Judge grants Monitor’s  motion to quash subpoena in voter suppression case against Concord man

  • Visitors, including Carl Gibson of Concord (in red) listen to U.S. Sen. Bernie Sanders of Vermont speak during a house party at the home of Arne Areneson in Concord on Saturday afternoon, Jan. 31, 2015. ELIZABETH FRANTZ

Monitor staff
Wednesday, July 27, 2016

The state attorney general’s office must decide whether to continue pursuing a voter suppression case against a former Democratic activist from Concord without the help of the press.

Merrimack County Superior Court Judge Richard McNamara on Friday granted the Monitor’s request to quash the prosecutor’s subpoena compelling a reporter to testify at the trial of Carl Gibson, 29. The Monitor, through attorney Bill Chapman, argued the subpoena violated newsgathering privileges established under the New Hampshire Constitution and the First Amendment. The judge agreed, noting that the attorney general’s office made no effort to independently obtain evidence against Gibson outside of reporter Nick Reid’s testimony.

Despite the judge’s ruling, the case can still move ahead.

McNamara did not rule on Gibson’s motion to dismiss the charges against him. Gibson is facing two felonies and one misdemeanor after emailing news outlets in May 2015 a phony concession statement purported to be from Republican state representative candidate Yvonne Dean-Bailey.

Instead, McNamara recommended attorneys file an appeal directly to the state Supreme Court, asking justices to rule on whether the state’s voter suppression laws were constitutionally applied against Gibson.

Defense attorney Michael Iacopino argues Gibson’s email was protected under the First Amendment and doesn’t constitute voter suppression. The laws at hand, he said, “sweep too broadly into the realm of protected speech and are therefore facially invalid.”

At the time of the email, Dean-Bailey, 19, was running to fill a vacant seat in Rockingham County’s 32nd House district, covering Candia, Deerfield, Northwood and Nottingham. The statement, traced back to Gibson, said she was dropping out of the race days ahead of the election to focus on her college studies.

Gibson’s identity was contained within the electronic properties of an attachment in the email. Gibson told Reid during a phone interview that he “probably had a few too many beers” before engaging in “a prank I thought I would play in the heat of the moment.”

Dean-Bailey was elected to the state House of Representatives five days later, beating Democratic challenger Maureen Mann with 52 percent of the vote.

Attorneys are scheduled to meet this afternoon with McNamara for a case status conference. During that meeting, Iacopino said, he expects to learn from Assistant Attorney General Stephen LaBonte whether the case will proceed.

LaBonte, who is prosecuting Gibson, could not be reached for comment Monday or Tuesday. He could pursue one of three options: dismiss the case, appeal McNamara’s order granting the Monitor’s motion or ask the Supreme Court to rule in advance of trial on the constitutionality of the laws Gibson is accused of violating.

Even if the Supreme Court considers the appeal, it may or may not take up questions of constitutionality, said Chapman, the Monitor’s attorney.

Iacopino wrote in his motion to dismiss that Gibson’s right to free speech was violated because the emailed statement can be “construed as protected speech and a commentary on the young age of a candidate as well as a comment on distractions such as being a college student that would detract from a candidate’s ability to do a good job as a public official.”

Whatever happens today, Iacopino and Chapman said McNamara made the right call when he granted the Monitor’s motion to quash the state’s subpoena. While the state argued that it could limit its examination of Reid to material in the public record, the defense could not make that same commitment and ensure Gibson’s right to a fair trial, Iacopino noted.

In his ruling, McNamara wrote: “Gibson is entitled to cross-examine Reid – the state’s primary witness – and a full and fair cross-examination would necessarily require the court to allow the defendant to inquire about unpublished information, such as Reid’s mental impressions and investigative process.”

McNamara further described what he called “a chilling effect on the free flow of information” if reporters are required to testify about unpublished work, especially when, in this case, the state made no effort to obtain evidence through alternative sources.