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                       THE SUPREME COURT OF NEW HAMPSHIRE

                                  ___________________________


Hillsborough - northern judicial district
No. 2014-028


                                 JONATHAN DUCHESNE & a.

                                                v.

                           HILLSBOROUGH COUNTY ATTORNEY

                                   Argued: March 5, 2015
                                Opinion Issued: June 25, 2015

          Milner & Krupski, PLLC, of Concord (John S. Krupski on the brief and
orally), for the petitioners.


          Hillsborough County Legal Counsel, of Goffstown (Carolyn M. Kirby on
the brief and orally), for the respondent.

       LYNN, J. The petitioners, Jonathan Duchesne, Matthew Jajuga, and
Michael Buckley, appeal a decision of the Superior Court (Garfunkel, J.)
denying their request for a declaratory judgment and an injunction to remove
their names from the so-called “Laurie List.”1 We reverse and remand.




1   See State v. Laurie, 139 N.H. 325 (1995).
                                                 I

       The trial court found, or the record supports, the following facts. The
petitioners are officers of the Manchester Police Department. On March 3,
2010, while off duty, the petitioners were involved in an incident at a bar in
Manchester. The incident was widely reported in the media, and the
Manchester chief of police ordered a criminal and internal affairs investigation.
Following the investigation, the chief found that the petitioners had violated
several departmental policies, including a prohibition against the unnecessary
use of force, and each officer was suspended for a period of time. On August 2,
the chief sent letters to the Hillsborough County Attorney’s Office stating that
the petitioners had “engaged in conduct (excessive use of force) that may be
subject to disclosure under State v. Laurie.” Consequently, the county
attorney placed the petitioners’ names on the “Laurie List,” which the trial
court described as “an informal list of police officers who have been identified
as having potentially exculpatory evidence in their personnel files or otherwise.”

       Pursuant to the provisions of the collective bargaining agreement (CBA)
between the petitioners’ union and the City of Manchester, the petitioners filed
grievances regarding the discipline imposed by the chief. The CBA provides for
final and binding arbitration. After a hearing, an arbitrator found that “the
City of Manchester did not have just cause to take disciplinary action against
[the petitioners] for actions taken or not taken” during the incident. As a result
of this decision, the petitioners were compensated for lost earnings and
information regarding the incident was removed from their personnel files.

       While this process was occurring, the New Hampshire Attorney General’s
Office conducted an independent criminal investigation into the incident. Its
final report concluded that the petitioners’ conduct “was justified under New
Hampshire law and no criminal charges are warranted.”

       On January 31, 2012, after the arbitration decision, the chief wrote to
the then Hillsborough County Attorney requesting that, pursuant to the
arbitrator’s award, the petitioners be removed from the “Laurie List.” The
county attorney declined, stating that there was an injured party, the chief
“reported the incident as excessive force for the purposes of the Laurie list,”
and there was “a sustained complaint of excessive use of force.” The
petitioners also asked the attorney general to direct the county attorney to
remove the petitioners from the “Laurie List” — a request that the attorney
general declined.

      The petitioners then filed suit in superior court against the respondent,
the Hillsborough County Attorney2, seeking: (1) a declaratory judgment that the
county attorney violated RSA 105:13-b (2013) by refusing to remove their

2   We refer to the Hillsborough County Attorney using gender-neutral language.


                                                 2
names from the “Laurie List”; (2) an injunction to prohibit the county attorney
from designating the incident as a “Laurie Issue”; and (3) a writ of mandamus
to compel the county attorney to remove their names from the “Laurie List.”
The petitioners also argued that the county attorney’s refusal to remove them
from the “Laurie List” violated their constitutional rights to due process of law,
and requested an award of attorney’s fees.

       After a hearing, the trial court denied the petitioners relief. In its written
order, the court stated that the petitioners asked for a prospective
determination “that their involvement in [the] incident can never rise to the
level of potentially exculpatory evidence.” The court found, however, that it
could not “prospectively determine if the information may be exculpatory in a
case that has not yet been brought.” The court reasoned that such a
determination would substitute the court’s judgment for that of the prosecutor,
and would relieve prosecutors of their legal and ethical duty to disclose
potentially exculpatory information. The petitioners moved for reconsideration,
which was denied, and this appeal followed.

