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Bar News - July 15, 2015


Morning Mail: Having Doubts About ‘Felonies First’

Today I had a probable cause hearing. Of the three charges, the judge found that two of them lacked even probable cause. I also learned a great deal about the merits of the third charge. If the Powers That Be (Powers) have their way, under the “Felony First” proposal, I will no longer have the opportunity to have a probable cause hearing. They tell me that times change, we no longer ride horses to court, and some of the old ways should be replaced with something shiny and new. The implication is that if I disagree with them, I am a dinosaur.

Forgive me for being skeptical. In my 30 years of practice, the Powers have come up with quite a number of new ideas that did not turn out too well, despite assurances that they have been the best thing since sliced bread. Let’s look back at a few of those ideas that give me a basis for doubting.

Let’s go back many years. I was a young public defender. Suddenly the Powers banned all plea bargaining in Merrimack County Superior Court. A not-so-brilliant idea that met a fairly prompt, predictable end. All that did was make the practitioners and judges take the plea bargaining underground and deals were struck with a wink and a nod.

What else? Who remembers the district court jury trial project? The Powers decided that there were just too many misdemeanor appeals. How to solve that problem? Let’s have jury trials in the district court. Let’s build jury boxes. Let’s hire jury clerks. Let’s have hundreds more jury trials each year so that we can eliminate the few misdemeanor appeals. Predictably, this too fell by the wayside. But you can still see its legacy in the form of jury boxes in some circuit courts today.

More recently, there was the creation of family court. Here, the Powers had another great idea. In 2004 they decided to take some matters from superior court, some from district court, some from probate court, and join them in a whole new “family” court. After all, all these cases involve “families” in some way. And then let’s construct entirely new clerks offices, let’s buy new office equipment, and let’s hire new staff for this new court. You have to remember all the construction that took place. What a mess.

And what happened a few years later? Another great idea. In 2011, the Powers combined the district, probate and family courts to “consolidate operations and streamline the workforce.” Let’s “restructure” the courts. Let’s tear down what we just built, combine the clerks’ offices again, and then change the name from district court to circuit court. Think of the costs to change all the letterheads, court forms and even signs on the court buildings just so the name of the court could be changed.

And who remembers the little tantrum that the Powers had in 2008 when they felt that the legislature had not funded the judicial branch sufficiently? They suspended jury trials “to avoid layoffs in the judicial system.” Really? The only money that was saved was the pittance that jurors are paid each day ($10 per half day). Every other expense – salaries, court security, judges – remained. The Powers said it would save $73,000 per month – out of an annual budget at the time of almost $70 million. And I thought that the whole purpose of the courts was to have jury trials. Apparently not.

So, now the Powers wants to move all felonies from the circuit courts to the superior courts. Let’s move cases faster. Let’s eliminate probable cause hearings. This is the best thing since sliced bread. Well, I have doubts. Maybe I am a dinosaur for not blindly accepting another great new idea by the Powers, but I think history justifies this skepticism.

James H. Moir
Canterbury, NH

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