Defendant's Reply to State's Objection to Motion to Dismiss (Speedy Trial)

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Reply to State’s Objection to Defendant’s Motion to Dismiss
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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
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Case No. 211-2019-CR-163
REPLY TO STATE’S OBJECTIO TO
MOTIO TO DISMISS
COMES NOW, the Defendant, Pro-Se Richard E. Bergeron III, and offers this comprehensive
reply to the State’s Objection to Defendant’s Motion to Dismiss and the State’s Motion to Amend
Objection.
ARGUMET
1. Bergeron has continually and repeatedly voiced concerns over the delays involved in this case.
He signed only one waiver of his rights to a speedy trial on January 24th
, 2020 upon advice of
his standby counsel who had scheduling conflicts with the trial date set at the time. (See Case
Summary) The waiver was required as part of the assented to motion to continue filed by the
public defender serving as Bergeron’s Standby Counsel: Attorney Caroline Smith.
2. Bergeron did not ask for Standby Counsel despite agreeing to the court’s decision to assign
that counsel. The court chose to take the step, and Bergeron set up a formal payment
arrangement for the public defender’s services. Only a few months into his payment plan he
received notification that no further payments would be needed since he chose to represent
himself in the matter. Since he did not choose Smith as an attorney and has no control over
when she can be available for trial, even the defendant’s only waiver of his speedy trial rights
could be considered more the state’s fault than his.

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3. The 24th
day of June, 2021 will mark 17 months from the date Bergeron signed that waiver.
There is no current date set for trial. According to the latest state order regarding court
proceedings, jury trials resumed in August of 2020. (See:
https://www.courts.state.nh.us/supreme/orders/5-14-21-Twentieth-Renewed-and-Amended-
Emergency-Order-Governing-Courts-and-Comimittees-with-Appendix-A-B.pdf):
4. “A separate order was issued by the Superior Court on July 14, 2020, authorizing the
resumption of in-person jury trial and grand jury proceedings in August 2020, consistent with
the Superior Court’s roll-out plan outlined in The State Court Jury Trial Plan and in
accordance with protocols for the resumption of grand jury proceedings. The State Court Jury
Trial Plan is available here: https://www.courts.state.nh.us/aoc/State-Court-Jury-TrialPlan.pdf”
5. “Since August 2020, the Superior Court convened a statewide grand jury process to ensure all
counties could conduct grand jury proceedings and has held forty-six jury trials. Each county
is currently prepared to hold jury trials. In consultation with public-health officials, the
Superior Court will continue to evaluate the safety of conducting jury trials and other
proceedings on a week-to-week basis.”
6. Calculating the delay and conceding for convenience that the state is totally blameless for the
court’s closure during the pendency of this worldwide pandemic, we still have more than ten
months between the time jury trials resumed and the date of this motion’s filing. There is no
reason the defendant’s case could not have been the 47th
jury trial to be held since August,
2020. It should not be Bergeron’s burden to bear that the dockets are crowded and incarcerated
defendants must take precedence due to the rules the state itself decided on. Even Judge
O’Neill admitted in open court at the September 9, 2020 hearing on sanctions that the Covid-
19 situation was “the state’s problem.” The fact that the state did not have a better plan in
place for a health emergency like this should not be completely ignored here.
7. Bergeron has repeatedly raised the issue of unexplained delays in more recent motions put
before the court, most notably his recent request for Judge James D. O’Neill III to recuse
himself. Since the last continuance filed by Livernois, the state has made no other formal
request to continue trial, but final pre-trial hearing and jury selection dates have still been re-
scheduled and re-cancelled twice (not including the cancellations related to the defendant’s
one request to continue).
8. Despite the case being transferred to Deputy Grafton County Attorney Tara Heater, she
expressed no concerns with scheduling or workload upon accepting the case. She in fact

