0231 STATE OF NEW HAMPSHIRE iva MERRIMACK, SS. SUPERIOR COURT STATE OF NEW HAMPSHIRE SUPERIOR COURT v. Paria i (ib AA 12 AN BSS OWEN LABRIE CASE NO.: 217-2014-CR-00617 OBJECTION TO STATE'S MO’ DEFENDA) NOW COMES the Defendant, Owen Labrie, by and through his attorneys, Brennan, Lenehan, lacopino, and Hickey, and respectfully submits this Objection to State’s Motion to Revoke Bail in the above matter. IN SUPPORT THEREOF, the Defendant states as follows: 1 The State filed a Motion to Revoke Mr, Labrie’s bail on March 14, 2016. In that Motion, the State alleged that there was “clear and convincing evidence” that Mr. Labrie violated his conditions of release on at least eight occasions. The State has further requested that this Court revoke Mr, Labrie’s bail as a result of these violations. ‘The Court shall enter an order of revocation and detention of a criminal defendant if, after hearing, the Court finds by “clear and convincing evidence that the person has violated any other condition of release...and finds that...the person is unlikely to abide by any condition ‘or combination of conditions or release.” NH RSA 597:7-2 (Il) (emphasis added), 3 ‘The State has provided documentation to undersigned counsel upon which it relies to support the allegations contained in the Motion to Revoke Bail. Each allegation will be addressed separately below.Allegations of Violations of Previous Bail Order for Meetings with Legal Counsel 4. The State has provided documentation from Dartmouth Coach, a bus company, indicating that on October 23, 2015 and October 28, 2615, Owen Labrie traveled via Dartmouth Coach at the following times’ Date: From: To: Time: October 23,2015 Lebanon, NH Boston, MA 7:20 AM October 23, 2015 Boston, MA Lebanon, NH 7:30 PM October 28, 2015 Lebanon, NH Boston, MA 20 AM October 28,2015 Boston, MA Lebanon, NH 7:30 PM 5. First, these dates fall within the Court's previous bail order, which bail order is no longer in effect. The Court issued the bail order under which Mr. Labrie is currently obligated to abide on October 29, 2015 at his sentencing hearing. These travel dates fall under the auspices of this Court's previous bail order which was issued pending Mr. Labrie’s sentencing, If the State believed that Mr. Labrie had violated this Court’s bail order pending sentencing they could have filed the appropriate pleading at that time and/or brought these alleged violations to the attention of the Court at the time of sentencing 6. Second, on the above dates and times, Mr. Labrie was meeting with J.W. Camey, he Esq. and Sam Zaganjori, Bsq., his trial counsel in Boston, MA. A letter documenti accuracy of this statement will be produced at the time of hearing on this matter. Attorney Carney has confirmed to undersigned counsel that Mr. Labrie was at his office for previously scheduled meetings on the above dates. A telephone call to either Attomey Camey’s office or Attomey Rancourt’s office prior to the filing of this Motion could have easily confirmed this fact, for the State. Rather than making such inquiry, the State chose to rely upon these dates in requesting this Court to revoke Mr. Labrie’s bail7. Itwould be unreasonable to expect that Mr, Labrie would need to gain permission from the State or the Court in order to meet with legal counsel, and such a restriction could be considered a violation of his constitutional right to be represented by legal counsel pursuant to Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment to the United States Constitution, 8. The State cannot erect barriers that interfere with a criminal defendant's constitutional rights. State v. Dennett, 1993 Ariz, App.LEXIS 249, at *18 (CtApp. Nov. 9, 1993). “{T]he proper due process analysis is whether the state, through its regulations, has frustrated the defendant's ‘reasonable efforts’ to defend himself by ‘imposing any material obstacle in {his} path...."* 1d. at *20. In Cobt 643 F.2d 946 (3Cir.1981), the Third Ayte Circuit Court of Appeals found that the transfer of pretrial detainees to distant locations interfered with their right to effective assistance of counsel. Id. at 960. In the same opinion, the ‘Third Circuit found that “unsentenced inmates retain important sixth amendment rights to speedy trial and effective assistance of counsel.” Id. at 962. 9, The violations alleged by the State on these days should not considered by this Court in assessing whether any violation of bail has occurred in this matter. Mr. Labrie has a constitutional right to representation by counsel of his choosing, and his bail restrictions should not impede upon his ability to be defended by counsel. 