Second Sanctions Motion Filed Against Four NH County Prosecutors: Martha Ann Hornick, Tara Heater, Keith Cormier and Andrew Livernois

"Lawyers occasionally stumble over the truth, but most of them pick themselves up and hurry off as if nothing had happened."

- Winston Churchill

Q. How does a lawyer sleep at night?

A. First he lies on one side, and then he lies on the other side.

Q. How can you tell a lawyer is lying?

A. His/Her lips are moving. 

     

     We've all heard the jokes about lawyers and their reputation for lying religiously. Lawyers often lie to their clients. Some more bold attorneys lie in court, and some even lie to the media. So, it may shock you to know that in most states in this country the rules of conduct for practicing attorneys include stipulations that make dishonesty and deception a punishable offense. 

    So how do so many lawyers still get away with being filthy liars? The simple answer is attorneys rarely get called out for misconduct. When they do find themselves accused of violating rules of conduct or procedure, attorneys hardly ever get punished with any meaningful sanctions. 

    The power wielded by prosecutors makes their transgressions even tougher to crack down on. Yet there are specific bar association standards that would have you believe most prosecutors are held to even higher ethical standards than regular attorneys. The truth is more disturbing than you might imagine. 

     My second sanctions motion against the prosecutors in my case proves beyond a shadow of a doubt that "the coverup is worse than the crime." I lay out what amounts to a pattern of lies and misrepresentation covering two of this state's counties (Grafton and Belknap) and perpetrated by four of their top attorneys (Andrew Livernois, Keith Cormier, Martha Ann Hornick and Tara Heater). My affidavit supporting the new motion connects all the dots with concrete evidence. 

     The whole saga started with a sloppy request for an order to prohibit pre-trial publicity. Deputy Belknap County Attorney Keith Cormier filed the motion after I sent an email to his boss. The email, sent only to County Attorney Andrew Livernois, included a link to a letter to the editor I authored about this case and Livernois' misconduct. the Laconia Daily Sun printed my letter after refusing to run an advertisement for www.andrewlivernois.com. They encouraged me to write a letter to the editor instead, implying if I did so, they would publish it. 

     Two days before I baited the county attorney into a revenge move with that published letter, he offered this plea agreement in another email sent to me on May 18, 2020: 

"On a plea to one felony count I would offer 12 months in the HOC, fully suspended on three years’ good behavior, with two years of probation, and a LADAC evaluation and follow up treatment as recommended. "

     I immediately refused the offer and told Livernois to get his ducks in a row for trial. We have had multiple schedules for trial that did not pan out for various reasons. Most of those delays were driven by the prosecution. My arrest happened on February 28, 2019. I've been waiting over two full years for my opportunity to prove my case at trial. 

     I also heard from my standby counsel at the time of that offer that nobody else was getting offers like mine, even with the Covid-19 situation shutting down the courts. 

    Andrew Livernois was so angry about being called out in the media that he obviously ordered his deputy to craft what they called a "Motion for Court Order Prohibiting Pre-Trial Publicity." Cormier wrote and filed that motion as hastily as he could, within a mere 48 hours from the sending of my email to his boss. This was exactly the reaction I was hoping for, especially since the motion that Cormier filed was so fundamentally weak. Rather than ask to prohibit only the kind of pre-trial publicity that would make seating an impartial jury impossible, Cormier asked to block "all pre-trial publicity." His other big mistake was insisting in the motion that the order was needed since I somehow broke a rule of attorney conduct that I'm not even bound to follow. 

     I imagine Attorney Livernois thought that it would at the very least appear to be personally motivated if he was the one who actually wrote the request to prohibit pre-trial publicity. Yet, that did not stop him from advocating for the motion personally in the media. You see, the very request from the Belknap County Attorney's office to prohibit pre-trial publicity actually expanded the publicity aimed at Livernois and Cormier. It was a fabulous episode of firing a big cannon at the opposition only to realize that the weapon is not fit to fire and instead explodes in your face. Livernois himself eventually made ill-advised comments to the Laconia Daily Sun about the request, and that move made the filing of a grievance with the Attorney Discipline Committee the logical next step. 

