Michael S. Lewis: Can justice be so two-faced? The attorney general’s conflict of interest in the YDC cases

Two weeks ago, I drafted an analysis of the conflicts of interest arising from the decision of the New Hampshire Attorney General’s Office to defend Youth Development Center abuse, civilly, while prosecuting it, criminally. The problems I outlined have only worsened since the trial commenced, with the Attorney General’s Office attacking the memory of witnesses it likely has, and likely will, rely upon in its criminal prosecution. I sent my analysis of this conflict of interest to top legislators and to the Executive Council. As support, I attached two decisions from the trial judge in the David Meehan case; the case that has now commenced in Superior Court. I explained how these decisions highlighted the ethical problems with the attorney general’s decision. To date, I have heard nothing in response to my analysis from public officials who consistently assert that elected branches should play a predominant role in protecting NH citizens and their rights.

The first decision I analyzed disqualified a private, criminal defense attorney from Boston the attorney general added to a phalanx of expensive, privately-retained civil lawyers in his effort to defend the state in the civil action alleging the state committed the worst sort of abuse of NH children. That attorney was working at a firm that was also representing one of the YDC victims. The trial court ruled that the Boston criminal defense lawyer could not participate for the attorney general without violating ethical rules. This decision, alone, should have raised alarm bells for public officials. Why is the attorney general hiring a conflicted Boston criminal defense attorney within weeks of the commencement of a major trial that has been pending for years to defend it, when he has already hired an army of lawyers to defend the state?

A few days later, the trial court raised even more serious ethical problems in a second decision. He warned the attorney general that his civil defense could have a terminating impact on his efforts to prosecute public officials for the same violent conduct at some future date. The two decisions have an obvious link. The first order described a series of conflict-of-interest rules that also applied to the attorney general’s effort to be on two sides of the same set of issues when defending civilly what he is prosecuting criminally. These problems seem obvious, yet the trial court is permitting the attorney general to proceed, regardless.

The dynamic is devastating to the credibility of law enforcement. Before he became chief justice, the former attorney general sought to stand for the victims of the worst criminal conduct committed by state officials in the state’s history. He established a criminal prosecution task force dedicated to the mission of investigating and prosecuting abuse against assailants. That task force obtained indictments against some. Yet years have passed and no criminal case has proceeded to trial under his successor.

Instead, on Tuesday, the civil trial opened covering the same terrible subject matter. It was covered by most major state news outlets. A lawyer working at the Attorney General’s Office stood up and, in vague, veiled terms, argued to a jury that his office’s defense will be to claim that the witnesses offered against the state in the civil trial have memory issues.

The criminal defendants the Attorney General’s Office indicted for brutalizing children in state custody will surely rejoice. They only need to sow reasonable doubt to defeat the criminal prosecutions against them. When the attorney general’s lawyers stand up and question the memory of witnesses to these atrocities, what else can this conduct do but sow this very doubt? Now the criminal defendants can quote the words of lawyers working for the same attorney general who is prosecuting them as a means of obtaining acquittals. 

When the dust settles on all of this, there must be a public accounting for how this has been handled, since no top elected officials appear ready to engage that process, now. The attorney general cannot and should not be on both sides of cases like this and there are mechanisms for ensuring that he will not be in the future. The mechanisms we should impose will make even clearer what is already clear: that the Attorney General’s Office should be on the side of justice and public safety, especially when it comes to violence against children; not working to develop a case for people he has worked to indict for committing that violence. Without such mechanisms, justice will continue to appear two-faced in dire ways to a public worried about how these cases reflect on the reputation of the Granite State.

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Michael S. Lewis was a criminal prosecutor with the NH Attorney General’s Office from 2007 to 2013. He is now senior litigation shareholder at Rath, Young & Pignatelli in Concord and one of the state's leading media-rights and First Amendment attorneys with substantial experience litigating matters involving state and federal constitutional rights.