Argued: January 9, 2014.
Hillsborough-northern judicial district.
Joseph A. Foster, attorney general ( Richard W. Head, associate attorney general, on the motion and orally), for the State.
Getman, Schulthess & Steere, P.A., of Manchester ( Andrew R. Schulman on the motion), David M. Rothstein, deputy chief appellate defender, and Christopher M. Johnson, chief appellate defender, of Concord, on the motion, and Mr. Schulman orally, for the defendant.
DALIANIS, C.J., and HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.
[166 N.H. 116] PER
The defendant, Michael Addison, moves to disqualify the New Hampshire Attorney General's Office from further participation in this case " from this point forward in connection with any aspect of his case on direct appeal, on remand or on collateral review," and moves for the appointment of a special prosecutor. We deny the motion.
The record establishes the following facts. The defendant was convicted of capital murder and sentenced to death in 2008. On December 31, 2008, we docketed the automatic appeal required under RSA 630:5, X (2007), and in May 2009, the defendant filed his notice of appeal pursuant to Supreme Court Rule 7.
In August 2009, Attorney Lisa Wolford, who had been employed by the New Hampshire Public Defender for approximately seven years, began working with the New Hampshire Appellate Defender on a two-year rotation. When Wolford began her rotation, the appellate defender office was preparing a brief regarding the standards applicable to our mandatory review of the defendant's sentence under RSA 630:5, XI (2007). In addition to other appeals, for which she had sole responsibility and on which she spent the majority of her time, Wolford was assigned to research and draft the " aggravating factors" section of that brief, which was filed with this court in November 2009. See State v. Addison, 160 N.H. 732, 7 A.3d 1225 (2010). After the State filed its opposing brief, Wolford was assigned to review and summarize the cases cited in a footnote.
[166 N.H. 117] In early 2010, Wolford was reassigned from the defendant's defense team, and in February 2012, she completed her rotation with the appellate defender and returned to work for the public defender in the Stratham office. In March 2012, she submitted her resume to the attorney general's office, requesting consideration for a position with the criminal justice bureau's appeals division. In a letter accompanying her resume, she stated that she was " interested
in a position that enables me to continue to focus on appellate advocacy." Her resume noted that, in addition to other work with the appellate defender, she " [c]ontributed to ... the defendant's brief in the capital sentencing appeal in State v. Addison, 160 N.H. 732, 7 A.3d 1225 (2010)." Wolford was offered a position with the attorney general's office; she began employment there in early July 2012.
Approximately one month before Wolford began working at the attorney general's office, the executive director of the public defender office inquired by letter to then Attorney General Michael Delaney whether, given that Wolford had " worked on appeals in the Michael Addison capital case, and had ongoing access to confidential and privileged information and defense strategies relating to that case," he had " satisfied [himself] on the propriety of this move before extending an offer to Ms. Wolford." The attorney general, replying by letter, stated that " [a]s you are aware, there is no general bar under the Rules of Professional Conduct against a former public defender assuming a position as a prosecutor," that several former public defenders had accepted employment in the attorney general's office, and that his office would " ensure that [Wolford] is screened from any matter in which ...