Trials Going but Not Gone

 When you imagine a lawyer you may think of some of these famous TV lawyers:

• Arnie Becker, “L.A. Law” ...
• Saul Goodman, “Breaking Bad”/”Better Call Saul” ...
• Perry Mason, “Perry Mason” ...
• Jack McCoy, “Law & Order” ...
• Ben Matlock, “Matlock” ...
• Jackie Chiles, “Seinfeld” ...
• Harvey Specter, “Suits” ...
• Will Truman, “Will & Grace”

How about famous movie Lawyers:

• Atticus Finch, "To Kill a Mockingbird"...
• Daniel Kafee, "A Few Good Men"...
• Ellie Woods, "Legally Blonde"...
• Jake Tyler Brigauce, "Time to Kills"...
• Martin Vail  "Primal Fear"...
• Frank Galvin.  "The Verdict"...
• Andrew Beckett. "Philadelplia"...
• Vincent Gambini.  "My Cousin Vinny"

All of these great TV and movie lawyers have a grand setting to impact the lives of their clients and our country.  The drama and theater in a court are real and make a difference in real peoples lives.

I started practicing law in 1993 and consider myself a trial lawyer.  In the 30 years I have been a practicing lawyer, trials have been increasingly rare. I still have many bench trials in district court as well as at least 4 jury trials a year.  However, in the past I have had 5 jury trials in one month and 5 bench trials in district court in a day.

 I recently read in the an article from the NH Union Leader that indicated "Last year, 98.3% of federal criminal convictions, and about 95% in the states, resulted from bargained guilty pleas. Why? To a significant extent, coercion."

Another article from Judicare states: By the end of World War II, plea bargains or dismissals resolved approximately 80 percent of all criminal cases in the federal courts, and trials accounted for the remaining 20 percent.17 The percentage stayed roughly the same until the early 1980s. However, following passage of the federal sentencing guidelines in the mid-1980s, the percentage of criminal cases resolved by trial significantly declined. By 2000, it was just 6 percent, and by 2010, the rate of disposition by trial in criminal cases was less than 3 percent.18 Today, trials only occur in approximately 2 percent of federal criminal cases.19 As Judge William Young of the U.S. District Court for the District of Massachusetts explains: “Today, our federal criminal justice system is all about plea bargaining. Trials — and, thus, juries — are largely extraneous.”20 Of course, many more cases are filed, and ultimately resolved, in state courts.21 But, if anything, there is even less likelihood of a case proceeding to trial in state court than in federal court.22 One study found that by 2002, civil cases were resolved by juries in state court less than 1 percent of the time.23 The comparable number for criminal cases was 1.3 percent.24 The rates are even lower today.25 Primarily due to foreclosure cases growing out the mortgage crisis, bench trials remain common in a few state courts, but rarely occur in others.26

A criminal trial is a structured adversarial process where the facts of the case are presented to a jury or a judge and the defendant is determined to be guilty or not guilty. .This right is found in the federal and state constitutions it is in decline but is still available and an option.

The declining number of trials is real and the impact is also real as innocent people are coerced into taking plea bargains rather than risk a higher sentences after a trial.  I am proud to represent my clients in court and to take cases to trial.  

If you have been accused of a crime and want to fight your case in court you need a real defense attorney who understands the rules of evidence, advocacy and the law.  If you are charged in Northern NH contact me Len Harden.  

Video is Coming to NH State Police: Video helps Good Cops and Improves Confidence in Police

 

I was recently speaking with a NH State Trooper and learned that body worn cameras (BWC) and cruiser videos are going to be standard issue to all NH State Police in the next month.   This is great news for the police and the public.  It is long overdue and will mean that good police and good people will be able to have better justice.  See my earlier blogs about this issue.

I have been a defense lawyer for almost 30 years and the lack of video by NH State Police has been one of my most frequent concerns.  I have been upset about poor towns having video while the largest line item budge item, NH State police refused to purchase and use video.  I have raised this issue in hundreds of cases in District and Superior Court for years.

The use of video is good for building public confidence in police and trust among all people.  This reform is likely due to concerns about race based inequalities and racial bias in arrests, detentions and sentencing.

This change is seems to be the result of the recent recommendations 48 of them made by  NH Commission on Law Enforcement Accountability, Community and Transparency (LEACT Commission) and approved by the governor in the wake of the murder of George Floyd.  

As everyone knows stores,  gas stations, private homes, traffic lights, toll booths, most teenagers and almost all adults all have video at their disposal 24/7.  500 hours of video are uploaded to YouTube every minute worldwide, that is 30,000 hours of video uploaded every hour, 720,000 hours of video uploaded every day to YouTube.  This doesn't even include all the private videos from stores, businesses and homes.

