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Bar News - November 16, 2012 NH State Police Pretrial Policy Questioned By: Kristen Senz Pretrial negotiations in minor traffic cases would be more meaningful if state police prosecutors had more discretion. That was the opinion of Circuit Court Administrative Judge Edwin Kelly and some Concord defense attorneys upon hearing about a NH State Police policy that restricts prosecuting officers from placing complaints on file or dismissing charges, unless it is clear to the prosecuting trooper that a charge has no merit. "They can place a complaint on file in cases such as an unregistered or uninspected [vehicle], where they may have gotten it done the next day, or a case where they were asked to fix an equipment issue or produce a license or other document," State Police Capt. John LeLacheur said. In other cases, the prosecuting trooper can either negotiate a reduced fine or refer the case to trial, where the defendant can request a different disposition from the judge. James Moir, a Concord criminal defense attorney, said that by only allowing prosecuting officers to decrease fines, the new mandatory pretrial negotiation process ignores the reason most people plead not guilty to speeding tickets and other minor motor vehicle violations. "For most people who have speeding tickets, who send it in not guilty, it has nothing to do with working out $50 less of a fine; it’s because they want to try to avoid the conviction," Moir said. "The fact of the matter is, [the troopers] do have the authority to place things on file or drop the charges, and that would make it more meaningful." Judge Kelly said he was not aware of the state police policy that limits potential dispositions in plea-by-mail cases during pretrial negotiations. "It doesn’t make any sense to me that any pretrial resolution would be taken off the table… but it’s up to each prosecuting agency what they’re going to do with a case," Kelly said. Tracy Connolly, prosecutor for the City of Concord, said she and the police departments for which she prosecutes traffic cases have a slate of dispositions available for resolving cases during pretrial negotiations. Possible outcomes at the city’s pretrial negotiation sessions include placing a complaint on file, with or without conditions, as well as dismissing cases, reducing or suspending fines, and other plea agreements. In some cases, placing a complaint on file is the appropriate disposition, Connolly said, because "everybody makes mistakes." She said that placing a complaint on file is an option typically reserved for people who have no record of violations or complaints on file and in whose cases there were no aggravating factors, such as a person having been placed in danger. Capt. LeLacheur said state police prosecutors don’t consider extenuating circumstances at pretrial negotiation sessions, which are not attended by the troopers who wrote the tickets. "We try not to make prosecutorial decisions based on issues like that, if the person who wrote the ticket is not there," he said. Chuck Temple, director of the criminal law practice clinic at the UNH School of Law, said it’s important for prosecutors to have a range of negotiation tools to ensure justice is served. "They shouldn’t be taking non-conviction resolutions off the table," Temple said. "They’re not there to get convictions; that’s not their job. Their job is to get justice." Temple and Moir said the concept of pretrial negotiation for plea-by-mail cases makes sense, in terms of saving time for judges and money for law enforcement agencies. "I understand where they’re coming from, where they want to prevent overtime for troopers," Moir said. "The idea of having a trooper assigned to do this kind of negotiations, in theory, I think is a good idea." |
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