Bar News - December 16, 2015
Morning Mail: We Should Thank Public Defenders for Protecting Our Rights
Last month, the NH Executive Council rejected one of the governor’s nominees to the New Hampshire Superior Court. The vote was 3-2.
I am not going to use names in my letter because my comments are about an idea – not individuals.
The nominee is an experienced lawyer having practiced in New Hampshire for 20 years. She has been a trial lawyer and has tried dozens of cases, some minor and some serious but all important to her clients. She has handled dozens of appeals in the New Hampshire Supreme Court and argued numerous cases in front of 3JX Panels and the full Supreme Court. She has managed an office of more than 20 trial lawyers for years. She is universally seen as prepared, competent and effective in her representation of clients.
What’s the problem with her confirmation? She is a New Hampshire Public Defender.
That’s right, she committed herself to representing our disadvantaged – those who can’t afford counsel – individuals presumed to be innocent but accused of crimes ranging from nuisance to murder.
So, what’s the concern of the Executive Councilors who voted against her confirmation? After all, one said she “did very well at [her confirmation] hearing, has done a good job as public defender... and is very bright.” Another said he was “sympathetic to the necessity of public defenders” and he recognized that “they do not get to pick and choose their clients.”
The problem, as one member said, is that she used “technicalities” in advocating for her clients. “Technicalities,” of course, is another name for constitutional rights and for statutes passed by the Legislature and codified into law.
The NH Supreme Court in State v. Carrie Cigic (1994) recognized that a criminal defendant has the right to “zealous appellate advocacy.” What does that mean? It means that appellate counsel must thoroughly examine a trial record and, if the defendant chooses to go forward with an appeal, counsel must file a statement of reasons for an appeal with “a brief that argues the defendant’s case as well as possible.”
When the councilors objected to the nominee using “technicalities” in advocating for her clients, she was doing exactly what the NH Supreme Court required her to do. It’s a requirement of New Hampshire case law and the New Hampshire Rules of Professional Conduct. In advocating for her clients, appellate counsel must raise all arguable issues and pursue them as directed by that client. By the way, the Cigic case was argued in the NH Supreme Court by then Chief Appellate Defender James Duggan. What was his next job? He was appointed to the NH Supreme Court and served as a distinguished justice for 10 years. His nomination was unanimously confirmed by all five Republican executive councilors.
So, last month, the Executive Councilors were concerned about the nominee’s qualifications because she used “technicalities” in advocating for her clients and had been a Public Defender for her entire legal career. What these councilors don’t recognize is that the public defenders and the Appellate Defenders, more than any other law office in New Hampshire, are the ones who lead the charge to protect all of us, not just their clients.
If we are concerned about our privacy rights, if we are concerned about driving on the highways without being stopped because we are young or we are of color or we look different, if we are concerned about law enforcement treating us fairly and according to law, it is the Public Defenders, the Appellate Defenders and the criminal defense bar that stand up to the government and seek to protect our liberties and our individual rights. It’s called the Fourth, Fifth and Sixth Amendments to the Constitution of the United States, and it’s called Part 1, Articles 15 and 19 of the New Hampshire Constitution.
Public defenders are not creating technicalities. Defense lawyers are not making up the law. They are making legal arguments and raising constitutional principles, principles that are now more than 200 years old, to make them meaningful for today and for the future.
The Constitution isn’t meant to be celebrated once a year on Constitution Day and then left on a shelf. It is a document that is to be used every day for the benefit of all of us. We should thank this public defender for the two decades she has worked to protect her clients and her community. It is this work that makes her eminently qualified to be a justice on the Superior Court.
Alan J. Cronheim
President, NH Association of Criminal Defense Lawyers