Motion For Sanctions Against Andrew Livernois, Keith Cormier,Tara Heater and Martha Ann Hornick

- 1 –
DEFENDANT’S AMENDED MOTION FOR COURT-ORDERED SANCTIONS
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Richard Bergeron
107 Cotton Hill Road
Belmont, NH 03220
BELKNAP COUNTY SUPERIOR COURT
NEW HAMPSHIRE
State of New Hampshire
vs.
Richard E. Bergeron III
Defendant
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 211-2019-CR-163
DEFEDAT’S AMEDED MOTIO
FOR COURT-ORDERED SACTIOS
COMES NOW, the Defendant, Pro-Se Richard E. Bergeron III, and hereby enters this Amended Motion
for Court-Ordered Sanctions. The primary reason for this amended motion is the addition of another party
eligible for court-ordered sanctions. This amended motion echoes the previous motion in that it seeks to
request court-ordered sanctions against Attorneys Tara Heater, Keith Cormier, and Andrew Livernois.
Exhibit 1 attached to this motion is a copy of a letter sent to the New Hampshire Attorney General by
Andrew Livernois, which represents a de-facto hand-picking of his replacement on this case. The final
sentence of the first page of this letter reads: “I have conferred with Grafton County Attorney Hornick, who
has agreed to allow Attorney Heater to prosecute this case, and has agreed to supervise her in that role.”
[Emphasis Added] This constitutes direct evidence that Grafton County Attorney Martha Ann Hornick is
subject to sanctions. Attorney Hornick allowed Attorney Heater to lie about Livernois’ and Cormier’s intent to
create new law with their motion for a gag order. She had to know this approach was a lie. If Hornick ever
read Heater’s defense of the gag order motion via her objection to Bergeron’s sanctions motion, she would
know it contained multiple complete misrepresentations of the law and the facts of this case. These attorneys
have all clearly and unequivocally violated rules of professional conduct.
At worst, Hornick may have actually helped Heater craft this elaborate scheme to paint the gag order as an
honest and earnest attempt by a deputy county attorney (Cormier) to make new law. If any serious inquiry is
done into the motivations behind the gag order request, evidence will show the new law argument does not
hold any water and never did. The prosecution team from Grafton County only took this approach because that
is the only defensible position that makes a sanctions argument moot. Bergeron knew Heater would have to

- 2 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
take this approach and even warned her that approach would be a mistake in an email he sent her prior to her
writing her objection to the original sanctions motion. (See Exhibit 2)
Still, the new Grafton County team lied and misrepresented the law and even attempted to defy logic to
make their supposed point. Laws and rules are two different things. The entire legal and logical basis for the
gag order hinged on the idea that Bergeron broke a rule, not a law. Cormier concluded in his gag order request
that Bergeron’s breaking of a rule of conduct deserved a judge’s order that would deter him from speaking out
again or engaging in any further publicity efforts. Essentially, this would be a sanction against Bergeron that
would only be applied if the judge agreed there was a rule of conduct broken by the defendant.
So, even the prosecution wholeheartedly advocates the imposition of judge-ordered sanctions when rules
of professional conduct are broken. These well-trained professionals knew going into this debacle that there
were a wide array of consequences that could be applied to a party who broke these rules. They did not send
anything about their issues with Bergeron regarding broken rules of conduct to the Attorney Discipline
Committee. They tried to put those issues before a superior court judge. Yet, somehow Attorney Heater denies
their own obvious rule breaking deserves sanctions of some kind from a superior court judge.
Attorney Cormier is under the direct supervision of Attorney Livernois. The Belknap County Attorney
used to be an assistant attorney general in this state. He graduated from Yale. He’s been part of town
government before. He’s written at least one letter to the editor himself. He’s been involved in plenty of First
Amendment cases, and definitely enough of them to know Cormier’s motion was fundamentally flawed and
should not have been filed as written. The gag order request was an attempt to impose an unconstitutional prior
restraint on free speech, and both Cormier and Livernois either knew or had a duty to know it was not
supported by any legitimate legal basis or factual framework.
There is not a single shred of supporting evidence that backs up Heater’s imaginary claim that this was
about changing any law as it relates to Cormier and Livernois seeking a gag order. There are no affidavits or
even declarations from Cormier or Livernois. Heater never presented any testimony herself illustrating any
actual discussions with anyone in the Belknap County Attorney’s office. She also provided no evidence
whatsoever of any written communication to confirm that Livernois and/or Cormier sought out to change any
law or rule with their gag order request.
This Amended Motion seeks to remedy all the concerns voiced by Judge James O’Neill III in regard to the
prior motion for sanctions. Judge O’Neill made the argument that the defendant did not establish a basis for
any judge having the power or authority to apply sanctions in this scenario. There was also only a general
suggestion as to a variety of possible sanctions that should apply to the parties Bergeron sought to sanction.
Additionally, Judge O’Neill posited that the irresponsible filing of the gag order motion by Belknap County

