Bar News Masthead

Editors note: An abridged version of this article ran in the January 2021 issue of Bar News.

Attorney, Kaylee Doty

Attorney Theodore Lothstein

By Theodore Lothstein, with contributions by Kaylee Doty, Esq.

It’s hard to write a “Year in Review” in any given year on a topic as sprawling and unwieldy as the criminal justice system. But 2020 in review? This was a year marked by challenges and tragedy unlike any in our lifetimes.

And to make things worse, it may be January of 2021 now, but for the criminal justice system, 2020 just marches on. The current COVID-19 surge presents greater challenges to the administration of justice than ever.

The Covid-19 Pandemic

Just as with all other spheres of our public and private lives, the pandemic is, of course, the biggest story of 2020 for the criminal justice system. Looking back at my schedule for the week of March 9, 2020, I had routine “in-person” (a qualifier unspoken and assumed at the time) status/dispositional conferences in district and superior courts, meetings with clients in my office and conference room, a plea hearing in the United States District Court, a pre-sentence investigation (PSI) interview of client by probation officer, and a visit to a client at the Hillsborough County “Valley Street” Jail.

But beginning on March 16, 2020, everything changed. Our office was closed and locked for several weeks. When we came back it was to a “virtual world.” Where phone calls and virtual events were a matter of convenience before, they had become a necessity. Bench trials and other important hearings were conducted on the telephone. The United States District Court and the New Hampshire Superior Court began conducting hearings on WebEx. Probation interviews moved to Zoom. There were no jury trials until August, and very few since.

We continued to conduct in-person visits of clients at correctional facilities. But as of the time of writing this, nobody is visiting a client at the Valley Street Jail. Fully half of the inmates, and 27 staff members, are simultaneously infected with COVID-19. A shocking and disgraceful result of what a superior court judge called the “cavalier attitude” and even the “deliberate indifference” of jail officials.

But, at least, as of the time of writing this piece, those 102 inmates and 27 staff members are still alive. There have been at least 2,059 deaths among inmates and guards in prison, jails and detention centers across the nation, along with more than 407,859 confirmed coronavirus infections. Some local jails and state prison systems have closed facilities and transferred inmates elsewhere, from California to Missouri to Pennsylvania, because so many corrections officers have fallen ill and are unable to work.

The fact that we had a criminal justice system at all for the last 10 months is a tribute to the heroic efforts of so many court employees, judges, clerks, court administrators, other participants in the criminal justice system. But that doesn’t obscure the reality that so much has been lost. The state and federal constitutional right of public access to court proceedings, a key part of the checks and balances of our democracy, has been eviscerated. Everyone is doing their best, but no judge or litigator would view a trial over the telephone to be a reasonable means of finding truth or resolving disputes.

Some of the problems are simply intractable. In court, how do you judge the credibility of a witness wearing a mask? If the hearing is on WebEx instead, nobody needs to wear a mask, but how do you judge the credibility of a witness that is not even looking at another human being in the eyes, just looking at a screen? There is plenty of evidence that people have less empathy towards others when sheltered behind the screen wall. Is a witness testifying on a screen more insulated from the ‘tug on the conscience’ or the liar’s nonverbal ‘tell’ of shame/fear of getting caught that can be observed during a face-to-face encounter?

In terms of day-to-day practice for a criminal litigator, the pandemic has taken all the fun out of it. The best negotiations often take place unplanned, unscheduled, in a chance courthouse hallway meeting. Gone. Catching up with colleagues/friends and receiving news and advice and feedback from them while waiting in a courthouse or at a CLE or bar committee meeting? Gone. Receiving a handshake or a hug from a family member after a negotiated plea saves a client from jail or prison? Gone.

Law Enforcement Reform and the Movement for Black Lives

Throughout the justice system, we continue to see change and reform geared towards holding law enforcement officers publicly accountable for misconduct and insisting that people of color are entitled to (but often do not receive) equal treatment under the law. Judicial opinions from judges in both state and federal court have decried racial profiling stops and racially disparate criminal sentencing in plain language that discards the detachment and formality we associate with a traditional judicial decision. Training for judges, lawyers, and law enforcement officers on the unconscious but insidious impact of “implicit bias” abound. A Virginia judge even removed the many portraits of (exclusively) white men from his courtroom.

