Deal reached over reform of controversial police list
Apr. 16—CONCORD — A significant milestone for police reform arrived Thursday, with widespread support emerging for a bill to make public the names of all officers whose credibility could be questioned at trial.
The private negotiations of leaders in law enforcement, media, civil liberties, and human rights advocates produced a compromise that a bipartisan group of state senators sponsored.
No uniform standard exists for placing officers on the so-called Laurie List, formally known as the Exculpatory Evidence Schedule (EES), and officers have no right to appeal that decision. This bill would give officers the right to challenge being put on the list.
The plan was offered as an amendment to a House-passed bill (HB 471) that would make public the disciplinary hearings before the state Police Standards and Training Council regarding police officers.
Incoming Attorney General John Formella presented the deal on the eve of his leaving as Gov. Chris Sununu's legal counsel to become the state's top prosecutor.
"We will work to implement it in a way that is fair and in a way consistent with the desires of all the stakeholders that came together in support of this language," Formella told the Senate Judiciary Committee.
Safety Commissioner Robert Quinn said the achievement is notable as many states cope with emotional divisions among the public about the handling of police misconduct or fatality cases.
"With all we are dealing with across the country, this increases and improves trust in law enforcement," Quinn said.
Many law enforcement executives said some of the officers had no idea they were on the list. This bill would notify all officers on the list, and give them six months to file a lawsuit challenging that decision.
All those put on the list after the bill became law would have 90 days to lodge their own challenge.
The state Department of Justice would update the list online every 30 days, and on a quarterly basis it would inform the public of the number of officers who have sued to keep their names private.
In the Supreme Court case of Union Leader vs. Fenniman in 1993, justices ruled the identity of these officers was not subject to the state's Right-to-Know Law.
The court reversed itself in a 2020 decision in a case the Union Leader brought against the town of Salem regarding a police audit, but sent it down to a lower court for more review.
If the bill becomes law, it will render moot that lawsuit and other cases in which the Keene Sentinel, Seacoast Newspapers, Concord Monitor, Nashua Telegraph and the New Hampshire Center for Public Interest Journalism have been involved, according to Gilles Bissonnette, legal director for the American Civil Liberties Union of New Hampshire.
"I do believe this is a strong proposal that not only addresses concerns we heard from law enforcement but from advocates for transparency like myself," Bissonnette said.
This reform had been a major theme among the 48 recommendations from the Commission on Law Enforcement Accountability, Community and Transparency (LEACT) created by Gov. Chris Sununu last summer after the death of George Floyd at the hands of Minnesota police officers.
"The language of the amendment is fair and quite simply, it is the right thing to do," said Hollis Police Chief Joseph Hoebeke, president of the New Hampshire Association of Chiefs of Police.
"We feel this is a fair balance that provides a level of transparency that is not in place right now and one that the public clearly expects."
Leaders with the New Hampshire Troopers Association, New Hampshire Police Association along with other LEACT commission members urged the Senate to embrace this change.
Robin Malone, president of the New Hampshire Association of Criminal Defense Lawyers, said her group had no role in the private negotiations that produced this compromise. She said her colleagues have some "concerns" about how the bill will "impact our clients' rights."
The EES list is a Department of Justice policy that is actually not currently spelled out in state law.
That's why this amendment states the agency "may" continue updating the list in the future, rather than "shall."
Senior Assistant Attorney General Matthew Broadhead said this was part of the extensive "horse trading" needed to bring about the deal.
The LEACT Commission also recommended lawmakers create an independent panel to hear all police disciplinary cases in the future, along the lines of committees that now respond to misconduct complaints against judges and lawyers.
Putting that language into a bill all can support during the 2021 legislative session has been harder than the list issue.
That's why Gov. Sununu proposed last February in his budget trailer bill (HB 2) to form a second commission that would finish that work.
Supreme Court Chief Justice Gordon MacDonald, who was attorney general at the time, had vowed to create an office in his agency to investigate all the complaints.
The independent panel and AG's Office could entirely replace the list.
In the meantime, Formella vowed his office would keep the faith.
"As incoming attorney general, it is absolutely my intent to maintain the EES. This is part of the overall compromise," Formella said.
