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Bar News - March 22, 2013


The Start of the Public Defender in NH and NH Legal Assistance A Short Story of Justice and Politics

By:

Related
Recollections from NH Public Defenders Past and Present

Marking Gideon’s 50th

 
In the Beginning there was NH Legal Assistance

Timing is everything.

To understand how the Public Defender started, it helps to know a little about the times and the politics of the day. On February 8, 1971, at 29 years old, I arrived in NH to lead the fledgling Southern NH Legal Services (SNHLS), part of President Johnson’s War on Poverty. My instructions were to consolidate the 7 single attorney offices of Tri-County Legal Services in the North Country with the 8 single attorney offices of SNHLS, create a statewide skilled legal aid attorney organization and to become a force and effective advocate for the poor in NH. To start, a new board of directors was formed under the leadership of Judge Edward McDermott, of Hampton, NH to create New Hampshire Legal Assistance (NHLA). Judge McDermot was a visionary and dedicated to legal aid.


Past leaders of the NH Public Defender gathered at the 2009 NHBA Annual Meeting. From left, Christopher Keating, Justice James Duggan, Michael Skibbie, Paul Semple, and David Garfunkel.

Accepting certificates recognizing the anniversary are supervising attorneys for Public Defender (from left) John Newman, Jacki Smith, Abigail Albee, NHBA President Vogelman, Brooksley Belanger, Randy Hawkes, executive director, and Richard Guerriero.
In creating the NHLA Board, we tried to find a good mix between respected bar leaders and rising young activist attorneys, both male and female. We purposely recruited republicans and democrats, liberals and conservatives, to give the program a reality check and to build political support. We made especially certain the President of the NH Bar Association had a personal designee on the board. Attorney Fred Upton, of Concord, along with Bar Executive Director Joe Hayden, were extremely instrumental in smoothing the path with the NH Bar Association. I was sure to pay a courtesy call on Chief Justice Kenison every 6 months to give him a personal briefing on how NHLA was doing and to seek his advice. We promoted NHLA as a program intended to promote the rule of law and fairness under the law for poor people and to relieve private attorneys of the burden of servicing all of the poor in the state. It was a matter of economics too. NHLA would allow attorneys to devote more time to their private practice without diversion of resources. In fact, many NH citizens could not afford attorneys and were getting no services.

The purpose of consolidation was to conserve resources, increase professionalism, and through management efficiencies meet a rising demand for legal services to the poor. This meant closing some offices and expanding others. Tri-County Executive Director, and later, NHLA Deputy Director, Ed Reichert, Esq. was a valuable partner.

Prior to 1971, SNLS and Tri-County Legal Services handled primarily divorce cases. With consolidation, NHLA moved to regional offices in NH population centers. We created a Bread and Law Task Force dealing with hunger in NH, an Energy Office to give the poor a voice in the construction of the twin reactors of Seabrook Nuclear Power Plant and advocate for reduced electrical rates, a “Grassroots” Legislative Advocacy Office to advocate for the poor before the General Court, a Community Legal Education Office to explain and give the poor confidence in the law, and a Law Reform Office to litigate group cases and class actions where massive systemic wrongs confronted the poor (prison reform, mental health services reform, civil liberties, commodity distribution and food stamp reform, welfare reform, YDC reform and other initiatives). The efforts to improve the delivery of government and private services to NH citizens upset the growing conservative trend in NH, and especially the powerful newspaper, The Manchester Union Leader. Very supportive leaders at the time were House Judiciary Chairman Alf Jacobson of New London, Representative Elizabeth Hager of Concord, Deputy House Speaker Kimon Zachos of Manchester, Senator David Bradley of Hanover, Senate President David Nixon of New Boston, Senator Susan McLane of Concord, Senator Rob Trowbridge of Dublin, and Governor Walter Peterson. With the exception of Senator Elaine Krasker of Portsmouth, all were Republicans. I was impressed by their devotion to justice. I leaned on them often for advice. This dedicated leadership would eventually help create the NH Public Defender.

