Defense Attorneys Push Back Against Court Efficiency Effort
For more than a decade leaders in New Hampshire’s courts have been trying to modernize the state’s judicial system. In 2001 they began a major effort to digitized files. More recently, they’ve consolidated the lower courts.
On Thursday, the House begins hearings on an effort to speed up felony prosecutions.
Although the bill would create a trial phase in just two counties, debate over the proposed change is rippling through the state’s criminal justice community.
How It Works Now
Today, felony arrests begin in the lower Circuit court, with an arraignment and bail hearing. Later, police, defendants, attorneys and judges all show up for a probable cause hearing, although Superior Court Chief Justice Tina Nadeau calculates defense attorneys waive these 83 percent of the time. Then, to be prosecuted, the cases get sent over to the Superior Court “where we start all over again,” says Judge Nadeau. “There’s another arraignment, another bail hearing, and then a judge who has the authority to resolve the felony starts getting involved in the case.”
All told, resolving felonies in New Hampshire takes about 400 days. That’s more than twice the amount of time national experts say it should. In the meantime, counties pay $100 a day per person to hold defendants pre-trial.
What Would Change
Judge Nadeau came up with an idea for change after hearing about other states’ modernization efforts at a national conference. She crafted the bill after working with stakeholders over the last year.
“It’s about getting the defendants out of the system quicker, using taxpayer dollars wisely, and getting resolution for victims quicker,” she says.
The new law would initiate a trial phase in Strafford and Cheshire counties. There, felony charges would bypass the lower court altogether, starting out in Superior Court. Probable cause hearings would no longer be automatic: defendants would need a judge to agree to one.
Alan Cronheim is president of the New Hampshire Association of Criminal Defense Lawyers -- only group entirely opposed to the bill. He does not believe the new system would lead to speedier outcomes. And, he says, he doesn’t think it’s fair to defendants.
“Defendants are presumed to be innocent,” Cronheim says. “For that bill to now impose an actual burden to persuade a judge as to why this historic right ought to be exercised is a very significant change in the process.”
It’s not just the hearing itself Cronheim is worried about losing. It’s the negotiating that happens just beforehand, in lower court. He says today, defense attorneys and police prosecutors often agree to reduce charges or dismiss cases before they get to Superior court.
“So if you're representing a 19 year old who has two Ritalin pills, that could be charged as a felony. If that is a person has no prior criminal record, is in school, and has a job... there are good reasons why that charge ought to be compromised.”
Cronheim says without that opportunity to negotiate, the state will have to prosecute more felonies overall. For county prosecutors to negotiate the same things, he says, more parties would have to spend more time deliberating over greater distances.
Chris Keating with the New Hampshire Judicial Council also has defendants’ interests at stake: he’s in charge of hiring court-appointed lawyers. He believes the new system will likely be more efficient and better for defendants.
He says the new pleadings for probable cause hearings would give defense attorneys more of a voice than they get at an automatic probable cause hearing in Circuit Court. “I think people haven’t quite fully appreciated the scope of what’s possible with these opportunities,” he says.
As for whether the bill would result in less negotiation and more felonies, Keating says, “my hope is it will incentivize police chiefs and local prosecutors to have the default decision be to bring misdemeanor charges in the circuit court.”
Representative Robert Rowe chairs the House Judiciary. He’s already had an earful from defense lawyers, police and prosecutors.
“Some of the counties and municipalities say it will increase the cost for their police departments and county prosecutors,” Rowe says.
Police in rural counties say they’d be driving much farther to testify in Superior court – and some county attorneys worry it will require more paperwork and communication than current staff can handle.
Nevertheless, Representative Rowe says “this is merely a test program in two of our counties. My view is we can make some changes but I think it's very advisable to go forward with a test program.”
The House Judiciary hears testimony on SB124 on Thursday morning.