Jury still out on success of Felonies First as last counties make the switchBy JASON SCHREIBER
Union Leader News Correspondent
November 12. 2017 9:18PM
As Rockingham and Sullivan counties make the shift to Felonies First — a new judicial process designed to streamline criminal prosecution — it seems the jury is still out on just how effective it will be in New Hampshire.
Felonies First began in Cheshire and Strafford counties in January 2016 and was slowly expanded to other counties; Rockingham and Sullivan are the last counties to implement it.
The goal of Felonies First is to better manage the flow of felony cases, misdemeanors and violation-level charges from start to finish, which supporters say will save time for the courts, lawyers, and litigants.
But a new annual report on Felonies First issued by the New Hampshire Judicial Council last month concluded that more data is needed to objectively analyze the program.
“To fully assess the impact of Felonies First, data sets from numerous stakeholders must be collected and analyzed. At this time, all relevant data is not even being captured. The council hopes to remedy this for future reports,” the council said.
The council also pointed out that the opioid crisis is “clouding the data and altering the criminal justice landscape.”
The push for Felonies First began after Tina Nadeau was appointed chief justice of the New Hampshire Superior Court system in 2011.
“One of the things that struck me was the duplicative nature in the way we handle felony cases,” Nadeau said.
Before Felonies First, felony cases would begin at the circuit court level, formerly known as district court. The circuit court would schedule an arraignment, bail hearing, and an automatic probable cause hearing to determine whether the charges were warranted.
However, the circuit court didn’t have jurisdiction to resolve felonies, which meant that the cases would eventually be transferred to the superior court for further review by the county attorney and possible indictment by a grand jury.
Nadeau said the process would essentially start all over again in superior court.
Under Felonies First, all felony cases now go immediately to the county attorney’s office to be handled at superior court.
Strafford County Attorney Tom Velardi supports the new process.
“I think it’s important to consider that Felonies First doesn’t change what happens in a case. It just changes where it happens. The benefits are victims and accused citizens don’t have to go through two layers of courts. Prosecutors get the case upon arrest rather than waiting a few months for it to arrive from district court,” Velardi said, adding that cases can be resolved sooner, which benefits defendants and victims.
“The benefits vastly outweigh the startup issues that come with rolling out a new system,” he said.
‘Goal is not to waste time’
One concern among defense lawyers was the change in probable cause hearings. While defendants in felony cases no longer automatically get a probable cause hearing scheduled like they did at the circuit court, they can still request one at superior court.
But according to Nadeau, the reality is that the majority of probable cause hearings are never held because under the old system, almost 90 percent of the time defendants waived the hearing in order to get police reports earlier in the process. The process of waiving such a hearing could take two to three hours, Nadeau said.
As of June 30, Nadeau said, 3,000 felony cases were filed in Felonies First counties and 39 requests were made for a probable cause hearing. Of those, five hearings were actually held.
With county attorneys now involved in the case sooner, Nadeau said they are “reviewing it much earlier in the process and making an initial charging decisions that we hope will be more accurate.”
Nadeau said under the new system some cases can now be resolved with plea agreements at arraignment and that overall defendants should have fewer court appearances.
She said the jails are seeing shorter pretrial confinement times and fewer transports over the life of the case.
“This is not about quick resolution. It’s not about forcing resolutions ... The goal is not to waste time and delay the process and get fair resolutions that make sense to people” Nadeau said.
Working out the kinks
As with any change, Nadeau admits that there have been some kinks to work out.
She said one issue that arose was a new indictment deadline requiring that indictments be made within 60 days of the date of the complaint. The problem was that the window was too short for county attorneys, which prompted an extension to 90 days.
Rockingham County Attorney Patricia Conway said she feels the program has worked well in the first month in her county.
“If it’s a case that we think could resolve without a trial, if it’s right for resolution, then we can resolve it right away rather than having an arraignment in district court and then a probable cause hearing, and there’s paperwork generated there, and then it’s bound over to superior court,” she said.
She said that sometimes her office wouldn’t see felony cases until several weeks after the charges were filed.
Implementing Felonies First did require Rockingham County to budget two additional assistant county attorneys and a case intake worker, Conway said.
“I knew our caseload would increase significantly,” she said, adding that she estimates her office’s caseload could increase by 30 percent.
The increase also means a shift in the costs of prosecuting from towns and cities to counties.
Some police departments have complained that their offices are now having to travel longer distances to superior courts versus circuit courts.
Rockingham County Sheriff Michael Hureau said in the past, many defendants were arraigned from jail by video, but they must appear in court for arraignment in felony cases.
While that can be a challenge in counties where the jail isn’t near the court, Hureau said it’s fortunate that the Rockingham County jail is just 4.5 miles to superior court.
“I suspect it’s going to add to our transports, but just how much I don’t know yet, I think in the long-run it’s going to impact our budget,” Hureau said.
According to the recent report by the New Hampshire Judicial Council, an analysis by the Trial Court Center showed that the average number of transports per case declined by 39 percent between the first six months of 2015 and the same period in 2017 after Felonies First was implemented in other counties.
Randy Hawkes, executive director of the New Hampshire Public Defender Program, noted in the recent report that one area he examined was whether the number of felony cases being resolved as less serious misdemeanors or violations remained the same in counties with Felonies First.
He reported that statistics showed a decline in the percentage of non-felony resolutions of felony charges. Some defense lawyers have expressed concern that under Felonies First, fewer felony charges would be resolved as misdemeanors at the superior court level.
Portsmouth attorney Alan Cronheim is the former president of the New Hampshire Association of Criminal Defense Lawyers.
“My view is there has always been value to the community court system court system, which is what the circuit court represents. When local departments who know their local community can make informed decisions about the discretion to use in prosecution there are advantages to that system,” he said.
Nashua defense attorney Chuck Keefe, current president of the New Hampshire Association of Criminal Defense Lawyers, pointed to the cultural differences between circuit and superior courts, saying “the mentality in circuit court is to resolve a case as quickly as possible while superior court is used to a much longer time frame.