- 3 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
prosecutors and the hasty withdrawal of the same motion by the Grafton County prosecutors did not prejudice
the defendant’s case.
This whole approach by Grafton County prosecutors to put so much effort into a cover up of the
transgressions of Cormier and Livernois actually taints the entire case going forward. The defendant is now at
the mercy of a system in which attorneys paid for by taxpayers of this state have been freely allowed to lie,
misrepresent the law, and distort the facts of this case. It doesn’t matter if the gag order request didn’t make it
to a hearing and the scheme was not ultimately successful in securing a gag order. Cormier signed the motion
seeking it, and Livernois backed up that tactic in remarks to the press (see Exhibit 9) in addition to being
personally responsible for supervising Cormier in the deputy role.
Livernois and Cormier later removed themselves from the case and were then effectively able to cover up
their lies and avoid accountability for their dishonesty with the help of two more attorneys in a wholly
different prosecutor’s office.
It was a simple gag order request from the prosecution after the publishing of a letter Bergeron wrote to the
editor of a local newspaper that started this saga. Within 48 hours of Bergeron alerting the Belknap County
Attorney of this letter being published, the gag order hit the docket. It was a rushed, reactionary move on
Cormier’s part after obviously being ordered to take this step by his boss Andrew Livernois. This request was
asked for in haste and without thinking about the consequences of being flat wrong about the legal basis and/or
the defendant’s standing as to being subject to the rules of professional conduct for NH attorneys. There was
no adequate research done to prepare this motion and no due diligence in checking the validity of the motion’s
factual and legal claims.
The collusion between these four prosecutors to improperly paint the gag order motion as an honest,
untainted effort is undeniable. There is no possible way anyone can argue such behavior is NOT prejudicial to
Bergeron’s case. By looking the other way and refusing to sanction these parties, the message is clear: Judge
O’Neill will let the prosecutors do whatever they want and break their own rules of conduct repeatedly. Judge
O’Neill is sending a bad message by making no effort to hold these attorneys accountable. The message is
clear: “Let’s sweep all this misconduct right under the rug and call it good, because I don’t care if prosecutors
disrespect my courtroom and the process by using junk law and trying to sneak an unconstitutional request for
a gag order under my nose expecting me to sign it or put a rubber stamp on it.” How can Bergeron ever get a
fair trial if this is the climate of conduct from the prosecutors that permeates the pre-trial proceedings while the
judge refuses to even acknowledge any of this deceptive and dishonest conduct was at all improper?
Attorney Cormier submitted a flawed, improperly motivated request to this court that was filed in bad
faith. The intent was to shut Bergeron up, close him off from the press, and take away any voice he thought he
had to protest his unfair treatment by this justice system. Rather than admit it was a mistake that was made in

- 4 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
desperation to save face, Cormier and Livernois stuck by the motion even after the ACLU interceded. They
did not withdraw the motion before they withdrew themselves from the case (despite Bergeron warning them
to do just that)(See Exhibit 11).Their handpicked successor formally offered a false portrayal of the whole
effort as somehow defensible, honorable and dedicated to changing law. This came only after she used her
introduction letter (See exhibit 4) to insist: “I do not believe that a gag order is the appropriate remedy.”
Subsequently she filled out a formal withdrawal request (See Exhibit 5) that reiterated her position on the
motion not being “necessary.”
Judge O’Neill insists there can be no sanctionable offense since he never adjudicated the gag order request.
The conduct in question that deserves sanctions does not hinge on courtroom behavior or decorum or even the
mechanics of motion practice. The crucial aspect of the sanctionable actions of the prosecutors is that in their
haste to accuse Bergeron of breaking rules of conduct to get their desired gag order, they actually broke those
rules themselves in spades. Bergeron is not subject to those rules of conduct (and did not even break them),
while those prosecutors are fully bound by those rules.
The fact that the gag order request never saw the inside of a courtroom at a formal hearing and did not
result in a formal order is wholly irrelevant if prosecutors only drew it up KNOWING or even EXPECTING
they could get it rubber stamped by any judge as long it was just Bergeron they were fighting. The entry on the
scene of the ACLU and the potential of a slam dunk appeal of any order being filed by a fully competent legal
duo changed the landscape.
The resulting ACLU Amicus Brief made it clear just how deficient the original gag order request was. The
defendant asks the judge to review that document extensively in deciding this motion. Additionally, the judge
should review the email attached to this motion sent by Attorney Henry Klementowicz, one of the authors of
the ACLU Amicus Brief (see exhibit 6). Nobody has to take an amateur’s word for what happened here,
although the defendant’s initial objection to the gag order request also contains very relevant caselaw and
factual background. The evidence is overwhelming that everyone involved on the prosecutors’ side knew they
were engaging in deceptive conduct and filed and/or defended a completely bogus court filing anyway.
From day one in this prosecution, lies have been presented as true facts. Bergeron’s criminal record was
misrepresented all the way through to his arraignment. Charges published in the local paper had him arrested
for possession only. Attorney Livernois lied to Judge O’Neill about a plea agreement discussion in open court.
Bergeron does not need to adjudicate anything now that the Attorney Discipline Committee has definitively
shown that the Defendant is not subject to the rules of professional conduct at all since he is not a bar-card-
carrying New Hampshire Attorney and is not representing anyone as a non-attorney. (See Exhibit 3) That is
not something that is in debate, but even in the face of knowing this reality, Attorney Heater persisted (under
supervision by Attorney Hornick) to argue that somehow Bergeron still needs to follow these rules of conduct.

