Bar Journal - Spring 2004
Back to the Future: The Attorney General's Office Then and Now
By: Attorney General Peter Heed1
It was the fall of 1974, and I still remember seeing the notice on the Cornell Law School bulletin board. It was from the Attorney General's Office in New Hampshire, and it indicated that there was an opening in the Criminal Division for a prosecutor. Starting salary: $12,200.
I was intrigued, because I wanted to prosecute. I also adored New Hampshire, having spent four years in Hanover while attending Dartmouth College. I had already interviewed at the Brooklyn District Attorney's Office, the Manhattan District Attorney's Office, and the Philadelphia District Attorney's Office, and somehow starting out in the "Parking Ticket Prosecution Unit" of a huge urban office was not appealing.
Sometime during the first few weeks of January, 1975, I was scheduled to have an interview at the Attorney General's Office in Concord. As fate would have it, the weather was miserable. I drove from Ithaca, New York to Concord in a blinding snowstorm. Route 9 through Bennington, Vermont then on to Brattleboro and Keene is a challenging drive, even in the best of circumstances. I finally arrived in Concord late at night and stayed at the Howard Johnson's Motor Lodge (no longer there) on South Main Street.
My interview took place in the morning, at a building called the "State House Annex." I located this nondescript, grey government-looking building directly across from the State House. The Attorney General's Office was on the second floor, and occupied only one half of that floor. There was a glass partition with the words "Attorney General's Office" across the top. No security. The place was spare. The floors were linoleum, without any carpet, and the walls were tiled and painted in drab colors. The desks in the office appeared to be of the army surplus-type metal variety. I began to think more fondly of those big D.A. offices in New York and Philadelphia.
Into the interview room I went, and awaiting me were Attorney General Warren Rudman and Deputy Attorney General David Souter. It was initially intimidating, but Warren and David quickly put me at ease. Warren spoke about college football, and I recall discussing with David his love of hiking in the White Mountains and his efforts to climb all of the four thousand footers. We launched into a long discussion of legal issues. Somehow I got the job. I was told that I would be primarily prosecuting homicide cases and arguing criminal appeals before the New Hampshire Supreme Court. I was thrilled.
After graduating from law school in the early summer of 1975, I moved to New Hampshire, and I have never left. That summer was spent studying for the bar. Courses were held at the original Franklin Pierce Law School, which was in an old converted farm in West Concord. We studied in what used to be the "milking parlor." As with all lawyers trying to pass the bar, this was not a fun time. Anxiety was high. My job with the Attorney General was on the line. However, I did manage to pass the bar and went right to work in the Criminal Division of the Attorney General's Office.
Hired with me was my office mate, Richard McNamara. It truly was a different world. The entire office consisted of only 19 attorneys. Rich and I joined the Criminal Division which included at the time Tom Rath, Greg Smith, and Tom Wingate. I recall that Tom Rath was pumped up about his recent successful prosecution of Clifford Avery, and I was assigned to work with him on some post-trial motions. We were also working on an appeal to the United States Supreme Court of a fellow named Maynard who taped over the expression "Live Free or Die" on his license plate. As low-man on the letterhead, I got the unenviable job of doing the basic research and tracking down the sometimes-strange state mottos from the licenses in other states.
The sophistication level of crime scene investigation was certainly not what we see and expect today. At one of my first homicide scenes in the southern part of the state, I recall arriving with Greg Smith, only to learn that some part-time police officers had arrived first at the scene and had driven over important tire tracks and footprints. We also discovered that spent shell casings had been given to an interested bystander as a souvenir! (That case did not go well.) There was no State medical examiner. The first autopsy I attended was conducted by a hospital pathologist in the back of a funeral parlor!
State v. Farrow: Peter Heed and Edward Haffer (far left) with the jurors at the view in the 1977 murder case.