     Even the Union Leader newspaper featured a report about Belknap County's lame attempt to silence me. Despite the fact that I knew Livernois would react out of spite and anger to my emailing him the letter to the editor, I never imagined two newspapers would be following the saga so closely.  The Laconia Daily Sun also published a piece about the ACLU's intervention in the case with their Amicus Curiae Brief. I ended up writing a few more letters to the editor as well. All of them were published. 

     I noticed from that point on, Livernois clammed right up. Suddenly he would offer no comment to the press about anything related to the case. The whole situation obviously caught him off guard. I'm sure he's never had an opponent in court quite like me. Finally realizing he was stuck in a catch 22 and not wanting the gag order request to get to a hearing, Livernois removed himself from the case. He asked for a young deputy county attorney from Grafton County to take it over. The attorney general granted his wish. 

     Deputy Grafton County Attorney Tara Heater withdrew the gag order motion almost immediately upon being appointed to the case officially. She also asked if we could possibly meet and suggested she might have a more agreeable plea deal for me. I refused the meeting and the plea deal, which would have knocked down 6 felonies to a single misdemeanor. I want a trial, I told her. The only deal I will accept is I will sign an agreement giving up any right to sue the state in civil court if they drop all the charges before trial. So we wait for trial, because the State seems to think a civil suit will never get off the ground. I look forward to proving them wrong when I am acquitted. 

     Attorney Heater was extremely nice and receptive, but I couldn't help feeling like she was withdrawing the motion for the gag order to help Livernois. I didn't get the letter Livernois wrote when he quit the case until after the hearing on my first sanctions motion. I compiled the first sanctions motion specifically against Cormier and Livernois, but it was also a trap. I wanted Attorney Heater to defend the motion she just threw out and contradict herself in the process. I had no idea that she was actually supposed to be working under direct supervision from County Attorney Martha Ann Hornick until after I received Livernois' request to transfer the case in discovery. Accordingly, there was not much for me to include in the original sanctions motion about the misconduct of Attorney Heater. 

     Judge O'Neill struck the first motion down and gave me a roadmap on how to rewrite it, so I set about fixing the problems he pointed out in his denial order. I knew there was a missing piece to the puzzle, and I found it in the letter Livernois wrote about the transfer to Grafton County. It laid out the whole scheme of deception. Livernois tried to separate himself from the case while also making sure the gag order request didn't embarrass him and his office. Rather than write the request himself, he assigned it to his deputy. When the ACLU got involved and the whole thing looked like a big mistake, he re-assigned the case instead of filing his own withdrawal. It seems impossible to fathom that there was no discussion between Livernois and Heater about withdrawing the motion immediately upon her takeover. That was supposed to make everything appear like Livernois was never actually steering the ship when he most certainly was.

     I don't know whether she did it because Livernois asked her to or out of some sense of loyalty to a fellow prosecutor, but Heater insisted that the gag order request was a good faith attempt to change the laws and rules regarding pro-se attorneys and pre-trial publicity. It was her only avenue of escape, and I knew it. The strategy worked perfectly, as she was forced to defend a motion she just asked to be thrown out. She also defended Livernois and Cormier without one shred of affidavit evidence illustrating any personal discussions with either of them. She made no sense in her objection to the first motion and absolutely phoned it in with her objection to the latest motion. 

     There's still not a singe affidavit to prove that Livernois and Cormier wanted to change the law. That's because  the truth is they just wanted me to be kept silent. They thought the judge would give them whatever they wanted. They never stopped to analyze the consequences of being wrong. Their excuses ring hollow now that they've been caught in the act of deception. My reply brief resulted in the second sanctions motion getting scheduled for a March 5, 2021 hearing date. 

