Duchesne v. Hillsborough Cnty. Attorney, 2014–028

Decision Date25 June 2015
Docket NumberNo. 2014–028,2014–028
Citation119 A.3d 188,167 N.H. 774
CourtNew Hampshire Supreme Court

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.


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.


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 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.


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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ; State v. Laurie, 139 N.H. 325, 329, 653 A.2d 549 (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, 105 S.Ct. 3375 ; Laurie, 139 N.H. at 327, 653 A.2d 549, and applies whether or not the defendant requests the information, Bagley, 473 U.S. at 682, 105 S.Ct. 3375 ; Laurie, 139 N.H. at 327, 653 A.2d 549. "Essential fairness, rather than the ability of counsel to ferret out concealed information, underlies the duty to disclose." Laurie, 139 N.H. at 329, 653 A.2d 549 (quotation and brackets omitted).

The duty of disclosure falls on the prosecution, Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ; Petition of State of N.H. (State v. Theodosopoulos), 153 N.H. 318, 320, 893 A.2d 712 (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, 35 A.3d 523 (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, 893 A.2d 712. "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, 115 S.Ct. 1555, 131 L.Ed.2d 490 (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, 115 S.Ct. 1555 (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, 83 S.Ct. 1194 ; Laurie, 139 N.H. at 328, 653 A.2d 549. "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, 653 A.2d 549 (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 defendant...

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