- 5 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
This is not good use of taxpayer funds to have county prosecutors purposely misrepresenting the facts and
legal framework, knowingly and willfully trying to convince the judge in this case that a series of lies, twisted
logic, and baseless legal support belies the need for a gag order.
This motion is based upon the pleadings and papers on file herein, Defendant’s supporting affidavits and
any oral argument to be made pro-se at any hearing on this matter.
ITRODUCTIO
Integrity is perhaps the most important quality of a competent prosecutor. The emboldening of a prosecutor
who displays a complete lack of integrity is always prejudicial to any defendant’s case. When a defendant
breaks the rules of the court, harsh penalties are typically applied, up to and including some length of jail time,
revocation of bail, or even fines for being late for a hearing. Yet, when prosecutors are caught breaking,
bending and twisting rules to suit their needs and placing lies on the record as facts, there’s a well-documented
lack of punishment levied against them.
Even when prosecutors are caught red-handed in pure, unadulterated frame jobs on innocent individuals
who spend the bulk of their lives in jail for crimes they didn’t commit, the judicial oversight and consequences
are minimal. This is not because judges are powerless under the law to apply meaningful sanctions. This is
because judges FEEL powerless due to unwritten rules of the club that is the Bar Association. It’s the same
reason police misconduct often goes unchecked. Members of the system are afraid to stick their necks out and
call out colleagues who abuse the system.
Robert F. Kennedy once said, “Every time we turn our heads the other way when we see the law flouted,
when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are
too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom, decency
and justice.”
According to “The Innocence Files,” a Netflix Documentary series produced in 2020: “Since 1970, there
have been approximately 16,000 findings of prosecutorial misconduct. Fewer than 2% of these prosecutors
have faced public sanctions.”
An August 2010 study by the Innocence Project, “Court Findings of Prosecutorial Misconduct Claims in
Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exoneration Cases,” found that of the 65
cases in the study “involving documented appeals and/or civil suits addressing prosecutorial misconduct, 31
(48%) resulted in court findings of error, with 18% of findings [leading] to reversals (harmful error).”

- 6 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Another report published in April 2013, ProPublica, which produces independent journalism in the public
interest, analyzed 30 cases where prosecutorial misconduct contributed to the vacatur of convictions between
2001 and 2011, including a number of cases in which victims of such misconduct received monetary
compensation. Only one prosecutor involved in those cases faced serious discipline. That prosecutor, Claude
Stuart, was forced to resign in 2002 after repeated misconduct – including withholding exculpatory evidence
and lying to a judge – resulted in the reversal of multiple convictions.
According to the Center for Prosecutor Integrity, studies over the past 50 years, including some of those
cited above, indicate that in 3,625 identified cases of prosecutorial misconduct, “public sanctions [were]
imposed in only 63 cases – less than 2% of the time.” And of that discipline, just 14 prosecutors were
suspended or disbarred. The Center maintains a national registry of prosecutorial misconduct, available at
www.prosecutorintegrity.org.
Overall, the consensus across these studies is that very few cases of prosecutorial misconduct result in
disciplinary sanctions – and most sanctions amount to a proverbial slap on the wrist. Considering that reported
cases of misconduct are relatively infrequent due to arcane complaint procedures, lax enforcement, and a
culture of secrecy and indifference by regulatory agencies, one must conclude that the problem of
prosecutorial misconduct in our nation’s criminal justice system is much greater than the official numbers
reflect.
Here in New Hampshire there has been an ongoing legal fight regarding the “Laurie List” of police
personnel who have been implicated in misconduct claims. Should this list be secret or should the public be
able to see it? The ACLU has also been fighting—and so far winning—that battle against the state.
Belknap County has also seen one of the ugliest County Sheriff elections in recent memory just come to a
close last November. The scandal and controversy behind that race brought negative attention in the media and
the courts to the entire sheriff’s office. An ongoing civil suit by Former Deputy Sheriff David Perkins alleges
serious misconduct regarding an officer in the drug unit seeking out the current sheriff’s advice when his wife
was caught up in a drug arrest. The situation was known to the officer in question for a length of time, so it is a
clear example of looking the other way on drugs in your own home while purporting to be a member of a drug
squad tasked with trying to eliminate drug use in the community. A review of these incidents resulted in no
formal action and not so much as a single reprimand against either the officer in question or the current sheriff.
So, there are rules and laws for the rest of the community, but apparently they don’t apply to family of law
enforcement in scenarios like this. Sometimes they also don’t seem to apply to law enforcement, either.
Dover Police fired Roland Letendre last August, a trained MMA fighter working for the department who
first made the news when he alleged his wife assaulted him. Police in that case railroaded the wife of this

- 7 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
officer despite overwhelming evidence (including multiple fractured ribs she suffered in the incident SHE was
arrested for while he walked free) that it was the officer who was completely out of line. This episode left
Letendre’s wife temporarily homeless and unable to have any access to her children, all thanks to being
painted falsely by her corrupt and well-connected husband as the aggressor.
An internal review later found that Letendre had stolen drug evidence in an unrelated case. He is currently
on bail regarding felony charges related to that incident. He was actually fired for repeated violations of
department policy. (See Exhibit 7) This is a perfect example of what happens when law enforcement officials
are allowed to skirt the very laws they are charged to enforce. It’s only going to get worse if they get away
with it the first time.
Former NH State Trooper James Callahan was forced to resign from his position and promise to never seek
employment in Law Enforcement again last July. This followed an investigation into allegations that he
falsified information on a lab report and his official report regarding a drug-related search in Madison, New
Hampshire. (See Exhibit 8)
Attorney General Gordon MacDonald reported at the time that, “During the course of the investigation,
evidence was also discovered that Mr. Callahan had made false statements in a portion of his official report
concerning the Madison investigation. In particular, Mr. Callahan had not been truthful about where a K-9
drug detection search had occurred.” MacDonald and his office determined there was probable cause to bring
two charges of “unsworn falsification” (RSA 641:3), a misdemeanor offense, against Callahan.
The only way Callahan could avoid formal charges was to resign his existing position, give up his law
enforcement certification, and promise not to re-seek certification. The Callahan case clearly delineates the
importance our Attorney General places on integrity in the ranks of law enforcement.
Attorney Livernois once referred to himself in correspondence addressed to the Defendant as the top law
enforcement officer in Belknap County. Hence, if a state trooper who is lower on the leadership totem pole
gets punished so harshly for lying, how can any judge justify refusing to even publicly censure county
attorneys who all lied and misrepresented the law and the facts of this case repeatedly? Attorney Livernois lied
directly to the judge on at least one occasion, in open court. Yet he not only gets to keep his job, he’s been
allowed to wash his hands of this case entirely and then hand-pick his successor.
The fact remains we have no sworn testimony by Livernois, Heater, Hornick or Cormier. At the very least
they should be questioned under oath about their dishonest behavior and clear violations of the rules of
professional conduct for NH attorneys.
The Attorney Discipline Committee (through their General Counsel) also intimated in both response letters
to Bergeron’s initial grievances against Cormier and Livernois that they would be more likely to docket the
matter if the judge in this case found the behavior objectionable or improper. This implies in their expert