     I have been working incredibly hard to seek every avenue available to me to bring these prosecutors down to Earth. I've tried to work with the Attorney Discipline Committee. They said they would be more likely to act if the judge in the case found the behavior to be improper. Yet, the judge seems afraid to really weigh in on whether this conduct is right or wrong. Typically if what you're doing is right, fair and justified, you don't go to such great lengths to keep it hidden from the press and the public. Unfortunately for all these bumbling prosecutors, the longer they insist this whole charade was true and just, the more they expose themselves to ridicule. 

     As it stands, this is by no means an honest prosecution. These attorneys lied and misrepresented the law. It is becoming easier and easier to justify filing a massive civil case against all parties involved here when the dust settles. From the dipshit detectives who couldn't read a criminal record properly to the prosecutors who dropped the ball time and time again, everyone who screwed up in this case should have to pay the same way I've had to pay. They should have to go through a long ordeal where they have to wait for years to know their ultimate fate. I can't be the only one suffering from these fatal flaws in our local justice system, and someone needs to take a stand against this rampant misconduct from our public servants. 

NH Attorney Discipline Committee Refuses to Docket Grievance Against Belknap County Attorney Andrew Livernois and Deputy County Attorney Keith Cormier

When an accused criminal has more integrity than the people prosecuting him, the local justice system is clearly broken. Worse than the fact that Andrew Livernois and Keith Cormier lied and abused their positions to silence me with a bogus gag order request is that they made others in the system stoop to their low level. 

It is truly amazing and astounding what this group of poster children for patronism were willing to go to bat for and assume blindly to be a good faith effort. The filing that triggered all this would have received a failing grade from even the most lenient law professor. Yet people lined up to say it was all on the level, impugning their own character in the process. 

Even the "replacement killer" from another county defended the indefensible, hastily written motion to prohibit pretrial publicity that came out of the Belknap County Attorney's Office. Oh, I forgot to mention the turmoil surrounding this motion led to Livernois and Cormier removing themselves from my case and the Attorney General assigning the prosecution to another county. Deputy Grafton County Attorney Tara Heater took over and acted immediately to save Livernois and Cormier. She on one hand withdrew the motion (citing strategic reasons) before a hearing could be held, but on the other hand she defended the merits of the motion when I filed for sanctions. The problem she knew she had going into her defense of that motion was that I warned her it would subject her to sanctions herself for misrepresenting the facts and trying to make a trash pile of junk law smell like a bed of roses. 

It's not so much the collective corruption executed by the original prosecutors that disturbs me. It's the fact that these other attorneys saw this fiasco and jumped into the raging rapids of unethical behavior without a life jacket to save a couple guys they watched jump in with cement blocks tied to their feet. Colleagues were all too willing to look the other way or even back up the behavior that resulted in my recent motion for sanctions. They abandoned their principles to pursue and promote a farce. The sad fact is the pubic pays these people to be the front line on maintaining the integrity of the justice system in this state. Yet, they are nothing but glorified janitors sweeping all the corruption under the rug. It's pathetic.

I made an earnest attempt to report Livernois and Cormier for violating the very set of rules they accused me of breaking (despite the fact that I am not bound by those rules at all as a pro-se party). Brian Moushegian, the spineless general counsel of the New Hampshire Attorney Discipline Committee, covered for his colleague and did a good job of wiping the state's ass on this shit show.

Attorney Moushegian made all the excuses in the world to absolve Attorneys Cormier and Livernois without making any discernible effort to actually investigate the allegations or make any meaningful inquiry at all into the matter. There was not one single word filed in response to my complaint by either accused attorney. Moushegian's rambling responses pretty much confirmed what I already knew: this committee is toothless and will never act against any prosecutor even if a clear report of rule violations comes before them. 

I had one avenue to ask for an appeal of sorts, and I took that road, too. My letter asking for reconsideration made no difference. The whole committee backed the blind loyalty shown by their general counsel. The lies and the lazy motion practice that started this mess just gets compounded when nobody is held accountable for their abuses of the public trust. I jumped through every hoop and followed all the right procedures, even reporting myself to the committee to determine their rules of professional conduct could never apply to me. 