NH State Police are the best funded and most common form of law enforcement throughout NH. see earlier posts on this blog. 

Good police have nothing to hide and welcome the video as it will show them to be doing their jobs properly and treating all people with respect.  It will also prevent police from having to defend themselves from false allegations of wrong doing.  I have witnessed allegations of physical and sexual abuse be lodged against police.  There are investigations conducted suspensions in place during the investigations and I firmly believe that video will reduce this issue and help prevent good police from having false claims made.

It also seems pretty obvious that there will be fewer disputes about what was said or done on the video as the words and acts of the police and people will be captured by the videos.   In cases in the past a trial sometimes comes down to the words an officer remembers or fails to remember.  However, with video footage of actual encounters with the police there will no longer be disputes about who said what and the response.  The police and the person interviewed will be captured on the video.

On the same day I learned that BWC and cruiser videos will be implemented statewide by NH State police I just happened to be in Littleton District Court with an aggravated DWI case set for trial.  The town that brought the aggravated DWI case already uses BWC.  In this aggravated DWI case my client was captured on video shortly after being pulled over, producing her license, speaking with the officer, exiting her vehicle, agreeing to FSTs, performing the officer's version of the FST.  

The officer testified markedly differently than the video showed and in fact the judge ruled that the video did not show the clues that the officer claimed as well as other inconsistencies.  After playing the video the judge granted my motion to suppress for lack of probable cause finding the police had no reasonable basis to arrest and detain my client.  This meant that because of video footage my client was found not guilty.  The court did not have to hear testimony from the phlebotomist, the lab analyst the defense experts and literally saved hours of court time.

On the human side the look of relief and happiness on my client's face was among the best feeling a defense lawyer gets.  This case literally had been going on for over a year, the lab results were disputed, there were many complicated issues and my client risked going to jail to have her day in court.  She did not believe she was impaired and in the end the video showed the court my client on the night in question and justice prevailed.  Thanks to the town police use of video.  

Video footage showed my client to speak normally, walk normally, have good balance, perform the FSTs very well.  The video evidence was so powerful that the judge literally dismissed a case that carried mandatory jail, fines and loss of license.  

It is reasonable to say that without the video the officer's testimony showed my client to be highly impaired based on alleged poor driving, poor performance on the FSTs and admissions.  However, the video showed my client's actual movements on the night of her arrest and the judge was able to make a decision based on evidence produced that showed her to be not guilty.

Video helps good cops and assists good people who have done nothing wrong by showing how they actually acted when encountering each other.  I am delighted to hear that the NH State Police are joining many of the small towns in NH already using video.  The use of video will also help improve people's confidence that the police are doing a good job and treating each other with respect and dignity. 

Annulment of Criminal Record in NH

Update on Annulment of Criminal Record in NH

NH Change on Annulment of Criminal Records, Extending time required for Annulment of Simple Assault DV Related to 10 Years.

NH has changed the law again on annulments creating a 10 year requirement of no offense in order to annul a crime of domestic violence under RSA 631:2-b.  

The intent of this change was to make is more difficult to annul a record of arrest for those who are convicted of domestic violence simple assault.  This will prevent citizen's convicted of DV simple assault from possessing firearms for 10 years after a conviction.

The remainder of the annulment statute still uses different standard if an arrest occurred prior to January 1, 2019 resulted in a finding of not guilty, dismissal or was not prosecuted, the Court may annul the arrest or record at its discretion.  

Similarly for offenses on or after January 1, 2019 resulting in not guilty findings, dismissal or those not prosecuted, an annulment shall be granted.

For those people whose arrests led to convictions, the law requires a person to remain conviction free for a specified period of time before they are eligible to annul the record of arrest and conviction. The time periods are the following:

1.      A violation with a conviction, one year, unless the underlying conviction was for an offense specified under the habitual offender law.

2.      For most class B misdemeanors, 2 years after the person has completed all the terms and conditions of the sentence.

3.      For most class A misdemeanors, excluding sexual assaults, 3 years. 

4.      For most class B felonies, excluding indecent exposure, lewdness or drug charges, 5 years. 

5.      For most class A felonies, except drug charges, 10 years. 

6.      For misdemeanor sexual assault under RSA 632-A:4, 10 years. 

7.      For felony indecent exposure or lewdness under RSA 645:1, II, 10 years. 

8.      For a class A misdemeanor or felony offense under RSA 318-B:26, II, 2 years.

If a petition for annulment is denied, no further petition shall be brought more frequently than every 3 years thereafter. 

