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Burden of Proof

New Hampshire Supreme Court Justice Faces Impeachment Trial

Aired August 24, 2000 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: A constitutional court crisis in New Hampshire, as the chief justice of the state supreme court faces an impeachment trial.

But now, the Senate has raised a high bar for justice in the case of Chief Justice David Brock.


DAVID BROCK, CHIEF JUSTICE, NEW HAMPSHIRE SUPREME COURT: The executive branch of government, by its extraordinary actions in the past few days, has charged, tried, and attempted to convict this court in the eyes of the public, the press, and the legislature.

JOSEPH STEINFIELD, SPECIAL COUNSEL, N.H. HOUSE OF REPRESENTATIVES: Now the theory underlying his claim: if you commit an impeachable offense and nobody finds out about it, and impeaches you within a year, then you are in the clear.


ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

The chief justice of the New Hampshire Supreme Court is staring at the face of an impeachment trial. David Brock is accused of four counts: making an improper call to a lower court judge in 1987; soliciting comments from a fellow justice on that fellow justice's own divorce case; lying to investigators; and allowing justices to comment on cases in which they had a conflict of interest.

ROGER COSSACK, CO-HOST: Yesterday, in Concord, Brock won an early victory in the trial proceedings, as the New Hampshire Senate voted to impose a two-thirds requirement to convict the chief justice. Just 22 state senators will decide the fate of Brock. The trial begins September 18th.


BROCK: When one branch of government attempts to discredit another branch of government, the citizenry is poorly served. There are those who, viewing what a member of this court has gone through, in terms of human suffering over the last year, would attempt to take advantage of that suffering and would suggest that the self- destructive conduct of one member is the common conduct of all members.


VAN SUSTEREN: Joining us today from Boston is Joseph Steinfield, who is special counsel to the New Hampshire House of Representatives. And in Manchester, New Hampshire, we're joined by law professor Albert Scherr of the Franklin Pierce Law Center.

COSSACK: And joining us here in Washington, Justin Timpane; the attorney for Chief Justice David Brock, Leslie Turner; and Jackie Blue (ph). In the back, Sandra Scheiner (ph), Kristen Hering (ph) and Michelle Waldo (ph).

Let's go right to you, Buzz. Tell us what the allegations are, and what the proof is expected to be in this case?

ALBERT SCHERR, LAW PROFESSOR: The allegations are that, number one, Chief Justice Brock superintended a recusal policy in the court that allowed judges who had been disqualified from cases to continue to offer comments on draft opinions. That's the first allegation, or one of the allegation.

The second is that, 13 years ago, in a civil case at the trial court level, Chief Justice Brock called the trial court judge and allegedly made an effort to influence him on behalf of a then state senator.

There's an additional allegation that is a part of a divorce proceeding involving one of the associate justices of the Supreme Court, Chief Justice Brock heard from that justice and solicited comments from other justices about who should be appointed to the panel hearing that justice's case.

Then the last allegation involves a sequence of alleged false statements, either during that 13-year-old case or during the investigative process that's been going on over the last several months.

VAN SUSTEREN: Leslie, Buzz uses the term "alleged," I mean, in some cases, judges or lawyers or even defendants will say that they did it, but that there were extenuating circumstances or whatever. Just so that we understand, are the facts being contested in this case. I mean, is there a real issue as to whether or not these events, as Buzz outlined, occurred, is that the issue?

LESLIE TURNER, ATTY. FOR CHIEF JUSTICE BROCK: I think, on some of the articles, there will be some challenges as to the facts that didn't occur, as they have alleged. And in some instance, it is a matter of faulty recollections. And I think what it comes down to is a faulty recollection is it a lie? Is a faulty recollection an impeachable offense? We don't believe it is.

So there will be evidence, as to the facts. I am not going to get into it right now, because we are in the trial proceeding, but I think what we are going to see is a balance in the bar that the court set, and the Senate set, in two-thirds standard that the judge will have a fair trial. This is the first opportunity that he will have to present his side of the case, to cross-examine witnesses that didn't happen before on the House side. And we fully expect him to be exonerated.

VAN SUSTEREN: So this is an old -- I hate to use the term old fashioned, I mean, in terms of being an observer, this is a trial, this is going to be, you know, a battle on both sides with witnesses and facts being contested.

