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Bar News - January 15, 2014

Opinion: Defense Attorney Suggests New ‘Laurie List’ Procedures


Editor’s Note: Jeffrey Kaye represented Cody Eller in a criminal case that lasted more than two years before Superior Court Judge Jacalyn Colburn in April 2013 set aside the verdict based on “Laurie” discovery violations, after it came to light that the arresting officer’s credibility had been called into question. The case was resolved by a plea agreement in November. In a letter submitted to the NH Supreme Court Advisory Committee on Rules last month, Kaye suggested a number of protocols and procedures the court could adopt to ensure exculpatory evidence is disclosed to the defense in a timely fashion. The following is an edited version of that letter.

The New Hampshire Supreme Court and the Advisory Committee on Rules must address and mandate procedures to be followed by prosecuting officers statewide relative to disclosing exculpatory evidence to defense counsel.

From November 2012 until April 15, 2013, this defense counsel filed more than 10 motions to obtain exculpatory discovery in State v. Cody Eller. During Eller’s first trial, the court reviewed the limited material provided by the police and the county attorney’s office, which did not include any exculpatory materials that would have been favorable to the defense. NH Superior Court Judge Jacalyn Colburn, in her decision on April 16, 2013, set aside the initial verdict against Eller, based on “Laurie” discovery violations – the first time that has happened in 18 years.

The initial prosecution of Cody Eller should make everyone involved in the criminal justice system exceedingly uncomfortable. In an April 1995 decision, New Hampshire attorney and former US Supreme Court Justice David Souter warned that: “Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial’s outcome as to destroy confidence in its result.”

I understand the NH Attorney General’s Office is now considering new protocols for county attorneys to access possible exculpatory materials in criminal cases. It should be noted that any protocols or procedures established by the attorney general’s offices is just an instruction, and not mandated by the courts. I believe the court advisory committee on rules should examine the following issues:

At what point should the defense have access to potential exculpatory and impeachment evidence in criminal prosecutions?

In the prosecution of Cody Eller, former Pelham police officer Stahl, who was the prime witness, had a history, over 12 years, of a “pattern of conduct” of arresting youthful offenders, bullying them into confessions and violating their civil rights. The Pelham Board of Selectmen explicitly fired him in August 2013 for this “pattern of conduct” during a public, video-recorded termination proceeding. Unfortunately, if we looked at each isolated episode of Stahl’s misconduct, we would not see the whole picture – that “pattern of misconduct.” How can the court avoid this kind of situation in the future?

Should the defense be entitled to access, subject to a confidentiality agreement, any possible exculpatory or impeachment materials, which have been produced and submitted by local police departments to the charging authority, before those materials are totally filtered?

Should the court provide a defense attorney with a list of what potentially exculpatory materials the prosecution has provided to the court and which materials have been reviewed by the judge?

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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