Brock Trial Hearing Two Narratives

Monday, September 25th 2000, 12:00 am

By: News On 6

CONCORD, N.H. (AP) â€” Despite a generally lax policy on the New Hampshire Supreme Court, one retired justice said Monday he never spoke during conferences on cases from which he had been disqualified.

Justice William Johnson's testimony went to a key issue in Chief Justice David Brock's impeachment trial: how often, and to what extent, justices commented on cases in which they had a conflict of interest.

``I never said a single word,'' Johnson testified at Brock's Senate trial. However, in his 14 years on the bench â€” most of them during Brock's term as chief justice â€” only he and one other justice refrained from commenting on such cases, he said.

Under a long-standing policy, changed after it became public this spring, all justices, disqualified or not, received draft opinions on cases.

One of the four charges against Brock is that he allowed the policy to continue. In his opening statement, House lawyer Joseph Steinfield said the charge reflects Brock's failure as head of the court to ensure the constitutional guarantee of judicial impartiality.

Former Justice Stephen Thayer, who was accused of improper intervention in two such instances, including his wife's appeal of the couple's divorce, has said he was far from alone.

``I played by the rules as I understood them,'' he said in an interview published in June. ``The way we worked it, we all received all the draft opinions. Even when one of us was recused, we all read the opinions, and even the judges who could not vote were free to make comments.

``We all did it, and there were certainly times when judges commented on cases where they had very close ties with people involved in the case.''

The other charges against Brock allege that he lied to House investigators, made an improper phone call to a lower-court judge in 1987 and that he solicited Thayer's comments on substitute judges to hear the divorce appeal.

Brock's lawyer, Michael Madigan, pressed Thayer on Friday to acknowledge he was angry with Brock and the court for filing a report that ended his career.

``You're trying to build up this vindictive thing,'' Thayer replied during one exchange. ``I wish I didn't have to be here. This is not fun for me. It's not something I like to do, it's something I have to do.''

Thayer also insisted he thought of Brock as a trusted friend.

The House hopes to rest its case by midweek, and the Senate hopes to begin deliberating the first week of October.

Brock, a judge since 1976, has been on the high court since 1981 and chief justice since 1986. Fifteen of the 22 senators participating would have to vote to convict him.

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On the Net:

Supreme Court: http://www.state.nh.us/courts/supreme.htm

Legislature: http://www.state.nh.us/gencourt/ngencourt.html