In these economically challenging times, many people have found themselves unemployed and struggling to find new work.  Employers are still wary and not in a big hurry to increase their work forces.  If you are one of the many unemployed workers looking for a new job, you know it is a competitive job market.  One aspect of keeping yourself above the competition is to bolster your resume or job application by clearing your record of an arrest or conviction.

It is common for employers to have a space on their job applications which requires you to disclose certain prior criminal arrests or convictions.  Because many employers also do criminal background checks on prospective employees, you will not be able to “hide” from such a criminal record.  Under New Hampshire law, any employment application may question you about a criminal record in terms of “Have you ever been arrested for or convicted of a crime that has not been annulled by a court?” (emphasis added).

This means you should try to have an arrest or conviction annulled because you may not have to disclose it on a job application.  If annulled, it is treated as if you had never been arrested or convicted.  New Hampshire law permits you to petition the court in which you were convicted for an annulment of the criminal conviction, provided that the court finds that it will “assist in [your] rehabilitation and be consistent with the public welfare.” Different levels of criminal convictions have different minimum time periods that must pass without further criminal convictions on your record.

For non-motor vehicle related violations, the minimum time is one year.  For misdemeanors (except certain sex crimes), the minimum is 3 years.  For class B felonies, it is 5 years, and for class A felonies and certain minor sex-related crimes, it is 10 years.  Crimes involving violence, obstruction of justice, and aggravating circumstances which lead to an extended sentence, are not eligible for annulment.

An attorney experienced in seeking arrest or criminal conviction annulments can assist you in filing the proper documents with the court. The attorney will file the necessary paperwork and appear with you before the court if necessary.  Getting your record annulled is important and can have a significant impact on your life so you should contact a law firm with experience in annulment law.

The New Hampshire Supreme Court decided an interesting case this week concerning the right of a party to participate in his civil case via telephone, when he is unable to attend the hearing in person, due to the fact that he is in prison.

According to the Bellingham Herald, in Washington state, Buzzard has been in prison since 2003 for sexually assaulting a child.  He will be eligible for parole in March, 2011.  The New Hampshire Supreme Court’s decision says that while incarcerated, Mr. Buzzard filed a small claim in Nashua District Court.  The small claim alleges that Mr. Buzzard ordered some magazines and photographs from the defendants, Ariel Shea and F.F. Enterprises, a now-defunct operation out of Nashua.  Mr. Buzzard alleged that the defendants took his $60.00 but failed to deliver the pictures and magazines as promised.

Not surprisingly, Mr. Buzzard was unable to attend the hearing in the Nashua District Court, as he was in prison.  He petitioned the court to allow him to appear telephonically, and even arranged with the Washington authorities to have a telephone available to him.  The Nashua District Court denied this request, and when Mr. Buzzard predictably failed to appear for his hearing, the court dismissed his small claim.

The Supreme Court accepted Mr. Buzzard’s appeal, and held that the Nashua District Court should not have dismissed his case.  The Court noted decisions from other state and federal jurisdictions in which courts have found that it was fundamentally unfair to prevent an inmate from being heard in court.   The Supreme Court ruled that the lower court was at least required to consider whether the “countervailing considerations such as expense, security, or logistics” were sufficient to preclude the imprisoned litigant from participating in his trial telephonically.

The Nashua District Court will now have to reconsider whether to allow Mr. Buzzard to phone in his case.

The implications of this case may be more significant than Mr. Buzzard’s interest in getting his pictures or the return of his $60.00, however.  A person does not forfeit his constitutional right to petition the court for a redress of grievances when he is imprisoned.  A criminal conviction and sentence strips a person of many of his rights, most obviously, his right to remain at liberty and be free.  However, inmates still have a fundamental right to access the court system.  This case requires that courts consider the various means available to allow even prison inmates to exercise this important right.

Several attorneys filed suit against the State recently to try to obtain proper funding for our judicial system.  It is broken and I could not sit idly by and let it be gutted by excessive legislative budget cuts so I joined in as counsel.

Each year 230,000 court cases are filed in New Hampshire.

Certain types of court cases have specific time frames in which to act and those are set by the legislature.  For example, domestic violence cases and criminal cases require certain scheduling dates by law.  Thus, work on such cases means other cases must be delayed if judge time is lacking due to vacancies.  For instance, in 2009, there were 5,300 cases of domestic violence with hearings required between five or thirty days of filing, depending on the request.

Stalking cases were 1,470 in number, with the same time requirements.  9,600 landlord/tenant cases must be heard ten days from service of process.  Involuntary emergency admissions to the N.H. Hospital were filed 1,700 times last year and they must be heard within three days of hospitalization.

Families are also heavily affected by the lack of a judge to help decide their disputes.  7,200 juvenile cases, 10,000 new divorce or family petitions and 7,000 closed cases reopened for parenting or lack of child support issues were heard last year alone.

Judges cannot decide cases without someone processing them, scheduling them, getting orders out, and otherwise processing paperwork.  Each month thousands of orders have to go to the office of child support enforcement, various criminal law agencies, and to parties involved in marital and civil cases.

In the non-criminal area our State Constitution’s Bill of Rights (Part I, Article 14), says that everyone is entitled to a certain remedy for all injuries they may receive and that they are to obtain it “completely, and without any denial; promptly, and without delay.”

The purpose of that provision is to make civil remedies readily available and to guard against arbitrary denial of access to the courts.  It is an equal protection clause because, whether you are suing someone or being sued, you want to have your case resolved as soon as possible.