  

The judge in my case might still set everyone straight on this subject by ruling in my favor on my motion for sanctions. I'm hopeful on that front, but there's a real chance he could  actually endorse this kind of egregious behavior out of his own sense of blind loyalty to the institution. I'm prepared for both outcomes. 

Either way this crazy chain of events works out, I'm not about to let this grievance become dust in the wind. The taxpayers of this community ought to know about what happened here and how so many attorneys came together to cover up this unethical mess. If I can't convince the busted justice system around here that something's wrong with this picture, I'll just have to convince the people paying for it.

Motion For Sanctions Against Belknap County Attprney Andrew Livernois and Deputy County Attorney Keith Cormier (FULL HEARING AUDIO)

Listen to "Bergeron Motion For Sanctions Against Belknap County Attorney Andrew Livernois and Deputy County Attorney Keith Cormier" on Spreaker.

I have been preparing for this hearing for months. The Deputy County Attorney opposing me has only been assigned to this case for a few months. The audio says it all, but there is some necessary background. 

First, the Belknap County Attorney's Office sought a gag order against me for publishing a letter to the editor in The Laconia Daily Sun. I opposed it and also managed to get the ACLU involved in the case. They filed an Amicus Brief on my behalf. The Belknap County Attorney took himself and his whole office off the case suddenly, and Grafton County took on the case. Deputy Grafton County Attorney Tara Heater is now in charge of the prosecution. She immediately withdrew the deficient and deceptive motion for a gag order filed by the state, trying to play it as a matter of having a different strategy. 

The original gag order request contended that I was responsible for following the rules of professional conduct for NH attorneys even though I'm not even a member of the bar. To clear up any confusion on this front, I actually reported myself to the Attorney Discipline Committee. They insisted they had no jurisdiction over me and those rules did not apply to me. 

I specifically told Attorney Heater that I would file for sanctions and force her to defend the indefensible. She fell for the trap even though I warned her ahead of time not to. She went all in on the original debunked motion, insisting Attorney Keith Cormier wanted to make new law even though it was actually a new rule that would be needed for their motion to have any valid basis. Now it's a waiting game to see if the judge will take action or let these dishonest prosecutors continue to lie and misrepresent the facts and the law.  

Stay tuned for a full accounting of the NH Attorney Discipline Committee's meaningless process of pretending to look at a grievance against these local prosecutors. The whole fiasco involved a ton of dirt, a big rug, and a giant broom wielded by the committee's general counsel. There's now a big lump under the rug, but no dirt in sight.  

Meet the New Boss, Same as the Old Boss; Deputy Grafton County Attorney Tara Heater Defends the Indefensible to Protect Livernois and Cormier

Nearly all of my pleadings in my criminal case pending in Belknap Superior Court have been accompanied by sworn affidavit. I've received only one order in my favor thus far, for a motion to suppress that went unopposed. Yet, the original prosecutor has somehow been able to get every request he's ever asked for from the judge with no such affidavits attached to his requests. The new prosecutor, Tara J. Heater from Grafton County, hasn't asked for anything yet.

Rule 35 (i) of the New Hampshire Rules of Criminal Procedure outlines the requirements related to motions filed in Superior Court. Subsection (1) reads as follows:

“The court will not hear any motion grounded upon facts, unless they are verified by affidavit, or are apparent from the record or from the papers on file in the case, or are agreed to and stated in writing signed by the parties or their attorneys; and the same rule will be applied as to all facts relied on in opposing any motion..."

These rules are made to be broken, and it happens all the time. Attorneys are part of an exclusive club. Judges used to be part of the same club. People who represent themselves are fools, whether the evidence supports that conclusion or not. It's just sort of a known judicial fact with the majority of judges I dealt with in my writing career. It turns out that every time they think that old token wisecrack is true with me, they find out they are sadly mistaken.

