Former local sheriff's deputy one of many appealing Laurie List placement

Oct. 1—A former Cheshire County sheriff's deputy who was fired after making a race-related comment during a training is suing under a pseudonym to have his name removed from the state's Exculpatory Evidence Schedule.

Better known as the Laurie List, the EES catalogs current and former New Hampshire law-enforcement officers with possible credibility issues that could impact their ability to testify in court.

The lawsuit the former deputy filed in November against the Cheshire County Sheriff's Office and the N.H. Attorney General's Office is one of several in which officers on the list have sued to have their names withheld from public disclosure.

This local case — much of which remains sealed or redacted — is scheduled for a bench trial this month. That would leave a judge to decide whether the former deputy's name and corresponding information will become public on the EES.

The names of more than a dozen area officers were revealed when the Attorney General's Office published portions of the list in December and March, after the state Legislature last year passed a law to make the EES public.

Still, many officers, like the former sheriff's deputy, used a provision of that law to keep their names hidden as they contest in court their placement on the list. In Cheshire County Superior Court, four such cases remain sealed in their entirety.

The Laurie List was created to help prosecutors fulfill their constitutional obligation, as established in the 1963 U.S. Supreme Court decision Brady v. Maryland, to hand over evidence — known as exculpatory evidence — that is relevant and favorable to the defense.

Prior to the law mandating public disclosure of the list, a lawsuit from the American Civil Liberties Union of New Hampshire and news organizations, including The Sentinel, had long sought its release to shed light on issues of police misconduct.

Even with 183 officers' names now public on the EES, details about what led to their inclusion are often scant. The list categorizes the reasons for officers' inclusion in just a few words, "excessive force," "dereliction of duty," "criminal conduct" or, most commonly, "truthfulness."

Some officers have said they don't know why they are on the list, while public records have revealed that others have been added for reasons like lying during an internal investigation or forging a signature. Still others have been included after investigators determined they could be charged with a crime.

Training in question

In his lawsuit, which is scheduled for a bench trial before Judge Jacki Smith on Oct. 11, the former deputy's attorney argues that "the findings that were used to determine his placement on the EES list were incorrect, misinterpreted, taken out of context, and/or not serious enough to warrant his name's inclusion." His lawyer did not return multiple phone requests for comment.

The civil complaint and motion to seal have been redacted to remove identifying information, including dates and names. All other documents in the case are sealed.

While the pseudonymous officer's place of work is also redacted in spots, court documents refer to him as a deputy several times, and the complaint includes a N.H. Police Standards and Training Council document corresponding to his firing that lists his department as the Cheshire County Sheriff's Office.

The training in question happened more than two years ago and centered on a mock active shooter scenario with children serving as volunteers, according to court documents. During the training, the documents say, someone involved in the drill said a kid had been shot. The deputy contends that he responded, "Were they Black?" while other officers reported in written statements — and a higher-up later concluded — that he said, "I hope he was Black," or words to that effect, according to court documents. (Another officer was heard responding, "if they weren't, you better get some spray paint," court documents state.)

Written statements — part of an internal investigation — from others involved in the exercise give a mixed account of what was said, according to court documents.

One officer reported hearing the deputy say, "I hope they were Black," according to one account detailed in court documents. Another officer said he heard the deputy "inquiring as to whether or not the person he shot was black ... implying that it would be okay if the person he shot is black," court documents state. That person said in a written statement included in court documents that insensitive comments about Polish people had been made earlier in the training, contributing to the atmosphere where inappropriate jokes were being made. At least two people described the deputy's comment as a joke, documents state.

Whatever the deputy said, one person participating in the training heard him and was offended by the remark, according to court documents. (The offended team member threatened physical violence, saying he would "eat the misdemeanor charge" if he heard such a comment again, court documents state.) The deputy apologized to this team member a day later, according to the complaint, explaining that he did not mean to offend.

The training took place on March 12, the deputy was placed on administrative leave after a meeting with a higher-up on March 30, pending an investigation — which determined he violated policies related to discrimination and would have to attend counseling and racial sensitivity training — and was allowed to return to work on April 1, court documents state. (The year corresponding with these and several other dates was redacted in court documents.)

