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Bar News - May 18, 2016


Court News: Tight Deadlines of Concern in Felonies First Pilot

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Tighter discovery deadlines and timelines in felony cases have caused some headaches in two counties where a new law has altered court procedures that had been in place in New Hampshire for nearly two centuries.

However, despite these obstacles, which court officials and the NH Judicial Council are watching closely as the Felonies First system rolls out, the procedural changes seem to be moving more routine cases to resolution quicker, promoting early and accurate charging decisions by prosecutors and helping counsel and the court identify the legal issues in more complicated cases earlier in the process, according to court administrators and a Cheshire County judge.

The so-called Felonies First legislation moved initial jurisdiction over felony cases and associated charges to the NH Superior Court and took effect Jan. 1 in Strafford and Cheshire counties. In cases in which the defendant is incarcerated, the new statute requires that police hand over discovery to defense counsel within 10 days of arraignment. New court rules require those cases go before a grand jury within 60 days of arraignment, or by the second time grand jury is convened following arraignment, whichever period is longer. The former rule allowed 90 days.

At a recent brown bag meeting in Strafford County, where attorneys were invited to meet with judges and court staff to discuss concerns related to Felonies First, Strafford County Attorney Tom Velardi said the system is working well overall, but there have been issues with meeting the new deadlines.

“None of the times that are in the rules are really workable, and we’ll find that out as we move further into this project,” said Velardi, who was a member of the statewide attorney working group that provided input on the development of the Felonies First legislation and associated court rules. Velardi said the 10-day window for producing discovery is “not a reality-based rule.”

Defense attorneys, including public defenders and private defense counsel, also raised concerns about the timelines and their ability to be prepared for hearings.

NH Superior Court Chief Justice Tina Nadeau, who championed the Felonies First bill, said she and other top court administrators have been in frequent contact with clerks and judges in the pilot courts to monitor the progress of the changes. She said she understands that adapting to the new requirements is challenging for both attorneys and police. Fostering increased collaboration and communication between prosecutors and police was part of what the new system was meant to do, she said, and the rules allow the state to request extensions for both discovery and indictment. As of mid-April, there had been no requests for discovery extensions, “so that’s a process we’re going to take a look at.”

Nadeau said court administrators do not intend to revisit the deadlines yet, because the system has only been in place for three months. Of the 307 cases filed under Felonies First as of April 15, defense counsel in seven cases requested probable cause hearings. Three of those requests resulted in plea hearings, and four were withdrawn when discovery was provided. “In my view, that means it’s working,” Nadeau said.

NH Superior Court Judge John Kissinger, who regularly sits in Cheshire County, said that from his perspective, the new system is an improvement over the old one. He gets involved in cases sooner and has more discussions with the parties about possible dispositions.

A joint NH House committee briefing on the progress of Felonies First was held May 3 at the Legislative Office Building in Concord, before the House Judiciary and Criminal Justice and Public Safety committees. Nadeau, Velardi, and David Rothstein, deputy director of the NH Public Defender, testified during the briefing. A report on Felonies First by the NH Judicial Council is expected in September.

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