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steadfastly insisted in communications with the defendant that she was ready for trial and had
reviewed all the relevant material. Her initial objection makes several points that make the
Defendant’s case for him and includes multiple misrepresentations of fact and law.
9. “A deliberate attempt to delay by either party is weighed heavily against that party. Humphrey
v. Cunningham, 133 N.H. 727, 735 (1990). A more neutral reason such as negligence or
overcrowded courts should be weighted less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances rest with the [State) rather than with
the defendant. Humphrey, 133 N.H. at 735.” (See Paragraph 15, State’s Objection to Motion
to Dismiss)
10. The above claim simply states that only deliberate delay will be held “heavily” against the
state. It does not release the state from all culpability for excessive delay. Attorney Heater
misrepresented the facts repeatedly in her objection, beyond just mischaracterizing the record
by claiming Bergeron was not prepared to handle her motion regarding voir dire questions for
the jury (She also referred to her motions in the plural form when there was only one motion in
limine filed related to voir dire questions). Attorney Heater actually took the time to file a
motion to amend her objection. She admitted:
11. “Upon review, it is apparent that the undersigned failed to accurately recall the statements
made by the defendant that he had not received notice of the hearing. He did, however,
indicate that he was willing to proceed …”
12. Attorney Heater did not correct other mistakes such as the ones in her timeline (background
section) and actually added a new mistake by requesting in her motion to amend objection that
the judge “GRANT the state’s motion” when the state has not even filed a motion.
13. Attorney Heater confuses the defendant and the prosecution in this section of the original
objection while also claiming the motions were denied (which they would have been if filed
by the defendant) when they were actually granted by Judge O’Neill:
14. “On November 14, 2019, the Defendant filed several Motions in Limine. Objections to those
Motions were filed on November 20, 2019. The Motions in Limine were scheduled for a
hearing on December 16, 2019. On December 10, 2019, Assented to Motions to Continue the
Motion in Limine Hearing was filed and granted. The hearing was continued to January 3,
2020. An Order denying the Motions in Limine was entered on January 8, 2020. On January
13, 2020, the defendant filed a Motion to Reconsider the ruling on the Motions in Limine. The
State filed a non-objection on January 27, 2020. An order of Court denying the Motion to
Reconsider was entered on January 31, 2020.”

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15. Attorney Heater admittedly has a selective memory when it comes to the hearing on the first
sanctions motion. Her motion to amend admitted her initial report of what happened at that
hearing was wrong. Here, she forgets that she personally withdrew the motion immediately on
July 15th
(not July 17th
). That’s the same day of her first appearance and the same day
Livernois removed the county from the case:
16. “On May 22, 2020, a Motion for a Court Order Prohibiting Pre-Trial Publicity was filed by the
Belknap County Attorney’s Office. The defendant filed an objection on May 27, 2020. The
ACLU entered an Appearance and a Notice of Intent to file an Amicus brief. That brief was
filed on June 19, 2020 along with a Motion to Participate in Oral Argument which was
granted. A hearing was scheduled for July 21, 2020. The Motion was withdrawn on July 17,
2020.”
17. Attorney Heater did not spend two days after her appointment mulling over her decision to
withdraw the defective motion, she did so immediately, six days before the scheduled hearing.
This reflects the fact that this was not by any means a decision that was made for strategy
purposes. It’s clear Andrew Livernois directed Attorney Heater to withdraw the motion.
18. Attorney Heater also cites Riendeau v. Municipal Court, 104 N.H. 33, 34 (1962) in paragraph
7 of her objection, which is a case that has absolutely nothing to do with speedy trial rights of
a defendant. Attorney Heater misrepresents the record and the law by suggesting the
Defendant has personally made efforts to delay any trial date since his last waiver filing.
19. She contradicts herself in this section of the objection, first saying the defendant is to blame
(for filing motions) while then later admitting it was the “pending motions” in general and
Covid-19 that resulted in the bulk of the delays:
20. “A review of the procedural history above clearly establishes that the majority of the delay in
this case is attributable to either the defendant or the COVID 19 pandemic. From the date of
indictment until the filing of this motion, approximately 500 days have had motions pending.
That does not take into account the limitations which were placed upon the Court during the
COVID 19 pandemic. It would be the State’s position that the court record clearly establishes
that any delay in this case is a result of the pending motions and the COVID 19 pandemic and
did not violate the defendant’s speedy trial rights.”
21. Since the rescheduling of the trial schedule stemming from Bergeron’s “Assented to Motion to
Continue” filed on January 24, 2020 there have been two more formal cancellations of the jury
trial schedule. The first cancellation (of the Final Pretrial date) came on May 28th
, 2020 with
the Jury Selection date of June 8, 2020 getting cancelled with it. Deputy Belknap County

