The New Hampshire Legislature will consider a couple of bills this year to ensure certain disciplinary records of police officers are subject to the state's right-to-know law. At issue is something called the "Laurie's List," a list of current or former law enforcement officers who have had disciplinary issues and may not be deemed trustworthy to testify in a court proceeding.
State Rep. Paul Berch, a Democrat from Westmoreland and retired public defender, is a co-sponsor of two bills, House Bill 153 and House Bill 155. Morning Edition Host Rick Ganley spoke with Berch about the intent of his legislation.
In criminal cases defense attorneys have access to what's known as exculpatory evidence. Let's define that a little bit. What does that mean in practical terms?
There is an inherent imbalance in criminal prosecutions between the ability of the state through law enforcement to produce evidence and the ability of the defense to counter that evidence. And one of the ways that disparity is minimized is that there is an obligation on prosecutors to turn over evidence in the hands of the state that will potentially show the innocence of the defendant or mitigate sentence or something like that.
And of course if you're talking about a police officer in this case, who's testifying for the state, who you know may be under suspicion, that would be the evidence right there?
Yes. Generally these are founded evidences of misconduct.
So one of your bills would define this evidence, to clarify that that prosecutors should have access to what they need to disclose information. How would this change potential cases involving officers who are on the list?
There's a general misconception that what we're talking about is an obligation by law enforcement to decide what information is turned over or not. In actuality, the U.S. Supreme Court has ruled that the gatekeeper is the prosecutor. So part of what this bill does is make sure that our statute indicates that it is the prosecutor that has the ability to access all of the relevant information and be able to make the decision whether the information should be turned over or not. So the gatekeeper function is the prosecutor, not the law enforcement officer, and as the attorney general's memo says, the purpose of this list is to assist prosecutors to perform their obligation.
What about the argument that making this list public could infringe on an officer's ability to do their job. You know, if their credibility is called into question, I mean, this is I think especially pertinent when you're talking about smaller police departments?
To do their job after they've been found to have done misconduct? It may make them a less effective witness. That's for sure. That raises the question about whether an officer who has done misconduct, let's say committed perjury, should be used in future prosecutions where the officer's word is is important. But generally speaking I don't think there's any privacy issue in terms of a publicly paid employee and how they do their job. We pay their salaries, we're entitled to know if they're doing a good job or not.
"We pay their salaries, we're entitled to know if they're doing a good job or not." - Rep. Paul Berch
I'm wondering if there's anything in this legislation here that would require police departments to keep anything like a Laurie List or anything separate from a Laurie List, as far as keeping the names of officers that have been involved in an investigation like that?
The purpose of one of the bills is that the disciplinary records involving certain kinds of major areas of misconduct shall not be subject to secrecy or to put it the other way, shall be public record.
Why did you decide that this was an important issue to address?
I've had a lot of experience as a career public defender in this issue. And it seemed to be subject to considerable discussion, question, controversy. Year after year after year. It seemed to be worthwhile to try to clarify what the rules are.
And similar bills have gone through the House here in Concord before only to fail in the Senate. You know, do you feel things are changed this time around?
I wouldn't be in the business of politics if I weren't a hopeful individual.
