In late October 2013, the Union Leader reported a troubling piece of news that has received little attention: that the Nashua Police Department has potentially failed to comply with the constitutional requirement that all defendants in criminal cases be provided with favorable evidence material to their defense.  This is inexcusable.
Based only on a press release published by the New Hampshire Attorney General’s Office, here’s what we know: John Seusing, now the Nashua police chief, lied to his superiors when a complaint arose from an arrest occurring at a bar in Nashua in the mid-1980s.  One of the people Mr. Seusing arrested during this incident filed a lawsuit against him and other officers alleging excessive force/false arrest, which ultimately settled.  When asked about this case by his superiors, Mr. Seusing deliberately lied, telling them that he did not make the arrest in the first place.  Mr. Seusing corrected the lie before he was confronted by his superiors.  He was then suspended for 15 days.
These facts have been buried within Mr. Seusing’s personnel file for approximately 27 years and only saw the light of day because a former Nashua police officer filed a complaint with the New Hampshire Attorney General’s Office concerning the incident in the spring of 2013.
What’s outrageous is not that Mr. Seusing lied.  It’s the fact that, as disclosed by the Attorney General’s Office in an August 2013 press release discussing its investigation, the Nashua Police Department apparently never disclosed this lie—with the exception of one instance in 1995—in later criminal cases in which Mr. Seusing was a testifying witness.  As the Attorney General’s Office noted, “[i]t is likely that this incident was not disclosed in any other criminal case.”  The Attorney General’s Office even acknowledged that it “would have continued to disclose this incident out of an abundance of caution, and will now make such notification in the future should Seusing be a witness in any case.”
This is not how our system works.  A trial is a search for the truth, not a game of hide and seek.  This is especially true when the State of New Hampshire is deciding whether to take away a citizen’s liberty.  To ensure that criminal trials will be reliable, truth-seeking procedures, the New Hampshire Constitution commands that all criminal defendants have a right “to produce all proofs that may be favorable to [them].”  As the New Hampshire Supreme Court held in the 1995 decision State of New Hampshire v. Laurie, these “proofs” include evidence that could cast doubt on a police officer’s character and credibility.  This fundamental principle that all evidence material either to guilt or to punishment must be disclosed can also be found in the 1963 U.S. Supreme Court decision Brady v. Maryland and the due process provisions of the Fourteenth Amendment.
As a result of its investigation into Mr. Seusing’s conduct, the Attorney General decided in late August 2013 to notify three individuals who were convicted of homicide based, at least in part, on Mr. Seusing’s testimony: Eduardo Lopez Jr. (incarcerated since 1991), Timothy Brown (incarcerated since 1987), and Ronald Schultz (incarcerated since 1994).
Aside from these three individuals, there are likely hundreds of other defendants in Nashua who were convicted since the mid-1980s without being informed of the fact that Mr. Seusing committed a lie and was disciplined.  The simple truth is that these convicted defendants have a right to be informed of this potential violation of their rights.  These defendants have a right to ask a Judge to determine whether, based on the specific facts and circumstances of their cases, Mr. Seusing’s lie and subsequent discipline constitute favorable, exculpatory evidence that was knowingly withheld.
In December 2013, the NHCLU, along with the New Hampshire Association of Criminal Defense Lawyers, sent letters to the Hillsborough County Attorney's Office and the Attorney General's Office seeking written confirmation as to whether they will be (i) identifying all cases they handled from approximately 1986 to the present that resulted in a conviction in which Mr. Seusing was a testifying or potential witness, and (ii) notifying in such cases either defendants or their counsel of the fact that Mr. Seusing lied to his superiors and was subsequently disciplined for 15 days after correcting the lie.  As explained in these letters, prosecutors have an obligation to follow New Hampshire law, which makes clear that “[t]he duty to disclose exculpatory evidence that should have been disclosed prior to trial … is an ongoing duty that extends beyond a finding of guilt.”