Anyone who has been convicted of violent crime, felony obstruction of justice or any offense resulting in an extended term of imprisonment is prohibited from annulling their record. Violent crimes are defined as:  capital murder, first or second degree murder, manslaughter, class A felony negligent homicide under RSA 630, first degree assault under RSA 631:1, aggravated felonious sexual assault or felonious sexual assault under RSA 632-A,  kidnapping or criminal restraint under RSA 633, class A felony arson under RSA 634:1, robbery under RSA 636, incest under RSA 639:2, III, endangering the welfare of a child by solicitation under RSA 639:3, III, or any felonious child pornography offense under RSA 649-A.  

Those people seeking an annulment of their criminal record, may complete the application process by Petitioning for Annulment.  You can find a link for a Petition to Annul at the NH Court Website: https://www.courts.state.nh.us/forms/nhjb-2317-ds.pdf.  It is extremely important that the petitioner read over the form carefully and complete the application correctly.  If any error occurs, a person must wait 3 years before filing another petition.  

Often times, people will seek out an experienced criminal law attorney to review their convictions and process the petition for them.  There are fees associated with petitioning for annulment.  First, there is a court filing fee of $125 for each court where there is a conviction.  Upon filing, the NH Department of Corrections will be ordered to conduct an investigation with a records check and submit it to the court.  The NH Department of Corrections charges a fee of $100.  After the annulment has been granted, the Department of Safety charges $100 to effectuate the annulment by deleting the computer records.

If you are embarrassed by mistakes made when younger, you may want to seek an annulment of a criminal record. The annulment may allow you to travel to Canada, restore rights to possess firearms, coach or chaperone children.  An annulment prevents a person who made a mistake from being labeled for life. This law helps restore citizens to enjoy their full constitutional rights. 

Len Harden is a local criminal defense lawyer who has been practicing law for almost 30 years.  He has offices in Lancaster, Littleton and Lebanon and is frequently contacted by people looking to annul their records.  Harden will review each case to make sure a person qualifies and can assist you in completing the paperwork. You can reach him by calling 603-788-2080 or via his website www.LenHarden.com.

North Country Fun: Skiing/ Après Ski and Avoiding DWI

The White Mountains have fantastic ski areas with great terrain and views.  People come from all over New England and beyond to make turns, enjoy views, be outside and vacation.  The local ski areas include:  Loon, Cannon, Bretton Woods, Cranmore, King Pine, Black Mountain, Wild Cat, Attitash, and Waterville Valley.

My family and I enjoy skiing and living in the White Mountains.  As a DWI/ Criminal defense lawyer I have had many occasions to represent people who get arrested while on vacation or traveling in our area.  I know the area and am ready to defend against any allegations or charges.  I have defended skiers and riders routinely appearing in Plymouth, Littleton, Lancaster, Conway and Berlin District Courts to defend citizens accused of DWI among other crimes. 

Part of  a ski vacation includes having down time relaxing over food and drinks.  As you probably know each of these ski areas have bars and restaurants as well as nearby facilities to help travelers get refreshed.  There are many great options for après ski in northern NH.  There are no laws against skiing and drinking but as it is a dangerous sport and it is wise to be cautious and to be mindful so that you remain safe.  The laws about drinking après skiing are commonly referred to as DWI laws.

I am frequently asked "how much is too much?"  or "how long will a drink affect me?"   The answer is it depends, but  science and toxicology use an estimate that helps understand appropriate limits.  A 150 pound person should to be able to eliminate or process one 12 ounce 5% percent beer,  one 6 ounce 14% glass of wine or one ounce 40% alcohol drink per hour.   This amount and percent is determined to be a drink unit.  

In practical terms this formula means that it would take a 150 pound person about 3 drinks in an hour to obtain or be close to .08% blood alcohol content (BAC) which is the legal limit for impaired driving in NH.

So if a person weighs 200 pounds it that would mean it takes about 4 drinks and if they are 120 pounds it would be 2.5 drinks.  There are differences based on body mass, muscle content, gender and drinking experience these and other factors can adjust the amounts up and down.  Bear in mind the average safe number is that a 150 pound person will eliminate 1 drink per hour.

So the answer to how much is too much is a personal matter but it is wise be smart and think ahead.  As such it is always smart be be safe and have a designated driver or use a shuttle service such as provided in Lincoln, Woodstock when you enjoy après skiing.

Attorney Harden has practiced DWI/ DUI defense in the North Country for almost 300 years and is intimately familiar with the nuances of defending DWI and criminal cases.  If  you're in need of a DWI/ DUI  or criminal defense lawyer with years of experience and a history of winning cases in NH, contact Attorney Len Harden today. 

Public Trials in a Pandemic? Why Not Live Stream?