TURNER: That's right. The Senate is sitting as a court of impeachment. It is a very unique experience for them, and they struggled with a lot of issues during the past two days when we were up in New Hampshire about, you know, what standards should they use in holding the trial and what's the burden of proof here. And I think they came out with a very fair and careful, thoughtful process in their deliberations.

COSSACK: Joe, you are the attorney for the House, and the House was the one that brought these charges, and in fact, we say impeached, and we all remember what happened with President Clinton, of course.

Tell us the procedure. What got it from the House to now the trial in the Senate?

STEINFIELD: What happened, Roger, is that the attorney general of New Hampshire did an investigation in the month of March. This arose out of some allegations made by the clerk of the court. In April, the House of Representatives authorized the Judiciary Committee to conduct an investigation, and that investigation led ultimately to a vote by the Judiciary Committee to recommend articles of impeachment.

The full House of Representatives met in July, and voted these four articles. The chief justice, as Leslie mentioned, filed some motions. The Senate has voted to go forward on the four articles that were voted by rather large majorities by the House of Representatives.

COSSACK: Joe, was there complaints that came in to, for example, you or to members of the House, regarding what Judge Brock's conduct was?

For example, in this divorce case, were there are allegations that he involved or that he was trying the favor one side against the other?

STEINFIELD: Well, the conduct in connection with the divorce case was part of the investigation conducted by the attorney general. And so the launching pad for this current investigation was the report that he issued. And the event in question occurred early this year, and there's no question but what event occurred, although as Leslie Turner indicates there may be some dispute as to the facts and as to the chief justice's intent. But one of the justice's, Justice Thayer, who has since resigned, was going through a very acrimonious divorce, and the problem that arose had to do with a conversation or more than one conversation between him and the chief justice, in the absence of counsel or of Justice Thayer's wife.

VAN SUSTEREN: Buzz, let me ask you, oftentimes, when you have these sort of mixture of two branches of government, the judicial branch and also the legislative branch, there is a suggestion that there might be politics involved. Is Chief Justice Brock, is he a popular or unpopular figure in New Hampshire? I mean, can you give us a little bit of, sort of, local color?

SCHERR: I think it is important to understand the context of these proceedings. New Hampshire has a pretty strong libertarian strain. With that comes an anti-authoritarian attitude on the part of many in the state, and in many ways we are rather proud of that, number one.

Number two, in the past several years, we have been having a series of constitutional challenges to the way the state has funded the public education system, which led to a sequence of opinions by the New Hampshire Supreme Court declaring the way we fund public education unconstitutional. That was not well received by many in the legislature.

VAN SUSTEREN: And so the people who are actually, who are unhappy with the way the chief justice voted on the court, as to their laws, are the ones that are now making part of this...

SCHERR: It's not that simple. There's one more piece, and part of the context. I think some in the legislature have felt for a while that, in his relations with the legislature, Chief Justice Brock has been somewhat arrogant.

So there is a mix of feelings. It's not easy to say, well, this person is doing it because of the Claremont case, the public education case, and this person is doing it for this reason.

But in addition to the specific allegations, there's this swirl of attitudes and perceptions that has made it interesting to interpret.

COSSACK: Let me interrupt here a second, Leslie, I will get to you on this subject, but we have to take a break.

Up next: What standards must the House prosecution meet in proving its case against the chief justice? Stay with us and we will find out.


In 1790, the New Hampshire State House impeached a Supreme Court justice. He resigned before a trial began.


VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time.

If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show, and even join our chat room.


BROCK; I did not call Judge Gray directly. I called Ray Taylor, the clerk of the court. All I can tell you is I never had the conversation with Justice Thayer that he says I had.

MICHAEL MADIGAN, ATTY. FOR CHIEF JUSTICE BROCK: The chief justice is a man who has served this state honorably for 24 years as a member of this judiciary.

No office holder, whether it be Chief Justice Brock or any other office holder in the future, have to stand trial for events that are alleged to have occurred over 13 years ago.


COSSACK: In 3 1/2 weeks, the chief justice of the New Hampshire Supreme Court faces an impeachment trial. The case of David Brock will be the first Senate impeachment in the state's history.

Leslie, let's talk a little bit about this words that we heard like "arrogance" and "payback," the notion that perhaps he has angered some people by his decisions. Does that play any role in this, in your opinion?

