Harden Law Offices

104 Main Street, Lancaster, NH 03584 603.788.2080
2 Cottage Street, Littleton, NH 03561 603.444.2084
199 Heater Road, Lebanon, NH 03766 603.448.3737

Tuesday, May 19, 2020

Frequently Asked Question for Lawyer

I have been a defense lawyer for over 25 years.  It is very common for someone looking for an attorney to ask questions about the process, general information, and legal terms.  I am happy to answer your questions personally so if you have others do not hesitate to contact me.  You can reach me at 603-788-2080.

Envisioning a Civil Court System that Provides Justice for All | IAALSIn the past there have been a number of times that I get asked the same questions.  It seemed to make sense to try to answer the most common questions and put them on the internet.  I also have started a new website that is dedicated to NH Criminal Law.  In that website we have included a section for frequently asked questions (FAQ).
young man in handcuffs being arrested and escorted to police car

Tuesday, April 7, 2020

Constituion in Time of Covid Pandemic?

The Constitution of the United States | National ArchivesAmending the constitution: in NH the people are part of the ...
What about in a time of crisis?  Is there still a right to a speedy trial when there is a pandemic that has closed schools, restaurants, business and where stay at home orders are routine?
The NH State Courts stopped jury trials and criminal cases on March 13, 2020.  What will happen to citizens accused of crimes that are in custody, pending a trial?  The NH Court has issued a blanket statement that all deadlines are stopped during the closure of the courts.
The answer is more complicated than a simple blanket rule that tolls deadlines.  Surely jurors should not be forced to deliberate in a small room for hours even days.  Citizens accused of crime should also not have their liberty taken away without a right to a fair public trial by an imparial jury.
Broad proclamations by courts, while certainly understandable, fail to engage in the individualized speedy trial assessment that the Courts have suggested that the Constitution requires, and that Congress passed legislation to protect.
“‘[A]pplicable statutes of limitations protect against the prosecution’s bringing stale criminal charges against [a] defendant.’”  The starting point for determining whether the statute of limitations bars prosecution is RSA 625:8. The general rule is that the State has six years to prosecute a felony, one year to prosecute a misdemeanor, and three months to prosecute a violation, RSA 625:8, I (a)-(d), but the statute contains numerous exceptions.  
The State generally satisfies the statute of limitations if it files a charge or issues a warrant between the time when the limitations period began, and the time when RSA 625:8 dictates it is supposed to end.  
The Superior Court speedy trial policy incorporates a four-part speedy trial analysis of Barker v. Wingo, 407 U.S. 514 (1972): (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and, (4) the prejudice to the defendant caused by the delay.  
The starting point in the speedy trial analysis is when the defendant is arrested or charged. Humphrey v. Cunningham, 133 N.H. 727, 734 (1990).  The Barker four factors are not equally weighted. The Court places “substantial emphasis” on the last two factors, the defendant’s assertion of his speedy trial rights, and prejudice.  Brooks, 162 N.H. at 582; Locke, 149 N.H. at 8.
Regarding the final factor, the Court places the burden on the defendant to show “actual prejudice” in order to prevail on a speedy trial claim.  This includes “an oppressive pretrial incarceration, anxiety, or an impaired defense.”  Confinement alone is not enough, even if the defendant has never previously been confined.   
“[T]he most serious indication of prejudice” is that “the delay impaired [the] defense,” id., e.g., because essential witnesses or evidence became unavailable over time.  
In addition to a speedy trial, the Sixth Amendment guarantees people the right to participate in their own defense. But coronavirus is resulting in increasingly limited access to visits in prisons and jails, including lawyer visits. When people who are incarcerated cannot meet with their lawyers, it becomes very difficult for them to participate in their own defense. And, of course, the prospect of staying in increasingly dangerous jails could cause people who would otherwise exercise their constitutional right to a trial to plead guilty to get out.

Courts across the country may be able to mitigate, at least in some cases, the problems of delayed trials by allowing people to go home pretrial, releasing pretrial detainees makes sense instead of incarcerating them as they wait out court closures. 

There is no clear answer for how to balance individuals’ constitutional rights against the very real dangers posed by COVID-19 and the courts’ reasonable efforts to prioritize safe public health practices. 

These are difficult issues and there are no simple answers, the problems should not be ignored: nothing less than important rights guaranteed in our national and state consitutions are at stake.

Friday, March 20, 2020

NH Courts Closed Except for Emergency/ Urgent Matters

Governor Sununu and the NH Courts suspended in person court proceedings from March 17, 2020 through April 6, 2020.  Jury selection in NH was cancelled on Friday March 13, 2020. This is due to the COVID-19 pandemic.

The NH Supreme Court has ordered that all NH courts are to remain open and operating during normal business hours.  The Court system has cancelled all but emergency hearings which means: arraignments, bail issues, juvenile proceedings, DV petitions, Stalking petitions and other emergency situations.

It is my understanding that most of the jails and prisons in NH have significantly reduced in person access and are limiting contact with lawyers and inmates.  The Superior and District Courts in NH still have clerks and judges that are working but the buildings themselves are not allowing people to attend hearings in person.  There have been some telephonic or video hearings conducted.  In short this pandemic has caused the courts and the legal system to come to an abrupt stop.

If you have questions about whether you have court or what the status of a case is, you can call the Trial Court Information Center at 1-855-212-1234 to answer any questions you may have.  You can also check the NH Courts website.  If you have questions about a pending case you can reach me at my office number 603-788-2080.

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Grafton Superior/ Haverhill District
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Littleton District
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Coos Superior/ Lancaster District
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Plymouth District
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Berlin District
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Colebrook District

Friday, January 24, 2020

NH Law Eases Annulment of Pot Convictions


January 1, 2020 NH  law, HB 399, mandating annulments for arrests or convictions for less than 3/4 of an ounce of cannabis for any offenses prior to September 16, 2017 became the law. This law amends RSA 651:5-b. This means that any conviction prior to the date that possession of cannabis was decriminalized shall be annulled upon filing a petition and filing fees.  The idea behind simplifying the process of annulment is to attempt to undo the criminal records for citizen's convicted of possession of cannabis.

  In order to get a possession of cannabis annulled you must go to the NH state judicial system website to get a petition to annul. At this point use the general annulment form  but it is anticipated that the judiciary will likely create a special form for for marijuana cases in the future.
Complete and print out the petition and mailed or provided in hand to the prosecutor for the police department that brought the initial charge. The petition requires $125, as a filing fee payable to the court where the conviction occurred.
Once the petition is provided to the prosecutor and court, the prosecutor has 10 days to raise an objection.  The only basis for objecting to a petition for annulment, is if a prosecutor believes the amount of marijuana involved is greater than three-quarters of an ounce. The law requires that if there’s no objection, a judge “shall grant” the annulment.  There is no discretion.
It is expected that a petitioners will not have to appear in court.  The only time a hearing would be held is if a prosecutor argues the underlying offense involves more than three-quarters of an ounce of cannabis. 
There is no judicial discretion and the burden is on the prosecutor to prove greater than 3/4 of an ounce.
The Department of Corrections will charge a $100 for an investigation to ensure no other convictions exist.
If the annulment is granted, New Hampshire State Police will charge $100 for deleting the computer record from the state criminal records database. 
This means that if you have a marijuana/ cannabis/ pot conviction for less than 3/4 of an ounce prior to 9/16/2017 you can get that record annulled for $325 in fees.  If you have any questions do not hesitate to contact me.