Concord Casino has lost its charitable gaming license over allegations its owner, former state Sen. Andy Sanborn, committed pandemic fraud. Sanborn is challenging the revocation. (Todd Bookman/NHPR)

A state superior court judge has disqualified a state prosecutor and financial expert from the Attorney General's office’s fraud case against Concord Casino Andy Sanborn, after finding the office committed “gross negligence” during its investigation.

Sanborn’s lawyers had argued the state had conducted a search of the casino without a process in place to identify and protect private legal materials.

Merrimack County Superior Court Judge John Kissinger said the state failed to ensure that private legal communications between Sanborn and his attorneys were kept from the criminal prosecution team.

The state’s actions, Kissinger said in an order released Wednesday, “demonstrates a complete lack of respect for (Sanborn’s) attorney-client privilege and work product protections.”

Kissinger found that while Sanborn’s attorneys were told they’d have a chance to weigh in on a process that would identify documents that were privileged or potentially privileged, they were not given the chance

Several of those documents were identified through a filter process, which a technician in the Attorney General’s Office deleted from the database of documents.

That technician, however, did not know all the documents seized had been duplicated into a second folder and reviewed by the other individuals on the case: Assistant Attorney General David Lovejoy and a financial expert, Don Swanson.

As a result, Kissinger disqualified Lovejoy and Swanson from the case.

In a statement, Michael Garrity, spokesman for the Attorney General’s Office, said the state made “a single, unintentional mistake that was promptly addressed.”

“Most importantly, our prosecution of Mr. Sanborn continues,” Garrity said. “He remains criminally indicted. The NH DOJ acted in good faith, and with transparency, promptly raising the issue with the court, and now continues to engage fully in the case in accordance with the court’s orders.”

Kissinger said the state’s mistake caused enough harm to warrant a penalty.

“These acts, taken together,” he wrote, “rise to the level of prosecutorial misconduct.”

Kissinger did stop short of dismissing the state’s criminal case or suppressing evidence seized during a May search of Sanborn’s casino, as Sanborn sought. Nor did Kissinger award Sanborn’s his requested attorney’s fees.

Though, Kissinger said he is not “foreclosing the potential of further relief,” if he finds evidence of other problems.

Kissinger’s order allows the state’s separate criminal theft case against Sanborn and his gaming company, Win Win Win, to proceed.

In that case, the Attorney General’s office alleges that Sanborn and his business misrepresented his casino’s gross receipts by nearly $1 million in order to increase his pandemic assistance grant from the “Main Street Relief Fund” by nearly $188,474.

Sanborn has pleaded not guilty.

The state has been pursuing Sanborn on two fronts since August 2023, when Formella moved to revoke his casino license over allegations Sanborn had defrauded a different pandemic aid program.

According to Formella, Sanborn misled federal authorities to obtain nearly $844,000 in pandemic loans and then used the money illegally, some of it on race cars. The state has not charged Sanborn in that case, nor have federal authorities, who were briefed on it by Formella’s office.

Sanborn has challenged the license loss and has appealed the licensing case to the New Hampshire Supreme Court, asking the justice to find the lottery commission and Attorney General’s Office acted illegally in revoking the license. Their appeal rests in part on an argument that allowing Sanborn to sell the casino is a public benefit because charities and the state share in gaming revenue. The state uses its portion to help pay for education.

The court has not decided whether to take the case. Three Republican lawmakers, including House Majority Leader Jason Osborne, have joined Sanborn in urging the court to hear it.

These articles are being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org.

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