Felonies First under the microscope

LACONIA — A law that changed the way felonies are prosecuted finds itself under the microscope, with critics saying it has not delivered the intended benefits that were promised, while supporters say the advantages that have been achieved would be lost if the law is undone.

At issue is the state’s Felonies First Law under which felony complaints are brought by the County Attorney's Office instead of local law enforcement, and felonies and any directly related misdemeanors and violations originate and get resolved in superior court.

Prior to the Felonies First, each felony offense had to make its way through two courts — circuit courts with police department prosecutors, then superior court, with county prosecutors — before it could be resolved.

Many said this process made the judicial process longer and more expensive. So Felonies First was created to make the process more efficient. Belknap County was one of the first counties to switch to the new system — in July 2016.

Now, six years later, the Legislature is considering a bill which would return the initial proceedings of felony cases to the circuit courts.

Felonies First “hasn’t worked very well,” said state Rep. Ned Gordon, the bill’s prime sponsor, and a former circuit court judge and chairman of the House Judiciary Committee.

The committee voted 21-0 on Feb. 3, to send the bill to the full House with a recommendation that it pass.

“It’s time to cut our losses,” Gordon said just prior to the vote.

He said though the advocates of Felonies First had good intentions, cases are not being disposed of faster, as its proponents had promised. Also, in the move to streamline the process, defendants lost access to a valuable proceeding that was designed to protect their right to a presumption of innocence.

Under the prior system defendants charged with a felony were entitled to a probable cause hearing within 10 days of their arrest, at which authorities presented what evidence they had to justify the accused’s arrest. However, under Felonies First, an evidentiary hearing is held only if there is evidence that the authorities committed some error in arresting the accused.

“I think it is the state which needs to prove a defendant’s guilt,” Gordon said, “not that the defendant should have to prove the authorities did something wrong. Felonies First shifts the burden of proof in that regard.”

Many prosecutors, however, want to keep Felonies First, arguing that the new system has brought more efficiency to the process because cases are now handled by the same prosecutor from start to finish.

Belknap County Attorney Andrew Livernois testified against Gordon’s bill last week, telling the Judiciary Committee, “Felonies First has greatly improved our ability to prosecute felony cases effectively and efficiently and to provide justice in a way that is supportive and humane to victims. We have become fully adjusted to the new system, we have put in place systems and procedures to manage cases in this model and have increased our staffing to handle the increased caseloads.”

Six other county attorneys are likewise opposed to changing the process, Livernois said.

Another advantage of Felonies First, they say, is that witnesses and victims are getting assistance sooner.

“As soon as we get the paperwork from the police department in the morning, my advocates are reaching out to the victims,” Livernois told the committee. “We are able to offer support and resources, to help walk them through the complexity of the criminal justice system, to make sure they have a safety plan (housing, etc.), to make sure they are notified if the defendant makes bail, to make sure they have input in the bail decision, to give them notice of the hearing on bail, etc. That advocate ends up being the victim’s point of contact throughout the life of the case,” he said.

Livernois acknowledged that Felonies First has failed to produce all the benefits its early supporters had promised, but “overall, I believe that Felonies First is working for the people of Belknap County.”

Although Felonies First has “significantly increased” the caseload of his office, Livernois said “it makes more sense for felony cases to start in the court they are going to end up in.”

The heavier caseload has meant increased staffing. An additional attorney was hired for the office in 2016 before Livernois took office, and the County Delegation’s Executive Committee has recommended funds in this year’s county budget to pay for yet another attorney.

When Felonies First was instituted the number of criminal cases filed in Belknap Superior Court jumped nearly 43% — from 366 cases in 2015 to 575 cases the following year. Aside from a jump to 783 cases in 2019, the number of cases filed in Belknap has held relatively steady, with 581 cases filed last year.

COVID has also had an impact on the time it takes to wrap up cases. Pauses in jury trials during the past two years have created a backlog in the system.

While seven of the 10 state’s county attorneys are opposed to the bill, Gordon noted that the three county attorneys who support the bill are from the state’s most populous counties.

“Their offices are the ones that have been most impacted by this law,” he said.

Another big change that has occurred is, under Felonies First, all of an accused’s related charges are bundled together, including misdemeanors and violations. Previously, lesser charges would be handled in Circuit Court, with the Superior Court dealing only with the felony charges. Critics say this shift has meant that the Superior Courts are now having to process many more charges than before, with the Superior Court judges having to factor in the misdemeanor charges into the sentences they impose.

In addition, under the previous system many lower-level felony cases were reduced to misdemeanor charges at the circuit court level, and so never got to superior court.

Jesse Friedman, a defense attorney who used to head the public defender office in Laconia and now has a private practice in Meredith, said he is in favor of doing away with Felonies First because it has not led to the efficiencies its proponents touted and because the prior system was in certain ways more disposed toward defendants. But he worries that circuit courts could face a challenge handling the increased workload if they do not get the additional resources.

Laconia Police Department Prosecutor Jim Sawyer said if the bill becomes law it will mean more work for the circuit courts and will result in increased costs.

Prior to when Felonies First went into effect, Superior Court Presiding Judge Tina Nadeau reported that in 88% of felony cases the defendants waived the probable cause hearing. Assuming that percentage were to hold true in the future and considering that 581 felony cases were filed in Belknap County last year, there is the likelihood that the Circuit Court in Laconia could have 70 probable cause hearings in the span of a year.

Those hearings would take up court time, Sawyer said, noting that they typically run for 30 minutes, though some can run for two to three hours. The hearings will result in an increase in police overtime because officers are often the only witnesses at probable cause hearings, and the hearings need to be scheduled when the officer is not on duty.

Livernois believes the shortcomings with Felonies First could be reduced if not eliminated by doing a better job at identifying cases early on which can reasonably be resolved through a negotiated plea.