       On appeal, the petitioners argue that the trial court erred by deferring to
the county attorney and not removing the petitioners from the “Laurie List.”
They contend that the trial court — not the prosecutor — ultimately reviews
personnel files or other officer background information for exculpatory evidence
and decides if such records or information must be disclosed to the defendant.
They further assert that, with respect to each of them, the arbitrator’s decision
and the attorney general’s report establish that the allegations of excessive use
of force were unfounded, and, therefore, inclusion of their names on the
“Laurie List” or disclosure of their names to a court or defendant in a future
criminal case based upon the incident is unwarranted. The petitioners also
argue that the trial court erred by not addressing their request for an
injunction and writ of mandamus, their constitutional arguments, or their
request for attorney’s fees.

       The respondent contends that the trial court cannot look ahead to
future, hypothetical cases as the petitioners asked it to do. It argues that the
responsibility to disclose exculpatory evidence lies with the prosecutor, and
that the county attorney’s office is not bound by the arbitrator’s award or the
attorney general’s report. The respondent asserts that, depending upon the
facts of a particular case, its prosecutors may properly conclude that the
petitioners’ involvement in the incident should be disclosed to the defendant, or
at least may conclude that the incident should be disclosed to the trial judge to
determine whether the incident must be disclosed to the defense and/or is
admissible at trial. The respondent also argues that RSA 105:13-b is not
implicated here inasmuch as the arbitrator’s decision resulted in the removal
from the petitioners’ personnel files of information pertaining to the incident.




                                          3
                                        II

      Before turning to the specific issues before us, we examine the
background of the “Laurie List.” The starting point for our analysis is the well-
recognized proposition that, in a criminal case, the State is obligated to disclose
information favorable to the defendant that is material to either guilt or
punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963). This obligation
arises from a defendant’s constitutional right to due process of law, and aims
to ensure that defendants receive fair trials. United States v. Bagley, 473 U.S.
667, 675 (1985); State v. Laurie, 139 N.H. 325, 329 (1995); see also N.H.
CONST. pt. I, art. 15. The duty to disclose encompasses both exculpatory
information and information that may be used to impeach the State’s
witnesses, Bagley, 473 U.S. at 676; Laurie, 139 N.H. at 327, and applies
whether or not the defendant requests the information, Bagley, 473 U.S. at
682; Laurie, 139 N.H. at 327. “Essential fairness, rather than the ability of
counsel to ferret out concealed information, underlies the duty to disclose.”
Laurie, 139 N.H. at 329 (quotation and brackets omitted).

        The duty of disclosure falls on the prosecution, Giglio v. United States,
405 U.S. 150, 154 (1972); Petition of State of N.H. (State v. Theodosopoulos),
153 N.H. 318, 320 (2006); see also N.H. R. Prof. Conduct 3.8(d), and is not
satisfied merely because the particular prosecutor assigned to a case is
unaware of the existence of the exculpatory information. On the contrary, we
impute knowledge among prosecutors in the same office, State v. Etienne, 163
N.H. 57, 90-91 (2011), and we also hold prosecutors responsible for at least the
information possessed by certain government agencies, such as police
departments or other regulatory authorities, that are involved in the matter
that gives rise to the prosecution, see Theodosopoulos, 153 N.H. at 320. “This
in turn means that the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the government’s behalf in
the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995).
Although police may “sometimes fail to inform a prosecutor of all they know,”
prosecutors are not relieved of their duty as “procedures and regulations can
be established to carry [the prosecutor’s] burden and to insure communication
of all relevant information on each case to every lawyer who deals with it.” Id.
at 438 (quotation omitted).

