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Bar News - November 18, 2011

New Assigned Counsel Process Will Speed Appointments

A new process for appointing attorneys to handle indigent defense cases is reducing delays in assignments and reducing the workload of the courts, said Christopher Keating, executive director of the NH Public Defender. Keating said about 17 percent of all indigent criminal cases are not handled by the NHPD due to conflicts, and are referred to contract or appointed attorneys.

The plan is the result of an agreement between the Judicial Council, which handles funding for indigent criminal defense, and the administrative judges of all levels of the trial courts. Keating last month briefed the NHBA Board of Governors on the changes, saying he wanted the Bar to be informed of this new process and to be alert for any snags or problems, particularly with regard to getting cases to contract counsel in an efficient, reliable manner. The following are excerpts from Keatingís memo to the Board, enumerating five changes in process:

1. To provide more clarity about the judgeís role in seeing that the indigent accused are given access to court-appointed counsel, the courts have issued administrative orders requiring judges, at each indigent defendantís arraignment, to provide him or her with instruction about how to apply for counsel and provide him or her with the time and resources to do so, (See RSA 604:A-2).

2. Over time, the courts developed a practice of requiring a judge to approve each application for counsel; this paperwork-processing and transfer delay bogged down the appointment process. The new administrative orders make clear that the clerk or clerkís designee can approve applications for appointed counsel when a defendantís sworn financial affidavit shows that he is eligible under approved guidelines.

3. In the past, there has been no guidance about how long it should take a court to process the applications for appointed counsel. The new administrative orders establish an expectation that clerks will act on requests for counsel within 24 hours of submission to the Court of the defendantís financial affidavit and application for counsel.

4. In the old process, the clerks of court had been required to record extensive information in each indigent defense case, (including the names and birthdates of victims and witnesses of crimes), in a "screening form." That form was then transferred to the public defender for its review to determine whether a conflict existed. The form was then sent back to the court, after which time the appointment of counsel was made. That process that could take several days. The Judicial Council and the courts agreed to stop using the cumbersome screening form.

5. Finally, a central office has been created to assign conflict cases to contract attorneys. Now, all indigent defense cases are sent to the local public defender office by the courts. If the local public defender office determines it cannot provide representation in a case because of a conflict, then the public defender office will send the case to the Conflict Case Administrator. The Conflict Case Administrator, based in Nashua, now assigns conflict cases to contract counsel according to a standardized, written protocol, within 24 hours of receipt.

Keating observed that keeping the eligibility determination and appointment decisions within the Judicial Branch enables the Courts to maintain oversight and control over the process of appointing counsel to represent the indigent accused. But transferring the job of assigning individual attorneys has freed up court staff from the onerous task of finding counsel to represent indigent defendants, and the centralization of these responsibilities enables the Conflict Case Administrator to develop efficiencies in the assignment-of-counsel process.

Ideally, these steps will have the ultimate effect of reducing the time between a defendantís arraignment and the moment when the attorney appointed to represent him or her opens the file for the first time. In summing up the effects of these changes, Keating wrote that "a lot of these measures are arcane, inside-baseball stuff, but for the defendant unable to make bail, or for the scared kid facing criminal charges for the first time, reducing the wait to obtain the assistance of counsel is a real improvement in providing equal justice to the poor."

If you have questions or suggestions about how to improve the appointment-of-counsel process, contact either Chris Keating, or Nina Gardner, Executive Director of the Judicial Council.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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