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Bar News - October 21, 2015


Court News: Bracing for Change: Felonies First Pilot Project Begins Jan. 1

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10% of Felonies Are Currently Resolved as Misdemeanors in NH Circuit Court

In Strafford County in 2014, 147 cases out of 865 were resolved as misdemeanors. In Cheshire County, about 75 felony cases per year are resolved as misdemeanors.

Under the current system, these cases never reach Superior Court. They will all be heard in Superior Court under Felonies First.

Statewide average, Case statistics provided by NH Judicial Branch

In less than three months, superior courts, law enforcement agencies, county attorneys and criminal defense lawyers in Cheshire and Strafford counties will begin transitioning to a new way of processing felony cases.

After more than 150 years, the Felonies First legislation, passed earlier this year, changes the first filing of felony charges from the district to the superior court, along with any associated misdemeanors and violations, and eliminates automatic probable cause hearings. The new procedures include tighter, statutory discovery deadlines and the promise of a more efficient criminal justice system.

“This is not all about speed,” NH Superior Court Chief Justice Tina Nadeau said at a recent meeting with Strafford County criminal lawyers. “It’s about finding places where we can eliminate unnecessary delay.”

Nadeau and Superior Court Administrator Karen Gorham gave lunchtime presentations last month in the two pilot counties, at the courthouses in Keene and Dover, where they delved into the practical, day-to-day operations of Felonies First.

While transitioning to the new system, both counties will need to keep processing felony cases under the existing system until all cases with an offense date in 2015 or earlier are resolved – probably about six months, Nadeau said.

At a meeting in Strafford County, Gorham explained how the daily superior court schedule will look in Cheshire and Strafford counties after Jan. 1. Complaints must be filed by 11:30 a.m. the day after the arrest, if the defendant is incarcerated (weekends and holidays excepted). Arraignments will start around 1 p.m.

Within 10 days of arraignment, the state must provide all discovery in its possession to the defense, if the defendant is incarcerated; if not, within 20 days. Gorham said the Felonies First law made official the discovery timeline that already was typical in New Hampshire practice.

If discovery is not provided by the deadline, the court “shall” order a probable cause hearing. If a material element is not shown or the defense moves for a hearing, the court may order one.

“The goal is not to deny anybody any right to any review of their case,” said Nadeau. “… How about let’s try to advocate for our client right off the bat by requesting a hearing?”

Chris Keating, executive director of the NH Judicial Council, asked Nadeau at the Strafford County meeting what she expects the state’s response will be to motions by the defense requesting probable cause hearings. Nadeau said it depends on the case, but likely responses would be an objection or an amended complaint, but it’s not entirely clear how it will all play out. “I think litigation is going to have to answer some of these unanswered questions,” Nadeau said.

So, 2016 could be an exciting year in criminal practice.

“We know there are going to be people who are going to test this thing out and they’re going to file a request every time, and that means you’re a good litigator,” Nadeau said, “but we hope you’re going to find that to be a grand waste of your time.”

The defendant must be indicted within 60 days of the complaint being filed or within two grand jury sessions, whichever is longer, absent a motion seeking an extension. Defendants can waive indictment with agreement by the state.

Some practical effects of the new system, according to Gorham, will be:

  • Avoiding multiple hearings for one set of directly related charges
  • Avoid duplicative bail hearings
  • More meaningful hearings
  • Avoid subpoenaing witnesses to PC hearings unnecessarily
  • Faster resolutions for defendants
  • Reduced victim stress
  • Earlier discovery
  • Earlier resolution of “routine” cases

Despite the shared goals of the Felonies First initiative, many still have doubts.

“I think the desired result, although laudable, has a very low probability of coming to fruition,” defense attorney Mark Sisti said. “Every time the experiments have come, they’ve gone.”

Although change is difficult, Nadeau says, this experiment is worth trying, and she and others have spent countless hours working to make it happen.

Between now and the end of the year, judges, bail commissioners, clerks, prosecutors and public and private defense attorneys will receive training in the new system, said Gorham. “We feel very comfortable saying that everyone will be ready to go on January 1.”

The Felonies First law will take effect in Belknap County on July 1. The rollout for the rest of the counties will be determined by the Superior Court.

NHLAP: A confidential Independent Resource

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