Bar News - March 9, 2007
Miller v. Blackden: It’s Not About Stalking…
By: Brian K. Blackden
Breaking confidentiality, pro se representation, and domestic violence discrimination are the issues surrounding the Miller v. Blackden case, not stalking.
In the Miller decision, the NH Supreme Court upheld a civil stalking order against me, a private detective licensed by the State of New Hampshire pursuant to RSA 106-f. The case was civil in nature, not criminal, and in my opinion did not proceed criminally, as it would not have met the “beyond a reasonable doubt” standard.
The court stated that failing to disclose confidential information, i.e., the specific purpose(s) of my surveillance of Rebecca Miller (gathering evidence for criminal defense of my client in another case involving Miller [State v. Raymond] and seeking proof of child-negligence allegations against her) meant that the court could not determine whether or not I had a legitimate purpose for surveillance. If the purpose was disclosed, not only would the surveillance be frustrated (Miller would now know that Eric Raymond, the person who hired me, had learned of her activities and was trying to prove them and Miller would temporarily discontinue such activities), but my duty of confidentiality would have been violated. In this case, pro se Miller—who was tipped off about the clandestine surveillance by a Concord Police officer—asked “What kind of information are you trying to get from me?” clearly bolstering my position.
In retired Trooper John Healy’s recent missive on this topic [see page 4, Feb. 9, 2007, Bar News], he states this is not the kind of investigation most investigators would take. I would, in contrast, state this is exactly the kind of blended criminal defense and custody case an investigator who does not specialize in insurance cases or plaintiff matters takes.
Why should a private detective hired by a pro se litigant be treated any differently than one hired by an attorney? Are pro se litigants second-class citizens afforded lesser rights than people represented by members of the NH Bar? It would seem so. It appears that if an attorney hires a private detective to conduct such activity on behalf of a client, it is legal; but a litigant acting as his own attorney cannot do the same. Most pro se litigants can’t afford the expense of an attorney and need to avail themselves of other avenues afforded them under the Constitution.
If merely being hired by an attorney is the burden of proof, would I be required to disclose pertinent details of surveillance or be afforded protection as an extension of the attorney and not be compelled to disclose? Could a civil hearing that demands disclosure allow the target to change behavior until after criminal proceedings? Or, could the civil hearing be a fishing expedition by the State (noticeably seated in the court proceedings) to find out a criminal defense position prior to trial? Where is the protection for a pro se defendant when the client is, for all intents and purposes, his own attorney?
In this case, the Court and others have stated a private detective must do more than merely testify he was a licensed PI and was allowed to conduct such activity. In the same breath, they also state investigators must file a bond so as to conduct themselves in a legal and honest manner. If they are bonded and meet the state police requirements to conduct themselves in such a manner, is it reasonable to expect them to tell the truth like any officer of the court?
In the end, the Miller v. Blackden decision shows the State and the public that they can attempt to gain information in domestic and criminal cases by abusing the purpose of civil-protection petitions. The Raymond case was later significantly reduced by the Concord Police and the domestic-violence restraining order against my client withdrawn by the “victim.”
Interestingly, albeit after the Miller v. Blackden Supreme Court decision, upon hearing a nearly three-minute telephone message by Miller, who admits stalking and threatening my client and his girlfriend, the Concord Police stated that if someone wanted to claim he/she was a victim in this incident, they would have to look into it. What about the concept of “against the peace and dignity of the State” as we see in female victim domestic assault matters? It seems apparent that New Hampshire law enforcement is content with charging domestic violence accusations against men without a willing victim, but when the perpetrator is a woman, the State needs a willing victim.
Brian Blackden is a licensed private detective and principal of Right of the People Investigations, based in Concord. He is a former police officer, FF/EMT, correctional counselor, Probation Department case tech, and internal affairs detective sergeant. Contact him at http://www.rotpi.com/.