With the help of federal funding through the US Office of Economic Opportunity, and 20 other sources including all of the United Ways in NH (led by Irene Irving in Concord), the US Department of Justice, US Department of Agriculture, the Catholic Church (which funds were used to oppose Seabrook - we hired Rick Cotton, Justice Brennan’s law clerk), the Charitable Trust Fund (led by Jean Hennessey of Hanover), VISTA, Reginald Heber Smith Community Fellowships, and others, NHLA became one of the largest law firms of its day in NH with over 20 lawyers and 75 employees, spread out across the state.

NH Public Defender Takes Shape on a Napkin


David Garfunkel was the first director of the NH Public Defender.
In 1971, virtually all 15 of NHLA’s offices were staffed with one attorney and one secretary. Beginning in 1972, we were moving toward a model of 7 offices each with 2-3 attorneys, one secretary and one VISTA paralegal/community organizer. As part of the consolidation of offices, the board decided to close the Nashua NHLA office, at that time staffed by Attorney Ernie Jette.

Shortly after announcing the proposed closing of the Nashua legal assistance office, in 1972, resistance arose among some community leaders. They did not want to see their office close or lose Ernie Jette, a popular and highly respected lawyer in the community.

One day during the legislative session, I was invited to lunch in Nashua by Senator Richard Leonard who said he was getting constituent pressure and wanted to discuss the future of NHLA in Nashua. I fully expected Senator Leonard to take me over the coals. I recall, however, we discussed little about NHLA. Instead, Senator Leonard, a lawyer himself, wanted to talk about the sorry state of criminal defense in NH for accuseds who could not afford a lawyer.

NH had an appointed counsel system by which a judge or the clerk of court would appoint or arm-twist a local attorney to represent a defendant to satisfy the Gideon and Miranda standards. Attorney payment was $20 out of court, and $30 for in-court representation, a paltry sum, even in the early 1970s. The system did not draw top talent in the criminal law field, and those attorneys who participated did mostly out of a sense of professional duty. Court personnel had a hard time finding attorneys to take criminal cases and at times forced cases upon reluctant and sometimes unskilled and overworked attorneys. And there was a cap of several hundred dollars on most cases. It was a broken system.

I told Senator Leonard that NHLA could be a mechanism to create a public defender program in NH. NHLA had the office space, library, management and could recruit the talent. We sketched out a plan on a napkin over lunch:
a. we would start with a pilot program in one county – Merrimack was chosen; it was a manageable county and could easily be monitored by decision makers in Concord;

b. we would have an independent evaluation approaching the two year mark;

c. the funds would come out of the Judicial Council’s criminal defense fund;

d. to avoid the problems of case overload and poor quality representation, we agreed that it should be a mixed public-private system; this also had the political benefit of not upsetting the few private attorneys who were relying on this income; and

e. NHLA would manage the program under a contract with the State.
At the conclusion of lunch, Senator Leonard took the napkin, and put it in his pocket The following day he gave it to Legislative services to draft a bill to create a pilot public defender program in which half the funds would be used to reimburse private attorneys and the other half to set up the defender program. The appropriation fell a little short, and so the NHLA board assisted by providing below cost office space, management oversight, use of copy a machine, law library, and other benefits to get the defender program off the ground.

After passage of the legislation, NHLA entered into a two year contract for a pilot public defender program in Merrimack County. The program gained national recognition joining NYC, Detroit and Cleveland as one of the only examples of a statewide legal services program for the poor providing representation in both civil and criminal cases, albeit on a pilot basis.

Public Defender Begins as Pilot Program

I recruited Paul Semple, a highly skilled attorney working for the DC Public Defender Office as the NH Public Defender’s first attorney. Paul’s combination of professionalism and calming personality provided early acceptance of the pilot program. He was good in court, appreciated by the clients and most important, attended all bar meetings. Amusingly, Paul’s straight arrow demeanor contrasted sharply with the more free spirited Legal Assistance attorneys. Next, with Paul’s help, I recruited Bob Stein, a talented trial attorney with the Philadelphia Public Defender Office.

Both Paul and Bob received high ratings from evaluators, clients and the NH Bar. Many private defense lawyers regularly called upon Bob and Paul for advice and research in their criminal cases, making them a highly valuable attorney resource and further cementing the public defender into the NH legal framework. We made sure to go out of our way to be helpful to NH private defense attorneys, sometimes even doing research for them.