The legal profession is in enough hot water as it is without the "defund the police" movement putting such a white hot spotlight on abuses of the justice system. The perfect legal storm that this case was already just joined up with a tornado, even despite the fact that the prosecution decided to withdraw their gag order request. Even without the support of the ACLU lawyers who wrote their brief on my behalf, I filed a sanctions motion, and I'm waiting to find out when the hearing will be and whether there will be witnesses allowed.

Despite my earlier promise to publish the entire sanctions motion, I've changed my thought process on that. There are sensitive matters contained in the motion and the response. Some of them have already been published elsewhere. The last thing I want is to have any member of the press put out information that is not accurate. The pleading and supporting evidence was somewhat complex. It's tough to break down into a typical newspaper article and get all the details correct.

The reason I have to be cautious is the most recent newspaper report on this subject left out a great deal of much-needed context. I am trying to be as fair as possible to the judicial process at this point.

My motion and reply also deal with some very basic principles and circumstances I will discuss here. The cover up is worse than the crime. It is the way they did all this legal maneuvering that's really suspicious. There was a little bit more detail about the Grafton County takeover revealed in the latest filing from Attorney Heater. Attorney Livernois apparently took himself off the case on July 7th. Heater admits in her opposition filing that Rule 3.6 of the NH Rules of Professional Conduct for New Hampshire Attorneys does not apply to me. Still, she persists that Cormier was only using the motion for a gag order to try to change existing law or make new law. She also insists that since my "vitriol" was focused directly against Livernois, it was a mere strategy to withdraw the gag order request and had nothing to do with the motion's lack of good faith.

The contradictions in Heater's objection to my motion for sanctions are not few and far between. One bombshell she drops is her insistence that only the Attorney Discipline Committee has the authority to do anything about violations of the Rule of Professional Conduct for NH Attorneys. Yet I have it in writing that this committee would be more comfortable acting on my grievance if the judge admonished the attorney first for the same behavior. Nuff said.

Attorney Heater adds a new level to this saga by extending the fraud upon the court. She uses the same tired cases and arguments that were already debunked. She insists this is suddenly a case of prosecutors trying to make new law at the Superior Court level when the real basis for their motion was not a law at all. They would need to change a rule to make their argument legitimate. This is not about changing or making law. This is about hiding from the truth.

Livernois and Cormier engaged in a CYA (Cover Your Ass) campaign here. Attorney Heater got recruited to play the new girl, "good cop" role and failed miserably thus far. These prosecutors were so confident that they thought they could print lies and have the judge sign off on them and give them a gag order against me that was not supported by any viable legal framework. Blind loyalty and lack of accountability are also symptoms of a virus that can be as deadly to justice as Covid-19 is to humans.

Deputy Grafton County Attorney Tara Heater just proved beyond any reasonable doubt that this "misconduct virus" is highly contagious.    

The Attorney Discipline Committee is still weighing the prospect of docketing my formal grievance against Livernois and Cormier. I will definitely publish those materials once a docketing decision has been made. I will also publish the full audio of the upcoming hearing here when I get a certified copy. Stay tuned!

Belknap County Attorney's Office Gag Order Request Backfires, New Prosecutor Assigned by Attorney General

    The gag order request that turned this case in a whole new direction and involved the ACLU coming to my defense has now been completely withdrawn by an entirely new attorney from another county who was recently assigned by the Attorney General.    

     "Withdrawn" is one of those fancy words lawyers often use to avoid accountability for breaking the rules. Watch any legal drama on television, and you'll hear the word over and over again. Usually that protects the offender from any accountability at all, but not in this scenario.