In the immediate wake of the nation-wide Black Lives Matter protests, the Governor’s Commission on Law Enforcement Accountability, Community, and Transparency met 26 times over 10 weeks, and ultimately released a report with shocking revelations, including: the 16-week police academy includes “[v]ery little time … devoted to defining and recognizing bias, including implicit

bias, or overcoming and controlling the bias,” and “no training on the duty to intervene when another officer engages in the use of inappropriate force or other misconduct.” It reported that the Police Standards and Training Council had “no role in developing or approving local policies and procedures,” and there were no statewide model standards. During the Commission’s long summer of hearings, the legislature enacted HB 1645, which bans police chokeholds, and mandates for the first time that police officers who observe misconduct by other police officers must report the misconduct to the chief of their department, who must then initiate an investigation and notify the Police Standards and Training Council. It also bans retaliation against officers who report misconduct.

Just weeks ago, in a landmark decision, the 1st Circuit held that civilians have a First Amendment right to secretly film and make audiovisual recordings of police officers interacting with civilians and discharging their official duties in public spaces. Project Veritas Action Fund v. Rollins (1st Cir. 12/15/20). The Court held that the right to record could be limited in certain situations, but struck down a Massachusetts statute that was not narrowly tailored to promote an important government interest.

Previous decisions had protected only the right of open, unconcealed recording of police officers doing their jobs. The court noted that Massachusetts law criminalized the recording of others without their consent in all instances, “unlike other…  states.” But NH’s statute, RSA 570-A:2, similarly has no exception and is now presumptively unconstitutional. In an era of ubiquitous smartphone ownership, and heightened awareness about discriminatory practices and misuse of force, this decision may do more to deter and punish police misconduct – and save lives – than any other conceivable reform.

In State v. Jones, decided last January, the New Hampshire Supreme Court signaled that indeed, The Times They Are a ‘Changin’. Two Concord police officers, dispatched for a “suspicious vehicle,” approached an African-American male sitting in a parked car to find out “what the occupants business was or what the reason was for why the vehicle was there.” The passenger said she lived there, and the driver was visiting her. What are the odds that these responses would have immediately ended the encounter if both vehicle occupants were white? Instead, the officers asked for the man’s identification and held onto it. He was eventually charged with a crime based on evidence found by the police during the seizure.

In a motion to suppress, the accused man claimed he had been seized unlawfully and that his race should be considered when assessing the totality of the circumstances. But in a nation where Black parents teach their children from an early age to be polite and deferential to law enforcement officers as a basic matter of life and death, the lower court held such conduct against the defendant. The lower court decided that his “cordial and cooperative” demeanor showed he had not been seized, while simultaneously refusing to consider his race in the analysis.

In no less than three different published decisions, the NHSC has held that a driver’s obvious nervousness is not a relevant factor in determining reasonable, articulable suspicion of criminal activity. How could the Court let stand a lower court decision that pronounced that race is irrelevant, while holding a Black driver’s “cordial and cooperative” demeanor against him? The answer is that the Jones Court didn’t. The Court reversed, holding that the accused had indeed been the subject of a seizure, that the trial court should not have considered his demeanor in the analysis, and that courts may consider the accused’s race in assessing the totality of the circumstances.

Unfortunately, courts continue to uphold laws that are facially neutral but lend themselves to being applied in a discriminatory manner. In Kansas v. Glover, the United States Supreme Court held that an officer does not violate the 4th Amendment when pulling over a vehicle based solely on receiving information from dispatch that the registered owner of the vehicle is under suspension, without any further confirmation that the driver is the registered owner. Similar decisions in our State from past years hold that an officer does not violate the State Constitution by running random record checks on the license plates of passing vehicles. Who among us believes that all law enforcement officers apply these rules in a non-discriminatory manner, especially given the risk of implicit or unconscious bias and the lack of training on such issues? Republican Senator Tim Scott, Neil Degrasse Tyson, Will Smith, Eric Holder, and so many others, have given heartfelt testimonials about being pulled over for driving while black (Senator Scott said he was pulled over seven times in one year).

