The New Hampshire Supreme Court ruled this week that police and prosecutorial records about Parker Gilbert ― an accused campus rapist who was found not guilty in a 2014 criminal trial ― are not exempt from the state’s Right-to-Know law just because Gilbert was granted an annulment.
Gilbert, a former Dartmouth College student, has fought against the release of records from his prosecution since he was found not guilty of rape two years ago. Liz Canner, a documentary filmmaker, is seeking the release of those records.
Gilbert’s charges were annulled, meaning that if he’s accused of a crime in the future, prosecutors can’t use his 2014 rape case against him. He also doesn’t have to tell employers he was charged with a felony. He’s argued that because of the annulment, no one should be allowed to obtain his court documents under the state’s open records law.
The state’s Supreme Court rejected that argument in a ruling Tuesday, but Canner still has to argue in Superior Court whether the information is so private that it can’t be released under the New Hampshire Right-to-Know law. Tuesday’s ruling is the first of its kind in New Hampshire.
Canner and her attorney, Robert Bertsche, say that even getting this far has been an “Orwellian” process.
It’s odd, they say, that Gilbert is fighting so hard to keep these records buried, since his trial was heavily covered in local media and is still one of the first things that comes up when you Google his name. In addition, Bertsche notes that the Grafton County Attorney’s office stepped in on behalf of Gilbert, forcing Canner to hire a lawyer in order to continue with her records request, which she is legally entitled to pursue.
“That act itself was kind of chilling,” said Bertsche, a First Amendment lawyer based in Boston.
The state Supreme Court also characterized Gilbert’s attempt to turn his public trial into a “private, secret, or secluded fact” as “Orwellian.”
“The cat is out of the bag, as it were, in today’s digital era,” said Clay Calvert, director of the Marion B. Brechner First Amendment Project at the University of Florida. “People already know his name because it’s been reported in the press ― he can’t suppress the facts. He would like the court to create a right to be forgotten. Even though they’re truthful facts, he doesn’t want them coming out.”
Gilbert was accused of vaginally, orally and anally raping a fellow Dartmouth student in May 2013 on the school’s Hanover, New Hampshire, campus. His defense said the encounter was just “drunken, awkward, college sex.” The trial was widely covered in local media, and caught the attention of Canner, who was making a film about campus violence.
Few rapes are ever reported to police, and only a minority result in criminal charges. So following the conclusion of the trial, in June 2014, Canner requested “any and all documents and information related to Gilbert’s trial” from the Grafton County Attorney’s office. She also requested documents, audio and video records from the Hanover police investigation.
Canner had already obtained a large batch of documents from Gilbert’s case, but still had questions about the trial that she wouldn’t be able to answer unless she got the entire case file.
“The overarching question I had was why certain things unfolded in the trial the way they did,” Canner said. “It’s an examination of how the court deals with these kind of cases, and to better understand that, I needed the documents to see how the case unfolded.”
While this was happening, Gilbert filed to annul the records of his arrest and prosecution, a request that was granted in July 2014. This meant that legally, Gilbert would be treated as if he’d never been arrested. Gilbert then argued that because he’d been granted the annulment, the records Canner wanted should never be released, so as to “eliminate the negative consequences of having a criminal record.”
The Grafton County Attorney’s office then filed suit against Canner, seeking declaratory judgment and bringing Gilbert as a party to the case under the name John Doe. Everything was filed under seal, which Bertsche called “very unusual and frankly ironic.”
A trial court said the records should be released, but Gilbert appealed, bringing the case to the state Supreme Court. The state’s high court decided Tuesday that the records of the arresting and prosecuting agencies “remain subject to disclosure under the [New Hampshire] Right to Know Law.”
Per the court’s opinion, Gilbert argued that “because he was acquitted of all charges,” the “purpose of an annulment — to ‘eliminate the negative consequences of having a criminal record’ — can be achieved only if the ‘social and economic stigma resulting from having an arrest record and publicly accessible records relating to [his] criminal case’ is removed.”
“We disagree,” the court added.
Canner and Bertsche speculate that the county attorney’s office got involved in the case because they feared Gilbert would sue them otherwise.
Gilbert’s attorneys and officials from the Grafton County Attorney’s office did not respond to requests for comment for this story.
“The court reached the right decision, because this allows a debate and discussion through the use of court records,” Calvert said. “Better to have legal records to base our discussion on the actual facts, rather than supposition or conjecture about what happened or what took place, especially given the fact that campus sexual assault is ripe for review.”
Bertsche plans to argue in Superior Court that the records are of public interest because there are questions about the result of Gilbert’s trial and about how to prosecute campus sexual assaults.
“That’s an important issue that’s worthy of probing into,” he said. “That’s all Liz is trying to do.”
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