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.

Budget cuts have left the entire court system in New Hampshire at a dangerous point that is hurting victims.  Because state budget cuts have eliminated judges and court staff, jury trials have been cancelled and cases take longer to move through the system.  For example, this means civil (non-criminal) cases by a patient harmed by medical malpractice or an accident victim seeking compensation won’t have a jury trial for more than a year.

The elimination of civil jury trials benefits insurance companies.  And it doubly impacts those people injured because they have to wait for their day in court – a year or two sometimes – and defendants, like insurance companies, are less inclined to offer reasonable settlements with no trial scheduled.  It is common for insurance companies to try and settle claims with the pressure of facing a jury trial.  Without facing a jury trial, insurance companies are in a position to make unreasonably “low” offers.

Justice is not being done when victims of an auto accident, a wrongful death, medical malpractice or employment discrimination are compelled to accept “low” settlement offers.  Insurance companies will take advantage of the cancellation of civil jury trials.

Recent revelations in Washington D.C. show just how fallible the breath test machines used by police to prosecute DWI cases can be. A consultant hired by the District found that every single one of the 10 breath machines used by the District were incorrectly calibrated. These inaccuracies caused the machines to show blood-alcohol content to be 20% higher than it actually was. “Nearly 400 people were convicted of driving while intoxicated in Washington D.C. since the fall of 2008 based on inaccurate results from breath test machines, and half of them went to jail….”

The Washington Post, June 10, 2010 http://www.washingtonpost.com/wp-dyn/content/article/2010/06/09/AR2010060906257_pf.html

The errors arose out of an error made by a single police department employee, who made a mistake when replacing one of the motor pumps inside the notoriously complicated machines. A District probe has found no malicious intent on the part of the employee. The lack of malicious intent affords scant solace to those wrongfully convicted by the mis-calibrated machines, however. Those people lost their licenses, their jobs, and sometimes their freedom, based on incorrect breath machine readings.

Fortunately, the New Hampshire Supreme Court recently rejected an attempt by state authorities to eliminate one of the few protections available to New Hampshire drivers against this kind of error. In the most recent legislative session, state officials tried to remove the requirement that New Hampshire drivers be given a sample tube of their own breath that they can have tested at an independent lab. The Supreme Court found that the second sample tube provided to drivers was required in order to ensure fairness. That decision can be found here:

http://www.courts.state.nh.us/supreme/opinions/2010/2010037opini.pdf

These developments in Washington, D.C. show how important it is for drivers who believe that their breath results are too high to contact an experienced lawyer to examine all possible defenses.

If you’ve been watching the news lately, you may have seen a story concerning the tragic death of 15 year-old high school student, Phoebe Prince, in Massachusetts. Phoebe was the victim of a vicious bullying campaign waged against her by at least 6 other students at South Hadley High School.

Everyone knows that growing up is hard, and that some amount of getting picked on from time to time is a part of every adolescent’s life experience. However, serious bullying can cause lasting psychological and, in some cases, physical harm to vulnerable children. In addition, the students doing the bullying can face serious negative consequences themselves when it gets out of hand. The bullying students in Phoebe’s case have been charged criminally for her death. Phoebe’s case is an extreme example of how bad it can get when schools do not step in to prevent bullying from getting out of hand, but lasting harm can and often is done even in less serious cases.

New Hampshire’s Supreme Court has held in the past that schools have a duty of reasonable supervision to oversee the welfare of the students in their care. That means that once a school becomes aware of unsafe conduct affecting the welfare of its students, it must step in and take reasonable measures to alleviate the dangerous situation. In the context of bullying, that means that once a student makes school officials aware that he or she is the target of bullying, the school must work to put a stop to it. Schools that fail to take prompt and effective measures to prevent bullying from continuing may face liability for damages caused to the bullied student for their failure to do so.

click here to read the People Magazine article

The rise of computer technology has created new challenges for courts and lawyers concerning the scope of privacy protection afforded by the Fourth Amendment. When the Founding Fathers wrote that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” they had no idea that the future would enable people to carry their “papers and effects” with them everywhere they went. Yet “flash” or “thumbdrive” technology allows them to do just that. A recent Federal case out of Florida provides an example of the difficulties that new technologies present for court attempting to apply constitutional protections written well over 200 years ago.

In United States v. Durdley, the government wanted to use evidence obtained from a flash drive that Mr. Durdley had accidentally left in a computer at his place of work. The flash drive had some work-related documents, but it also had evidence that the government used to convict him of a crime. This evidence was found when a co-worker sat down at Durdley’s computer terminal and began searching through the non-work-related files. The co-worker alerted the authorities, who then used the evidence to convict Durdley of the crimes.

Durdley argued that he had an expectation of privacy in the contents of the thumb drive. He never loaded the incriminating evidence onto his work computer and never made it available for public viewing. The co-worker realized that Durdley had left the thumb drive behind and began searching through it, then alerted police. The court found that by leaving his thumb drive in the computer, Durdley forfeited his Fourth Amendment rights.

This is yet another example of a case in which the government, criminal defendants, and courts are struggling to figure out how to apply constitutional protections drafted in the 18th century to the digital age.

On Wednesday, March 24, 2010, the United States Supreme Court stayed the execution of Henry W. Skinner, a Texas man convicted in the brutal 1993 killings. Skinner claimed he was too impaired by drugs and alcohol to have the strength to commit the crimes, but the jury rejected these claims and he was convicted and sentenced to death in 1995. Skinner raised various appeals through the Texas and federal courts, all of which failed. During this time, however, technical advances in the forensic use of DNA improved in ways that Skinner believes would have allowed him to prove that someone else committed the murders while he was passed out on drugs and alcohol.

The use of DNA evidence is a powerful thing. Although the law places the burden of proof on the government, DNA science can give a defendant a way to prove that he is actually innocent. The likelihood of error in DNA cases is exceedingly low. Since 1989, over 225 wrongfully convicted people have been cleared by DNA evidence.

The State of Texas and the federal government have put strict time limits on the ability of inmates to challenge their convictions. These limits were intended to prevent condemned prisoners from delaying their fate with endless, frivolous appeals. Access to DNA evidence already in the possession of the government, however, will not needlessly delay executions. If the evidence is tested, it will either support the government’s claim that Skinner was the killer, or provide evidence that someone else committed these heinous crimes. The process is simple, conclusive, and would either add to the certainty that the government is going to execute the right man, or prove Skinner’s innocence. There is little reason not to test the DNA evidence. If the evidence shows that Skinner committed the crimes, then society will send him to his fate knowing that we have the right man. Obviously, once the death penalty is imposed, it cannot be undone. There is no reason not to exhaust every avenue to ensure that only guilty people are executed.