Massachusetts Criminal Justice Scandals

While we’re on the subject of official misconduct—fallout continued to grow in 2020 from two major scandals in the justice system in the Commonwealth. This included the Annie Dookan forensic laboratory scandal, and the Registry of Motor Vehicles (RMV) scandal. The former has resulted in conviction and imprisonment of forensic laboratory technicians (one falsified test reports, the other diverted narcotics for her own use). Still to be decided is the potential discipline, even disbarment, of at least three prosecutors who covered up laboratory misconduct. In other jurisdictions including New Hampshire, federal defenders and lawyers in private practice have scrambled to figure out whether potentially tainted drug convictions from Massachusetts were used to enhance their own clients’ criminal sentences.

The RMV scandal, of course, relates to the commercial license holder who was arrested in Connecticut for DWI, and later was involved in a collision that killed seven people. RMV officials had failed to suspend the driver for reciprocity based on the Connecticut offense, and investigation revealed a backlog of some tens of thousands of notifications from other States that should have triggered a license suspension. In our firm, we have seen a client suddenly (and devastatingly) informed that his Massachusetts license would be suspended for reciprocity, years after he fully served a sentence imposed by a New Hampshire court. From our colleagues, we have heard many similar stories.

Reform of Cannabis and other Drug Prohibition Laws

In the wake of November’s election, which had important marijuana legalization laws on the ballot in several (more) States, one in three Americans—about 109 million people—now live in a State where recreational marijuana use is completely legal. Arizona, Montana, New Jersey and South Dakota legalized recreational marijuana. It’s hard to miss that this is a non-partisan trend—two of those States are deep red, and one of them, Arizona, just turned purple about two months ago. And if there are any doubts about that—Mississippi, the deepest of red—legalized medical marijuana this year.

Here in New Hampshire, we are the only New England State that has not legalized marijuana, but the trend is unmistakable, both in legislative initiatives and in court decisions. Last May, in State v. Perez, the New Hampshire Supreme Court grappled with the significance of an officer smelling an odor of marijuana during a vehicle stop, given that we have legalized medical cannabis and decriminalized possession of three-quarters of an ounce or less of marijuana. In the past, when possession of marijuana was a criminal offense, that (unmistakable) odor alone would provide reasonable suspicion to detain the vehicle occupants, remove them from the vehicle, try to obtain consent to search, and possibly seize the vehicle to obtain a search warrant. But considering these legislative reforms, the Court in Perez adopted a more nuanced approach, recognizing the odor of marijuana only as “a relevant factor” in the totality-of-the-circumstances analysis.

As for the more hard-core and harmful drugs, the Good Samaritan statute continues to provide a limited safe haven to rescue those who have overdosed. The Good Samaritan statute, RSA 318-B:28-b, grants immunity from prosecution for certain drug offenses when there is a good-faith request for medical assistance. In State v. Eldridge, the New Hampshire Supreme Court opted to follow New Jersey’s example by providing juries with a lesser-included offense instruction for certain drug offenses without instructing them that a lesser-included offense would not result in a conviction due to the Good Samaritan statute. And our legislature, in HB 1645, extended similar protections to individuals under 21 seeking emergency medical assistance for themselves or other individuals under 21 due to risks of overdose from the consumption of alcohol.

The Me Too Movement

In 2020, the legislature responded to the movement’s continuing drive to reform sexual assault laws to better recognize the realities of how sexual assault perpetrators think and how to best protect victims of sexual assault. HB 2140 enacted multiple changes, including a long-overdue update of the required mental state. For literally decades, we have been taught that rape is a crime of violence, not a crime of sexual desire, but until 2020, “sexual contact” for certain offenses had been defined as contact “which can be reasonably construed as being for the purpose of sexual arousal gratification.” Now, the mental state includes an alternative purpose— “the humiliation of the person being touched.” And the legislature finally criminalized even “consensual” sexual contact between school employees and students, after a series of high-profile teacher-student cases in the New Hampshire news.

