LANCASTER – Saying he wants more information before ruling, the judge in the assault and domestic-violence case against former State Sen. Jeff Woodburn has given the defense three weeks to put together affidavits and documents as to why Woodburn’s attorney should not be dismissed for a potential conflict of interest.
A former three-term state senator from District 1, Woodburn, 54, of Whitefield, was arrested in August 2018 and charged with nine misdemeanors: four counts of simple assault, two counts of domestic violence, two counts of criminal mischief and one count of criminal trespass.
The state in court documents alleges that the victim, who at the time was Woodburn’s fiancé, was bitten and struck several times by Woodburn between August 2017 and June 2018 and that he also kicked in the locked door to her home and damaged an appliance.
Represented by Attorney Donna Brown, Woodburn has pleaded not guilty and intends to claim self-defense at trial, saying he is the victim of a volatile relationship.
In July, the state argued before Judge Peter Bornstein that Brown may have violated a court order prohibiting the dissemination of a certain photo from the alleged victim’s cell phone that had been provided to Brown and by Brown to Woodburn.
The image later ended up on social media, prompting a still ongoing investigation by the state as to who leaked it and whether a criminal contempt prosecution is warranted.
John J. Kennedy, who is an assistant attorney general, told Bornstein on Tuesday that the state is required to alert the court to potential conflicts of interest.
Contrary to what the defense and an amicus brief filed by the New Hampshire Association of Criminal Defense Lawyers say, the conflict-of-interest claim is “not a manufactured conflict,” said Kennedy, but a way of assuring that there are no grounds for a post-verdict, reversible-error plea.
Kennedy conceded, however, that all three parties agreed that Brown’s possible disqualification was unprecedented in American jurisprudence.
Whether the conflict was real, potential or waivable, it “certainly appears there’s no conflict,” said Kennedy, confirming to Bornstein that Brown could be a witness at a future criminal trial and also be called before a grand jury.
As to the state’s investigation in regard to the leaked, protected image, Kennedy said there was nothing found so far that suggests “the state is on the wrong track.”
Upon questioning from Bornstein, Kennedy conceded that Brown’s role in the investigation had changed from her initially being its “target.”
“Target is probably too strong,” Kennedy said, but what is clear, he continued, is that soon after Brown on July 8 filed a motion to exclude some evidence at trial that included the protected image, that image was posted online.
Brown said the state can make its claims in the case of the leak without calling her as a witness and Bornstein said what was clear to him is that all parties want him to make an “adequate record” of his decision-making process.
Alan Cronheim, who is a past president of the New Hampshire Association of Criminal Defense Lawyers, said there are fundamental issues in the state’s effort to dismiss Brown: the right to counsel and the right to a counsel “of your choice.”
Not all attorneys are the same, said Cronheim, and while the court and state don’t care who a defendant’s attorney is, the defendant does and “it is of enormous consequence to them.”
The state has a multitude of resource available to it during a prosecution, said Cronheim, whereas the defendant “has defense counsel.”