N.H. court system attempts to chip away at backlog caused by COVID-19

  • A Merrimack County Superior Court jury room door is seen inside the Merrimack County Courthouse in Concord on Thursday, March 31, 2016. (ELIZABETH FRANTZ / Monitor staff) Elizabeth Frantz

  • The Merrimack County Courthouse in Concord is seen on Thursday, March 31, 2016. (ELIZABETH FRANTZ / Monitor staff) Elizabeth Frantz

Monitor staff
Published: 4/19/2020 4:53:58 PM

New Hampshire’s circuit courts have canceled and not yet rescheduled approximately 17,745 hearings since March 16.

About 40 jury trials — and counting — were not able to move forward in the state’s superior courts because of the coronavirus outbreak, and another 5,100 hearings in those courts are on hold.

Since mid-March, the state’s court system has stayed open in a limited capacity to handle only emergency hearings and pressing case resolutions, mostly by phone. Only a month into the pandemic, court administrators say the challenges are immense but they’re hopeful that new strategies now in the pipeline will help keep the wheels of justice moving now and in the weeks ahead as uncertainty looms.

A stay-at-home order remains in effect in New Hampshire until May 4. Gov. Chris Sununu said during a press conference Thursday that he’ll be evaluating whether to extend that order or modify it with new guidance for certain age groups and non-essential businesses in the week ahead. In the meantime, the court system is already looking ahead to what a reopening could mean for attorneys, defendants, witnesses and victims when there is no vaccine for COVID-19.

“I don’t know what the new normal is going to be, but I’m pretty sure we won’t have arraignment sessions with 95 defendants sitting shoulder-to-shoulder in a courtroom like we’ve had in the past,” Circuit Court Administrative Judge David King said. “The government is not going to say that social distancing is out. There will have to be some gradual staging back to normal over a long period of time.”

At the superior court level, jury trials will present the biggest hurdle, said Judge Tina Nadeau, chief justice of the New Hampshire Superior Court. In a new order issued Friday, Nadeau canceled all civil and criminal trials in the state’s superior courts until further notice. She said jury trials will not be held for approximately 30 days after “we resume normal operations.”

In an interview Thursday afternoon, Nadeau said the future of trials weighed heavily on her mind.

“When we pick juries we have to bring 150 people together in our jury assembly room to make selections, and that’s just not going to be possible in the near future,” Nadeau said. “Is there any possible way to conduct remote jury selection? Can we stagger cases so we only pick for one jury trial at a time? Those are questions we’re going to have to explore.”

The New Hampshire Judicial Branch has started to use a video conferencing platform known as Cisco WebEx. The equipment is now installed in every courthouse in the state, paving the way for more video hearings in the near future.

Presently, the probate court, which is a division of the circuit court, is holding emergency video hearings on petitions for involuntary admission to New Hampshire Hospital. King said the state’s psychiatric hospital was already set up to use the technology and pilot of WebEx at the courts has been successful.

Supreme Court Clerk Tim Gudas is hopeful WebEx will allow for oral arguments canceled in March and April to be rescheduled in the coming weeks. He said the justices were ready to hear 14 cases over five days during that two-month period.

“We are working now to get those cases rescheduled, perhaps by videoconference, over the next two months, before the next group of different cases becomes procedurally ready to schedule for oral argument,” Gudas said in an email to the Monitor.

Even when the courts do reopen to foot traffic and resume everyday business, court administrators say they envision that some of the new strategies they implemented during the pandemic may be here to stay long-term. Nadeau said she expects the WebEx platform will give the courts more flexibility to hold hearings and increase efficiency, especially when it may save an attorney or party to the case from having to travel two hours or more to a courthouse.

The superior court has formed an ad hoc committee of judges and clerks to brainstorm ideas on what will help the courthouses get up and running again down the road and for how to start tackling the growing backlog of cases, Nadeau said.

“We’ve also reached out to public defenders and county attorneys to see if there are cases they know will resolve anyway that they can act on sooner,” she said. “We’re telling them, ‘We know we have this emergency order to limit foot traffic, but if there is anything you want us to do by telephone or video, please let us know so we can take some kind of remote action.”

The courts continue to triage the most urgent cases, including requests for restraining orders and stalking petitions, child custody and visitation cases, and any case where a criminal defendant is detained in a correctional facility on new charges.

As the court system brainstorms how to tackle the most cases possible given the new normal, it is also bracing for a couple of upcoming retirements of longtime judges, including the departure of Richard McNamara who presides in Merrimack County Superior Court. The circuit courts have one vacancy after two recent appointments by Sununu.

“I’m very sensitive to the issue around balancing our need for judges while also recognizing the hit the budget is likely taking as a result of this pandemic,” Nadeau said. “I know the governor will want more information about what our current case loads are and what they will be moving forward.

“I do have a plan for covering those vacancies in the meantime, but the back load will certainly make things much more challenging,” she continued.

King said he is also mindful of the vacancies in staff positions, as well. With a current hiring freeze on state positions, he said he is not sure when the courts will be able to fill vacancies again.

Both judges said the courts are continuing to do all they can to meet the needs of those working in criminal justice, as well as the members of the public seeking access to public records. The recent move to electronic filings at the state’s superior courts makes accessing records remotely a bit easier, including for defendants and attorneys. If someone isn’t a party to a case and would like to access court filings, court administrators advise that they dial the statewide call center at 1-855-212-1234 to get more information.

Anyone with a statutory right, including victims of crime, are permitted to be in the courtroom during a hearing or call in by phone.

“If someone doesn’t have a statutory right, we’re not allowing them in at this time,” Nadeau said. “Every single hearing is recorded so anyone can listen to a hearing after the fact.”

Most hearings canceled due to COVID-19 will not be rescheduled until the courts are back up and running – unless they can take place by phone or video.

“We understand there are a lot of hearings that are very important to people but we don’t want to reschedule for mid-May and then have to reschedule again,” King said.

“We don’t know what May 4 will bring,” he continued. “And until we do, thousands of hearings are in limbo.”

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