Arbitration Decision Can Be Basis For Removal From Brady List

The “Laurie List” is a version of a “Brady list” used in some New Hampshire jurisdictions (it is named after a decision of the New Hampshire Supreme Court in State v. Laurie, 139 N.H. 325, 329 (1995)). For example, the Hillsborough County Attorney keeps a list 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. 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. 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. There is no mechanism for an officer to be removed from the “Laurie List” once placed on it.

Jonathan Duchesne, Matthew Jajuga, and Michael Buckley are officers working for the Manchester, New Hampshire Police Department. On March 3, 2010, while off duty, the officers 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 officers 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 officers had “engaged in conduct (excessive use of force) that may be subject to disclosure under State v. Laurie.” Consequently, the county attorney placed the officers’ names on the “Laurie List.”

The officers filed grievances regarding the discipline imposed by the Chief. After a hearing, an arbitrator found that “the City of Manchester did not have just cause to take disciplinary action against [the officers] for actions taken or not taken” during the incident. As a result of this decision, the officers 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 officers’ conduct “was justified under New Hampshire law and no criminal charges are warranted.”

The Chief wrote to the then Hillsborough County Attorney requesting that, pursuant to the Arbitrator’s award, the officers 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 officers also asked the Attorney General to direct the County Attorney to remove the officers from the “Laurie List” – a request that the Attorney General declined.

The officers then sued the County, seeking a ruling that the County Attorney violated the law by refusing to remove their names from the “Laurie List” and asking for a writ of mandamus to compel the County Attorney to remove their names from the “Laurie List.” The officers also argued that the refusal to remove them from the “Laurie List” violated their constitutional rights to due process of law.

The New Hampshire Supreme Court ruled in favor of the officers and ordered that their names be removed from the “Laurie List.” The Court stressed that “the only conduct at issue here is the officers’ 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 officers lied or misrepresented the facts) would not be admissible to impeach the officers’ general credibility because an instance of excessive use of force is not probative of truthfulness or untruthfulness. Indeed, even if a future case were to arise in which a claim of excessive use of force was made against one of the officers, the prior incident would not be admissible simply to show an officer’s propensity to engage in such conduct.

“Second, and more importantly, although the officers 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 officers’ use of force in the incident was justified. As a result of these determinations, references to the incident have now been removed from the officers’ personnel files. Given that the original allegation of excessive force has been determined to be unfounded, there is no sustained basis for the officers’ 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 officers every time they appear as witnesses.”

Duchesne v. Hillsborough County Attorney, 2015 WL 3897798 (N.H. 2015).