- 8 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
opinion that judges have just as much responsibility and authority to punish and/or call out dishonest attorneys
as the discipline committee does. At the very least, Judge O’Neill should be able to identify in any order on
this motion that the prosecutorial misconduct involved here is untenable.
Concluding that Livernois, Cormier, Heater and Hornick violated the rules of professional conduct for NH
attorneys would not require any formal adjudication of the gag order request on Judge O’Neill’s part. If he
does not want to execute his own power to sanction, he can simply find that these attorneys did exhibit
misconduct that warrants a further look and ask the Attorney Discipline Committee to formally docket a case.
Attorney Cormier never received an email from the defendant alerting him to the letter to the editor from
Bergeron that was published in the Laconia Daily Sun. Attorney Livernois did receive that email exclusively.
Attorney Livernois was then quoted in the same newspaper insisting he thinks the Rules of Professional
Responsibility should apply to Bergeron. (See Exhibit 9) Attorney Cormier’s motion also suggested these rules
apply to Bergeron already, with no argument made whatsoever for trying to reshape or remake any laws or
rules on the subject. There is a tremendous amount of evidence to show that this was a coordinated effort
executed for an improper purpose despite the fact that Attorney Livernois did not provide a signature on this
motion.
The lack of signature mentioned by Attorney Heater is the only argument with any merit in her initial
objection to the original sanctions motion. Indeed, this does make only Cormier subject to sanctions for
violating Rule 35 (h) of the Rules of Criminal Procedure. However, the Superior Court is not therefore
powerless to act in reprimanding or imposing censure against Livernois for his violations of the Rules of
Professional Responsibility. (See Exhibit 3, page 4 underlined portion)
Attorneys Livernois and Cormier violated both Rule 3.1 and Rule 4.1 of the Professional Rules of Conduct
for New Hampshire Attorneys. No prosecutor in this case ever provided any evidence of any personal
consultation with the Attorney Discipline Committee itself or any individual members of that committee.
These attorneys all made assumptions into fact with their arguments on the subject with no real basis to do so.
All the attorneys involved made a concerted effort to pin rules on Bergeron that do not and cannot apply to
him in any circumstance that exists in this case. When it came to verifying that the rules applied to Bergeron,
these prosecutors showed absolutely zero effort.
Bergeron, on the other hand, actually engaged in the correct process to determine once and for all if these
rules of professional conduct could possibly apply to him. Heater repeatedly mentions the rules that don’t
apply to Bergeron in her objection to the original sanction motion. Perhaps she did not even bother to read
Bergeron’s affidavit attached to the original sanctions motion. That is unacceptable negligence for someone
getting paid more than $80,000 per year by taxpayers of this state to prosecute cases.

- 9 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Attorney Discipline Committee’s general counsel responded to the self-reported grievance against
Bergeron within 24 hours (See Exhibit 3), while the time between the Bergeron email to Livernois about the
letter to the editor and the request for the gag order being filed was 48 hours. There is no evidence either
attorney even made as much as a single phone call to the disciplinary committee or any of its members to
determine whether or not the rules as they exist applied to Bergeron.
Further, we are talking about RULES here, not LAWS. Even though all judges clearly have a myriad of sua
sponte powers to promote fair dealing and inspire closer adherence to fair attorney practices, Superior Court
judges do not have the authority to change rules of professional conduct for attorneys. One rule of professional
conduct supposedly being violated by Bergeron was the sole basis for Cormier’s motion for a gag order, which
Livernois clearly supported and provided assistance with. Also, just as Livernois insisted Heater must be
supervised by Hornick, he would naturally be expected to supervise and review Cormier’s handling of any
matter in this case.
Attorney Heater provides a multitude of irrelevant material and arguments in her reply pleading objecting
to the first sanctions motion. The rules of professional responsibility for NH attorneys do not apply to
Bergeron, period. There is no need for Attorney Heater to waste the court’s time in explaining how Bergeron
may or may not have broken those rules.
The fact remains that Bergeron has never been accused of leveling any kind of false claims in any of his
letters to the editor. Furthermore, Attorney Heater describes Bergeron’s site as “replete with factual assertions
about the case” in addition to stating Bergeron’s opinions about the legal process and the criminal justice
system. As if nobody should know the truth, the site itself is being brought into the picture in a way that insists
it represents a violation of a rule Bergeron is not bound to follow. The evidence presented thus far cannot
sustain that argument.
Attorney Heater consciously decided to beat a dead horse as far as insinuating that Bergeron is either now
subject to rules of professional responsibility for attorneys or he should someday be. There’s no basis
whatsoever for that argument, and she knows it or has a basic duty to know it. Yet, she repeats it and hints at
this fallacy in multiple segments of her objection filing. She cannot possibly expand or make new law with a
simple objection filing. She has no excuse for misleading the court and wasting taxpayer funds to defend an
indefensible motion by insisting it somehow has merit.
The attention of multiple articles written by Rick Green of the Daily Sun and Bea Lewis of the Union
Leader got so bad, Livernois quit the case. Then Attorney Heater comes on board and says in a formal email to
Bergeron that she does not want to litigate the case in the press. She also admits to the strategy of dropping the
motion to prohibit pre-trial publicity: “As the vitriol of the defendant was primarily directed at County