      The prosecutor’s constitutional duty of disclosure extends only to
information that is material to guilt or to punishment. Brady, 373 U.S. at 87;
Laurie, 139 N.H. at 328. “Favorable evidence is material under the federal
standard only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Laurie, 139 N.H. at 328 (quotations omitted). We stated in
Laurie that the New Hampshire Constitution affords defendants greater
protection than the federal standard and held that, “[u]pon a showing by the


                                        4
defendant that favorable, exculpatory evidence has been knowingly withheld by
the prosecution, the burden shifts to the State to prove beyond a reasonable
doubt that the undisclosed evidence would not have affected the verdict.” Id. at
330. “This standard does not require that the prosecutor disclose everything
that might influence a jury, or that the defendant be permitted a complete
discovery of all investigatory work or an examination of the State’s complete
file.” Id.

       In Laurie, we held that the prosecution’s failure to disclose exculpatory
evidence violated the defendant’s due process rights under the New Hampshire
Constitution, and we ordered a new trial. Laurie, 139 N.H. at 327, 333. The
evidence, which the prosecution possessed prior to trial, consisted of the
employment files and records of a Franklin police officer, Detective-Sergeant
Laro, who testified at the defendant’s trial. Id. at 327, 330. Laro investigated
the crime, was the affiant for a number of search warrants, maintained the files
and paperwork for the case, and was the sole individual present when the
defendant allegedly spontaneously confessed to the crime. Id. at 332. The
records disclosed “numerous instances of conduct” during Laro’s time at the
Franklin Police Department and during his previous employment as a police
officer in Massachusetts that “reflect[ed] negatively on Laro’s character and
credibility.” Id. at 330. For example, there was information about numerous
letters of complaint that detailed Laro verbally abusing, choking, or threatening
to physically harm people. Id. Laro also had been suspended both for neglect
of duty and for threatening a civilian with a weapon. Id. at 330-31. When he
was subjected to a polygraph examination concerning other incidents, it was
determined that he was not being truthful in all cases, which “resulted in court
cases being tainted.” Id. at 331 (quotation omitted). Laro was sent to a
psychologist who said that Laro “should not be entrusted with a gun and
badge.” Id. (quotation omitted). There was also evidence that Laro lied about
the content of his file and misrepresented his training and schooling. Id.
During another investigation, while seeking medical records of one of its
clients, Laro threatened to close a clinic and arrest its personnel if they did not
comply, claiming that his actions were authorized by the chief of police and the
county attorney. Id. There were reports from co-workers describing Laro as a
“liar” and someone “not to be trusted,” and reports of incidents of
“inappropriate” use of firearms. Id. The file also included evidence that the
attorney general’s office told the Franklin police chief: “If you had a homicide
tonight in Franklin, I would instruct you that Sgt. Laro not be involved in the
case in any capacity.” Id. at 331-32 (quotation omitted). This information bore
on Laro’s general credibility and could have been used by the defendant to
cross-examine and impeach Laro, who was a key witness at trial. Id. at 327,
332-33. The prosecution’s failure to disclose any of it, even without the
defendant’s asking, violated the defendant’s rights and necessitated a new trial.
Id. at 333.




                                        5
                                        III

       Our decision in Laurie demonstrated the need for prosecutors and law
enforcement agencies to share information that pertains to police officers who
may act as witnesses for the prosecution. Since Laurie, prosecutors in New
Hampshire have developed “procedures and regulations . . . to carry [the
prosecutor’s] burden and to insure communication of all relevant information
on each case to every lawyer who deals with it.” Kyles, 514 U.S. at 438
(quotation omitted). One aspect of these procedures is the creation of so-called
“Laurie Lists.” It is not entirely clear, based upon the record before us, how
“Laurie Lists” actually function in practice, or how different prosecutors’ offices
use them. Although the respondent argues, and the trial court accepted, that
the term “Laurie List” is a misnomer because no comprehensive state-wide
“Laurie List” exists, it is clear from the record that at least a county-wide
“Laurie List” exists in the Hillsborough County Attorney’s Office. That is, it was
established that the Hillsborough County Attorney keeps a list, in the form of
an Excel spreadsheet, of police officers with potentially exculpatory information
in their personnel files or elsewhere. Officers are added to the list when a
police chief or another source notifies the county attorney that such
information exists. Both at the hearing before the trial court and in its brief to
this court, the respondent represented that when an officer is on the “Laurie
List,” such information is routinely disclosed to the trial court any time that
officer appears as a witness. After the court has been given the information,
the prosecutor may then argue either that the information is not exculpatory or
relevant to the particular case and therefore need not be disclosed to the
defense, or that, if it is disclosed to the defense, that it should not be admitted
as evidence at the trial. Based upon the record before us, we understand that
merely being on the “Laurie List” is enough to trigger that preliminary
disclosure to the court, even if the prosecution does not believe that the
evidence is material or exculpatory and fully intends to argue as much, and
even if a court in a prior case has found that the information was not
exculpatory or admissible. It also appears that, as the petitioners argue, there
is no mechanism for an officer to be removed from the “Laurie List” once placed
on it.