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Attorney Keith Cormier filed his defective “Motion for a Court Order Prohibiting Pre-Trial
Publicity” on May 22, 2020. Bergeron had no motions pending at this time. The only briefing
period that could have been responsible for this particular delay was directly related to the
state’s motion, not Bergeron’s.
22. The next cancellation of Final Pretrial (September 24, 2020) and Jury Selection (October 5,
2020) dates came at a point when the only person responsible for cleaning up the docket
before trial was Judge O’Neill. A hearing had already been held on Bergeron’s July 20, 2020
Motion for Sanctions regarding the scheme to silence Bergeron with an unconstitutional gag
order. That hearing took place on September 9, 2020. Judge O’Neill had two full weeks if he
wanted to make a decision before the Final Pre-Trial hearing scheduled for the 24th
. Instead,
Judge O’Neill did not file any order on that motion until October 23, 2020. It is actually
Attorney Heater’s motion in limine regarding voir dire questions (filed August 14, 2020)
which would have had a briefing period more likely to interfere with the set trial dates at this
point in the case. Bergeron filed his only pending motion more than two full months before the
September 24, 2020 Final Pre-Trial Hearing date.
23. None of Bergeron’s pleadings since his one and only waiver of Speedy Trial Rights asked for
delay or for the trial to be continued. State v. Eaton , 162 N.H. 190 (2011) is mentioned in the
state’s objection. State v. Eaton involved a defendant charged with violent sexual crimes
(multiple counts of aggravated felonious sexual assault and indecent exposure). The
circumstances were much different than they are here in the instant case. There was no
pandemic involved in the delay. There was certainly not a period of 17 months between the
last move to continue the case by the defendant. To be applicable as a precedent, the parties
must be similarly situated. This case does not apply.
24. Furthermore, State v. Eaton directly relies on State v. Fletcher, 135 N.H. 605, 608 (N.H. 1992)
in regards to the defendant causing delays. The State v. Fletcher ruling describes the
defendant’s actions to cause delay as follows:
25. “First, his motion for a continuance delayed the trial for the six-month period from October 3,
1988, to March 28, 1989. Second, his request for a new attorney delayed the trial for the three-
month period from March 28 to July 10, 1989. Third, the two-month delay from July 10 to
September 11, 1989, was caused by the defendant's hospitalization, which prohibited Attorney
Duggan from trying the case on July 10. Thus, the defendant caused approximately eleven
months of the twenty-five-month delay, leaving approximately fourteen months subject to
further analysis.” State v. Fletcher, 135 N.H. 605, 608 (N.H. 1992)