TURNER: Well, you know, it doesn't anymore. Regardless of how this got started, and where we are now, we are at the point of a proceeding before the Senate. I think the Senate really set a standard that will eliminate some of the major concerns about politics and unpopularity being at play.

VAN SUSTEREN: You know why I think that you've got a bigger problem than that is because what I think is so extraordinary about this case is that there's no established burden of proof, which means that if I'm a politician who is sitting in judgment of your client, and I think, I don't like the guy, I don't like the way he declared constitutional a law I championed, since there is no required burden of proof, your guy is out.

TURNER: Real concern...

COSSACK: You know, burden of proof is in the eyes the beholder, and you can say I have beyond a reasonable doubt.

VAN SUSTEREN: Because it gives them license, when you have a floating burden of proof, you have a license to do just what you...

TURNER: Let me tell you how I think the Senate is going to handle that. Certainly, we are used to, as lawyers, having standards in place so you know how to measure the judgment. There is some kind of accountability, and that issue was debated, deliberated during our session up in New Hampshire, and you had members, you know, Senators McWheeler (ph) and Wheeler and McCarley and Squires talking about the standard and being concerned about the seriousness of this matter, and they talked about whether they should use beyond a reasonable doubt, that really high standard; their own conscious, or clear and convincing. And they decided they were going to use their own conscience.

VAN SUSTEREN: That is the frightening part.

TURNER: But what happened on the floor was really, I think, very telling about how serious they take this matter. Senator Kruger (ph) offered a motion to use clear and convincing, and that was voted down on a margin of 12-10, real close, because there were members who said, I want to use my own conscience, but I am going to use a beyond a reasonable doubt standard. So they are really, I think, going to use the kind of standard to provide protection...

VAN SUSTEREN: That's fine...

TURNER: ... And you also have -- you have, I think, a two-third vote to convict that will provide some fairness in this matter.

COSSACK: That will help you out.

Joe, do you think...

SCHERR: The bigger difficulty is the lack of definition for what an impeachable offense is. I think that has opened it up to all sorts of political possibilities, .

COSSACK: But, in fact, Joe, if you talk about a lack of a definition of what an impeachable offense is, there have been motions to dismiss these charges on that, in front of the Senate that have failed, Isn't that true, Joe?

VAN SUSTEREN: They are the judge and the jury, of course...

COSSACK: Well, no, they can say that it is not impeachable offense.

VAN SUSTEREN: Therein lies sort of the unusual nature of this. You've got: the Senate is the judge, the jury, each individual person gets to decide what it will be, in terms of burden of proof and...

COSSACK: But that's...

VAN SUSTEREN: ... and not only that is that the impeachable offenses aren't defined.

COSSACK: Hello, remember, we saw that with the Clinton impeachment, the same thing.

TURNER: And we are going to come back to this issue of what is an impeachable offense, they struggled with that issue, we discussed it during our days in New Hampshire, we are going to come back to that issue again. And our position is that the matters at issue here just aren't impeachable because you've got the chief judge who is acting in his capacity as chief judge, the constitution gives him the authority to administer the court. And these facts that are alleged just don't amount to it. So we are going to see this issue come up again in the New Hampshire Senate.

COSSACK: Joe, I want you to respond to this whether it is an impeachable offense. It seems like the allegations are -- would be, I mean, look, if the guy is using his power to influence certain things or allowing conversation or comments among judges who shouldn't be involved, I mean, that's...

TURNER: Roger, there is no evidence that there was influence here.

COSSACK: I'm going to ask them to prove it, but those are the allegations.

STEINFIELD: Leslie, can I get a word in edgewise here.

TURNER: Go ahead, Joe.

STEINFIELD: You know, there are a lot of subjects on the table. As far as whether or not it is an impeachable offense to make a call to a trial judge or to allow disqualified judges to participate in the cases from which they are disqualified, or to have a conversation with a judge about his own case, that issue has already been decided by the Senate, and in every case, more than two-thirds of the senators said: We are not going to dismiss those charges. The New Hampshire..,

TURNER: Not on the merits, Joe.

STEINFIELD: Excuse me...

TURNER: There's been no decision on the merits here about whether this is impeachable conduct or not.

STEINFIELD: Excuse me. Excuse me. The New Hampshire Constitution says that maladministration is an impeachable offense, and maladministration, which does not appear in the federal Constitution is a very broad storm. Historically speaking, it has been understood to be broad term, not just a mistake, a careless mistake, but something substantially, and the 22 senators have heard enough now to be ready to go forward and hear the evidence.