- 10 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Attorney Livernois, I was hopeful the change of counsel would make it unnecessary to go forward with the
motion as the publicity would be minimized.”
While this is still far from an admission that the motion was weak and improperly motivated, it does reveal
the ultimate goal was to minimize publicity. The gag order request itself generated a great deal of publicity
from two regional newspapers, as did the ACLU’s entrance into the case to file an Amicus Brief. Rather than
formally defend the request in court, Heater decided to reveal her personal motivations for withdrawing the
motion that totally contradicted her subsequent cover up effort on behalf of the Belknap County Attorney’s
Office.
Attorney Hornick is documented now as the prime supervisor on this case who was supposed to advise and
guide Attorney Heater through this prosecution. Yet, not long after being assigned to this case Attorney Heater
began to put together a series of lies and misrepresentations of the law to provide a bogus defense of a motion
that never should have been filed. Livernois had ample opportunity to come up with a suggested game plan.
We have evidence that Livernois, for reasons unknown and unexplained, personally requested Attorney Heater
take over the case. It is also plainly obvious that Attorney Livernois and Cormier did not want this motion to
get to a hearing but also did not want to be the ones to have to withdraw the motion on their own.
We don’t know what Livernois’ motivation for choosing Heater really was. Did Heater know him well
enough beforehand to be expected to carry out his personal wishes without raising a fuss? These are the types
of questions that need to be asked. Another crucial question is have any of these attorneys at least humored the
court and made any legitimate attempt to change the Rules of Professional Conduct for NH Attorneys?
They’ve talked the talk but have they ever walked the walk?
What exactly is their actual, official argument for a rule change? They’ve never shared that with this court
or any advisory committee that would be able to make an official change to this rule. If they haven’t lifted a
finger to seek that change, it exposes once and for all this whole “new law” explanation of the gag order effort
is an obvious lie. They weren’t out to change any law. They were too busy misrepresenting the existing, well-
established law in an improper attempt to silence Bergeron’s public media blitz.
More importantly, if Attorney Livernois was legitimately concerned about any appearance of impropriety,
why was he ever allowed to personally assign his replacement at all? Why not ask the Attorney General’s
office to handle reassignment with a random draw by an unbiased arbiter? Why go as far as having direct
conferences with Attorneys Heater and Hornick about the case if not to suggest the game plan that ultimately
unfolded?

- 11 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
LEGAL ARGUMET
The Attorney Discipline Committee’s reach and authority is described in Rule 37 of the Rules of the
Supreme Court of the State of NH, and section (1)(c) of Rule 37 reads:
(c) Grounds for Discipline: The right to practice law in this State is predicated upon the assumption that the
holder is fit to be entrusted with professional matters and to aid in the administration of justice as an attorney and as
an officer of the court. The conduct of every recipient of that right shall be at all times in conformity with the
standards imposed upon members of the bar as conditions for the right to practice law.
Acts or omissions by an attorney individually or in concert with any other person or persons which violate
the standards of professional responsibility that have been and any that may be from time to time hereafter approved
or adopted by this court, shall constitute misconduct and shall be grounds for discipline whether or not the act or
omission occurred in the course of an attorney-client relationship.
Rule 3.1 of the Professional Rules of Conduct for NH Attorneys reads as follows:
“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis
in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a
proceeding that could result in incarceration or institutionalization, may nevertheless so defend the proceeding as to
require that every element of the case be established.”
Attorney Livernois and Attorney Cormier both broke this rule with their coordinated effort to present the
indefensible, unconstitutional gag order motion to the court. A violation of this rule does not require the
signing of any pleading. The second footnote reads as follows:
“The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts
have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery.
What is required of lawyers, however, is that they inform themselves about the facts of their clients' cases
and the applicable law and determine that they can make good faith arguments in support of their clients'
positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not
prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the
merits of the action taken or to support the action taken by a good faith argument for an extension,
modification or reversal of existing law.” (emphasis added)
Again, the entire basis for the motion to prohibit pre-trial publicity was the supposed violation of Rule
3.6 of the Rules of Professional Conduct by the defendant. It stands to reason that one cannot after the fact
pretend that this was an instance of trying to change law or make new law if such an argument was never
made perfectly clear in the initial motion. Further, Livernois provided comments to the Laconia Sun that
make no mention of trying to change any law or make a new law. That argument is a complete fallacy
anyway since it was always a rule that allegedly needed an “extension, modification or reversal” and not an
“existing law.” Suggesting Bergeron was subject to the rules without any documented research on their part
to prove it represents Cormier and Livernois colluding in bad faith to silence Bergeron in haste, and by any

