MANCHESTER, NH – Systemic problems involving missed deadlines, complying with rules required of prosecutors statewide and court orders have resulted in a Superior Court judge sanctioning the office of Hillsborough County Attorney John Coughlin.
Judge N. William Delker, presiding in Hillsborough County Superior Court Northern District, issued the 12-page order on Nov. 16, 2021, in the case of Carlos Marsach, 21, of 25 Laval St., charged with reckless conduct, deadly weapon.
However, Delker listed other cases in which fellow judges encountered the same problems: violations of court orders and missed deadlines; discovery not received; a prosecutor arriving 45 minutes late for a dispositional conference; a witness list not filed by the final pre-trial conference.
“What is noteworthy about this list, including the case at bar, is that the cases involve nine different lawyers – or nearly half of the 19 lawyers—with the HCAO (Hillsborough County Attorney’s Office). This leads the Court to conclude that the issue is largely one of systematic breakdown,” Delker wrote.
In sanctioning the office, Delker issued a $1,000 fine, but suspended it for six months with conditions.
“If a prosecutor cannot comply with the requirements within the timeframes established by the rule, the prosecution must file a motion requesting appropriate relief and establishing good cause for the inability to comply with the rule,” he said.
Coughlin, First Assistant County Attorney Shawn Sweeney and Assistant County Attorney Elena Brander addressed the court on the issue of sanctions at the Oct. 12, 2021 hearing.
Coughlin provided the following statement on the matter to the Ink Link:
“The court’s latest order implies that the state has not complied with prior orders. The prior order required the prosecutor to ‘provide a plea offer within 15 days of the next [August 2, 2021] status conference.’ The prosecutor provided a plea offer on the very day of the next status conference; clearly within 15 days and in full compliance with the Court’s requirement. Despite the prosecutor having made a timely offer consistent with the Court’s order, there has been no response to the plea offer to date.” “The County Attorney’s Office manages thousands of cases per year, more than any other prosecuting agency in the state and we take our deadlines seriously. We are dedicated to our mission of equal application of the law to protect public safety and seek justice. We are committed to that mission and continue to work cooperatively with our law enforcement partners. The latest order serves only to destabilize and demoralize the hard-working members of the Hillsborough County Attorney’s Office and potentially defund prosecution by depleting limited resources.”
Delker said sanctioning the office wasn’t something he took lightly.
“The Court is mindful that we are all human and prone to make mistakes, especially when the lawyers work under tremendous pressure from crushing caseloads. Isolated lapses, inadvertent oversights, or other sporadic non-compliance that does not cause significant disruption or waste of judicial resources would not warrant a judicial remedy. But that is not the situation presented in this case. Nor is it the recent experience of this Court with respect the HCAO’s noncompliance with rules and orders in other cases.”
The judge said he took no remedial action when, in the Marsach case, the county attorney’s office didn’t file a case status report by the March 9, 2021deadline; when the prosecutor did not provide complete discovery as required at an April 13, 2021, dispositional conference; nor when the state didn’t comply with specific deadlines the court set in an April 13, 2021 order; the state produced one video the day before the hearing and did not make a plea offer in the case.
Delker instead ordered that at least three weeks before the next status conference the state had to provide the defense with all requested discovery or file a motion seeking an extension or other relief. The prosecutor also had to provide a plea offer within 15 days of the next status conference and he said the “parties shall engage in meaningful plea discussions.”
The judge also said, “Failure to comply with this order will result in the case being placed on the trial docket and the Court will only accept a naked plea after a trial date is set in this case.”
A naked plea is when a defendant pleads guilty to a charge without benefit of a plea agreement or a capped sentence.
At that Aug. 2, 2021 status conference, the prosecutor still hadn’t made a plea offer. Delker said the public defender attempted to communicate with the prosecutor assigned to the case before the hearing but without success. Delker didn’t impose the sanction he previously proposed – put the case on the trial docket and accepting only a naked plea – because he said that would only punish the defendant.
He said he was left with only two choices: ignore the lapses or craft a remedy or sanction to try and put a stop to the omissions.
“Ignoring the lapses here is not palatable because it would be a tacit acknowledgment that the Court’s orders have no teeth,” he wrote.
At the Oct. 12, 2021 hearing concerning sanctions, Coughlin explained the issues in the office when he took over on Jan. 6, 2021, and what he has done to address the problems. He said the office had been under the supervision of the New Hampshire Attorney General’s Office in 2020 because, Delker wrote, the office “lacked effective leadership and management support due to lack of involvement of the County Attorney and a management team that had a full workload, specifically managing prosecutors who had full caseloads.”
When Coughlin took over, he had five prosecutor vacancies to fill, and another five prosecutors left after he started as county attorney.
Delker said one excuse HCAO frequently cited for failing to comply with deadlines was the lack of an effective calendaring system. Coughlin said he obtained approval to purchase Microsoft365 to correct that. The county IT department has yet to purchase and install the software but Coughlin couldn’t explain why that was.
Coughlin said when he started in January there was no standardized procedure for departing attorneys. He said he implemented a formal policy for case transfers in an attempt to address the communications gaps that occur in these situations.
Delker said the HCAO recognizes the problems and has taken the court’s concerns seriously.
“The Court is also mindful that organizational change takes time to fully implement. Nonetheless, some of the problems, like the failure to make a timely plea offer as required by Rule 12(b)(3)(A), could have been implemented on the first day the new County Attorney took office. Yet, that problem continues even after the sanctions hearing in this case,” Delker said.
It is the most frequently cited reason for judges scheduling multiple dispositional or status conferences, he said. “This results in a tremendous waste of judicial resources. These repeated status conferences due to the lack of plea offers (or failure to provide a timely response to the defendant’s counter-offer) only exacerbate the backlog facing the prosecutors,” he said.
Delker said as a result, cases remain on the docket longer than necessary resulting in an even greater caseload for each individual prosecutor. “None of this is in the public interest. The Court must fashion a remedy to provide incentive for the HCAO to more faithfully comply” with rules and orders.