By 1973, the defender program was making plans to move into its next and expanded phase. I returned to the DC Public Defender and recruited Jim Duggan, who represented defendants at Lorton Prison, Washington, DC. Jim accepted the job offer but we had to be sure the legislature would approve the public defender appropriation.

NHLA Law Reform Victories Creates Political Troubles for Public Defender

By this time, Meldrim Thomson, from the arch-conservative wing of the Republican Party, had defeated Governor Walter Peterson in the primary. Joining forces with the Union Leader newspaper, publisher William Loeb and Gov. Thomson began attacking NHLA for promoting “socialized law,” “wasting taxpayer’s money” and “social engineering.”

The New Hampshire Legal Assistance Director George Bruno form of legal assistance should not be tolerated in NH. It is a vicious type of politics financed by tax dollars to suck like a blood worm at the very vitals of the good citizens of the state. [UL 11/29/73]

The attacks upon NHLA continued.

Governor Thomson called NHLA, a political tool .skillfully wielded by a small group of entrenched bureaucratic lawyers to change social order. [UL 11/29/73] He said, This crusade by poverty legal parasites robs us of the money they take through the medium of excessive salaries. [UL 07/14/73

And more followed.

The agency [NHLA] seeks to wrest from the state’s citizens control of state spending and plunge the state into a wallow of special programs and irresponsibility which would soon lead to bankruptcy. [UL 12/10/73]

* * *

Legal Assistance, an expanding legal entity masquerading as a voice of the poor is growing steadily as a cancer on the body politic and democratic process in the Granite State. [UL 12/10/73]

The early 70s was a time of enormous national social upheaval that did not escape NH. Governor Thomson and William Loeb had great enmity toward NHLA and took frequent shots at me and NHLA attorneys. Press releases flew back and forth. Because the federal funds for NHLA had to have gubernatorial sign off, the Governor, said to the press, This is one veto I will deliver with great relish. [UL 11/29/73] The Governor did veto NHLA’s federal funding. We were able to get the funds restored by appealing to Washington, DC, via a presidential override.

Given the highly charged times, the Manchester United Way, led by the Public Service Company, a major UW donor and NH’s largest utility, joined the attack by zero funding NHLA in 1973. The PSC wanted NHLA to stop questioning the finances and proposed huge consumer electrical rate increases connected to the construction of the Seabrook Nuclear Power Plant. In response, we organized with Child and Family Services, other social services agencies, and several significant donors by audaciously threatening to form our own alternative “progressive” United Way. After several emergency meetings among NHLA, donors and the UW, the funds were restored and plans to start a rival Manchester United Way were shelved.

NHLA class action litigation continued to shake up the status quo. Suits against the state for poor treatment of prisoners, the faltering accreditation of the NH [psychiatric] Hospital, and the mistreatment of children confined to the NH Youth Industrial School (later to become today’s Youth Development Center) made frequent headlines, both upsetting and delighting NH citizens depending on where they stood politically.

As then NH Attoreney General, Warren Rudman, did his duty by defending the State, and mostly wound up on the losing end of suits primarily brought before Judge Hugh Bownes in the US District Court, in Concord. Judge Bownes was a taskmaster in court, but his reading of the law for the most part mostly confirmed NHLA client positions across the board by prohibiting abuses related to treatment of pre-trial detainees (the Rockingham County Sheriff was administering forced buzz cuts to hippies picked up along the highway for hitchhiking prior to trial), the arbitrary suspension of students from schools (for protesting the Vietnam war), the lack of standards in administering local welfare (mothers were being forced to work in the town dump to qualify) and more. NH Supreme Court case reports throughout the 1970s chronicle the battle to reform the arbitrary way in which unemployment compensation was awarded to NH’s unemployed by what many came to call in those days, the Department of Employment Insecurity.

The events of the day kept NHLA attorneys busy and politics had an inevitable effect upon the public defender state funding. Gov. Thomson threatened to veto its funding and strip the legislation from the books. He delivered on his threat. We had funding for several more weeks and were facing the prospect of closing down the defender program. So, Jim Duggan, who had previously accepted my offer as the new lead public defender attorney and was ready to begin work, returned to DC to see if he could get his old job back. We were in crisis management mode.

