LANCASTER — The state does not want the defense in the Jeffrey Woodburn case to cross-examine the victim about whether she committed criminal acts in obtaining evidence against Woodburn.
Woodburn was the North Country State Senator and Senate Minority Leader when he was charged last August with nine misdemeanor counts, including two for domestic violence and four for simple assault. The alleged victim was his fiancee, Emily Jacobs, who was then Coos County Democratic Chair and a candidate for county treasurer.
Woodburn has pleaded not guilty and indicated he plans to argue self-defense.
A jury was picked on Monday with the trial scheduled to begin July 31.
In two motions filed on June 28, Senior Assistant Attorney General Geoffrey Ward asked that the defense be barred from cross-examining Jacobs about whether she violated state statutes in making recordings of Woodburn without his apparent knowledge. The state also wants to preclude the defense from accusing Jacobs of stealing Woodburn’s journal. The motion said the defense has indicated it intends to pursue both topics during cross-examination.
In a written response filed Monday, Defense Attorney Donna Green said granting the state’s motion would violate Woodburn’s right to a fair trial and his right to confront and cross-examine witnesses against him.
Prior to Woodburn’s arrest, in an interview at the N.H. Attorney General’s office, Jacobs disclosed that she had twice recorded conversations with Woodburn.
“In the recordings, the defendant does not appear to have knowledge that the victim is recording him,” the motion said.
The state said the defense should not be allowed to question Jacobs about the legality of the recordings because it would create a “trial within a trial.” The motion argues it is not clear that Jacob’s recording of Woodburn violated state law.
The state also wants the defense prevented from accusing Jacobs of the theft of Woodburn’s journal.
According to the motion, Jacobs told the Attorney General’s office the journal had been left at her house after the couple broke up.
In reviewing it, Jacobs said she noted Woodburn had admitted to some of the crimes and she indicated a willingness to turn the journal over to investigators.
In the end, the Attorney-General’s office obtained a search warrant for Jacobs’ house and the journal.
The defense alleges Jacobs stole the journal from Woodburn's house, stressing he did not share its contents with Jacobs and never kept his journals at her house.
The state argues the theft allegation is unsubstantiated and the real issue is the contents of the journal.
The motion points out Woodburn wrote about throwing a cup of water and the empty cup at Jacobs and then kicking the door of her clothes dryer after an argument in which she threw his clothes onto the lawn.
The motion said the journal also describes an incident on Christmas Eve 2017, in which Woodburn hit Jacob’s in the stomach and kicked in her door. Both incidents are cited in the charges against Woodburn.
The state said the defense should be allowed to ask only if Jacobs took the journal from Woodburn’s residence and not question her answer further.
In objecting to both motions, the defense charges Jacobs was intent on gathering damaging evidence against Woodburn after he ended their almost three-year relationship on June 25, 2018.
The defense said email exchanges provided during discovery show on July 11, 2018, Jacobs and a friend were putting together a list of Woodburn’s alleged bad behavior.
“This list is important as it demonstrates that during this period, Emily Jacobs is actively collecting and gathering evidence against Jeff Woodburn in retaliation for his breaking up with her and spurning contact with her,” the defense wrote.
Nine days later, the defense said Jacobs was texting with a domestic violence counselor about meeting with the N.H. Attorney General’s office to discuss an investigation of Woodburn. In one of the texts, Jacobs writes that she is “worried about the tapes.”
Later that day, the defense said the counselor forwarded to Jacob a text from Amanda Sexton Grady of the N.H. Coalition Against Sexual and Domestic Violence, stating “they are aware of the tapes she absolutely does not need to be concerned about anyone charging her. Zero concern here.”
Through discovery, the defense said it learned Grady had spoken with Senior Assistant Attorney General Jane Young that day.
Before meeting with the Attorney-General’s office, Jacobs received a so-called “proffer letter,” stating information she provided would not be used against her in a criminal prosecution as long as she told the truth.
The defense said the couple began seeing Dr. Paul Donahue for both individual and couple’s counseling.
Their objection cited a July 3, 2018, voice message from Donahue warning Woodburn that Jacobs wanted to get back at him and he should be cautious.
The defense said evidence will show that Jacobs repeatedly tried to block or restrain Woodburn from leaving, even jumping on top of his car on one occasion.
Any force Woodburn used against Jacobs, the defense argues, “was necessary to either leave or attempt to leave a volatile situation created by Ms. Jacobs.”
The defense states Jacob’s conduct in taping Woodburn and taking his journal goes to her credibility and shows her intent and motive to convict the defendant and punish him for ending the relationship.
Excluding that evidence, it argues, would violate Woodburn’s right to a fair trial and to cross-examine witnesses against him.