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Sunday, September 29, 2013

Criminal mediation program in NH’s Hillsborough County hanging by a thread

NASHUA – A program testing ways to resolve criminal cases more quickly may not survive in Nashua because of a disagreement between the county’s lead prosecutor and the head of the state’s superior court system.

Superior Court Chief Justice Tina Nadeau launched a pilot program to test mediation resolutions in criminal cases at Hillsborough County Superior Court in Nashua this spring. Nadeau said the hope is that an independent judge can “inject reality” into criminal prosecutions early on, eliminating “posturing” by defense and state attorneys, and get cases resolved without prolonged prosecutions. ...

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NASHUA – A program testing ways to resolve criminal cases more quickly may not survive in Nashua because of a disagreement between the county’s lead prosecutor and the head of the state’s superior court system.

Superior Court Chief Justice Tina Nadeau launched a pilot program to test mediation resolutions in criminal cases at Hillsborough County Superior Court in Nashua this spring. Nadeau said the hope is that an independent judge can “inject reality” into criminal prosecutions early on, eliminating “posturing” by defense and state attorneys, and get cases resolved without prolonged prosecutions.

But Hillsborough County Attorney Patricia LaFrance said the handful of mediation sessions so far have heavily favored defendants.

“It’s turned into beating up on the state, ‘the state’s being unreasonable,’ ” LaFrance said. “It’s never about the defendant stepping up and taking responsibility. It’s supposed to be back and forth, and it seems to be very one-sided.”

The program is voluntary, but LaFrance said there has been pressure from judges for county prosecutors to move cases into the mediation sessions.

Nadeau said this week it may be wise to move the pilot to another county where it may get more participation. Prosecutors in Strafford and Rockingham counties have been open to alternative justice programs, she said.

“I’m happy to try it in another county if it’s not working, given the philosophies of the people in (Hillsborough County),” she said.

Mediation is a common measure in civil and marital cases, but less so in criminal prosecutions.

Arizona courts have had success with criminal mediation, Nadeau said, and the idea is that less formal and more open negotiations can move cases to pleas they would reach in six to nine months anyway.

Well over 90 percent of criminal cases never reach a jury even without mediation, Nadeau said.

Retired Judge Kathleen McGuire oversees the mediation sessions, which include lawyers, defendants and, if they want to attend, victims.

She gives both sides her assessment of the strength of their cases. For instance, she can tell a defendant a suppression issue isn’t likely to succeed, or tell prosecutors they’re unlikely to get certain statements by a defendant admitted as evidence.

Being able to share those strategies with a nontrial judge allows lawyers to avoid tipping their hand and damaging their own cases.

LaFrance said she also has concerns about putting victims “between a rock and a hard place” when forced to choose between confronting a defendant in close, informal quarters or not having their voice heard.

LaFrance said she hasn’t closed the door on participating in the sessions, but has told assistant county attorneys to not go along with mediated deals they don’t believe are fair.

“If once I heard the judge acknowledge the defendant should take some responsibility, we would be more inclined to participate,” she said.

Joseph G. Cote can be reached at 594-6415 or jcote@nashua
telegraph.com. Also, follow Cote
on Twitter (@Telegraph_JoeC).