David Brock Impeachment Trial: 2000

Defendant: David Brock
Crime Charged: Four articles of impeachment
Chief Defense Lawyers: David Barry, Michael Madigan
Chief Prosecutor: Joseph Steinfield
Judges: The Senate of the State of New Hampshire
Place: Concord, New Hampshire
Date of Trial: September 18-October 10, 2000
Verdict: Not guilty

SIGNIFICANCE: This was the first impeachment trial of a chief justice of a state supreme court in U.S. history. The only other New Hampshire state official ever impeached was Supreme Court judge Woodbury Langdon, who in 1790 was described as "arbitrary and haughty" and was charged with failing to appear in court. He resigned rather than face a Senate trial. The impeachment process raised two questions: when is it appropriate for a legislature to intervene in court procedures, and when does such intervention constitute a violation of the separation of powers? As a result of this impeachment trial, the New Hampshire Supreme Court revised its Code of Judicial Conduct to set standards for determining the appearance of impropriety.

Early in 2000, the New Hampshire Supreme Court faced an unusual situation: It had to consider the appeal of a divorce decision by the ex-wife of one of its members, Stephen Thayer. In a court meeting on February 4, Chief Justice David Brock announced his appointments of substitute justices to stand in for those who had to recuse themselves because they knew both parties to the appeal. Justice Thayer objected strenuously to one of the appointments.

Court Clerk Howard Zibel, knowing it was a violation of court procedures for a judge to discuss a case involving a fellow judge when the fellow judge was present, reported the incident in a memo to state attorney general Philip McLaughlin. The resulting investigation led to Thayer's resignation from the bench in March and to McLaughlin's alleging to the state's House Judiciary Committee that other violations of ethics had been committed by members of the court.

The Chief Justice Impeached

The committee interviewed witnesses and debated whether to recommend impeachment of three justices, then decided to bring articles of impeachment only against the chief justice. Following seven hours of debate, the House voted 253-95 for the Senate to try Chief Justice Brock on four articles of impeachment:

Article I. Seeking to influence a case by improperly phoning a lower-court judge in 1987 and failing to report the call to his colleagues who were considering the case's appeal.

Article II. Engaging in communications with fellow justices, all of whom had been recused, regarding judges to be appointed to hear the divorce appeal of a fellow justice, and discussing the selection of judges, outside the presence of fellow justices, with the justice whose appeal was pending.

Article III. Improperly permitting justices to comment on cases from which they had recused themselves because of conflicts of interest. (This article, while not originated by the Judiciary Committee, was adopted on the House floor.)

Article IV. Lying under oath to the House Judiciary Committee during the investigations of these matters.

Before the trial could begin, the Senate, never having held an impeachment trial, had to set its own rules. It voted on August 22 to require a two-thirds vote for conviction. Since two of its 24 members were disqualifying themselves, a guilty verdict would require at least 15 votes.

As the trial opened on September 18, prosecutor Joseph Steinfield promised that Article I would prove to be "a case of someone being given special treatment." The defense attorney, Michael Madigan, noting that a key witness had said he could be wrong, contended, "We're going to impeach a man on a maybe?" Madigan pointed out that the constitutional grounds for impeachmentbribery, corruption, malpractice, and maladministration—demanded evil intent or personal gain as motives. Those grounds, he insisted, were not evident.

Testimony on Article I

Prosecution witness Clerk Zibel reviewed a memo he wrote to then-justice David Souter in May 1987. It concerned an appeal from a lower-court ruling by then-Senate majority leader Edward Dupont, whose fuel company had been sued in a contract dispute by a competitor, Home Gas. The memo alleged that Chief Justice Brock had made an improper call to Superior Court Judge Douglas Gray to discuss the case.

The prosecution added that investigators found that Brock's call was to remind Gray that Senator Dupont could help pass a bill to raise judges' salaries.

While Brock contended that Gray called him, Gray testified he "never, ever, period" initiated the call and "I think it was a lapse in ethics." But he added, "Is David Brock unethical? No."

Gray also said that, while at the time he thought the call unusual, he did not consider it improper but had changed his mind since then.

Superior Court Judge Kenneth McHugh then testified that Gray told him about the call from Brock just after it occurred.

On the stand himself, Brock said, "I didn't call Judge Gray. Absolutely not." He did admit calling the court clerk about the case's status, but said such calls, while "fraught with risk," were part of his job as administrator of the court.

Testimony on Article 11

Testifying for the prosecution, former justice Thayer said Brock permitted him to influence the selection of judges for his own divorce appeal. Defense attorney Madigan urged him to admit he was angry with Brock and the court clerk for filing a report that ended his career. "You're trying to build up this vindictive thing," responded Thayer, insisting Brock was a trusted friend.

Thayer then supported the prosecution by testifying that the chief justice invited his reaction by announcing his choices for the divorce appeals panel and then speaking privately with him about them. He said he blurted out an objection to one judge only when Brock asked him what he thought.

Brock's testimony countered, "When I made that announcement, I had no expectation anyone was going to respond. I was shocked by that." But, he added, "Justice Thayer immediately pushed down the arm rails of his chair, he jumped halfway up and yelled, 'No, no, you can't do that.'"

Testimony on Article Ill

On the charge that Brock routinely permitted judges to comment on cases from which they were disqualified, retired Supreme Court Justice William Johnson was the key witness. He admitted himself using suggestions from disqualified judges when writing his opinions, defending the long-standing practice and countering a judicial ethics expert who criticized it.

Testimony on Article IV

Questioned on the stand about whether he lied to the House investigators when asked about certain documents, Brock said he found the questions of House attorney Steinfield confusing. He added that, before appearing for his interview by the House Judiciary Committee, he had been warned by his lawyer not to violate court confidentiality. He said he gave copies to his attorney in April, skimmed them before his interview, but was reluctant to discuss them because of the confidentiality. "I guess looking back you could say my answers weren't complete," he admitted, "but they were truthful and not intended to mislead. I did the best I could at the time. I never intentionally misled the House Judiciary Committee in its investigation."

The Senate Votes Acquittal

Over five hours, 17 of the 22 senators made statements of their opinions on whether the charges were serious enough to warrant impeachment or the evidence was persuasive enough. Then, on October 10, they voted acquittal: 18-4 on Article I; 17-5 on Article II; 18-4 on Article III; and 14-8 on Article IV.

On October 12, Chief Justice Brock, who had been temporarily replaced during the impeachment and trial, returned to the bench of the New Hampshire Supreme Court.

—Bernard Ryan, Jr.

Suggestions for Further Reading

Tebo, Margaret Graham. "Equal Justice: New Hampshire Case Highlights Ongoing Problems of Gender Bias in the Courts." American Bar Association Journal (September 2000).