Bar News - July 19, 2013
Court's Corner: Project Aims to Provide Counsel at Arraignment
By: Kristen Senz
Bail Commissioners to Notify Defendants of Right to Counsel
Bail commissioners across the state will start notifying criminal defendants this month of their right to have court-appointed counsel represent them at arraignment.
New Hampshire courts have long notified indigent criminal defendants of their right to appointed counsel during their arraignment hearings, but the Supreme Court ruled in a recent 3JX order that these defendants have a right to have actual representation at arraignment, too. In State v. Ngyn, the court ruled that indigent defendants accused of a Class A misdemeanor or felony charge have a longstanding right to be represented by court-appointed counsel during the arraignment hearing.
Fulfilling that right means making it easier for indigent defendants to access and file financial affidavits between arrest and arraignment, so that attorneys can be appointed to their cases before they see a judge.
The goal is to put low-income defendants “in the same position as people with means,” said Chris Keating, executive director of the NH Judicial Council, who is part of a subcommittee of the Supreme Court Rules Committee that is working to implement a series of procedural changes surrounding the issue.
Keating emphasized that the initiative does not seek to provide an attorney at every arraignment for a Class A misdemeanor and felony in the state. “This is not some sort of paternalistic endeavor to provide, automatically, a lawyer for arraignment,” he said. “New Hampshire would go broke trying to fund a lawyer at every single arraignment.”
A separate subcommittee of the Rules Committee has developed language for a new rule that will probably go before the full committee for consideration by the end of the year, said Abagail Albee, director of legal services at the New Hampshire Public Defender.
Albee, Keating and other subcommittee members have been working out the procedural changes and communicating them with the bail commissioners, who will have new forms and orders from the courts. Albee said the details of the initiative and how it will affect the circuit courts around the state are still being ironed out.
“Trying to figure out how to provide counsel in a way that is both meaningful for the defendant, but also workable for the public defender, and doesn’t completely mess up the docketing system for the circuit court, is a bit of a challenge,” she said.
Bail commissioners will be instructed to notify defendants of their right to counsel and inform them that before the court can appoint a lawyer, they must fill out a financial affidavit at the court. Albee said that eventually bail commissioners might hand out the forms directly.
“Hopefully, it will mean that there will be lawyers earlier and in more cases,” she said.