Success of ‘Felonies First’ in Merrimack County up for debate, as more felony cases inundate system

Monitor staff
Monday, August 28, 2017

While most attorneys and law enforcement officials are in support of efforts to streamline felony cases in New Hampshire, opinions differ about whether a new program designed to do just that is improving the judicial process in Merrimack County.

Part of the complication, they say, is that Felonies First launched at a time when the number of felony cases filed in the region – particularly those drug-related – were already on the rise. As a result, police officers, local attorneys and technicians at the state’s forensics lab are seeing an increase in daily work, which they must tackle amidst more demanding time constraints set by the court.

“It’s like a perfect storm that’s coming all at the same time,” said Merrimack County Attorney Scott Murray.

Under Felonies First, more serious criminal cases are handled in Merrimack County Superior Court in Concord, instead of starting in the region’s five circuit courts, where they were traditionally filed. The circuit courts do not have the authority to resolve felony cases, which is why they were forwarded to superior court after a probable cause determination.

Felonies First eliminates the automatic probable cause hearing, although the defense can still request one at the superior court level.

Merrimack County was the first of the larger counties to make the transition, and did so in January. The program will launch in Hillsborough County’s two superior courts in Manchester and Nashua this fall.

Attorneys on both sides said they’re concerned the program could result in a decrease in the number of misdemeanor resolutions overall.

The New Hampshire Judicial Council is preparing its second report to the Legislature on Felonies First, as mandated by state law. The anticipated release of that report in the coming weeks has prompted some, including the New Hampshire Public Defender’s Office, to refrain from commenting in the interim.

Early case resolution

For the Merrimack County Attorney’s Office, Felonies First has necessitated the creation of a new team – composed of two prosecutors, an investigator and a victim witness advocate – that prepares for and handles felony arraignments for defendants who will within hours face a judge, Murray said.

Under Felonies First, defendants on cash bail or without bail must be arraigned within 24 hours, and appear in person at the superior court. Those charged with a felony but released on personal recognizance are arraigned within the next two weeks.

“That was a function we did not engage in previously,” Murray said of the immediate hearings. “In the first six months, we prepared for an additional 151 hearings.”

Superior Court Chief Justice Tina Nadeau said she understands the first few months for any county are going to be “rocky” because the judicial branch is replacing a century-old system with something entirely new. Additionally, during that initial transition period old felony cases are still going through the circuit courts, and new ones are being filed in superior.

“It’s a big adjustment, and every county is different,” she said.

One of the goals of Felonies First is early case resolution. On average, lawyers can quickly reach an agreeable disposition in approximately 40 percent of all cases filed without the need for future hearings, Nadeau said. She identified those cases as “low hanging fruit,” noting that they can be efficiently taken off the docket so attorneys can focus on more complex matters, such as sexual assaults, home invasions and homicides.

However, city prosecutors say early case resolution was already happening to some degree in Merrimack County prior to the introduction of Felonies First; it was just occurring at the circuit court level.

Concord prosecutor Tracy Connolly said her case load has lessened and her job responsibilities shifted, as she previously handled all felonies brought by city police in circuit court.

“I’d review the cases, determine if they were appropriate for misdemeanor resolutions or felony diversion, and that happened within the first few weeks of hitting my desk,” she said, while speaking of the adult diversion program that provides supervision and services to those who qualify in lieu of prosecution.

Connolly said early case resolution had long been an objective of the city prosecutor’s office, where attorneys would work diligently to filter out cases that weren’t appropriate for a superior court disposition – and, further, a prison sentence. She said close to 25 to 30 percent of cases were disposed of at the circuit court, which she said contradicts initial estimates provided by the judicial branch of 7 to 10 percent.

One disadvantage to Felonies First is that county prosecutors have a limited window into someone’s criminal past at the time of arraignment, Connolly said. Conversely, a city prosecutor has likely worked with that same defendant to resolve misdemeanor crimes in circuit court, and, therefore, has a deeper understanding of that person’s life history, she said, noting most people don’t start out committing felony offenses.

Path forward

When case files were forwarded to the county attorney’s office under the old system, they were largely complete by the time of the superior court arraignments. That’s not the case today. Instead, law enforcement officials say they’re scrambling to meet truncated deadlines that come hand-in-hand with Felonies First.

Under the old system, once a circuit court judge found probable cause, and the felony case was forwarded to superior court, prosecutors would have 90 days to indict. The 90-day deadline still applies but in a different context; the clock starts ticking almost immediately after the arrest, meaning police have less time to collect additional evidence and follow up with witnesses.

When the program was first piloted in Strafford and Cheshire counties, the deadline to indict was shortened to 60 days. But feedback from attorneys was that a 60-day deadline was nearly impossible to meet, especially in drug cases that require lab results before they can be presented to a grand jury.

Judge John Kissinger, who now presides in Merrimack County, said that modification is a prime example of how everyone worked together to improve an aspect of the program that simply wasn’t working in practice.

“There are always adjustments when you’re moving from an old system to a new one,” said Kissinger, who served as a judge when Felonies First was piloted in Cheshire county. “There is no question it is a big change, and there is a period of adjustment for all of us.”

That includes at the Merrimack County Sheriff’s Office, too, where Sheriff Scott Hilliard said he has seen a 20 percent increase in transports as a result of an increase in felony arrests, which coincided with the Felonies First rollout. Hilliard said that while he is a “big believer” in the goals of the program model, the past few months have been a challenge for the department.

When defendants were arraigned in circuit court on felony charges, they commonly appeared by video from the county jail where they were being held on cash bail. However, under Felonies First, defendants are expected to appear in person, meaning the sheriff’s office must transport them to and from the jail for that initial hearing.

In a recent administrative order, Nadeau wrote that “face-to-face arraignments in Superior Court assist in the efficient management of case flow and provide the attorneys with an early, meaningful opportunity to discuss and possibly resolve the case.”

By phone this past week, Nadeau said she predicts Felonies First will ultimately decrease the number of transports of an individual defendant, but acknowledged that the rise in felony cases will increase transports overall. Merrimack County averaged more than seven transports per defendant over the life of a case, and that is decreasing to just over five, she said.

Despite the initial kinks with the program’s rollout, Nadeau said she believes Felonies First will, in time, result in a more efficient criminal justice system in New Hampshire, which is to the benefit of defendants and victims alike.

Others say the jury is still out on what the impact will be long-term, although they note they’re trying to be optimistic as change is always met with reservations.