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Bar News - October 15, 2014

Major Changes to NH’s Criminal Justice System Loom


Plan to File Felonies in Superior Court First Raises Concerns at Statewide Conference

Probable Cause Statistics for 2013
Total PC hearings scheduled 3,868
PC waived 3,212 (83%)
PC found 567 (15%)
PC not found 89 (2%)
Of the 89 cases in which probable cause was not found, 33 were later bound over to Superior Court based on other charges, 20 were subsequently in dicted and 36, or .4 percent of the total, resulted in charges being dismissed.

“Like a train coming down the tracks,” dramatic change in New Hampshire’s criminal justice system will arrive soon, if legislation to be proposed this fall becomes law.

A proposal by the court to file felony charges first in New Hampshire Superior Court, rather than the New Hampshire Circuit Court, thus eliminating probable cause hearings, was the subject of a statewide conference of select criminal justice stakeholders in Concord on Sept. 19.

New Hampshire Supreme Court Chief Justice Linda Dalianis, speaking at the conference, urged attendees to embrace a departure from the way New Hampshire has handled its most serious criminal charges for more than 120 years.

“You know, change is a funny thing,” she said. “It has a habit of coming into our lives whether we’re ready or not, or whether we want it or not. It’s like a train coming down the tracks. You can jump on, or you can remain at the station and let it pass you by. If you jump on – benefits and efficiencies ensue. If you stay at the station – you remain in the status quo and miss out on the improvements that a new approach can yield.”

But not everyone is eager to take the ride.

Randy Hawkes, executive director of the New Hampshire Public Defender, is a member of the attorney working group that has been discussing changes in felony case flow with state court officials for the past year. He said that while everyone agrees that the stated goal of the initiative – “better justice sooner” – is noble and worthwhile, many stakeholders from various parts of the system are apprehensive for a variety of reasons.

“Some attendees (at the conference) arrived concerned and, I think, left concerned that filing felonies first in the superior court might not be the best way to accomplish that goal,” Hawkes said. “Some are concerned that the filing of felonies in Superior Court may make the mistake of elevating efficiency over a process that they perceive to be working fairly as it currently exists.”

Invited attendees at the conference included judges, defense attorneys, prosecutors, court clerks, legislators, and law enforcement leaders. During a session on stakeholder concerns, Chris Keating, executive director of the New Hampshire Judicial Council and a member of the attorney working group, also questioned whether increased efficiency could result in unintended consequences.

“Maybe the clumsy inefficiencies that we have, that come from starting cases in Circuit Court and letting them percolate there before we move them to Superior Court, come from some kind of sense we have about due process and having lots of eyes on cases,” he said.

New Hampshire Superior Court Chief Justice Tina Nadeau has been working with a group of about a dozen defense attorneys, prosecutors, police and court officials for a year on a felony case flow plan designed to decrease times to disposition in felony cases, as a way to more efficiency use scarce state resources, without sacrificing justice. As part of the same effort, the court has already adopted changes to criminal discovery and motions deadlines, established the practice of dispositional conferences, instituted a new continuance policy and launched a judicial mediation program on a pilot basis.

The state’s average times to disposition for felony cases are significantly higher than the model standards promoted by the National Center for State Courts. There’s not much court activity during the roughly 90-day “bind-over” period, when a case is transferred from circuit to superior court. But that doesn’t mean nothing is happening with the case, says Merrimack County Attorney Scott Murray.

“That 90-day period is not dead time, and I want to repeat, it’s not dead time. Investigations are completed and victims are contacted” as required by state law, Murray said after the conference. “Simply the fact that the case is filed in superior court does not obviate the need for investigation and victim contact.”

Murray, who was a Concord city prosecutor for 28 years before being elected to his current post in 2010, said he and other prosecutors at both the local and county levels are concerned about the shift in caseload from the circuit to the superior court. He said he thinks Merrimack County would need at least two more prosecutors and an additional administrative staff person to handle the work. “The biggest concern that I have is that the process we have here really is not set up to deal with the rapid treatment of cases that we’ll have to do if we go to filing felonies first in superior court,” he said.

On the flip side, city prosecutors will see a reduced caseload, but those cases currently leave their jurisdiction after the probable cause phase.

Nadeau acknowledged Murray’s and other concerns during and after the conference. She said counties and local law enforcement will likely need more resources, at least during the transition period, and that more discussions will take place regarding those needs.

But Nadeau also argues that counties will save money on pre-trial incarceration if cases are resolved quicker, and victims who are owed restitution will be made whole sooner. In addition to saving the state and counties money, she says, greater case flow management by the courts is expected to lead to reduced recidivism and better outcomes for defendants, whose punishments would be delivered closer in time to their crimes, a major factor in the ability to affect long-term behavior change. Additionally, resolving routine cases faster would leave more court resources for complex cases that require more attention.