    You see, what really happened here is not being discussed at all. I have never seen a quicker substitution with any less explanation. Even in civil cases we are always told exactly why a particular attorney was passing the case along to a new lawyer. Here all we get is Belknap County Attorney Andrew Livernois telling the Laconia Daily Sun that it was about a "conflict of interest:"

https://www.laconiadailysun.com/news/new-prosecutor-to-withdraw-gag-order-request-in-bergeron-case/article_9241d350-c7a9-11ea-abdb-2f17c75434d2.html

    Whatever the true reason is for Livernois stepping down and the Attorney General's office taking the whole county off the case, Livernois did not make the move himself to withdraw the gag order. Instead, the Deputy Grafton County Attorney Tara J. Heater did the deed for him. Regardless, the motion was filed, and Cormier put his signature on it while Livernois put his stamp of approval on it with his comments to the Laconia Daily Sun. This will result in a sanctions motion against Livernois and Keith Cormier I will bring before Judge O'Neil very soon.

   I am disappointed by the idea that this withdrawal means I can't celebrate what would have been my greatest legal victory to date. It also deprives me of what would have been a tremendous opportunity to work with the two ACLU lawyers who were set to appear at the July 21st hearing on the gag order motion. Yet, I can't help but feel a certain sense of accomplishment. Don't get me wrong, I am not particularly proud of having to watch a man destroy himself because of my direct actions to cause that chain of events. Still, I told Livernois exactly what to expect and what I would do to prove my case and my point. I did what I promised and more. So, I do feel positive about this development.

     No matter how proficient an attorney Tara Heater may be, she will begin her defense of the state's case in a very difficult conundrum. She will have to defend the very motion she just withdrew and the attorneys who betrayed their public duty and abused their office by filing it in the first place.

     It's no wonder Attorney Heater already offered to reduce the case down to two misdemeanor charges for possession. I refused that deal, and I will proceed to trial knowing the facts are on my side. I hope in the long run she sees the the bigger picture of the multiple mistakes made in the rush to prosecute and the consistent lies told to push this case. If she does, she will agree the best thing to do is drop this toxic case altogether. Hanging on to the idea of getting a conviction will only send her down the same road Livernois went down that led to a career-changing dead end.

     The sad reality that is starting to set in for me is that this case is a microcosm of the hopelessly dysfunctional justice system in this county, in this state, and across the entire country. There is no accountability, and fellow officers of the law always seem to protect their brethren rather than report their misdeeds. There is just so much corruption that gets swept under the rug in this environment. To the legal professionals and police officers who perpetuate this sense of broken justice, the ends always justify even the most crooked of means.

     Few prosecutors ever see any penalties for acting recklessly or breaking rules to gain convictions. I've watched enough episodes of Netflix's "The Innocence Files" to know that. It's not a problem that's unique to New Hampshire. Attorney oversight is an issue in even the biggest of cities:

https://www.propublica.org/article/who-polices-prosecutors-who-abuse-their-authority-usually-nobody

    We just recently saw the completion of a government takeover of another county attorney's office here in New Hampshire: http://indepthnh.org/2020/06/08/ag-ends-supervision-of-hillsborough-county-attorneys-prosecutions/

    Maybe it's time for the AG to undergo the same oversight process with Belknap County.

    One former assistant attorney general reported more than three years ago that this state was suffering from a crisis of piss poor government lawyering:

 https://www.nhbr.com/the-ailing-state-of-government-lawyering-in-nh/

    That warning was never adequately heeded.

   As my own attorney I can take the steps a public defender never would risk in this scenario. I can seek to hold these public officials responsible for their part in this madness. I'm not part of the club. I won't lose any membership privileges for bucking the system.

  Please stay tuned to our site. Over the next few weeks there will be some major developments coming down the pipeline. The Attorney Discipline Committee is still looking over my grievance filing. A full panel will decide whether or not it will proceed to docketing. When a final decision is made I will be posting all the correspondence between myself and the committee's general counsel.

     I will also be filing a detailed sanctions motion next week. I will share that here when I file it. I sincerely hope lessons are learned in this situation and attitudes change. This kind of fight is never won when you are only in it for personal self-interest. I'm going this far because I want to make sure this kind of ordeal never happens to anyone again.