       Although the prosecutorial duty that spawned the creation and use of
“Laurie Lists” is of constitutional magnitude, the legislature has enacted a
statute, RSA 105:13-b, which is designed to balance the rights of criminal
defendants against the countervailing interests of the police and the public in
the confidentiality of officer personnel records. We agree with the respondent’s
assertion that RSA 105:13-b is not directly at issue in this case, inasmuch as
all information related to the incident has been removed from the petitioners’
personnel files. Nonetheless, we think it helpful to discuss the statute and its
requirements in order to explain how it affects the “Laurie List” as used by
prosecutors. RSA 105:13-b provides:



                                        6
          I. Exculpatory evidence in a police personnel file of a police
       officer who is serving as a witness in any criminal case shall be
       disclosed to the defendant. The duty to disclose exculpatory
       evidence that should have been disclosed prior to trial under this
       paragraph is an ongoing duty that extends beyond a finding of
       guilt.

          II. If a determination cannot be made as to whether evidence
       is exculpatory, an in camera review by the court shall be required.

          III. No personnel file of a police officer who is serving as a
       witness or prosecutor in a criminal case shall be opened for the
       purposes of obtaining or reviewing non-exculpatory evidence in
       that criminal case, unless the sitting judge makes a specific ruling
       that probable cause exists to believe that the file contains evidence
       relevant to that criminal case. If the judge rules that probable
       cause exists, the judge shall order the police department employing
       the officer to deliver the file to the judge. The judge shall examine
       the file in camera and make a determination as to whether it
       contains evidence relevant to the criminal case. Only those
       portions of the file which the judge determines to be relevant in the
       case shall be released to be used as evidence in accordance with all
       applicable rules regarding evidence in criminal cases. The
       remainder of the file shall be treated as confidential and shall be
       returned to the police department employing the officer.

(Emphasis added.) “RSA 105:13–b cannot limit the defendant’s constitutional
right to obtain all exculpatory evidence.” Theodosopoulos, 153 N.H. at 321.
However, particularly as amended in 2012,3 the statute explicitly codifies the
distinction we have recognized “between exculpatory evidence that must be
disclosed to the defendant under the State and Federal Constitutions, and
other information contained in a confidential personnel file that may be
obtained through the . . . procedure set forth in [paragraph III of ] RSA 105:13–
b.” Id. at 321; compare RSA 105:13-b, I and II, with RSA 105:13-b, III.

       The current version of RSA 105:13-b addresses three situations that may
exist with respect to police officers who appear as witnesses in criminal cases.
First, insofar as the personnel files of such officers contain exculpatory
evidence, paragraph I requires that such information be disclosed to the
defendant.4 RSA 105:13-b, I. Next, paragraph II covers situations in which
3 Prior to the 2012 amendment of the statute, RSA 105:13-b did not contain the clear distinction
between exculpatory information and non-exculpatory (albeit relevant) information that is found
in the present version of the statute. See RSA 105:13-b (1992).
4 Paragraph I also makes clear that the State’s obligation to disclose exculpatory evidence

contained in the personnel files of police witnesses is an ongoing duty that does not end with a
defendant’s conviction.


                                                7
there is uncertainty as to whether evidence contained within police personnel
files is, in fact, exculpatory. RSA 105:13-b, II. It directs that, where such
uncertainty exists, the evidence at issue is to be submitted to the court for in
camera review. Id.