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26. There are no cases cited by Attorney Heater which point only to a defendant’s general motion
practice as being directly responsible for excessive delays. Bergeron did not have to withdraw
any motions, did not have to replace any members of his legal counsel, and never missed any
hearings. There is also no evidence that any of Bergeron’s motions filed since the January 24,
2020 waiver of his speedy trial rights directly impacted any set trial schedules.
27. The right to a speedy trial is relative, State v. Varagianis, 128 N.H. 226, 228, 512 A.2d 1117,
1119 (1986), and must be considered with regard to the practical administration of justice,
Fletcher, 135 N.H. at 608, 607 A.2d at 960 (quotations omitted). The delays in this case due to
an overcrowded docket and scheduling difficulties are indeed held against the State, but to a
lesser extent than would be a deliberate delay. See State v. Langone, 127 N.H. 49, 54-55, 498
A.2d 731, 735 (1985). State v. Maynard, 137 N.H. 537, 539 (N.H. 1993)
28. State v. Maynard is another case improperly cited by Attorney Heater in paragraph 19 of her
objection. This particular defendant only tried to exercise his speedy trial rights a mere two
weeks before the scheduled trial. Bergeron is actively pursuing his speedy trial rights long
before any scheduled trial date, so the court’s scheduling difficulties cannot be counted against
him. They are to be counted against the state by this Maynard standard.
29. Attorney Heater blames the defendant’s “Motions practice” when none of the defendant’s
pleadings in the past 17 months since his one and only waiver have been motions to continue
the trial. None of his pleadings since her appointment have been intended to delay the
proceedings. All of Bergeron’s pleadings since July 15, 2020 have been designed to either
hold prosecutors accountable for misconduct or address clear judicial bias and favoritism.
30. Attorney Heater’s own objection contradicts the “motion practice equals delay” argument. She
cites State v. Blake, 113 N.H. 121-122 (1973) right after admitting “the number of motions
which have been filed by the defendant would not be counted toward the delay.” The
Defendant in State v. Blake did not succeed in his speedy trial arguments. The ruling denying
his appeal stated, “after indictment his own attorney asked for a continuance to find a
defendant's witness, thereby indicating that defendant's trial preparation was aided and not
prejudiced by the delay.” Bergeron has not filed for any continuance in the last 17 months.
31. As for Bergeron’s proper exercise of his speedy trial rights, it has been more than 10 months
since the local court system began holding jury trials again. It is therefore a perfectly

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acceptable time to make his first request for the court to enforce his speedy trial rights and
dismiss this case. He is not making his argument for the first time on appeal as most of the
defendants were in the cases cited by Attorney Heater. He is making a very timely request to
dismiss the case for failure to provide a speedy trial based on the record of the case.
32. Attorney Heater argues without any quotation at all from the case, that State v. Cotell, 143
N.H. 275, 283 (1998) establishes that when a defendant is not incarcerated prior to trial, there
is no prejudice. She therefore erroneously concludes that since Bergeron was never
incarcerated there cannot be any actual prejudice. The following passage comes from the
actual appeals court decision in State v. Cotell:
33. “The defendant argued to the superior court that he was prejudiced by pretrial incarceration,
anxiety, inconvenience, and the exposure of prospective jurors to publicity. The defendant’s
pretrial confinement was eight months in duration due to the negotiated bail reduction.
Neither this confinement nor the defendant’s anxiety and inconvenience is sufficient to
establish actual prejudice. See Bernaby, 139 N.H. at 423, 653 A.2d at 1126; Tucker, 132
N.H. at 33, 561 A.2d at 1077-78. Pretrial publicity did not actually prejudice the
defendant.”
34. Cotell again involved a defendant charged with violent sexual crimes, and the case hinged on a
lower court’s questionable decision to dismiss the initial case due primarily to the state’s
violation of a discovery order. The defendant was re-indicted due to the failure of the judge to
include “with prejudice” or “without prejudice” in his final ruling. The length of delay
involved in Cotell is also nowhere near as long as the one in this case. The parties are not by
any means similarly situated enough for this case to be at all applicable to the instant case.
35. “…even if an accused is not incarcerated prior to trial, he is still disadvantaged by
restraints on his liberty and by living under a cloud of anxiety, suspicion, and often
hostility.” See United States v. Ewell, 383 U. S., at 120; Smith v. Hooey, 393 U.S. 374, 377-
378 (1969). In Klopfer v. (orth Carolina, 386 U.S. 213, 221-222 (1967), the Supreme
Court indicated that a defendant awaiting trial on bond might be subjected to public scorn,
deprived of employment, and chilled in the exercise of his right to speak for, associate with,
and participate in unpopular political causes..”
36. Bergeron will be greatly prejudiced by the state’s failure to provide a speedy trial. He has
already demonstrated through this pleading and by citing the prosecution’s motion to amend
objection that Attorney Heater cannot even adequately recall and report on a hearing she