National research and the experience of other states that have implemented similar initiatives have demonstrated these benefits, but changing the felony case process would be a major shift for thousands of people who work and participate in New Hampshire’s criminal justice system.“

When we change something that has been in place for hundreds of years, it’s going to be painful for people who are used to relying on it,” Nadeau acknowledges, but she’s convinced the benefits will outweigh the difficulty of the transition.

When Nadeau first suggested eliminating probable cause hearings in felony cases – 83 percent of which are waived and less than 1 percent of which result in charges being dismissed – to the attorney working group, “the jaw-dropping around the room was almost audible,” she said.

Of the 3,868 probable cause hearings scheduled last year, 3,212 were waived and 36 resulted in charges being dropped. NH Superior Court Judge Jacalyn Colburn presented the court statistics at the conference. “The numbers tell you that you’re not really using (probable cause hearings) anyway, and for those that are, they’re not leading to the desired result,” Colburn said.

Some members of the attorney working group eventually agreed with Nadeau that not every case should be scheduled for a probable cause hearing, but they believe the system should provide some mechanism for challenging probable cause in extraordinary cases, to preserve due process. (The procedure for such a challenge has yet to be ironed out, but probable cause hearings are not required by law in the Superior Court because it has final jurisdiction over felonies.)

The idea behind the conference was to present a big-picture view of the state’s criminal justice system, outline the new case flow plan, and educate attendees about national best practices associated with decreasing recidivism and using resources more efficiently to achieve better outcomes.

David Bennett, a criminal justice consultant based in Park City, Utah, gave two presentations about the benefits and efficiencies associated with prompt case resolution and national trends in criminal justice. He praised state court officials for attempting to implement many of the national best practices all at once. “You’ve got a very unique opportunity here in New Hampshire,” he said. “Normally, these changes are county by county. To take the entire court system, in one leap, ahead... You’re here. You’re ready. It’s time to go.”

Strafford County has already instituted some of the changes Nadeau and others are championing, including “vertical prosecution,” which involves the county attorney’s office getting involved in felony cases almost immediately after charges are filed. That, along with earlier discovery deadlines, would be essential should felonies be filed first in superior court, Nadeau said.

After hiring Bennett in 2000, Strafford County changed its prosecution model about five years ago and implemented early case resolution (ECR). ECR involves an experienced prosecutor and an experienced defense attorney looking at cases together early in the process, to determine whether a quick plea deal could be reached.

George Maglaras, chair of the Strafford County Board of Commissioners, credited ECR with saving the county from having to build a new jail. “David opened our eyes to a different way of doing business, and we took the risk, and all I can tell you is that it paid off,” Maglaras said at the conference during a panel presentation with Strafford County Attorney Tom Velardi and David Betancourt, managing attorney at the Dover public defender office.

Nadeau said that although she is promoting ECR to the counties, it is up to officials in each jurisdiction whether they will pursue it, and it is not tied to filing felonies in superior court first. Murray said Merrimack County plans to implement ECR and that “ECR may accomplish a lot of what the felonies first proposal is directed at.”

Much of the afternoon at the daylong conference was devoted to breakout sessions where attendees were given the opportunity to ask questions and voice their concerns. Hawkes, executive director of the NHPD, said the most common concerns he heard were related to a loss of local control, the ability of police and prosecutors to meet earlier discovery deadlines, the inability to negotiate with police prosecutors at probable cause hearings, and potential impacts on local budgets.

Nadeau plans to take the concerns back to the attorney working group, particularly the challenge of police and prosecutors meeting tighter discovery deadlines: “I think we’ll have to have a lot more conversations with law enforcement about that.”

After the November election, court officials plan to meet with key legislators about a bill that would give the Superior Court first jurisdiction in felony cases, with the goal of securing sponsors and submitting the bill by the end of November.

But is filing felony cases first in superior court the only way for New Hampshire to achieve “better justice sooner”?

“I am certain that there are always several ways to solve any given problem,” Nadeau says, “and I’m open to having anyone put one in front of me that would be more successful than the ideas we have out there already.”

Meanwhile, Hawkes is keeping an open mind about the court’s plan: “I think that if it works the way the architects intend it to work, it will preserve due process and gain efficiencies, but that requires the cooperation of every single stakeholder.”

As Chief Justice Dalianis said at the end of her remarks at the conference, “Remember that train called change we often see coming down the tracks? Well, it’s here.”

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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