For some reason, the mid-seventies were busy years as far as homicides went. It was challenging and exciting. I got thrown right into the mix, second-chairing for our experienced prosecutors in numerous murder cases. There were few pleas, and the trials seemed to come on at a furious pace. You needed to learn fast, but you got to learn from some of the best. You also got to try cases against some of the finest trial lawyers in the defense bar. Eventually, I began first-chairing homicide cases and gained a tremendous amount of experience in the five short years I worked in the Criminal Division. When I left the office in 1980 for private practice, I had no idea that someday I would have the opportunity to return as Attorney General.
In February of 2003, when I was nominated by Governor Craig Benson to serve as Attorney General, I was thrilled to return to an office that brought so many fond memories to mind and that I held in such high esteem. During the long commute from Westmoreland to Concord to begin my first day as Attorney General, however, I wondered what the office would be like. Would the attorneys be as bright and dedicated as those I had had the privilege of working with in the 1970's? Would the legal issues be as challenging? These questions raced through my mind as I arrived very early in the morning on my first day back and used my "security pass" to get into the new sleeker building on Capitol Street now labeled, "Department of Justice."
As all Attorneys General before me, I found myself confronted on a daily basis with many complex legal issues. I have had the opportunity to discuss and address these issues with the 56 attorneys and 60 staff members that now work at the office. I have also reflected on the drastic changes that have occurred in the office since I started my first day of work at the State House Annex in 1975. Some of the more significant changes that I have noticed include the addition of many new specialized divisions within the office and the expansion of the office's responsibilities. When Senator Warren Rudman was Attorney General, the Environmental and Consumer Bureaus were only in their infancy. Now both bureaus have broad civil and criminal authority to enforce detailed statutory laws. The Criminal Bureau now has several specialized units in the areas of homicide prosecution, drug prosecution, white collar crime, public integrity, Medicaid fraud and appellate advocacy, and it supervises a drug task force that investigates drug offenses throughout all ten counties of the State. The office also has responsibility for managing and distributing millions of federal grant dollars throughout the State and the Victims' Compensation Fund which provides financial assistance to victims of crime in New Hampshire.
I have noticed major changes in the investigation and trial of criminal cases. With the advent of more discriminating scientific evidence, such as DNA, criminal investigations and trials have become increasingly complex and intricate. When I attended my first murder scene as Attorney General, I was surprised to learn that the prosecutors no longer just walk right into a murder scene as they did in the "old days." I was told to dress up in a Tyvek suit and booties before I could go anywhere near the scene. I quickly learned that there is an extensive amount of information that can now be gleaned from minute forensic evidence found at a crime scene. Like the prosecutors, the investigators have become more organized and specialized. When I was a prosecutor, there were no SWAT Teams, computer crime or drug units and the State Police Major Crime Unit, a group dedicated to investigating homicides and other major crimes throughout the State, did not exist. Likewise, in the 1970's, there was no Chief Medical Examiner's Office in New Hampshire. Autopsies were often performed by local physicians in funeral homes. Fortunately, we now have two talented, well-trained forensic pathologists in our Chief Medical Examiner's Office that perform autopsies on victims of homicides and of suspicious deaths at a morgue located in the Concord Hospital. There were also no services for victims when I was a frontline homicide prosecutor. Our office now has victim/witness advocates who work with victims and witnesses to assist them through the often-difficult court process.
Attorney General Warren Rudman and his staff in early 1977. How many future Attorneys General can you find in the photograph?
In the 1970's, most of the trial work was performed in the Criminal Division, while the Civil Division was advice oriented. Since that time, there has been a tremendous increase in the number of federal and state cases brought against the State. This expansion is due in part to the limitation of the State's defense of sovereign immunity which opened up the floodgates to civil litigation against the State. As a result, the attorneys in the Civil Bureau are now kept busy litigating scores of cases. In addition, to meet the increasing demands in federal court, we also have established a federal litigation unit within the bureau.