Last year there were $3.1 million of cuts out of a judicial branch budget of about $65 million, with another $2.2 million hit in May.  Concord District Court, which is a three-judge court, is now operating with one full-time judge.  Due to the reduction in personnel a form letter went out this summer canceling all civil trials.

Small claims cases were all cancelled in the Manchester District Court this summer for an indefinite period.

On July 22, Merrimack County Superior Court began closing to the public daily from 1:00 p.m. to 4:00 p.m.  As of June 30, it had nearly 500 case files with pieces of mail that had yet to be docketed in the court record, with some documents dating back to March.  Another 150 trial and hearing notices had not been sent out and more than 350 files contained court orders that had not been issued.

And Hillsborough County just announced:

HILLSBOROUGH SUPERIOR COURT CLERKS TO CLOSE OFFICES

TUESDAY AND THURSDAY AFTERNOONS

Staff shortages prompt move to focus on reduction of case backlog

CONCORD, October 1 – The clerk’s office in Nashua for Hillsborough County Superior Court North and Hillsborough County Superior Court South will close at 1 p.m. on Tuesday and Thursday beginning October 5 to allow uninterrupted time for processing cases and related materials.

Both clerk’s offices, which had been closed from 8 a.m. to 9 a.m., will reopen at 8 a.m. daily, beginning Oct. 5 with implementation of the new Tuesday/Thursday afternoon closings.

After 1 p.m. on Tuesday and Thursday, no telephone or counter service will be available to lawyers, litigants or the public in the clerk’s office during those hours; the automated telephone system will be monitored so that emergency requests are addressed promptly. A “drop box” will be set up inside the courthouse at 30 Spring Street in Nashua for filing documents during the hours when the clerk’s office is closed.

As of today, the Merrimack County Superior Court, which had been closed down since last August on weekday afternoons to work on reducing the case backlog, will be open for a full day on Fridays. The clerk’s office in Concord remains closed to lawyers, litigants and the public Monday through Thursday from 1 p.m. to 4 p.m. to allow for uninterrupted case processing.

Several other court locations statewide, faced with backlogs and staff shortages, also have limited public operating hours to allow uninterrupted time for employees to process cases.

Superior Court Chief Justice Robert J. Lynn said the schedule will be reviewed every 30 days to determine when the clerk’s office can return to routine office hours. Reductions in the court system budget have required administrators to maintain 71 full-time non-judicial vacancies, which means court locations have fewer employees on staff to carry out day to day clerical responsibilities.

These cutbacks affect all citizens who seek justice.  I will do all I can to fight for fair funding.  If you have a delay horror story, email me at info@nojustice.org

In a recently issued decision, the New Hampshire Supreme Court took the highly unusual step of reminding prosecutors that their duty is “to seek justice, not merely to convict.”

The case State v. Leveille, slip op. August 19, 2010, was an appeal from a conviction of first degree assault.  The case began as an unfortunate family dispute involving snow removal and allegations of improperly parked carse, and ended with gunshots fired.  Mr. Leveille was charged with attempted murder, first degree assault, and second degree assault.  Although the decision does not detail the facts, Mr. Leveille apparently introduced evidence that the gun discharged by accident and asked the judge to instruct the jury to acquit him of attempted murder and first degree assault if it believed that the gun discharged accidentally.  Despite the fact that there was evidence that the gun discharged accidentally, the prosecutor did not want the judge to instruct the jury that Leveille should be acquitted if the jury believed the gun discharged accidentally.

The superior court judge rejected the prosecutor’s efforts to limit the jury instructions, and advised the jury to acquit if it believed that the gun discharged accidentally.  The Supreme Court agreed with this decision, but was clearly not amused by the prosecutor’s attempt to prevent the jury from hearing the complete statement of law sought by the defense.  Since the Court did instruct the jury that an accidental discharge could lead to a not guilty finding, Mr. Leveille’s conviction was upheld.  Hopefully, the Court’s warning to prosecutors to seek justice will be heeded.

Jerry Ray Bowen was a felon and probable gang member who apparently shot his sawed-off shotgun at his girlfriend’s car as she drove away following a violent break up. Not surprisingly, the police wanted to locate Bowen and his sawed-off shotgun.  The police had heard that Bowen “might be staying at his foster mother’s home,” and obtained a search warrant for her home and any weapons found there.

Augusta Millender, the foster mother, and other members of her family were home when the SWAT team arrived to execute the search warrant.  At 5:00 a.m. they were ordered to leave their home while the police searched for Bowen and his sawed-off shotgun, neither of which were found at the Millender home.  What police did find, however, was Ms. Millender’s own (not-sawed-off) shotgun, and a box of .45 caliber ammunition.  These items were seized.

Ms. Millender, who had been at home sleeping when the SWAT team burst through her front door, filed suit against the police for violating her Constitutional rights, specifically, her right to be free from unreasonable searches and seizures under the Fourth Amendment.

Civil rights claims against police can be uphill battles, but in the right circumstances, the cases are definitely worth pursuing.  Often, the existence of a search warrant forecloses suit under the Fourth Amendment and allows the police to rely on “sovereign immunity” to avoid responsibility for their misconduct. In the Millender case, however, the 9^th Circuit Court of Appeals held that the police were not immune from suit because even though a judge signed the search warrant, the evidence that Bowen or his shotgun would be found in the Millender home was so scant that no reasonable officer should have believed that there was probable cause in the first place.

Victims of civil rights violations by police officers face a tough battle when they seek compensation from the government.  Pursuing these claims requires skill and experience.  At Douglas, Leonard & Garvey, we have brought cases against police officers and other governmental officials to protect our clients’ constitutional rights.