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Bar News - January 21, 2015

Becoming a NH Public Defender

“Today lawyers have to be conversant with technology, psychology, police methodology, and any emerging forensic sciences.”
– Randy Hawkes
Executive Director
NH Public Defender

The NH Public Defender recently offered jobs to about eight attorneys after completing a comprehensive screening process that includes asking applicants to give a mock opening statement in front of the hiring committee.

As usual, it was a talented pool of applicants. The NHPD has an outstanding national reputation as a place where young attorneys receive intensive training and mentorship as they hone their skills. “Becoming a public defender here presents what might be the greatest opportunity available in the legal field for accelerated professional development,” says NHPD Executive Director Randy Hawkes.

But these new hires, who will replace attorneys through regular attrition, need to have more than legal skills and a polished CV. These days, being a public defender involves many of the skills one might associate with a social worker. As state budgets tighten, state-conducted pre-sentence investigations have become less frequent, and public defenders have increasingly been asked by the court to prepare social histories of their clients. They also must regularly try to find mental health and substance abuse treatment for their indigent clients, a daunting task in New Hampshire, where providers and facilities are scarce.

Also increasingly scarce are state resources for expert witnesses, which means public defenders need to thoroughly understand the often highly technical issues that arise in their cases.

“We’re finding a litany of things that we’re being asked to do that we weren’t formerly asked to do,” says Hawkes. “Today lawyers have to be conversant with technology, psychology, police methodology, and any emerging forensic sciences.”

And like the job of a public defender, the cases they handle have become more complex, as technology continues to multiply the typical volume of discovery. When John Newman, NHPD deputy director, was helping to dispose of some old case files recently, the effect of time was obvious. “Some of the felonies from the 1990s were smaller than some of the misdemeanors you get today, with the number of pages,” he said.

In addition to becoming more complex, the volume of felonies NHPD handles has increased 64 percent over the past decade, from 4,221 in 2004 to 6,929 in 2014. The organization has seen an 11 percent increase in overall caseloads just since 2008, while staffing levels have remained the same, Hawkes said. The average public defender has about 70 open cases on a given day.

A diverse array of factors have contributed to the increase in case volume, including changes in state law, more federal funding for law enforcement, economic recession, population growth, and – perhaps most significantly – changes to the organization’s conflict of interest policy, resulting in NHPD handling a larger proportion of the state’s indigent defense work.

“It makes economic sense for the state to have the Public Defender handle the greatest percentage of the criminal docket as possible,” says Hawkes, who started at the NHPD in 1992 and was managing attorney at the Dover office before becoming executive director about two years ago.

In addition to more and thicker case files, public defenders are adjusting to ongoing change in the criminal justice system itself.

The Circuit Court last year amended its rules to allow the appointment of counsel before arraignment for those defendants who qualify. “NHPD doesn’t have sufficient personnel to staff every arraignment day in every court throughout the state,” says Hawkes, “but NHPD lawyers do appear at arraignments on behalf of all defendants who apply in advance for counsel.”

Proposed changes to New Hampshire statutes and court rules would institute felony prosecutions exclusively in Superior Courts, eliminating District Court involvement and most probable cause hearings. Presently, some defense attorneys agree to waive probable cause hearings in exchange for prompter discovery. The promise of the new initiative is that discovery will be turned over to the defense faster, but that will require changes elsewhere in a system in which defense attorneys are the responsive party.

“People have to be willing to abandon their historical modality and do something fresh to make something new work,” Hawkes says, noting some ambivalence to the proposal by the state’s defense bar. “If people are intransigent in their unwillingness to cooperate, then what are we supposed to do? We can only respond to an offer if we’ve had time to review discovery.”

In some respects, the attorneys applying for jobs at NHPD now are more prepared for these challenges than their predecessors. The difference in the NHPD applicants now, compared with a decade ago, is that “they are extremely focused on becoming public defenders,” says David Rothstein, deputy director of the NH Public Defender Program. “They’re more sophisticated and they have a great deal of understanding about what the job entails.”

Many of the applicants have participated in criminal law clinics; they’ve volunteered at public defender offices, have sparkling academic records, and some even have participated in jury trials.

Countering the notion that today’s new law school graduates are not “practice ready,” NHPD leadership has found that as the legal job market has shrunk since the recession of 2008, many law schools have enabled students to focus more narrowly on their chosen area of law sooner than they did in the past.

“As the legal market has gotten more difficult, I think it behooves people to try to figure out what they want to do early,” Newman says. “Employers want people who can come right in and hit the ground running, and we’re no different than any other employer.”

NHPD, which currently employs 125 lawyers – more than any other firm in the state, requires a commitment of three years from its new hires. In exchange, they receive top-notch training and a chance to get into the courtroom early and often.

“From the time new lawyers start at NHPD, they are exposed to different approaches to client relations, negotiation, litigation, and on-your-feet trial work,” explains Hawkes. “Learning from other attorneys and observing others’ styles can enhance one’s own proficiencies. I know it did for me.”

Hitting the ground running and flourishing during one’s first year at the NH Public Defender requires a certain kind of personality, which usually starts with a shared ideology and a sense of purpose or commitment. The attorneys in each of the nine NHPD trial offices usually have lunch together in the office, sharing stories and experiences in what amounts to an informal case conference. The organization’s leadership encourages these daily exchanges as a way to foster a collaborative and open work atmosphere.

“There’s a lot of venting,” says Rothstein, who formerly served as deputy chief appellate defender and has worked at the NHPD since 1989. “You have a long day in court and you come back and you just need to get it out. We try to hire people who will fit in well in that atmosphere and be good colleagues.”

NHPD’s new hires will also need to adapt to regularly seeing the struggles of their clients – something that is still difficult, even for seasoned veterans like Hawkes.

“It is difficult to watch the continuous parade into the juvenile and misdemeanor courts of scofflaws who – by accident of birth – may not have enjoyed the same advantages as the rest of us,” he says. “And to know that for some of these fellow human beings, there will be an inexorable march toward recidivism, more serious infractions, and eventual incarceration. No education, no employment, no family, no future. It is difficult to observe that on a regular basis.”

Despite all the challenges, says Hawkes, NHPD remains strong in its commitment to adapting to change and maintaining its high standards for both the attorneys it employs the services it delivers to its clients, in an increasingly specialized and complicated segment of the law.

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