Supreme Court mulls what to do with post-conviction evidence

Mark Hayward, The New Hampshire Union Leader, Manchester
·3 min read

Dec. 7—Criminal prosecutors in New Hampshire would be required to take action, including reopening cases, if they come across evidence that points to the innocence of someone convicted of a crime, according to a proposed rule for prosecutors.

In written comments, a New Hampshire Bar ethics panel said no existing issue exists when it comes to New Hampshire prosecutors. The Bar panel said the rule will "proactively provide guidance" to prosecutors about their obligations when post-conviction evidence arises.

But New Hampshire criminal defense attorneys point to several recent shortcomings of police and prosecutors and said the proposed rule is too weak.

For example, prosecutors are required to act only if they deem the evidence "new, credible and material" and that the evidence creates a "reasonable probability" that a defendant was wrongly convicted.

The New Hampshire Association of Criminal Defense Attorneys wants prosecutors to act whenever any evidence surfaces, whether prosecutors believe it is material or not.

"These decisions are not necessarily made in bad faith," wrote Gary Apfel, a member of the defense lawyer group. "They are, however, made by advocates who still want to win cases and deny opponents evidence if they are not obligated to disclose it."

The Supreme Court Advisory Committee on Rules has drawn up the proposed changes and scheduled a public hearing for 12:30 p.m. Friday at Supreme Court chambers in Concord. The Rules Committee is chaired by Supreme Court Justice Patrick Donovan.

Under the committee proposal:

* Prosecutors need to take action when they learn of "new, credible and material evidence" that creates a "reasonable probability" that a convicted defendant is innocent.

* A prosecutor should ask a judge to appoint a lawyer for the defendant.

* A prosecutor should undertake further investigation if necessary.

* A prosecutor should remedy the conviction if clear and convincing evidence shows the convicted person did not commit the crime.

* A prosecutor should act even if the conviction involved another prosecution office.

* A prosecutor who in good faith makes the wrong decision about newly discovered evidence should not be held responsible for breaking any ethics rules.

The New Hampshire Bar Ethics Committee lists a host of actions a prosecutor can take when confronted with new evidence: disclosure to the defendant, ask a judge to appoint a defense lawyer for the defendant, and even file a court petition to reopen the case.

A prosecutor who decides to not disclose the new evidence should do so in writing, the Ethics Committee said.

In an eight-page letter, the defense lawyer group disputed the notion that evidence is rarely withheld and laid out several examples: the infamous state v. Laurie case in 1999; the 2021 overturning of a federal conviction against a United Way executive last year; the mistrial in the Timothy Verrill murder case in 2020.

The defense lawyer group also raised issues about Haden Wilber, the state trooper fired in 2021 for having a suspect jailed for 13 days in 2017 and forcing her to undergo invasive cavity searches. Investigators found he violated numerous state police policies.

Over those four years, Wilber was never placed on an official list of problem police officers, and few if any defendants knew about his misdeeds, the lawyers said.

"Presumably, Trooper Wilber made hundreds of arrests in the interim, and many defendants entered guilty pleas or were convicted at trial without benefit of this highly exculpatory evidence," Apfel wrote.

The lawyer group suggested that any post-conviction evidence be revealed to a judge at the very least. And a prosecutor who withholds the evidence should not be able to escape the ethical consequences.