- 12 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
means necessary. To avoid being exposed for jumping the gun to do just that, they engaged in an even more
dishonest and deceptive cover up that also now involves an entirely different county and two of their top
attorneys. So there is both a bad faith scheme to apply misrepresented legalese and flat out lies about the
rules of conduct to this effort as well as an after-the-fact bad faith effort to present the whole operation to
the same superior court judge as an effort designed to change the law. Nothing could be further from the
truth.
This could have been simply chalked up as a minor mistake, a bad chess move, a blunder, and a
miscalculation on the part of a deputy county attorney acting in haste on orders from his boss. The filing of
the bogus gag order request could have remained in that category if Belknap County prosecutors had
considered actually acting in good faith at any point in the early going. Instead, they lied consistently and
repeatedly. They even went as far as engaging a new county in their lie when they began feeling the burn of
the publicity gleaned by their improper and unconstitutional gag order attempt. Attorneys Cormier and
Livernois consciously chose to irresponsibly spread the disease of dishonesty instead of containing it at the
source.
It is important to note here the complete absence of affidavit evidence in Attorney Heater’s objection
filing. Rule 35 (i) of the New Hampshire Rules of Criminal Procedure outlines the requirements related to
motions filed in Superior Court. Subsection (1) reads as follows:
“The court will not hear any motion grounded upon facts, unless they are verified by affidavit, or are apparent from the
record or from the papers on file in the case, or are agreed to and stated in writing signed by the parties or their
attorneys; and the same rule will be applied as to all facts relied on in opposing any motion. Any party filing a
motion shall certify to the court that a good faith attempt was made to obtain concurrence in the relief sought, except in
the case of dispositive motions, motions for contempt or sanctions, or comparable motions where it can be reasonably
assumed that the party or counsel will be unable to obtain concurrence. Any answer or objection to a motion must be
filed within ten days of filing of the motion. Failure to object shall not, in and of itself, be grounds for granting a
motion.” (Emphasis Added)
The only way it can be understood by this court as fact that the Belknap County Attorney and his
Deputy coordinated to try to make new law (even if trying to change a rule was the same thing as trying to
change a law) with the gag order request would be to include sworn affidavits from both of them. In the
alternative, Attorney Heater could have provided her own affidavit delineating her personal discussions with
both Belknap County officials. She did none of the above. She does not even mention or infer in any way
that she actually had any communication with Livernois or Cormier in which she asked them if the gag
order request was an attempt to change the law. The Cormier motion itself infers that Bergeron is actively
responsible for following the Professional Rules of Conduct for NH Attorneys. Cormier never frames that
issue as in question or as a vague, grey area of the rules that cries out for any kind of change.

- 13 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The following text comes from an American Bar Association publication entitled Criminal Justice
Standards for the Prosecution Function:
Standard 3-1.4 The Prosecutor’s Heightened Duty of Candor
(a) In light of the prosecutor’s public responsibilities, broad authority and discretion, the prosecutor has a heightened duty
of candor to the courts and in fulfilling other professional obligations. However, the prosecutor should be circumspect in
publicly commenting on specific cases or aspects of the business of the office.
(b) The prosecutor should not make a statement of fact or law, or offer evidence, that the prosecutor does not reasonably
believe to be true, to a court, lawyer, witness, or third party, except for lawfully authorized investigative purposes. In
addition, while seeking to accommodate legitimate confidentiality, safety or security concerns, a prosecutor should
correct a prosecutor’s representation of material fact or law that the prosecutor reasonably believes is, or later learns was,
false, and should disclose a material fact or facts when necessary to avoid assisting a fraudulent or criminal act or to avoid
misleading a judge or factfinder.
Cormier and Livernois misrepresented the jurisdiction of the Rules of Professional Conduct for NH
Attorneys and failed to find any applicable law that would support the prosecution’s request for a gag order.
They made no effort to self-correct this mistake.
The prosecutor’s role in our adversarial justice system – to obtain convictions, regardless of a
defendant’s guilt or innocence – necessarily creates competitiveness in terms of winning cases. But as stated
by the U.S. Supreme Court, “[W]hile he may strike hard blows, he is not at liberty to strike foul ones. It is
as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to
use every legitimate means to bring about a just one.” See: Berger v. United States, 295 U.S. 78, 88 (1935).
Rule 37 of the NH Rules of Criminal Procedure includes two relevant subsections:
(b) Upon the violation of any rule of court, the court may take such action as justice may require. Such
action may include, without limitation, the imposition of monetary sanctions against either counsel or a party, which
may include fines to be paid to the court, and reasonable attorney's fees and costs to be paid to the opposing party.
(c) The Court may assess reasonable costs, including reasonable counsel fees, against any party whose
frivolous or unreasonable conduct makes necessary the filing of or hearing of any motion. (Emphasis Added)
The objection to the initial sanctions motion is Attorney Heater’s only substantive filing in this case so
far. She chose to parrot Cormier and Livernois’ approach to the argument about attorney rules applying to
Bergeron. Attorney Heater had to know the gag order request was based on junk law and misrepresenting
long-established First Amendment laws on prior restraints on free speech. Paragraphs 25 and 28 of the
Heater objection actually contained similar and plagiarized material from Cormier’s own motion,
cementing Attorney Heater’s own culpability for sanctions since she is advocating for a legally
indefensible argument and using legal precedents that could never apply in these circumstances. These
cases involving successful gag orders do not deal with pro-se defendants and did not seek to prohibit

