LACONIA — The county attorney’s office has requested a court order barring a Belmont man from making further public statements about criminal charges against him.
Richard E. Bergeron, 42, was indicted a year ago. He faces six felony counts of selling marijuana. A jury trial is set for Oct. 5.
Bergeron, who is representing himself, criticized the prosecution and the case against him in a letter published in The Laconia Daily Sun on May 19.
County Attorney Andrew Livernois said this is the first time he has ever sought a gag order. The ACLU of New Hampshire plans to oppose the request on free speech grounds.
“Lawyers are under fairly strict rules that prohibit us from talking in the media about pending litigation,” Livernois said in an interview Wednesday. “The reason for that is to avoid poisoning the jury pool. Cases should be tried in courtrooms, where evidence comes in in certain ways, rather than in the media.
“My thinking is that he should have to follow the same rules as lawyers have to follow.
“I respect his right to free speech and to air his grievances and to complain about me and my office. That’s acceptable, but I prefer not to have facts of the case in the media, where potential jurors could read about it and shape their view ahead of time.”
Bergeron filed a brief with the court opposing the motion for a gag order, saying the only way for him to adequately express what happened in the case is through the media.
“This latest motion goes beyond violating due process rights,” he said in his motion opposing the gag order. “This prior restraint the prosecution is asking for would egregiously violate Bergeron’s First Amendment rights.
“So, in essence the prosecution is complaining that Bergeron exercised his rights to free speech to illustrate the facts of the case and his personal beliefs about the case’s weaknesses. These are both protected areas of speech that cannot be subject to prior restraint. Bergeron did not lie in the Sun.”
He also said that since he is not an attorney, he is not bound by rules of professional conduct against pretrial public statements.
In his letter to the editor, Bergeron said that two years ago his vehicle slid into a small ditch after he had delivered some firewood in a snowstorm. A uniformed officer told him to call a wrecker.
“Eventually the uniformed officer left,” he said. “Two other people stopped who were later identified as N.H. Attorney General’s Drug Task Force detectives. They were dressed as loggers.
“These ‘agents’ of the state, paid for by your tax dollars, proceeded to manufacture six serious felonies against me and charge me with offenses that threatened me with 53 years of prison time for trying to help someone out.
“During a time when resources were sorely needed to combat the ongoing opioid crisis, the state’s Drug Task Force decided to invent an intricate case against me after I gave an agent a business card and discussed only firewood with him when he stopped to supposedly help me out.”
Bergeron also discusses the case in a website he has created that includes a photo of the head of County Attorney Andrew Livernois superimposed on the body of movie character Forrest Gump. The photo has a headline, “Andrew Livernois runs to the courthouse.”
In an interview, Bergeron said he is not a drug dealer, but he received a text request for marijuana from one of the “loggers” who stopped for him in the storm, and decided to fill that request. Subsequent requests were made. Initially the transactions were small, but the final one involved 3 ounces of marijuana, he said.
He said that, at trial, he plans to argue he was entrapped. He also plans a jury nullification argument in which he seeks to have the jury return a not guilty verdict on the basis that a law is improper or wrongly applied.
Bergeron said the county attorney has offered to bargain the case down to a single charge and probation, but he said he wants to go forward to clear his name.
He said he is an editor, writer, webmaster and firewood provider. He has represented himself in other cases and has produced a handbook on how to act as one's own attorney.
Livernois said he could not discuss facts of the case.
He has been county attorney for three years and has never had a marijuana sale case go to trial.
“But we do still prosecute people for selling marijuana,” he said. “It is illegal.”