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personally participated in back in September of 2020. She cannot accurately describe the
actual record of this case when it comes to four motions in limine filed by the prosecution in
November of 2019. She routinely misrepresents the law and the facts behind these
proceedings. She even insisted in her motion to amend the objection that she wanted the judge
to grant the state’s motion when there is no state motion pending. If the state’s own prosecutor
is having this much trouble remembering a hearing she took part in that happened just a few
months ago and keeping the rest of the record straight, how can she possibly manage a
criminal trial? How will state or defense witnesses be relied on to accurately remember what
happened nearly three years before trial even gets underway?
37. Bergeron has also not presented his witness list as of this filing. He intends to call the Attorney
General who signed off on the pursuit of this case by the Attorney General’s Drug Task Force
despite absolutely no evidence of marijuana sales being perpetrated by Bergeron. Attorney
General Gordon MacDonald never double checked the assertions by Drug Task Force
Detectives that Bergeron had a record including convictions for crimes he was only charged
with and never convicted of in actuality. There are Bates-stamped discovery items provided to
the defendant for this case signed by MacDonald’s. Gordon MacDonald is currently the Chief
Justice of the NH Supreme Court. It will be virtually impossible to secure MacDonald’s
testimony in a timely fashion for trial as long as the state’s courts are so stretched thin.
38. By continually putting off trial for the defendant and never sticking to a scheduled date, the
state is subjecting Bergeron to cruel and unusual punishment before a conviction is even
secured. His Speedy Trial rights are actively being violated. Prosecutors involved in this case
manipulated the facts and misrepresented the record and the law to both seek an
unconstitutional gag order and then cover up their attempts to secure that gag order. This effort
resulted in the intervention of two ACLU attorneys on behalf of the Defendant, the request for
the gag order being withdrawn, the entire Belknap County Attorney’s office withdrawing their
personnel from the case, and the case being reassigned to an obviously underqualified Deputy
Grafton County Attorney. Attorney Heater just doesn’t appear to have enough time to dedicate
to executing this prosecution properly and professionally.
39. This case generates more evidence toward a civil suit for violations of Bergeron’s civil rights
with each passing day. Every aspect of the sixth amendment is involved in the court’s

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discrimination against Bergeron, and this situation favors Bergeron winning such a civil case
after his acquittal at trial. Bergeron contends that it is the fear of such a lawsuit damaging the
overall reputation of the local justice system that drives the majority of delays in this case.
40. Bergeron was arrested at the end of February, 2019. He has been waiting for trial for roughly
2.5 years. Covid-19 restrictions are not a sufficient excuse for these incessant delays. A severe
lack of efficient judicial oversight and prosecutorial misconduct are more culpable for the
excessively long pre-trial period. Bergeron voiced his concerns about delays and insisted
repeatedly in his pleadings and court remarks that he wanted to go to trial as soon as possible
to show how flawed this case really is. The state’s own conduct mandated Bergeron’s recent
motion practice, and he cannot be held liable for delays when he did not file any motions to
continue within the 17 month period of contention.
41. The decision reached in State v. Cole, 118 N.H. 829 provides the remedy for denial of speedy
trial rights: “Considering all the facts and circumstances, we hold that the Defendant’s right to
a speedy trial under the New Hampshire Constitution, part I, Article 14 was denied, and his
convictions are therefore vacated and the charges against him are dismissed.” Strunk v. United
States, 412 U.S. 434 (1973).
COCLUSIO
WHEREFORE, Defendant formally requests that this court dismiss all charges with prejudice in
the interest of justice and in light of Bergeron’s right to a speedy trial being violated.
Dated this 25th day of June, 2021.
Respectfully submitted,
Richard E. Bergeron III
Attorney Pro-Se
107 Cotton Hill Rd.
Belmont, NH 03220

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