Three months after the novel coronavirus halted jury trials, canceled thousands of hearings and pushed off legal deadlines, the New Hampshire Judicial Branch is working toward a phased reopening of the courts that could include a pilot jury trial in Coos County this August.
Court administrators are eyeing the state’s northern-most county for the pilot trial because it has the fewest number of confirmed cases of COVID-19, said Chief Justice of the New Hampshire Superior Court Tina Nadeau. A committee of judges, clerks, administrative staff and information technology experts – which Nadeau convened within the superior court in late March – is now finalizing plans to safely resume both jury trials and grand jury proceedings later this summer, even as the virus still poses a threat.
“We have consulted with the state’s chief medical director regarding safety measures we will put in place to ensure that prospective jurors are safely returning to court,” Nadeau told the Monitor. “In addition, we convened a small group of prosecutors and defense attorneys to receive their feedback on the proposed return to operations plan and their input has been invaluable.”
For the first time, court administrators also hosted this week a virtual meeting that brought together judges, attorneys, law enforcement, victim advocates, health experts and legal educators to discuss any issues that have arisen due to the courts’ restricted operations and priorities moving forward. The public hearing Monday was streamed live on the court’s website and viewed by more than 300 people. Roughly 20 experts provided oral and written comment.
Legal experts said they’re concerned about several unintended consequences of the pandemic, including that jury pools may lack diversity. For instance, some prospective jurors may need to be excluded simply because of their age or because an underlying condition makes them more vulnerable to complications if they contract the virus. Others may not be able to miss work, especially if they’re just returning to a job after a long period of unemployment.
Several participants remarked that the state’s minority populations and most indigent residents often experience the greatest barriers to accessing justice. The response to COVID-19 has compounded that problem.
Sarah Blodgett, executive director of the New Hampshire Judicial Council, said the council is expecting a significant increase in the number of people who cannot afford to hire private counsel, both in criminal and family court cases. She said starting to prepare for that surge now is important, and that the council, which helps fund and facilitate legal services, is reaching out to a broad cross-section of attorneys for help.
“We have clients who have not been able to see their children in months in the child protection cases. We have indigent defendants who are not able to have face-to-face meetings with their lawyers, not really feeling like their cases are moving forward,” Blodgett said. “And I know that everyone is in the same boat with regard to those issues, but I think that the pandemic has really put a spotlight on the vulnerability of our indigent clients in the justice system.”
Kay Drought, litigation director at New Hampshire Legal Assistance, said the nonprofit organization also anticipates a greater need for its services, including among seniors, people at risk of losing housing and victims of domestic violence. She said the new online filing system for victims to file domestic violence and stalking petitions has been a positive step forward, and she advocated for the continuation of that remote service indefinitely.
The court system launched the e-filing process in late May after data showed a significant drop in the number of petitions filed. Advocates saw in April and May an increase in the number of victims reaching out for help who were at risk of lethal violence, and they said e-filing would help ensure victims facing greater barriers due to COVID-19 could still take steps to seek safety.
While the state’s courts continue to restrict in-person hearings, telephonic and video conferences have provided an avenue for some cases to continue to move forward, including emergency hearings in domestic and child abuse cases, criminal plea and sentencing hearings and arraignments. But attorneys who spoke Monday said the remote platforms are not a long-term solution. They said in-person hearings are essential in cases that involve complex legal disputes, where they need to cross-examine witnesses and present evidence before a judge.
Randy Hawkes, the executive director of the New Hampshire Public Defender program, said the initial disruption to in-court proceedings in mid-March was understandable as everyone tried to familiarize themselves with new policies and procedures. However, those policies were designed to be temporary and cannot be the way of the future, he said.
“The pandemic cannot be used as an excuse to elevate convenience and efficiency over the right of a defendant to fully participate in his defense, the right to defer with counsel and the right to confront witnesses against him,” Hawkes said.
Judges have told defense attorneys that they can request in-person hearings, but Hawkes said those requests are routinely denied. Further, he said, final rulings on those requests are inconsistent from court to court, which shouldn’t be the case.
Robin Melone, president of the New Hampshire Association of Criminal Defense Lawyers, echoed Hawkes concerns about the lack of direction from court leadership to judges, whom she argued have too much discretion when deciding to grant or deny in-person hearings. She said members of the defense bar are increasingly frustrated.
“Attorney-client relationship is the very foundation of effective assistance of counsel, but we are struggling to build and maintain those relationships because we cannot see our clients whether in jail or remote,” Melone said. “The lack of momentum and the lack of certainty has made it increasingly difficult to advise and encourage case resolution.”
Melone said the public health emergency inherently conflicts with a defendant’s right to a fair trial, and she is concerned about how jury trials will proceed in the current environment.
Monday’s hearing was the first of what could be regular public hearings for the New Hampshire Judicial Branch. Supreme Court Justice Gary Hicks, who moderated the discussion, said court administration greatly appreciated everyone’s feedback and would be actively worked toward solutions.
“I look forward to our progress on the issues you’ve all raised,” he said. “And, hopefully, some of them will no longer exist the next time we have this town hall.”