On April 11, the higher-up had another meeting with the deputy, court documents state, in which he asked him whether he made the comment as a joke. (The complaint filed by the deputy alleges this interview was not thorough.) After the meeting, the higher-up fired the deputy, concluding the deputy had been untruthful in the earlier meeting about whether he had been joking.

"During our [March 30] meeting you never mentioned that you were joking at the time of the comment and not asking a question, which clearly makes a difference as to whether you were asking a general question or joking," states the letter discharging the deputy, included in the complaint. "... Your untruthfulness during our meeting on March 30 [redacted] cannot be tolerated."

That letter states that the deputy could potentially be placed on the Laurie List. The ousted deputy in court documents argues that potential placement and actual placement on the list are different issues and that he never had the opportunity to appeal his inclusion on it.

"I stand firm today, as I did then that someone else's perception of my words does not constitute a lack of my credibility," he wrote in a Sept. 9, 2020, letter to Senior Assistant Attorney General Geoff Ward included in the complaint. "I was the only officer to step forward when confronted regarding race related comments. If I was an untruthful person I would have remained silent. I came forward and was honest."

The deputy wrote that his honesty cost him his credibility and reputation as a police officer and — though he said he has retired from law enforcement and has no plans to return — he wants his name cleared because "my credibility means everything to me."

Other Laurie List lawsuits

Last week, The Sentinel filed a motion in the four cases that remain completely sealed in Cheshire County Superior Court to unseal the arguments those officers are making to cloak their names. Those motions are pending.

In response to emailed questions about the sealed cases, a N.H. Judicial Branch spokeswoman provided a statement from Judge Tina Nadeau, the chief justice of the state's superior court.

The law that made the EES public prohibits disclosure of the identities of officers who are suing to contest their inclusion until their court case is over, Nadeau said, unless a judge unseals the case file before then. To comply with the statute's goal of anonymity through the court proceeding, the judicial branch created a process to de-identify the case name — for example, listing the suing officer as "John Doe" — before providing the AG's Office with the case number, she said. That case number is then made public, the chief justice noted.

"This process means that the case is sealed at the outset of an EES case filing to prevent the public from viewing a pleading that could identify the officer," Nadeau said. "There is, however, sufficient public information about the EES case for a third party to file a motion in the case to unseal non-identifying information."

State-wide, numerous cases have been reviewed and, by court order, the portions of the cases that do not allow for the identity of the officer to be disclosed have been unsealed, she said.

In Cheshire County Superior Court, one case was unsealed in its entirety after Judge Smith ruled in favor of the N.H. Department of Justice, which had filed a motion to dismiss the it, according to court documents.

In that case, former Keene police officer Katie Zamore sued the city's police department to keep her name off the EES. Zamore argued in the lawsuit that because she retired from law enforcement in 2014 and will never testify in court as an officer again, there is no reason to include her name on the list, court documents state.

"It would only serve to embarrass [Zamore] and subject her to unneeded security and ridicule even though she has voluntarily departed from her Law Enforcement career," a lawyer for Zamore wrote in court filings.

Neither Zamore nor her lawyer returned requests for comment.

The lawsuit Zamore filed in December does not include information about what caused her to be added to the list. The court filings state only that in 2017 the Keene police chief put her on it and that "While the reasons underlying her placement on the Laurie List are not egregious, she does not dispute the merits of her placement on the list."

In its motion to dismiss, the DOJ argued that removing her name from the EES — or even keeping it on the list but hidden from public view — would conflict with the law that made the list public.

That law requires disclosure of an officer or former officer's name unless a court determines "that the underlying misconduct is not potentially exculpatory" or that "the law enforcement erred in recommending that the officer be placed on the [EES]," according to the DOJ's motion to dismiss, which Judge Smith granted on April 29.

Prior to the case's dismissal, the ACLU-NH had filed to intervene in the lawsuit, arguing that there is a public interest in knowing what arguments officers named on the EES are making to keep their names' shielded.

"The New Hampshire constitution is one of the state constitutions that explicitly protects the public's right to court records," Henry Klementowicz, a senior staff attorney with the ACLU, said in a phone interview. "These actions of police officers trying to get off the EES should be open to the public so people can see what kind of arguments the officers are making."

Ryan Spencer can be reached at 352-1234, extension 1412, or rspencer@keenesentinel.com. Follow him on Twitter at @rspencerKS