Changing Definition of ‘Conservatism’ in Judicial Decisions

In the 1970s—the era of Chief Justice Warren Burger—being a ‘conservative’ judge basically meant being tough-on-crime, construing the Bill of Rights as narrowly as possible, business-friendly, and hostile to workers’ rights. But today’s definition of a conservative judicial philosophy, while still heavily leaning towards all of these concepts, has gravitated towards an interpretative model that reads laws and constitutional provisions literally, with little regard to context or outcome. This can produce surprising results.

With Trump appointee Justice Gorsuch’s majority (5-4) opinion in McGirt v. Oklahoma (07/09/20), the defendant, a member of the Creek Indian Nation, was convicted and sentenced for felony sex offenses committed in eastern Oklahoma in an Oklahoma state court. The Court held that land in northeastern Oklahoma (over 3 million acres, including most of the city of Tulsa), had been recognized by Congress in 1866 as the home of the Creek Nation, and was therefore “Indian Country” under federal law. This meant exclusive federal jurisdiction over certain serious crimes if committed by a Native American within that territory.

When the claims of four other prominent Tribes are added to that of the Creek Nation, the McGirt decision raises the prospect that fully half of Oklahoma would be subject to exclusive federal jurisdiction. Indeed, a conservative Senator reacted in a Twitter post that “Neil Gorsuch… just gave away half of Oklahoma, literally. Manhattan is next.” But in his opinion, Justice Gorsuch repeatedly explained that courts don’t interpret laws in order to reach a desired outcome, and Oklahoma’s longstanding tradition of disregarding treaty obligations over many decades did not turn might into right. In doing so, he wrote eloquently in phrases that could just as well have been part of a speech by a civil rights leader:

Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.

Cases with similar blurred lines between “conservative” and “liberal” include Ramos v. Lousiana (04/20/20), where Justices Gorsuch and Kavanaugh joined three so-called liberal justices to strike down Louisiana’s law allowing non-unanimous (10-2) guilty verdicts on serious criminal charges. And in Bovat v. Vermont (10/19/20), Justice Gorsuch, joined by Sotomayor and Kagan, criticized a ruling of the Vermont Supreme Court upholding a “knock and announce” search of a home, and calling it “error” even though the Court declined to grant review. Game wardens had wandered around the homeowner’s detached garage and lingered on the property for 15 minutes, looking for (and finding) evidence of unlawful deer hunting, without first seeking a search warrant or the homeowner’s consent. Justice Gorsuch wrote: “Under [another precedent that blurs conservative/liberal lines, Florida v. Jardines], there exist no ‘semiprivate areas’ within the curtilage where governmental agents may roam from edge to edge.” This emphatic statement may surprise readers of state court decisions from past decades that appear to provide little protection for property owners when it comes to law enforcement officers entering the curtilage but not going inside buildings.

I’d like to end on an inspiring quote that reminds us that criminal litigation may be a competitive enterprise among defense lawyers and prosecutors, but it is not a game. In United States v. Rosario-Perez, 957 F.3d 277, 294 (1st Cir. 2020), the Court found error in a lower court’s rulings that admitted prosecution evidence that a defendant committed a murder in the course of a drug conspiracy, but excluded defense evidence that someone else committed the murder based on a narrow reading of a hearsay rule. Chief Justice Howard wrote:

In a nutshell, it is not appropriate that prejudicial and highly inflammatory evidence— here, that Setiawan killed Teton in the course of the conspiracy—could be admitted without giving Setiawan an opportunity to show by reasonable evidence that he did not commit the murder. The rules of evidence are instituted not for the splendor of their being but rather to make courts administer fair and just trials. We all look forward to trials that are fair and just—where prosecutor and defense lawyer shake hands at trial’s beginning and end, and stand together at bench conferences, far less than six feet apart—conducted in person, in the courtroom!