   The Sixth Amendment to the U.S. Constitution and Part 1, Article 15 of the NH Constitution provide a fundamental guarantee to all defendants in criminal cases to the right to a public trial. This right to a public trial is fundamental and essential to our justice system. The reasons behind public trials are manifold.  The biggest reasons are for accountability, transparency and fairness.  In NH there is a long history of public trials and the closure of a court has been held to be prejudicial and reversible error without a showing or actual prejudice.

  

The right to a public trial are guaranteed to the defendant not to the accuser.  In our modern world and during a time when courthouses are actually closed the few trial that have proceeded were being streamed live.  However, some prosecutors and victim's rights advocates were upset and sought to prohibit the live streaming of trials.  The NH Court agreed with giving alleged victims' a new power to prohibit live streaming of trials. Federal and NH Law requires access to trials for media and it remains an unsolved issue if media can compel live streaming despite court's decision to end live streaming based on an alleged victim's desire for privacy.

         The NH Association of Criminal Defense Lawyers (NHACDL) has issued a press release objecting to the NH Court administration's decision to end live streaming trials at request of alleged victims.  NHACDL strongly objects to creating this expanded 'right' to alleged victims.  In short the Court on its own has decided that alleged victim's now have a right to prevent live streaming of trials.  See the Press Release below:

NHACDL Press Release 10-21-2020

Race Violence and Justice

As a member of the board of NH Association of Criminal Defense Lawyers, I am proud that our board worked together to comment on the most recent crisis in America and have issued a Statement on Police Brutality and Systemic Racism in our criminal justice system. 


It is my hope, desire and intent to be proactive helping to provide systemic solutions to improve justice. I personally believe police body worn cameras and audio and video of all police and public interactions is essential.  This is a long held belief as well as recording of all interviews and increased training to de-escalate violence and improve community policing.


We as a group have long been on the forefront of justice issues and believe that increased transparency and training will create a more just, fair and equal society.  I look forward to listening, learning and working with others to improve our justice.

What to Look for in Picking a Lawyer. How to Avoid a Bad One!

The search for a good lawyer is difficult.  A person is under stress, pressure and anxious.  They need help to understand the process and have likely never faced this task before.  Anybody can create a website and look like a modern day Clarence Darrow with great graphics, plaques, awards and even cite published books.  But, what do you really need to know to pick a good lawyer and how do you avoid getting a bad one? 

I have been practicing for over 25 years and have seen the internet completely transform legal advertising.  It used to be that people lawyers were prohibited from advertising and then they were limited to a phone book.  Now the internet controls and there are still limits but they are being strained. 



So how to separate the substance from the fluff?  I believe it all comes down to a person's character.  If a lawyer has solid reviews that are real, a good reputation, is professional, competent and well regarded by other lawyers, clients and courts then you have a good lawyer.  If a lawyer has excelled at cases in the past, strives for continued education and skills, works diligently and is a person who cares then you have a good lawyer. 

It may shock some but there are companies that will sell plaques, awards, certificates that all sound impressive.  A long time ago I learned that word of mouth and referrals from former clients and other lawyers were the best sources of new clients.  That is still the case.  So to avoid a bad lawyer make sure you look into a lawyers background and character.

If you have a family member that is a lawyer/ clerk/ judge/ cop/ bailiff or even knows someone involved with a person involved in the court ask them who is the best lawyer in the area.  If you don't have a connection go to the court and ask the bailiffs who is the best lawyer, they see every lawyer in the area and will likely share that information.  Just watch court for a day and learn firsthand.  Who would you want to represent you?  Look, listen and learn the answer firsthand.  A long time ago I was working as a newer lawyer and I got my first opportunity to be a real trial lawyer because a bailiff told a firm downstate (Concord area) that I was the real deal and they offered me a job based on the court security word of mouth.

What about the slick websites that boast about a lawyer being the top 100 etc?  It is important to know what criteria are used to place a professional in the Top 100.    I routinely get mail/ solicitations from groups trying to sell me plaques, certificates, trophies for a fee I can join some illustrious group. These groups do not vet professionals and are largely scams.  In fact one of my colleagues filled out the form to join on behalf of the lawyer's dog and upon paying the fee the dog was recognized as one of the top 100 lawyers in the state.

I have wondered about a publication called Super Lawyers as some of my colleagues who I respect were named Super Lawyers. I doubted that these respected and honorable member in my legal community would pay for such a title.  So I asked one of them and he told me that it is peer nominated and then vetted, that he didn't pay anything it just showed up.  I still thought this must be for the larger firms down south, due to the larger number of cases and lawyers, but this week I received a notice from Super Lawyers saying that I was selected for 2020.  After a little research it seems that this group really is a peer designation that is given to only 5% of lawyers and does not require a person to pay to join.