Given the breadth of the issues that the office handles on a daily basis, there is no such thing as a typical day as Attorney General. Every day, I am confronted with an array of decisions impacting the administration of justice in our State. Whether to bring criminal charges, settle a major class action suit against the State, whether to sign New Hampshire onto a multi-state case or brief are just some of the matters that cross my desk and demand decisions. Our office also interacts on a daily basis with all the executive branch agencies, the Legislature and the Governor and Council.
Although many things have changed, some things stay the same. One of the most difficult issues I had to face during my first few months in office was an issue that Warren Rudman and David Souter faced as well. When Governor Meldrim Thomson vetoed the budget and there was no continuing resolution immediately forthcoming from the Legislature, the Attorney General had to provide legal advice about how to keep State government running. I faced the very same issue when Governor Benson vetoed the budget in June. I learned quickly that it is very challenging to serve as Attorney General under an activist Governor who seeks to make changes in State government.
Another incident that I had to address in my first few months was a significant escape from the men's prison of three dangerous inmates, including a convicted murderer. Our office sent a team of prosecutors to investigate and determine how it had happened and how such incidents could be prevented in the future. The prison break provided me with greater insight into how much our office is relied upon to investigate and address many of the critical incidents that occur in our State.
There have also been important environmental issues that I have faced during my first year in office. Our office was the first state in the nation to file a lawsuit against the petroleum manufacturers to recover damages for contamination of the State's waters by the gasoline additive, methyl tertiary butyl ether (MtBE). I have also taken a tough stance on measures to combat air pollution in New Hampshire caused by Midwest power plants. Our office has filed suit, along with other states, against the Environmental Protection Agency to stop regulations that would violate the Clean Air Act by lessening clean air standards for older power plants under the New Source Review program.
Over the past year, I have had the honor of working with all levels of law enforcement throughout the State. We apply a system of vertical prosecution to our cases, working hand-in-hand with law enforcement from the scene of the crime through the trial. This system of vertical prosecution was the model used when I was in the office in the 1970s, but this model has been formalized and strengthened to foster an even greater level of professionalism and teamwork between the prosecutors, police officers and victim/witness advocates.
Another striking change that I have noticed is the use of technology to solve crimes and, unfortunately, to commit crimes. Today's criminals no longer keep records on paper and seldom communicate by letter or through traditional phone calls. Just about everything is now done by computer or cell phone. Almost every crime scene involves seizing and analyzing a computer. One of the greatest challenges law enforcement faces in the upcoming years is to stay ahead of the criminals in their use of technology and to find ways to address cyber crime successfully. In November of 2003, our office, along with the Institute for Security Technology Studies at Dartmouth College, hosted a cyber summit for federal, state and local law enforcement to discuss how these agencies could work together more effectively to address cyber crime. We will continue to take the lead in creating a dialogue on cyber crime issues and to author a plan to address these issues on a statewide basis.
I expect to face many new challenging issues as I continue to serve as Attorney General. As the broad range of articles in this issue of the Bar Journal demonstrate, the matters handled by the attorneys and staff at the Department of Justice impact every aspect of our State. I hope as you read this issue, you will gain greater insight into what the members of our office do and how we do it.
Although there are now more attorneys, additional litigation, and added complexity to the cases and legal problems presented to our office now, I have been heartened to learn over the past year that fundamentally the office is the same as when Warren Rudman hired me in 1975. The dedicated attorneys and staff of the office are still among the best and the brightest our State has to offer. There remains a fierce commitment to public service. The office still makes independent, objective legal decisions without the influence of partisan politics. The passion to do the right thing is alive and well. The more some things change, the more they essentially stay the same.
- New Hampshire Attorney General Peter Heed wishes to acknowledge the help of Deputy Attorney General Kelly Ayotte on this article.
New Hampshire Attorney General Peter Heed and Deputy Attorney General Kelly Ayotte, Department of Justice, Concord, New Hampshire.