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Bar News - April 16, 2014


Court News: Pilot Project Seeks to Eliminate Felony Case Delay

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Superior Court Chief Justice Tina Nadeau talks about the felony case flow plan at a recent meeting of the Belknap County Bar Association.
A pilot project in Strafford and Cheshire counties that will start June 2 and July 1, respectively, marks the first step in a move to file felony charges directly in Superior Court, according to NH Superior Court Chief Justice Tina Nadeau.

Cases bound over from Circuit Court will be scheduled for an immediate hearing, or initial appearance, before a superior court judge who has jurisdiction to hear the case. Presently, a felony case languishes for three months or more once it’s bound over, idling until a prosecutor can present it to a grand jury.

“Nobody’s working on it, nobody’s looking at it, nobody’s analyzing it,” Nadeau said.

Court statistics show that in about 40 percent of felony cases, all discovery is complete prior to arraignment in Circuit Court, according to Nadeau. These are the cases Nadeau believes ought to go directly to a superior court judge.

“Our hope is that the earlier the case gets to a judge who has jurisdiction to hear it, the sooner the lawyers will work on it and talk about it, and they can maybe get it resolved sooner,” she said. “It’s sort of the first step before we go to filing felonies directly in superior court.”

Cases that are too complex to have meaningful discussions about resolution at initial appearance will be able to opt out of the program.

To Strafford County Attorney Tom Velardi, the pilot project seems like a natural progression from the early case resolution (ECR) program the county instituted about five years ago. ECR involves an experienced prosecutor combing through case files with an experienced defense attorney to identify those that could potentially settle prior to indictment by grand jury.

“This just takes it the next step farther,” said Velardi, who also serves as president of the NH County Attorneys Association. “It gets a judge involved in that process much sooner.”

Used primarily in felony property crimes, the ECR process has received positive reviews, Velardi said. “This is a lot more convenient to the accused, and to victims, who are seeking a more timely resolution of cases, and it’s more convenient to the court, because you don’t have that big glut of arraignments 10 days after grand jury,” he said.

Under ECR and Strafford County’s prosecution model, a prosecutor provides an early, incentive plea offer to the defendant, which only remains on the table during the ECR phase of the case. “Part of the bargain is resolution of the case and restitution to victims,” he said.

Nadeau has said she would like to see other counties using this more “vertical” approach, where the county attorneys’ office becomes involved in felony cases immediately after arrest.

Draft rules for the initial appearance pilot project are circulating for comment, and Nadeau was to host lunchtime meetings Thursday, April 10, in Strafford County, and Thursday, May 15, in Cheshire County to further discuss the project with attorneys.

The draft rules dictate that at least 10 days before initial appearance, the state will have provided all discovery and a written plea offer. The defense must also let the state know whether it intends to raise an alibi or certain other defenses. At the initial appearance, the prosecutor and defense attorney must be ready to discuss early resolution. The defendant can waive indictment and enter a guilty plea at the initial appearance, if the parties reach an agreement.

“It eliminates posturing,” Nadeau said. “The state basically says, ‘this is what I think this case is reasonably worth.’”

The draft rules for the project leave open-ended the question of whether all defendants will be present at initial appearance, based on feedback Nadeau has received from attorneys.

The project is intended to keep cases that should not have been felonies from ever reaching superior court, and to identify early those defendants who are eligible for drug court or other alternative sentencing programs.

If a case doesn’t settle during initial appearance, under the pilot project rules, both sides must submit a list of possible dispositive motions to the other side seven days before the dispositional conference. “If the parties are aware of what each side is thinking about, it helps make the discussion toward resolution more meaningful,” Nadeau said. “Once people start digging in their heels, objectivity lessens and frustration heightens.”

The court selected Strafford and Cheshire counties to participate in the pilot project because the stakeholders there were interested in trying it, Nadeau said. She’s hopeful the pilot project will shave about 30 percent of felony cases off superior court dockets, but the court is taking a wait-and-see attitude during the pilot phase.

“We don’t want to just add another hearing and make everybody show up for another hearing if it’s not going to move the cases forward,” she said.

At least one legislative change would be necessary before felony cases could be filed directly in superior court. Nadeau said the Legislature would need to recognize the superior court as having first jurisdiction in the cases, and more research is ongoing as to whether other laws would need to change.

Assuming the necessary changes are approved during the next legislative session, Nadeau expects felony cases to begin being filed in Superior Court in the fall of 2015 as a pilot project, also in Strafford and Cheshire counties.

Given the court’s move toward a paperless system this year and a trend of decreasing state resources allocated to the courts, Velardi said, New Hampshire is well-positioned to begin experimenting with its criminal justice system in an effort to ferret out obvious inefficiencies while maintaining a high standard of justice.

“No one wants to go to a cattle call, one-size-fits-all system where we’re just running people through without really thinking,” he said.

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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