- 14 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ALL pre-trial publicity of any kind. The cases cited that do outline that pro-se parties have to follow the
rules of court have absolutely nothing to do with rules of professional conduct for attorneys in any state.
Rule 4.1 of the Rules of Professional Conduct for NH Lawyers reads as follows:
“In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law
to a third person…”
All the attorneys involved on behalf of the state have made false statements of material facts and law
to the judge and to Bergeron. While Attorney Heater has thus far made mostly false statements of material
law, she also misrepresented the facts when she insinuated that Bergeron could somehow be bound by the
same Rules of Professional Responsibility for NH Attorneys that she violated.
The violations of the Rules of Professional Conduct for NH Attorneys are not limited to 3.1 and 4.1 in
regard to Hornick, Heater, Livernois and Cormier. The Rule 8.4 (c) violations are multiple in terms of
Livernois’ and Cormier’s conduct in this case.
Rule 8.4 of the Rules of Professional Conduct for NH Attorneys starts out with:
“It is professional misconduct for a lawyer to:” followed by a list of prohibitions that include subsection C:
“engage in conduct involving dishonesty, fraud, deceit or misrepresentation;”
First, during a hearing on the case Livernois stated for the record that Bergeron made no counter offer to
his first plea agreement suggestion. This is despite the fact that Bergeron has it in writing that he did make a
counter offer to Livernois a mere five minutes after the county attorney asked for one. Livernois then later
suggested when he was called out by Bergeron for his lie that what Bergeron countered with was not a
serious offer and that the defendant should consult with his standby counsel to come up with something
more appropriate. Yet, Livernois did not tell the judge that he did not receive “any serious counter offers.”
He told the judge he received no counter offer at all.
There was absolutely no dispute or disagreement as to whether Bergeron presented the counter offer to
Livernois. The only argument was that it was supposedly not a serious offer. There was no logical reason to
consider this offer on Bergeron’s behalf as not serious. There was nothing in the text of the email to indicate
a joking or less than serious tone.
Livernois egregiously violated subsection c of Rule 8.4 by abusing his position and cooperating directly
with Deputy County Attorney Keith Cormier to draft and file a motion in the case entitled: State’s Motion
For a Court Order Prohibiting Pre-Trial Publicity. This motion proved to be based on absolutely
indefensible points of law and complete misrepresentations of fact.

- 15 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Even if he is not as intimately familiar with the facts of the case as Livernois, Cormier owes the court a
duty to research the applicable law. He could not come up with one single scenario where any other pro-se
party had ever been required by any court to follow the rules of professional conduct for bar-admitted
attorneys. It is painfully obvious that he did not spend much time at all on this motion, especially
considering the mere two days that came between Bergeron emailing the letter to the editor to his boss and
the subsequent gag order request reaching the docket. The request itself was not detailed or elaborate, as if
this was just a formality.
None of these attorneys made any actual argument (in the motion itself or in the press) for expanding
law, modifying law, reversing law or making a new law. That would be their only exonerating excuse, and
Attorney Heater (under supervision from Hornick) actually insinuating later on that this was the intent is
another obvious attempt to deceive the court with a lie. The entire basis for the gag order request implied
that Bergeron should be basically punished for promoting his plight in the public press in supposed violation
of a rule he is in reality not even bound to follow. These attorneys made assertions that these rules somehow
did apply to Bergeron already.
The fact that Attorney Heater—under the direct supervision of Attorney Hornick—persisted in this
argument even after Bergeron and the Attorney Discipline Committee debunked it completely shows how
dedicated they were to trying to minimize the reputational damage being done to the Belknap County
Attorney’s office. However, rather than minimizing that damage by admitting a mistake was made and a
rushed motion that was not supported by facts or law should be withdrawn as a result, Attorney Heater
doubled down on the lies and misrepresentations presented by Cormier in his initial gag order motion. We
have evidence that she did this only after Attorney Livernois consulted with her and her boss on the case
and asked the Attorney General to appoint her. (See Exhibit 1)
The most prevalent recent example of a prosecutor being held accountable for misconduct happened in
Rockingham County in 2016. Deputy Rockingham County Attorney Patricia LaFrance violated a court order
by refusing to turn over a seized cellphone belonging to the defendant in that case. A Seacoast Online article
on the subject (See Exhibit 10) explains:
LaFrance was originally censured on April 13 for “prosecutorial misconduct committed in July 2015 while pursuing
criminal charges” against Jonathan Batista Negron, who was ultimately convicted for resisting arrest, according to court
records. The deputy county attorney was also ordered to pay fees incurred by Negron’s lawyer, attorney Michael
Iacopino, for his attendance at a court hearing “regarding potential police and prosecutorial misconduct,” Judge Delker
wrote. In an April order, the judge said he did not believe LaFrance needs to be reported to the Professional
Conduct Committee, because he does not believe she made “intentional misrepresentations” while prosecuting
Negron. Delker wrote that he did find LaFrance’s “single-minded, zealous advocacy clouded her higher duty to
honor the defendant’s constitutional rights.” [emphasis added]

- 16 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Here, all the deceptive statements and misrepresentations of law were done with direct intent to protect the
personal and professional reputations of prosecutors. Prosecutors who earn significant paychecks for
promoting the public good acted in extremely bad faith on the taxpayers’ dime. They abused the process and
used the courts and their trusted positions of authority for a frivolous enterprise. The fact that Attorney Heater
withdrew the motion before a hearing does not lessen this collective prosecutorial misconduct in any
significant fashion. It actually increases their liability for sanctions. The withdrawal was purely a matter of
self-preservation, a case of getting caught too deep in trying to game the system. The defendant advised
Cormier and Livernois to withdraw the motion on June 20th
, 2020. Livernois withdrew himself—and thereby
his deputy—on July 7, 2020 and had that request signed off on July 14th
. Between June 20th
and July 7th
there
was an ample opportunity for Cormier and Livernois to withdraw the motion themselves instead of leaving
that responsibility to the Grafton County Attorney’s office.
The only argument that can be made for “good faith” in our current scenario would be one that is supported
by legitimate evidence that these prosecutors were all trying to change existing laws or make a new law. Yet
this was a rule, not a law. Gag order requests are not filed to change rules or make new rules. The only way to
do that is to write a detailed and formal suggestion for a new rule or a rule change to the proper designated
advisory committee.
Although pro-se parties are not entitled to collect attorney fees, the two ACLU lawyers involved in this
case deserve to be compensated for their earnest efforts to defend Bergeron’s civil rights. The Motion to
Prohibit Pre-Trial Publicity being withdrawn at such a late point in the process offered the advocacy group
no chance to make their work actually count. The ACLU only took such a stand to block this motion
because it was so egregiously unconstitutional. If the Cormier motion wasn’t so deficient in the first place, it
wouldn’t have been withdrawn before the hearing, despite the obvious lies presented by Attorney Heater
about this subject.
Paragraph 34 of the Heater objection to the initial sanctions motion ends with a full on admission that
Attorney Heater (this could also extend to mean “any prosecutor” in addition to only Heater herself) does
not even truly need a gag order because of how she can work around the pre-trial publicity with “extensive
voir dire of the petit jury panel on the issue of their knowledge of the case and any prejudice that may exist
because of it.” This admission proves multiple points she makes on the validity of the reasoning for a gag
order request are completely moot.
It is important to once again consider the language of a few more paragraphs contained under section 3-
1.2 of Criminal Justice Standards for the Prosecution Function:
(b) The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The
prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety

