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Bar News - June 18, 2014

Court News: Judicial Council Adopts Indigent Defense Plan


To streamline and formalize the process for awarding contracts and assigning cases to private attorneys handling criminal and delinquency defense, the New Hampshire Judicial Council recently adopted a new plan and recertification process.

Citing the American Bar Association’s Ten Principles of a Public Defense Delivery System, the Judicial Council in April established the new plan as a replacement for the informal system that has for years been used to award contracts and assign defense counsel when the New Hampshire Public Defender Program has a conflict with a case. The ABA principles state that “The appointment process should never be ad hoc, but should be according to a coordinated plan…”

The Judicial Council plan requires contract attorneys to apply for contract renewal at the end of each contract year. Currently, attorneys simply ask the Judicial Council for a new contract with the same terms, usually in a letter.

Chris Keating, executive director of the Judicial Council, said he hopes to have the application for recertification available on the council’s website by the end of this month, to be used for the fiscal year starting July 1, 2015.

The new plan for private bar participation in indigent defense delivery also outlines a new system for assigning cases to private counsel in the event of multiple conflicts or sufficiently high caseloads. There will be three panels for court-appointed counsel: misdemeanors, delinquencies and felonies; major crimes and homicides; and NH Supreme Court appeals.

Private attorneys will soon be able to apply for one or more panels using an application on the council’s website, Keating said.

“We’re just trying to provide greater clarity as to how you, as an attorney, take the steps necessary to become eligible to receive appointment in indigent criminal cases on an assigned-counsel basis,” he said.

Both contract work and assigned cases require significant experience in criminal law, said Keating; “someone who has criminal trial experience, someone who has been lead counsel in several jury trials.” Unfortunately, he added, the state does not currently have the supervision structure in place or the resources to make assigned criminal cases into training opportunities for new or inexperienced attorneys.

The New Hampshire Public Defender (NHPD) program represents indigent defendants in about 85 percent of serious criminal cases in New Hampshire each year, up from about 65 percent 10 years ago, according to Keating, who was head of the NHPD until 2012.

“They’ve reduced the number of conflicts over time because, I think, better measures have been put in place to ensure that their conflict-avoidance practices are reliable,” he said.

Currently, 35 private attorneys have contracts with the state to represent indigent defendants in criminal and delinquency cases. Keating said there would be no limit to the number of attorneys who could be deemed eligible to join the panels for assigned cases.

The Indigent Defense Subcommittee of the NH Judicial Council makes decisions related to awarding indigent defense contracts and adding private attorneys to the panels for assigned cases.

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