Court ruling keeps police wrongdoing list secret for now

A state Supreme Court ruling Friday means that a list of about 275 officers in New Hampshire who have committed wrongdoing will remain secret for now.

The court upheld a lower court ruling that the list is not confidential, but remanded it back so that a judge could consider whether releasing the list would “constitute an invasion of privacy.”

Known as the Exculpatory Evidence Schedule, the list is maintained by the department and contains names of officers across New Hampshire who have committed wrongdoing that could raise questions about their credibility as witnesses in criminal cases. Several media outlets have gone to court, arguing that it should be made public.

Last year, Superior Court Judge Charles Temple sided with media outlets and the American Civil Liberties Union of New Hampshire that argued that releasing the list is in the public interest. But the list wasn't release pending the appeal to the Supreme Court.

Temple rejected the state Department of Justice’s argument that the list should remain confidential. The department previously produced a list that redacted any personal information. On appeal, the Department of Justice argued releasing the list was an invasion of privacy, prompting the Supreme Court to send the issue back to a lower court to consider that issue.

Gilles Bissonnette, the ACLU’s legal director, said his group would keep fighting for the list to be made public, although he was pleased the court ruled the list was not confidential.

“We and the communities we represent are disappointed that the Court did not order the immediate release of the List, and instead sent the case back to the lower court for further proceedings to address the public interest in disclosing the List,” he said in a statement. “Police officers who are named on the List are there because they have engaged in sustained misconduct concerning credibility or truthfulness. The public has a clear right to know this information.”

The Department of Justice said it was reviewing the ruling to determine its next steps.

Republican Gov. Chris Sununu said he supported making the list "public after steps are taken to ensure that those on the list receive due process. We will work to achieve this goal through the legislature.”

Across the country, activists have been pushing prosecutors to create lists of problem police officers, limit the use of the officers on them and review cases these officers worked to determine whether cases should be dropped or if defendants should be exonerated. Others have called for existing lists to be made public, which Boston's top prosecutor did last month.

Wrongdoings that can land an officer on a so-called Brady list or database include lying on a police report, excessive force, bigoted comments or crimes such as drunken driving or domestic violence. Some lists also include officers under investigation, though they could be removed if the allegation is dismissed. Others have expanded the list to include lab technicians and others who might testify on the government’s behalf.

Critics have chided prosecutors for failing to keep track of problem officers and going out of their way to keep information from the defense — either by failing to disclose the details about the officer, choosing not to put the officer on the stand or dropping a case altogether. Criminal justice advocates said the Brady rule violations have long been a problem and continue to pose a risk to innocent defendants.

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