.
Holston and Krupski didn't respond to repeated requests seeking comment.
Assistant Safety Commissioner Earl Sweeney would not comment on when - or even if - Holston's name was placed on a Laurie list, citing the confidentiality of personnel records.
But speaking generally, Sweeney said an officer only becomes subject to Laurie notifications after the chief holds a hearing with the officer and has made a formal determination that the matter rises to potential Laurie disclosure.
Holston wasn't formally disciplined until two years after an internal investigation determined that he had lied under oath. It took another year after that for the Personnel Appeals Board to uphold the 11-day unpaid suspension, according to board records.
On June 3, 2010, state police Col. Robert Quinn wrote to Holston notifying him that because 'you now have a potential Laurie issue, I would have opted to terminate you for this offense.' But Quinn told Holston he was suspending him without pay instead because the delay in finalizing the discipline wasn't Holston's fault. The records do not say what caused the delay.
'... Your statement about the first email you received was on Feb. 4, 2008, advising you that you defaulted the hearing, which you made under oath, was untruthful, and a violation of RSA 641:1, Perjury,' Quinn wrote. Holston was not charged with any crime.
Krupski had argued that the discipline should have been overturned because of the delay. Krupski also said Holston 'disagrees with the legal and factual conclusions,' but noted the appeals board limited closing arguments to the timeliness issue.
Such appeals provide a rare look at police personnel matters that are usually strictly confidential because the board's records are public.
Sweeney said Holston is working at Troop G in Concord handling truck weighing, making it unlikely he would be called to testify in trials or at administrative hearings. However, Holston did testify as recently as two weeks ago in Rockingham County Superior Court.
Holston testified in the trial of bank robber Clint Pickering, who was convicted of assaulting a Windham police officer by driving over his foot during a high-speed chase. Pickering's attorney, Neil Reardon, confirmed he was made aware beforehand that Holston had a potential Laurie issue, but decided that using the information wouldn't benefit his client's defense.
Soldati, who practices law in Portsmouth, said he was surprised Holston wasn't fired right after the 2008 hearing. The prosecutor dropped the case against Soldati's client because of Holston's 'inconsistent' statements that day, records show.
'People actually get indicted for perjury,' Soldati said. 'It's a felony, but if you are a state trooper, you just get suspended.'
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Nancy West may be reached at firstname.lastname@example.org.