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Bar News - February 18, 2015

Court News: Senate Committee Holds Hearing on ‘Felonies First’ Bill


Defense Group Critical of Plan

Senate Bill 124-FN, sponsored by Sens. Bette Lasky, Sharon Carson, David Pierce, and Sam Cataldo and State Reps. Paul Berch and Deborah Wheeler, would change the way felony charges have been filed in New Hampshire for more than a century.

Requested by the judicial branch, the bill would require felony charges to be filed first in Superior Court rather than Circuit Court. Under the proposed law, the Superior Court would “have exclusive jurisdiction over felony complaints and misdemeanors and violation level charges that are directly related to those felonies. The superior court shall also have jurisdiction over de novo appeals of class A misdemeanors pursuant to RSA 599:1.”

The bill would implement the “Felonies First” project in phases, starting Jan. 1, 2016, in Strafford and Cheshire counties. It would remain as a pilot program in those two counties for at least a year, followed by the other eight counties on dates set forth in Supreme Court orders. Among the most significant changes, it would eliminate automatic probable cause hearings prior to indictment.

The Senate Judiciary Committee held a hearing on the bill Tuesday, Feb. 10. NH Supreme Court Associate Justice Carol Ann Conboy testified on behalf of the Supreme Court. “We believe that this change will greatly improve the administration of justice… It will reduce costs across the system and increase efficiency,” she said.

Conboy and Superior Court Chief Justice Tina Nadeau told the committee that the legislation serves the interests of the accused and of victims.

“This change is not designed simply to speed up justice,” Nadeau said. “This change is ultimately to save money, to enhance victim satisfaction and to ensure that those who are convicted of crimes receive more immediate consequences for criminal behavior.”

Nadeau says the change would put the state more in line with national recommended standards for disposition times in felony cases. By speeding up the delivery of discovery to defense attorneys, fewer probable cause hearings would be needed, she said, and by getting cases in front of a judge with jurisdiction earlier in the case, the process will become more efficient.

“We don’t ride horses to court anymore,” Nadeau said, “so it’s time to take a look at what our process has been for 100 years, and see if it makes sense.”

Nadeau told legislators the change would result in significant cost-savings related to pretrial jail bed space.

The bill also would eliminate automatic probable cause hearings, which currently are a statutory right of defendants, not a constitutional right. Under the proposed bill, defendants could request probable cause hearings pre-indictment, if the defense asserts “that a material element of the charge is without factual basis or that the charge is legally insufficient to constitute a felony offense.” If the court agrees a hearing is warranted, it would be held within 30 days of the defense’s motion.

Two paragraphs were missing from the original version of the bill, Nadeau said. One requires a probable cause hearing in any case in which a warrant is filed under seal. The second states that defendants have the right to present testimony and cross-examine witnesses, and that the burden remains with the state to demonstrate probable cause.

The NH Association of Criminal Defense Lawyers expressed its board’s unanimous opposition to the bill, with attorneys Alan Cronheim (NHACDL board president), Gary Apfel and Mike Iacopino discussing various specific concerns.

The association opposed the bill “not because we fear change in the system, but because we think that the combination of impacts of this bill will not accomplish the purpose that it hopes to accomplish and sacrifices the individual rights that are critical to those that are accused,” Cronheim said.

Also expressing concerns about the concept was Grafton County Attorney Lara Saffo, who said the plan would be expensive for her county. The Superior Court in North Haverhill is not in a population center and is not served by public transportation. “We would have to double our county attorney budget,” she said, and the proposal “would require setting up new offices and so forth.”

NH Attorney General Joseph Foster and Randy Hawkes, executive director of the NH Public Defender, testified in favor of the bill, noting the concerns of some attorneys they oversee, which included staffing levels at county attorney offices, geographic concerns, and cases being sent to superior court that would otherwise be resolved in circuit court.

“Change is hard and change can be scary, but this change, I think, is worth trying,” Foster said. “Sure, there will be bumps along the way, but the goal is worth pursuing.”

NH Judicial Council Executive Director Chris Keating, Judge Andrew Schulman, Strafford County Attorney Tom Velardi and others also testified in support of the bill. Keating noted that some attorneys feel that changing the automatic nature of the probable cause hearing improperly interferes with the “balance of power” between the state and the defendant.

The text of the bill and an audio recording of the 2.5-hour hearing are available on the NH Legislature’s website.

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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