        Finally, paragraph III covers evidence that is non-exculpatory but may
nonetheless be relevant to a case in which an officer is a witness.5 Consistent
with our case law, this paragraph prohibits the opening of a police personnel
file to examine the same for non-exculpatory evidence unless the trial judge
makes a specific finding that probable cause exists to believe that the file
contains evidence relevant to the particular criminal case. See State v.
Puzzanghera, 140 N.H. 105, 107 (1995) (“[I]n order to trigger an in camera
review of a police officer’s personnel file under RSA 105:13-b, the defendant
must establish probable cause to believe the file contains evidence relevant to
his case . . . .”). If the judge does make such a finding, the judge is then
directed to review the file in camera and order the release of only those portions
of the file which are relevant to the case. RSA 105:13-b, III. The remainder of
the file must be treated as confidential and returned to the police department
which employs the officer. Id.

        According to the respondent, because of the confidentiality of police
personnel files, when a prosecutor’s office is notified by a police chief that there
is information in an officer’s file that warrants placing the officer on the “Laurie
List,” the prosecutor frequently does not know the reason for the “Laurie”
designation. We infer from this statement that sometimes, when personnel
files are submitted to the court in connection with a particular case, the
disclosure is made directly to the court by the police department, and that even
in cases in which the file passes through the hands of the prosecutor, it often
is placed under seal by the police department before delivery. Thus, apparently
it is not uncommon for prosecutors either to be unaware of the basis for an
officer’s inclusion on a “Laurie List,” or to have only minimal information as to
the basis for the listing. As a result, prosecutors often use the “Laurie List” as
the basis for making a threshold determination as to whether there is
potentially exculpatory information about an officer that should be submitted
to the court for review. The consequence of this paradigm appears to be that,
acting out of an abundance of caution and in order to preclude the prospect of
being found to have failed in their Brady obligations, once an officer’s name is
placed on the “Laurie List,” prosecutors routinely cause the officer’s personnel
file to be submitted to the court to determine whether it contains exculpatory
information that must be turned over to the defense. Although this practice
may be understandable from the prosecutors’ perspective, given the

5 By its terms, paragraph III also covers police officers who serve as prosecutors. As there is no
indication from the record that any of the petitioners here have served or will serve as police
prosecutors, we have no occasion to consider the application of RSA 105:13-b in such
circumstances.


                                                 8
respondent’s acknowledgment in the trial court that inclusion on the “Laurie
List” carries a stigma, police officers have a weighty countervailing interest in
insuring that their names are not placed on the list when there are no proper
grounds for doing so. As this case demonstrates, in accommodating these
competing interests, basic fairness demands that courts not invariably defer to
the judgment of prosecutors with respect even to the threshold issue of what
kind of adverse information should result in an officer’s placement on a “Laurie
List.”

                                       IV

       Turning to the case before us, we must determine whether the petitioners
are entitled to the relief they have requested — that is, to be removed from the
“Laurie List” maintained by the respondent. The petitioners argue that their
placement on the “Laurie List” affects significant constitutional liberty and
property interests, inasmuch as a “Laurie” designation can tarnish their
reputations and damage their careers. The respondent acknowledged during
the hearing before the trial court that “the Laurie list is considered a kind of a
death list” for the officers on it or “is given that stigma.” Although the “Laurie
List” is not available to members of the public generally, placement on the list
all but guarantees that information about the officers will be disclosed to trial
courts and/or defendants or their counsel any time the officers testify in a
criminal case, thus potentially affecting their reputations and professional
standing with those with whom they work and interact on a regular basis. Cf.
State v. Veale, 158 N.H. 632, 639 (2009).

       Because the issuance of an injunction is committed to the sound
discretion of the trial court, we will uphold the court’s decision unless it is
tainted by error of law, clearly erroneous findings of fact, or an unsustainable
exercise of discretion. See UniFirst Corp. v. City of Nashua, 130 N.H. 11, 14
(1987). Here, we conclude that the trial court unsustainably exercised its
discretion and that the petitioners are entitled to be removed from the “Laurie
List.”

