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Bar News - October 3, 2003 Chief Appellate Defender Combines Teaching, Advocacy By: Lisa Segal Conversations with Bar Newsmakers CHRISTOPHER M. JOHNSON joined the Appellate Defender Program of NH Public Defender in October 2001 as chief appellate defender. Appellate Defender, which comprises Johnson and three other attorneys, handles all indigent appeals for the state, as appointed by the Supreme Court. During a recent 11-month period, Johnson said the office handled 77 cases, which averages about seven appeals per month. Johnson spoke with Bar News about criminal defense and appellate work, and about his role as chief appellate defender. Q: Share with me some personal information - where you grew up, education, family. A: I grew up in Los Angeles and graduated from Carleton College in Minnesota in 1989 and from Harvard Law in 1994. My wife, Megan, who is an attorney on inactive status in New Hampshire, and I have a three-year-old daughter, Sophie. Q: Tell me about your career prior to joining Appellate Defender. A: After law school I clerked for one year, then I went to work for six years at the Southern Center for Human Rights in Atlanta, which is a non-profit organization with two missions: defending death penalty cases and litigating civil rights cases related to prison conditions and access to justice. I mainly defended death penalty cases. Q: How do the NH courts and Bar compare to those you've worked with in other states? What is distinctive about practicing law in NH? A: I have worked in Georgia and Alabama, and the bar here is obviously much smaller, which in itself gives it different qualities. It's different to be known by the Supreme Court of the state you work in. I appear before them so often that they know me. Also, my relationship with the Attorney General's Office is much more cordial than the relationship I had with the state attorneys in other states where I've worked. Q: Explain the role of Appellate Defender. A: We handle not only appeals for Public Defender cases, but all indigent appeals. An indigent defendant may be represented by someone other than a public defender. A defendant may, for example, be able to afford an attorney at the time of trial, but not be able to afford one after being convicted. The trial lawyer, whether a public defender or private attorney, files a notice of appeal and a motion asking the Supreme Court to appoint Appellate Defender to handle the appeal. So our cases are appointed by the Court. Q: What is a typical work day as chief appellate defender like? A: In addition to handling appeals, part of my job is teaching at Franklin Pierce Law Center [which houses Appellate Defender] - I'm teaching criminal law. I also supervise the Appellate Defender clinic in which students from the law center help with cases by researching and writing appeals. So some days are focused on law school teaching, others on appellate law. This morning I was at the prison meeting with a client, for example, and I'll be working on a brief this afternoon. Tomorrow I'll be preparing for class. I enjoy the variety. It presents challenges in time management, but I enjoy it. Q: Had you done any teaching prior to this? A: I had taught at CLEs and done some guest teaching. I enjoy teaching. It calls for a surprisingly different set of skills than being a lawyer requires. Q: Such as? A: The adversarial nature is not there, so it requires a different approach. An appeals court essentially has to be interested in what you're presenting because that's its job, but when teaching, you have to engage students in the discussion and present dense material in a way that's exciting and interesting. The challenge of keeping your listeners engaged is greater in teaching. Q: How has the job, or the work, changed, if at all, in the two years you've been here? Are there any trends you've seen emerge that have changed the landscape of criminal defense or appellate work? A: If the Supreme Court had the funding to implement the new appeals process [in which the Court would accept nearly all trial court appeals] as it planned, that would have had an impact on appellate advocacy. The Court already takes almost all criminal appeals in which the defendant is incarcerated, so it wouldn't have dramatically increased our caseload, but it would have resulted in some changes. If the Court is handling more cases, we are called on to be better at what we do. We'd have to be more concise and brief so that we could hold the attention of the Court; the Court's attention would be spread more thinly if it had to take on a lot more appeals. It's a symptom of an ever-greater need to be concise and precise. Q: Have there been any recent significant cases, or are there any in the pipeline, in the criminal defense area? A: Probably the biggest recent case was State v. Ramos, which dealt with joinder and severance issues. Ramos was charged with two different sexual assaults and was tried for both of them in front of the same jury, despite the fact that the two assaults were not connected. Under the old court rule, it was not clear what should be done in terms of severing the two cases, but in February 2003, the NH Supreme Court adopted a different analysis for cases in which a defendant is accused of multiple offenses. The Court addressed occasions when two different charges can be joined to be tried before the same jury versus occasions when they should be severed. The Court's ruling made it clear in the Ramos case that the two charges shouldn't have been tried before the same jury. It's a ruling that protects the integrity of the jury system. State v. Melvin, which deals with how the court should interpret a statute that defines what sentence a person receives for repeated sexual assaults, is another important case we're awaiting a decision on. In that case, it's a question of whether the sentence is determined by multiple convictions or simply prior engagement with the criminal justice system. Q: Have recent budget cuts and the resulting strain on the courts affected the work of your office? A: Like everyone else, we're tightening our belts, but for the most part, there have been no recognizable impacts on our office. Q: Have the increased safety and security measures implemented since 9//11 had any impact on how cases are being prosecuted or defendants are being treated in NH? A: I haven't seen any change, which is much to the credit of the citizens of New Hampshire and the country. They recognize the difference between terrorists and the people we're dealing with in regular criminal cases. Q: What is distinctive about the state of case law in NH with regard to criminal defense? A: The NH Supreme Court has a tradition of treating the state constitution as a source of substantive rights greater than those given by the federal constitution. In this state, the constitution is very much an independent source of protections. In the other states I've worked in, Georgia and Alabama, the rights that come from the federal constitution are guaranteed. In New Hampshire, you are guaranteed those federal rights, plus greater protection from the state constitution. Q: What flaws, if any, do you see in the criminal defense or appellate areas of law in our state? A: One thing - and this is kind of 'pie in the sky' - that would be a benefit would be to create an intermediate court of appeals. The demand on our Supreme Court is enormous because there isn't one. An intermediate appeals court could hear the more routine appellate matters, and the highest court would hear matters of broader importance. In New Hampshire, one court is doing it all - and they do it well, but....Most states have an intermediate court of appeals. I suspect it's a matter of funding. Q: And what do you think works well in criminal defense in NH? A: New Hampshire has a nationally recognized and very well-respected public defender program. It's a well-run statewide program. In a lot of other states, the quality of indigent defense is high in metropolitan areas, but low in more rural areas. It's not like that here. Q: Do you have any plans or initiatives for this office that you'd like to implement during your tenure? A: I had the privilege of stepping into a very well-run office, so my plan is, "Do no harm. Don't foul it up. Don't fix what isn't broken." My priority is to keep this office functioning as well as it has in the past.
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