10, On the evening of October 28, 2015, Merrimack County Pre-Trial Services was notified that Mr. Labrie was running late due to a mecting with his attorney in Boston, He was instructed to call in upon his return home. Mr. Labrie called into Pre-trial Services on 22:30 hours (10:30 PM),IL, It should also be noted, that permission was sought through the Merrimack County Pre-trial Services office for permission to travel to Washington, D.C. at the end of March 2016 for Mr, Labrie to meet with appellate counsel. Afier being contacted by the Merrimack County Attorney’s Office, Pre-trial Services informed Mr. Labrie that they did not have authority to grant permission to exceed curfew to visit with legal counsel. Subsequently, undersigned Counsel requested assent from Attomey Rufile to allow Mr. Labrie to travel to Washington, D.C. to meet with Appellate Counsel. The State would not agree to assent to a request to allow Mr. Labrie to meet with Counsel Meetings with Civil Legal Counsel 12, The State has alleged that Mr. Labrie violated his bail conditions on February 17 and 18, 2016 by violating his curfew and traveling via Dartmouth Coach into Boston, MA as follows: Date: From To: ‘Time: February 17,2016 Lebanon, NH Boston, MA 7:20 AM February 17,2016 Boston, MA Lebanon, NH 9:30 PM February 18,2016 Lebanon, NH Boston, MA 5:20 AM February 18,2016 Boston, MA Lebanon, NH 9:30 PM 13, Prior to traveling on the above dates, Mr. Labrie contacted Merrimack County Prectrial Services on February 16, 2016 and requested permission to exceed curfew in order to travel to Boston to meet with civil legal counsel. This civil legal counsel has been assisting Mr. Labrie with various civil issues. Mr. Labrie should not be compelled to disclose publicly the identity of civil legal counsel nor the subject matter regarding which they were meeting. Documentation of Mr. Labrie’s efforts to obtain permission from Pre-Trial Services and confirmation of the scheduled meetings with civil legal counse! will be provided to the Court atthe time of the hearing on this matter and are in the possession of the Merrimack County Attomey’s Office 14, Mr, Labrie and Counsel believed that seeking permission from Pre-trial Services in advance of travel was an acceptable mechanism for traveling outside curfew restrictions. Mr. Labrie should not be forced to disclose meeting dates, identity of counsel, and/or subject matter of discussion to either the Court or the State. Violations of Bail Conditions for Required On-Line Education Endeavors 15, Mr. Labrie is under a bail restriction requiring him to be present in his home in Turnbridge, VT from 5:00 PM until 8:00 AM. This bail restriction has prohibited Mr. Labrie from obtaining gainful employment, attending school, or otherwise making productive use of his time. 16. Undersigned Counsel contacted the State in December, 2015 to request their assent to extend the curfew hours in order to accommodate Mr. Labrie’s seeking employment ‘The and/or attending classes in order to be a productive and contributing member of society State refused to give such assent and suggested that Mr. Labrie pursue “on-line education.” A review of various other curfew restrictions imposed upon defendants currently supervised by the Merrimack County Pre-trial Services would seem to indicate that the typical curfew is 7:00 PM - 6:00 AM daily. Out of 23 similarly supervised individuals, Mr. Labrie is the only individual with curfew hours of 5:00 PM — 8:00 AM, which curfew hours have restricted his ability to become employed and pursue educational endeavors 17. Taking the State’s advice, Mr. Labrie enrolled in on-line educational courses. ‘The bulk of the work is conducted on-line. However, even on-line educational opportunitiesrequire a certain amount of in person instructions including, but not limited to, meeting with professors and research which must be conducted in the library of the institution. Enrollment in educational courses and documentation confirming the requirement for in person meetings in the Boston area will be provided to the Court at the time of the hearing. 18. Mr. Labrie admits to leaving his home prior to the 8:00 AM time frame on two ‘occasions in order to get to the Boston area in time for these in person educational meetings and attendance at seminars, Those occasions were as follows: Date: From: To: Time: January 28,2016 Lebanon, NH Boston, MA 5:20AM January 28,2016 Boston, MA Lebanon, NH 1:30 PM February 29,2016 Lebanon, NH Boston, MA 5:20 AM February 29,2016 Boston, MA Lebanon, NH 30 PM 19. ‘On both occasions, Mr. Labrie left his home early and arrived back at his home in Vermont on time. He checked-in with Merrimack County Pre-Trial Services on both of those evenings. 20. The Court should note that the second date listed above is the date on which a “reporter” tweeted that she had accosted Mr. Labrie on the train. Mr. Labrie’s “off the record” comments to this “reporter” prompted the State to begin its investigation, The tweets of that afternoon indicate that Mr. Labrie was nervous about the delayed train because he was concerned about his curfew. He returned home that evening in time to make his 5:00 PM curfew 21. Mr, Labrie admits to violating his morning curfew on these occasions. Mr. Labrie has been all but prohibited from being a productive member of society due to his bail restrictions. He was attempting to make a good and productive use of his time by attending on- Tine education courses. He feared that disclosing his educational endeavors to the State wouldresult in a media blitz, much like that which has occurred with the State's press release regarding this pending Motion to Revoke Bail. Mr. Labrie is recognized almost