Kudos to the Union Leader for using Right to Know laws to obtain a (heavily redacted) copy of the Exculpatory Evidence Schedule (EES), often referred to as the ‘Laurie List’, and for making the list available online.
This is a list, maintained by the Attorney General, of police officers around the state who have ‘credibility issues’ that would prevent them from being effective witnesses at trial.
If you take the time to look at the list, and at the procedures governing its use, it should quickly become apparent that there are several glaring problems that need to be addressed.
First, the list contains only findings.
It contains no evidence, and no descriptions of what evidence might exist.
About 2/3 of the entries contain no explanation at all for why the officer was placed on the list. Four of the explanations have been redacted. (It makes you wonder whether those are less serious, or more serious, than the others.) In the remaining entries, the explanations are nearly all versions of one of the following:
- Lying (in one form or another)
- Excessive force
- Disobedience
But the explanations themselves are, more often than not, just one or two words long: ‘Untruthfulness’, ‘Credibility’, ‘Dishonesty’, ‘False reports’. Sometimes you get a couple more words: ‘Egregious dereliction of duty’. But as far as being able to figure out what happened, and what should be done about it, they are almost useless.
Does ‘Untruthfulness’ mean that the officer lied about staying home sick from work one day? Or that he perjured himself in court on multiple occasions? You just have to guess. The list isn’t going to help you.
It’s like having a doctor tell you: You have cancer, but I’m not going to tell you what kind, or how serious it is, or where it is, or what your options for treating it are.
Second, the list is incomplete.
Recent changes by the governor and the AG specifically exclude officers who are under investigation, and make it easier to remove officers after some amount of time has passed. And the list includes only officers whose behavior has been determined by other police officers to be sufficiently improper to warrant inclusion. This creates a conflict of interest.
Note that in each jurisdiction, the Chief of Police determines whether an officer is to be placed on the list. And consider that some small towns (like the one I live in) have only a Chief of Police, with no other officers under his command. Are we supposed to just trust that he’ll investigate himself fairly, and report himself, if that’s warranted?
Third, the list is secret.
Remember what JFK said about secrecy?
The very word ‘secrecy’ is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it.
Remember what our own state constitution (in Part 1, Article 8) says about the concealment of facts by government?
All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them.
All of them. At all times.
And what about an idea so basic that it shouldn’t even need to be mentioned, let alone argued? If you take my money, you are never, ever, under any circumstances, justified in hiding from me what you do with it.
People who want to keep the public from knowing about everything they do on the job should take jobs in the private sector.
Fourth, the list is parochial.
If an officer who has been placed on the EES leaves New Hampshire, he’s free to take a job in another state, and there’s no way for his new employers to know about it. (Only prosecutors and judges get to look at the list, and then only under very specific circumstances.) If an officer who was on a similar list in another state takes a job in New Hampshire, there’s no way for his new department to know. The list needs to be national.
As the Keene Sentinel recently stated in an editorial:
Officers complain that they will not be promoted or offered certain positions if they are included on the list. This is an understandable concern on their part, but beside the point.
At bottom, the legal system depends on the truthfulness of witnesses and other participants. The career of any officer whose material untruthfulness has been established should be ruined.
There are a lot of places in which ‘zero tolerance’ is the wrong approach, but in the case of violations of public trust, it’s appropriate.
Fifth, the list is being kept for the wrong reason.
The memo from the AG that outlines procedures for using and maintaining the list makes it clear that the list is maintained for use by prosecutors. It’s up to a prosecutor to disclose to the defense whether an officer involved in a case is on the list, if the prosecutor decides that it’s relevant.
This is a problem for two reasons. First, it relies on prosecutors to come forward with information that may be harmful to their cases. That’s a conflict of interest.
Second, it means that the information, if it’s released at all, will be released during discovery, i.e., after a trial date has been set, after preparations for trial have begun — and perhaps most importantly, after the defense lawyer has started running up the kind of bills that can bankrupt a defendant. If the defendant is pressured to accept a plea bargain, the information might never surface.
This is all backwards. The focus of the list must be on helping defendants and defense lawyers. And the information on the list must be available prior to arraignment, which is when a defense lawyer has a chance to get the case tossed immediately because some of the officers involved have demonstrated a willingness to be ‘untruthful’.
Sixth, the list results from the police investigating themselves.
In talking about recent changes to procedures for dealing with the list, Governor Sununu said that the police deserve the ‘same robust due process protections as any criminal defendant’.
The ACLU disagrees. So do I. But suppose we take the governor at his word. For the police, ‘due process protections’ appear to include investigating themselves, and then keeping the details of that investigation secret.
So following the governor’s logic, we should be extending this same protection to every criminal defendant: ‘You look into the allegations against you, and let us know if you did anything wrong.’
It sounds ridiculous. It is ridiculous. And wearing a uniform and a badge when you propose it doesn’t make it any less ridiculous — although many people, including the governor and the AG, don’t seem to realize that.
So what should we do about this?
As currently configured, the ESS is a dreadful implementation of a crucial function. What would be a better alternative? The design needs to be defense-centered. And it must be comprehensive, instantly available anywhere, and reliable.
Happily, it turns out that 21st century technology stands ready to tackle this 18th century imperative. We can replace paper lists locked away in filing cabinets with digital documents in the cloud. In particular, we now have the ability to create distributed, detailed, instantly available, tamper-proof public ledgers for information that needs to be public — like instances when police officers have been caught lying, whether on arrest reports or on the witness stand.
What we need, in short, is to replace the ‘Laurie List’ with a ‘Cop Blockchain’.
It’s an idea whose time has come. As Carla Gericke, candidate for state senate, likes to say: ‘There should be an app for that!’
There should be an app for this. And if the government won’t create it, then we the people are just going to have to build it on our own, from FOIA requests, court transcripts, YouTube videos, sworn statements, and so on.
In the long run, the police will be much better off getting in front of this wave by cooperating with the effort, instead of waiting around to be inundated by it.
