LACONIA — The ACLU of New Hampshire has filed a legal brief asserting that a gag order being sought by County Attorney Andrew Livernois would violate free speech rights of marijuana defendant Richard Bergeron.
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.
The county attorney’s office has requested a court order barring the Belmont man from making further public statements about criminal charges against him. Livernois said lawyers must comply with strict rules on pre-trial statements in order to avoid poisoning the jury pool.
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.
ACLU Attorneys Henry Klementowicz and Gilles R. Bissonnette state in their legal brief that the rule on pre-trial statements doesn’t apply to criminal defendants who are representing themselves. They make a second legal argument that the rule has exceptions, including speech made well before trial, which would apply to Bergeron.
“Third, if enacted, the proposed gag order would be an unconstitutional infringement on Mr. Bergeron’s right to express himself under the United States and New Hampshire constitutions,” the brief says.
Livernois has said this is the first time he has ever sought a gag order. He said the same rule governing pre-trial statements for lawyers should apply to Bergeron.
“I respect his right to free speech and to air his grievances and to complain about me and my office,” he said. “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.
The request for a gag order stems from a letter to the editor in which 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 eventually involved a quarter-pound of marijuana, according to police.
He said he plans to argue he was entrapped and will seek to have the jury return a not guilty verdict on the basis that the law in this case is improper or being 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.