everywhere he goes. This is confirmed by the fact that when the Concord Police Department approached employees of Dartmouth Coach to inquire about his bus travel, the employees knew who Mr. Labrie was, had recognized him, and were able to share information about him without even checking records. Mr. Labrie has been accosted, insulted, and threatened in public. In his attempt to make productive use of his time and at the same time maintain some degree of privacy, he violated this Court’s Order and for that he is sorry 22. Part of this desire to maintain a level of privacy regarding his educational endeavors has also been prompted by actions much like those that prompted this investigation. Upon seeing the tweets from this “reporter”, “two families” contacted the Merrimack County Attomey’s office regarding Mr. Labrie being in Boston, which in and of itself is not a bail violation. This intense scrutiny would likely interfere with any attempt of Mr. Labrie to obtain an education, Telephone calls to an institution of higher learning complaining of his attendance, ‘even attendance of on-line courses, may result in his inability to continue his education pursuits. Taking into consideration the actions of an individual from St, Paul’s School in contacting, Harvard College prior to his conviction, which contact resulted in the revocation of his admission to that institution, Mr. Labrie’s fears are well founded. 23. While Mr. Labrie violated his bail conditions by leaving his home early in the morning on two occasions, this violation does not demonstrate, by clear and convincing evidence, that he is “unlikely to abide by any condition or combination of conditions of release” as if required pursuant to NH RSA 597:7-a, III(b)(2). If Mr. Labrie were either (1) permitted to be placed on curfew restrictions similar to other defendants in Merrimack County or (2) waspermitted to gain prior approval from Merrimack County Pre-trial Services to travel for purposes of school attendance, this issue would be alleviated. 24, Similarly, on November 29, 2015, Mr. Labrie traveled to the Boston area to conduct research for an academic research project. Mr. Labrie had been working with and assisting a professor with a research project which required him to review texts only available at alibrary in the Boston area, On that day he traveled from Lebanon, NH at 5:20 AM. He returned from Boston on a 3:30 PM bus, which arrived in Lebanon at 5:45 PM. Mr. Labrie had attempted to catch a 1:30 PM bus in order to return home on time, but there was a scheduling problem at the bus terminal and Mr. Labrie was forced to catch a Tater bus at 3:30 PM. Mr Labrie called into Pre-trial Services at 19:00 hours (7:00 PM) that evening. 25. This violation likewise does not demonstrate, by clear and convincing evidence, that he is “unlikely to abide by any condition or combination of conditions of release” as if required pursuant to NH RSA 597:7-a, III(b)(2). 26. Mr. Labrie apologizes to the Court for the violations as stated above. Of the eight violations alleged by the State, three were leaving early to pursue educational endeavors, The evening violation on November 29" was a bus scheduling problem. The remaining “violations’ alleged by the State were meetings with legal counsel and/or were previously approved by Pre- Trial Services. Otherwise Mr. Labrie has been of good behavior and complied with all conditions of this Court. He has not committed new crimes, He has not violated any condition by consuming alcohol, drugs or controlled substances. He has abided by an incredibly restrictive no contact provision prohibiting him from having any contact with longtime friends and their families. He has called into Merrimack County Pre-Trial Services every evening, without fail.Contrary to the State’s assertions, his conduct demonstrates that he can and will abide by this Court’s Orders and should remain free on bail pending his appeal in this matter. 27. ‘The purpose of the curfew was to ensure that Mr. Labrie would not abscond and would appear at all Court hearings. The spirit and purpose of this bail order has been followed. Mr, Labrie has been living at his mother’s home, has returned to her home every evening, and has never failed to appear for a Court hearing, WHEREFORE, the Defendant, Owen Labrie, respectfully requests that this Court: A, Deny State’s Motion to Revoke Bail; B. Modify Mr. Labrie’s bail conditions to accommodate educational endeavors by allowing him to seek permission through Merrimack County Pre-Trial Services for travel outside restricted hours upon proof of academic requirements or meetings with legal counsel; and C. Forall other and further relief that may be just and proper. Date: March 17, 2016 Respectfully submitted, Owen Labrie, Defendant By and Through His Attomeys, BRENNAN LENEHAN IACOPINO & HIGKEY wurt, Esq. (Bar No. 14235) 85 Brodk Street Manchester, NH 03104 (603) 668-8300 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Objection to Motion to Revoke Bail has been forwarded, even date herewith, postage prepaid, to Assistant County Attomey Joseph Chemiske and Assistant County Attorney Catherine Rutile. nur, Esq.