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Bar News - July 19, 2013

Court Exploring Big Changes to Felony Case Flow


Continuance Policy Raises Some Concern

Does it make sense to file felony charges directly in superior court, skipping the circuit court process that is largely repeated post-indictment? Would a stricter continuance policy and uniform dispositional conferences help felony cases move along more swiftly, without compromising justice?

These and other major questions about felony case flow management in New Hampshire are being examined by a subcommittee made up of judges and court administrators, led by Superior Court Chief Justice Tina Nadeau. The initiative aims to shorten the average time from arrest to disposition for felonies across the state. Nadeau said she will be seeking input from attorneys while the subcommittee designs an overall felony case flow management plan over the next year.

A draft policy that would make continuances in superior court criminal cases much harder to obtain has been stirring concern among criminal law practitioners – both prosecutors and defense attorneys. Drafts of the policy have circulated in several jurisdictions and, in at least one case, the policy has been applied as if already adopted. The continuance policy is set for discussion at a series of lunch-hour meetings with judges, attorneys and clerks at superior courts, starting with Rockingham County and Hillsborough North on July 31 and Aug. 7, respectively.

NHBA President Jaye Rancourt said she wants to make sure the policy and other potential changes to the felony case flow are fully aired. “We are hopeful that the Court will continue to seek input from the members of the Bar and take their comments and concerns into consideration.”

The NHBA Committee on Cooperation with the Courts has discussed issues related to the continuance policy and felony case flow and may serve as a vehicle to channel input from the broader bar membership. Once the subcommittee completes its report, implementing the recommended changes may require court rules and policy changes, and potentially legislative changes, Nadeau said.

Duration of Cases

The average number of days for a felony case to move from indictment to completion in New Hampshire exceeds the national standard set by the American Bar Association in most of the state’s 10 counties, according to Nadeau.

The statewide average is 251 days, with Cheshire County at the high end with 299 days and Sullivan County the lowest at 121 days. The court’s speedy trial policy requires a show-cause hearing after four months (about 120 days) of pre-trial confinement or nine months (about 270 days) after indictment for a defendant who is not incarcerated.

The ABA national standard for felony cases is 180 days from arrest to completion, according to Nadeau. The New Hampshire county statistics represent the number of days between indictment and completion. In some New Hampshire cases, Nadeau said, up to four months goes by between arrest and grand jury indictment in superior court.

“You really should take the 251 days and add four months, if you want to compare it to the ABA standards,” she said.

This discrepancy between the ABA standard and the state average, along with a related daylong training seminar back in February, drove Nadeau’s decision to form the subcommittee on felony case flow. Reducing the duration of felony cases would make the court process more efficient, Nadeau said, but streamlining should not happen at the expense of justice.

“We don’t want to compromise justice; that’s the bottom line,” she said. “What we want is the same or better justice delivered sooner… It’s overall just a better way of getting a case done.”

Continuance Policy

A draft uniform continuance policy began circulating among members of the bench and bar last month after, Nadeau says, she sent the draft to all of the judges for comment.

Grafton County Superior Court Judge Timothy Vaughn shared the draft policy with some of his lawyer colleagues, a move Nadeau called “totally reasonable,” but Vaughn also reportedly attached a copy of it to a court order.

“I think what happened was that Grafton County was enthusiastic, and they got a little ahead of the game,” Nadeau said. “There was no hidden agenda.”

The proposed policy prohibits continuances for reasons such as “counsel agree to a continuance,” “the case has not been previously continued,” and “a case is likely to plead if continued.” Under the proposed policy, continuances will be granted for sudden medical emergencies, hearing notices not received, newly discovered facts or circumstances, or family emergency of counsel.

“I think the policy itself is overly restrictive,” Manchester defense attorney Michael Iacopino said, “and I think it could potentially cause more problems for the court than it solves.”

From Iacopino’s point of view, the policy is also unnecessary. “The prosecutor and the defense lawyer are the people who know the case best,” he said, “and most of us are not out looking for a delay for the sake of delay, and most of us are not out to use the trial calendar for an advantage.”

The tone of the policy and the way it came to light “certainly didn’t engender any confidence from the bar, because all of a sudden it’s out there and people are thinking this is the new policy, when I know that was not Justice Nadeau’s intent,” he continued.

The draft policy also states that, “Counsel must be prepared at the dispositional conference to discuss his/her own calendar as well as potential scheduling conflicts for all material witnesses.”

Grafton County Attorney Lara Saffo said she worried that meant the victim and witness department in her office would need to send out hundreds of letters to civilian witnesses in all cases, even those unlikely to proceed to trial, to find out about potential scheduling conflicts. She said the Grafton County Superior Court clerk told her that wasn’t necessary, because the policy had not yet been adopted.

Aside from that issue, Saffo said she thinks the policy is largely already observed by attorneys. “Certainly, I think the spirit of it – that we need to have a reason to have a continuance – makes perfect sense,” she said.

Nadeau said the policy is designed to keep all lawyers and judges, as well as pro se litigants, conscious of limited court resources and the need for timely resolutions to cases. Additionally, resolving cases sooner means fewer days of pretrial confinement, which saves county taxpayer dollars.

“I think we have a responsibility to the counties to make sure that we’re wisely managing our discretion, and it’s our job to manage the court docket,” Nadeau said.

Felony Jurisdiction

With regard to the concept of filing felonies in superior court instead of circuit court, Nadeau said she recognizes there are significant logistical considerations, especially in the more rural counties, where local police would have to travel to county courthouses for contested probable cause hearings.

“Filing felonies in superior court is going to take a while,” Nadeau said, “and we’re probably going to create another group [to study the issue] that includes lawyers.”

Chris Keating, executive director of the New Hampshire Judicial Council, said an intern in his office is researching how felony jurisdiction and case flow are handled in other states. He said the research would be complete by Aug. 1 and the findings would be presented to the Judicial Council in September.

Other Areas of Study

The court’s subcommittee on felony case flow management is working to identify other areas of the felony case process where there is lag time or unused time, according to Chief Justice Nadeau.

Hillsborough County South Superior Court in Nashua is piloting a Settlement Judge program that seeks to identify cases that might settle with an early plea deal. In the completely voluntary program, Judge Kathleen McGuire meets with the parties and potentially the victim in an informal setting in which the issues in the case and possible impediments to settlement are discussed. If an agreement is reached,

McGuire can take the plea and finalize the case the same day, Nadeau said. McGuire has already handled two cases through the settlement judge pilot program, which is modeled on a similar program in Maricopa County in Arizona. (Bar News will cover this program in more detail in a future issue.)

Other counties are piloting early resolution and dispositional conferences designed to get law enforcement and attorneys working on and settling cases faster.

Additionally, the subcommittee on felony case flow management plans to explore potential changes to Criminal Rule 98 that would alter deadlines for disclosure of police reports. “We haven’t even really delved into that one yet,” Nadeau said, “but we need to look at whether the discovery deadlines make sense.”

The subcommittee’s work is timed so that the implementation of its felony case flow management plan, or certain aspects of it, can be integrated with New Hampshire’s move toward a paperless court system.

Nadeau said she plans to seek lawyer involvement in all aspects of the plan and that despite the potential adoption of standardized rules and policies, the court will always consider cases individually.

“I just want to assure the lawyers; the judges always maintain discretion and they are going to do what’s fair and just in every case,” she said. “If we can be more consistent in our practices, and if we make some of these adjustments, my hope is that it will help the attorneys, too.”

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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