Let me comment just for a second on this burden of proof, Greta. You know, in the United States Senate, they have done the same thing, going back to the Clayborn case in the mid '80s, where the senators decided they were each going to vote their own conscience, and they were not going to adopt a standard of proof... VAN SUSTEREN: But that doesn't necessarily mean that I think it is a good idea, I have to agree with it, or that it is even a good idea. I simply point out the fact, the thing that is sort of interesting here is that this is not the chief executive officer being impeached by the legislature, but rather the chief justice of the court whose job may be to invalidate or declare unconstitutional what it is that the legislature has done.

But we need to take a break. We will be right back. Stay with us.


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A: The balls Woods uses in PGA competition are different from those advertised for sale to the public.



VAN SUSTEREN: The Senate trial of President Clinton made U.S. and constitutional history last year. Now, the state of New Hampshire is facing its own brand of constitutional crisis as it prepares to try its Supreme Court chief justice.

Leslie, when the case -- when the actual trial begins in mid- September, will this be cameras in your courtroom? And what's your client the chief justice's view about that?

TURNER: There will be cameras in the courtroom. It will be open to the public, and I think that's the right thing to do. This is a matter of great concern to the public. I think they want to know what's going on, that the Senate members are going to be held accountable to them. They represent the public and the public's concern over the independence of judiciary, I think, requires that they know what's going on. And the chief judge welcomes the opportunity, I think, to present his side of the story in open court before the public.

COSSACK: Joe, what witnesses are you going to be -- are we going to see and are going to be called?

STEINFIELD: Well, you're going to see other justices of the court, one of whom is Justice Thayer, the resigned judge whose divorce created part of this problem. You're going to see counsel to the court, a woman named Eileen Fox. You're going to see the judge whom Judge Brock -- Chief Justice Brock called. You're going to see other court personnel, including the clerk of the court. You're going to see, perhaps, an assistant attorney general who participated in the investigation. Both sides are required to finalize their witness lists next week, but I think the principal witnesses in this case will be either the current or retired justices of the court.

VAN SUSTEREN: What are the witnesses for -- do you expect for the chief justice, Leslie?

TURNER: Well, since Mr. Steinfield gets to put his case on first, we'll certainly be putting our case on through his, in that sense. And he's indicated he wants to call Chief Justice Brock in his case-in-chief. And I always learned that when you have to prove your case by putting on the other side's witnesses, you're in pretty bad shape.

COSSACK: What kind of evidence rules are there?

VAN SUSTEREN: Can you call your client?

COSSACK: Excuse me, what kind of rules of evidence is there going to -- is hearsay -- are there any rules of evidence?

TURNER: We are supposed to comply with the New Hampshire rules of evidence. How they're going to be interpreted by this Senate, I think, is going to be open for further debate and discussion as we go forward. So...

SCHERR: That's going to be one of the interesting battles, actually. The presiding judge, so to speak, is the Senate president, who is not a lawyer. And she's going to be, in the first instance, interpreting the rules of evidence.

VAN SUSTEREN: Buzz, is this like in the United States Senate, winner takes all: It's either he gets convicted or not, or can they impose some sort of censure or reprimand or some other penalty?

SCHERR: That's still open to question. The New Hampshire Constitution is a little unclear. It doesn't say specifically that if the legislature -- the Senate convicts, that they must remove him. It uses language that suggests -- at least some interpretations suggest that they could do something less than remove him from office...


SCHERR: ... perhaps suspend him or -- and that has yet to be -- a motion was proposed, or was put forward on Monday, but no final decision was made on that topic. So that's...

TURNER: Well, we've tabled that motion pending, I think, some further development in the case and trial and the evidence.

COSSACK: All right, I'm afraid that's all the time we have for today. Thanks to our guests and thank you for watching.

Today on CNN's "TALKBACK LIVE," "Survivor" mania: How a rat- infested voyeur TV show captured a nation. And why do we care? That's at 3:00 p.m. Eastern time, noon Pacific.

VAN SUSTEREN: Roger cares.

COSSACK: I care.

VAN SUSTEREN: He does. And tomorrow on BURDEN OF PROOF, "Survive Your Drive": Being informed of traffic and insurance law can protect you on the road. Join us then for another edition of BURDEN OF PROOF.



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