State investigators in Andy Sanborn’s criminal case disqualified

Andy Sanborn appeared in Merrimack County Superior Court on Thursday on charges accusing him of theft by unauthorized taking over pandemic relief funds.

Andy Sanborn appeared in Merrimack County Superior Court on Thursday on charges accusing him of theft by unauthorized taking over pandemic relief funds. Zoey Knox

By SRUTHI GOPALAKRISHNAN

Monitor staff

Published: 01-15-2025 4:50 PM

A superior court judge denied an attempt by Andy Sanborn to have criminal charges against him dismissed but disqualified two members of the state investigative team from participating in the criminal case because they accessed information they shouldn’t have.

This decision follows a May 23 search at the Concord Casino, located on South Main Street in Concord, which led to the seizure of five computers and 30 boxes of documents. Among these documents were correspondence between Sanborn and his lawyers discussing legal strategies that were improperly accessed by the investigation team.

Sanborn had asked the Merrimack Superior Court to dismiss the case or remove the prosecution team, arguing that they had been exposed to attorney-client privileged information and lacked the proper procedure to handle such sensitive materials. He also wanted the state to pay for his legal fees.

On Tuesday, Judge John Kissinger ruled partially in Sanborn’s favor, disqualifying Assistant Attorney General David Lovejoy and forensic examiner Don Swanson from the case, but he kept the case alive and denied his request for attorney fees.

“Because AAG Lovejoy and Mr. Swanson were privy to this protected information, suppression of the material alone will not remedy the State’s misconduct. Thus, the Court imposes equitable relief through the disqualification of AAG Lovejoy and Mr. Swanson,” Kissinger said in his order.

A separate team responsible for making sure that attorneys involved in the investigation or prosecution do not have access to privileged materials, released some documents in error.

In this case, over 6,000 documents were released to the investigation team. Swanson reviewed 146 documents that Sanborn’s legal team claims are privileged or protected, while Lovejoy examined three, including a legal memorandum.

Kissinger also ordered that if any other case team member had viewed privileged or protected documents, or discussed their contents, they must notify the court and disqualify themselves from the case.

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The court also said that the New Hampshire Attorney General’s office had exhibited “gross negligence” at multiple stages, from executing the warrant to reviewing seized materials, declaring that the actions amounted to “prosecutorial misconduct.”

Michael Garrity, director of communications for the Department of Justice said Sanborn’s team falsely accused the New Hampshire Department of Justice of bad faith, which Kissinger rejected.

“What actually occurred was a simple mistake, which the NH DOJ deeply regrets. When the NH DOJ hired a third-party vendor to duplicate a database of seized materials, the contractor inadvertently included privileged documents,” Garrity wrote in an email. “This was not intentional misconduct, but a single, unintentional mistake that was promptly addressed.”

The Attorney General’s Office said that the prosecution of Sanborn on charges of fraudulently obtaining and misusing state pandemic relief funds will continue.

Sruthi Gopalakrishnan can be reached at sgopalakrishn an@cmonitor.com