The legislature would soon adjourn for the summer. NHLA allies in the legislature advised it was too late to introduce new legislation to re-create the Public Defender. Attorney Bob Gross was our legislative point person. We came up with the strategy to insert a footnote into the State Budget reconstituting the Public Defender and giving it a full appropriation. It worked. Gov. Thompson was furious, but had no choice but to sign the entire state budget, with the huge footnote, which was, in effect, the legislation that he vetoed several weeks earlier. The budget was the last piece of business in the legislative session, signed on the last day in the last hour of the session prior to recess, and breathed revived life into the public defender.

Following that near death experience, the public defender was never seriously challenged again and expanded throughout NH in subsequent years. Under the leadership of NHLA, and Paul Semple, Bob Stein and Jim Duggan the Public Defender received acclaim by the National Legal Aid And Defender Association in Washington, DC and other evaluators. With funding secure, I invited Jim Duggan to return to NH for the job that was waiting for him. I remained with NHLA until the summer of 1976 when I resigned and joined the Carter-Mondale campaign and later the Justice Department as a Special Assistant US Attorney.

NH Public Defender is a Jewel in the State’s Justice System

Despite the heated political environment in the 1970s, NHLA cleared the path for important reforms in NH that many take for granted today: The creation of Consumer Advocate before NH Public Utilities Commission to fight for lower electrical rates and expand citizen access; drafting and adoption of NH tenants’ Warranty of Habitability and the Mobile Home Tenants Bill of Rights; drafting and then working with the NH Municipal Association to create uniform NH foodstamp and local welfare standards; wholesale reform at the NH mental health hospital, the Youth Development Center and the NH State Prison; creation of a new appellate tribunal to oversee the administration of unemployment compensation; drafting and working for passage of the NH Housing Agency; with the blessing of Chief Justice Kenison, the creation of the Supreme Court rule that allows law students to go into court under the supervision of an attorney, and many other reform initiatives improving the lives of thousands in NH. And Today, Senator Rudman is an advocate of legal services for the poor, related I can only believe to his positive experience with NHLA when he was Attorney General. More than once while in the US Senate, he rescued funding for the Legal Services Corporation.

I will always be proud of the creation of the NH Public Defender Service, its remarkable growth and acceptance, and its enduring contribution to NH’s justice system thanks to the dedication and vision of our legislative leaders in the 1970s, talented legal pioneers such as Paul Semple, Bob Stein and Jim Duggan, and the staff and board of NHLA.

Over the years, NHLA and the Public Defender attracted extraordinary talent who I had the privilege of hiring and working with. Some of those attorneys have gone on to prominence. James Duggan is a NH Supreme Court Justice, Philip Mangones is a NH Superior Court Judge, Richard Cotton is the General Counsel of NBC, Rick Ross became a judge in NYC, Richard Cohen is the Director of the NH Disabilities Rights Center, Bob Bosse became a NH State Senator. Ellen Musinski and the late Bruce Friedman became Law professors at Franklin Pierce Law School. Starting as a VISTA attorney in the Berlin Office and rising to national recognition, John Tobin’s remarkable 30 year plus association and leadership of NHLA continues to this day. Others achieved success and remain in private practice and are leaders in the NH Bar today.

And the rest is history.

Editor’s note: These events occurred over 35 years ago and so please forgive me if my memory is a little imprecise. I have tried to give the flavor of the times and demonstrate how the fate of the Public Defender rode up and down with the fortunes of NHLA. In the end both legal services programs for the poor have acquired a remarkable record under strong leadership. My compliments to Christopher Keating as part of the new leadership of the NH Public Defender and to John Tobin, the long time Director of NHLA, who has faithfully served the poor and our nation since he started as a VISTA attorney in NHLA’s Berlin office in the early 1970s.
-George Bruno, Manchester, NH, July 28, 2008



George Bruno


George Bruno was the first Executive Director of NHLA and initiated the NH Public Defender as part of NHLA.


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