       To reach this conclusion, we re-examine, and clarify, our decision in
Laurie. Perhaps because the totality of the adverse information about Detective
Laro that the State knowingly failed to disclose was so egregious, in Laurie we
did not differentiate among the various types of information contained within
his personnel files. Instead, we simply observed that the files at issue
“disclose[d] numerous instances of conduct that reflect[ed] negatively on Laro’s
character and credibility.” Laurie, 139 N.H. at 330. In particular, there was no
doubt that evidence of Laro’s long-demonstrated history of lies, deception, and
incompetency “plainly would have been useful to the defendant upon cross-
examination of Laro.” Id. at 331. In short, the adverse information at issue in
Laurie was probative of Laro’s general credibility as a witness, and, as such,
would likely have been admissible in any case in which Laro testified. See N.H.


                                        9
R. Ev. 608(b) (providing that specific instances of the conduct of a witness may
be inquired into on cross-examination if probative of untruthfulness); see also
State v. Mello, 137 N.H. 597, 600 (1993) (distinguishing between evidence used
to attack a witness’s general credibility and evidence used to impeach specific
testimony given by a witness). For an officer such as Laro, being placed on a
“Laurie List” and having the adverse information automatically disclosed to the
court every time that officer is to be a witness makes sense and upholds the
prosecutor’s legal and ethical responsibility.

        The situation with respect to the petitioners is quite different from that
presented in Laurie. First, unlike Laro’s pattern of misconduct and
untruthfulness, the only conduct at issue here is the petitioners’ involvement
in a single incident of alleged excessive use of force, and there is no suggestion
that they attempted to lie about or cover up their conduct. Even if the
accusation were true, this incident, without something more (such as evidence
that the petitioners lied or misrepresented the facts) would not be admissible to
impeach the petitioners’ general credibility because an instance of excessive
use of force is not probative of truthfulness or untruthfulness. See N.H. R. Ev.
608(b). Indeed, even if a future case were to arise in which a claim of excessive
use of force was made against one of the petitioners, the prior incident would
not be admissible simply to show a petitioner’s propensity to engage in such
conduct. See N.H. R. Ev. 404(b). We recognize, of course, that the
admissibility of evidence at trial does not necessarily mark the bounds of the
prosecutor’s disclosure obligations under Brady. See Laurie, 139 N.H. at 332
(“It is sufficient for us to find that the evidence is material to the preparation or
presentation of the defendant’s case.” (quotation omitted)). However, the fact
that adverse information regarding a police officer’s background is not of the
type usually admissible to attack the officer’s general credibility has a strong
bearing on the propriety of maintaining the officer’s name on a list that is used
as the basis for automatically disclosing the information to the trial court or
the defendant in any case in which the officer may testify.

       Second, and more importantly, although the petitioners were initially
disciplined by the police chief for their alleged excessive use of force, the chief’s
decision was overturned by an arbitrator, a neutral factfinder, following a full
hearing conducted pursuant to procedures agreed to in the CBA. After an
investigation, the attorney general also concluded that the petitioners’ use of
force in the incident was justified. As a result of these determinations,
references to the incident have now been removed from the petitioners’
personnel files. Given that the original allegation of excessive force has been
determined to be unfounded, there is no sustained basis for the petitioners’
placement on the “Laurie List.” It makes no sense that the threshold
determination — that something was thought to be potentially exculpatory and
worthy of an in camera review by the court, but has now been shown not to be
of that character — should follow the petitioners every time they appear as
witnesses.


                                         10
       Therefore, to the extent that the petitioners’ names appear on the “Laurie
List” maintained by the Hillsborough County Attorney’s Office, we hold that the
trial court unsustainably exercised its discretion in failing to order that their
names be removed from said list. In light of the above ruling, we need not
address the other relief requested by the petitioners or further consider their
constitutional arguments. For the reasons stated above, we reverse the
decision of the trial court and remand for further proceedings consistent with
this opinion.

                                                  Reversed and remanded.

      DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.




                                       11