- 17 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal
charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider
the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including
suspects and defendants.
(c) The prosecutor should know and abide by the standards of professional conduct as expressed in applicable law
and ethical codes and opinions in the applicable jurisdiction. The prosecutor should avoid an appearance of
impropriety in performing the prosecution function. A prosecutor should seek out, and the prosecutor’s office
should provide, supervisory advice and ethical guidance when the proper course of prosecutorial conduct seems
unclear. A prosecutor who disagrees with a governing ethical rule should seek its change if appropriate, and
directly challenge it if necessary, but should comply with it unless relieved by court order.
(d) The prosecutor should make use of ethical guidance offered by existing organizations, and should seek to
establish and make use of an ethics advisory group akin to that described in Defense Function Standard 4-1.11.
(Emphasis Added)
There is no evidence whatsoever that either Attorneys Livernois, Cormier, Hornick or Heater actually took
any time at all to consult with the Attorney Discipline Committee as to the applicability of the rules of
professional conduct to Bergeron or lack thereof.
COCLUSIO
These attorneys wasted a great deal of the defendant’s time with the gag order request. Their behavior
has now given rise to two detailed motions as well as an intervening brief by the ACLU. These county
attorney’s office officials engaged in this misconduct at taxpayer expense and drew paychecks from the
State of New Hampshire while engaging in this behavior. The Belknap County Attorney’s office
additionally filed no reply to either the Defendant’s objection to their gag order request or the ACLU’s
Amicus Brief. This belies the fact that neither Livernois nor Cormier ever intended to try to further their
initial bogus arguments. They passed the buck to Grafton County and set in motion a coverup attempt that
should at the very least result in a formal inquiry into their use of taxpayer funds to accomplish this attempt
to violate Bergeron’s First Amendment and due process rights.
Grafton County Attorney Hornick and Deputy County Attorney Heater had a chance to tell the truth and
present the facts and applicable rules and laws related to the motion itself and the genuine reasons for
withdrawal. Yet they decided to further the lies and deception of the Belknap County Attorney’s office. The
system is truly broken if the top law enforcement officers in their respective counties are continually
allowed to skirt rules, misrepresent laws, and lie to judges about the supposed merits of a motion that has
none. The gag order request should have never been filed in the first place by any responsible legal
representative of any party. The same conduct executed by these attorneys in regard to this situation would
get lowly patrol officers fired from their positions and even banned from the profession itself if they

- 18 –
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
engaged in it. There shouldn’t be two sets of rules and different standards of integrity for different ranks of
law enforcement.
WHEREFORE, the Defendant formally requests that this court impose direct sanctions against Belknap
County Attorney Andrew Livernois, Deputy Belknap County Attorney Keith Cormier, Grafton County
Attorney Martha Ann Hornick, and Deputy Grafton County Attorney Tara Heater. These sanctions should
include public censure and at least a $1,000 fine per attorney paid to the New Hampshire ACLU for their
efforts to file and/or defend against a motion that never should have been filed in the first place. Should
Judge O’Neill determine it is somehow beyond his power to sanction or censure these attorneys, a formal
request should be made by him to the Attorney Discipline Committee (ADC) to docket a case on the subject
of this collective misconduct.
Judge O’Neill does not need to adjudicate the gag order motion in order to examine it and determine it
was filed in bad faith and is filled with erroneous legal conclusions and deceptive factual assertions that
were never adequately researched or validated. Judge O’Neill should either order the above-referenced
sanctions himself or refer the matter to the ADC for further action.
The aforementioned Rule 37 explains the definition of a “referral” as follows:
(h) Referral: Referral means a grievance received by the attorney discipline office from any judge or
from any member of the bar of New Hampshire, in which the judge or attorney indicates that he or she does not
wish to be treated as a grievant.
There is also no reason at this point to trust that Attorney Heater or anyone from the Grafton County
Attorney’s office can prosecute this case responsibly. She should be taken off the case in favor of a
randomly drawn replacement picked by an unbiased party. Judge O’Neill should order her to withdraw from
the case if he finds her behavior/conduct in this matter to be improper.
Respectfully submitted this 1st day of February, 2021:

Motion For Sanctions Against Andrew Livernois, Keith Cormier,Tara Heater and Martha Ann Hornick

More Related Content

What's hot

More from Rich Bergeron

Recently uploaded

Motion For Sanctions Against Andrew Livernois, Keith Cormier,Tara Heater and Martha Ann Hornick