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Judicial Branch, State of New Hampshire
Laura Kiernan
Communications Director
603-271-2646 ext 2359

Review focused on law involving release of sexually violent predators

CONCORD---An internal report on the handling of several cases involving petitions for civil commitment of sexually violent predators that were dismissed for failure to meet time deadlines was released today by Superior Court Chief Justice Robert J. Lynn. The 22-page report is available on the Judicial Branch website.

The review was conducted by Senior Superior Court Justice Bruce E. Mohl, a former deputy attorney general of New Hampshire, with assistance from Kimberly D. France of the Human Resources Department at the Administrative Office of the Courts. The report examined five cases filed at Hillsborough-North Superior Court involving civil commitment of sexual predators. Two cases filed in 2007 proceeded in a timely fashion; three cases filed in 2008 were dismissed this past spring for failure to meet deadlines, resulting in the defendants in those cases being eligible for release at the end of their prison terms. All five cases were brought under a 2007 state law which establishes procedures for determining if sex offenders who are about to complete their prison terms should be civilly committed because they are too dangerous to be released into the community.

Chief Justice Lynn expressed his thanks to Senior Justice Mohl for his work on the report and said he agrees with the report's conclusions.

“As the report indicates, with the benefit of hindsight, it appears that both the court and the prosecution could have done a number of things differently that would have avoided this truly unfortunate situation,” Chief Justice Lynn said. In April 2009, at the same time he launched the internal review, Chief Justice Lynn issued mandatory procedures to ensure that all time deadlines are met in civil commitment cases involving sexually violent predators.

“As Chief Justice of the Superior Court, I accept responsibility for the fact that we did not anticipate the problems that developed in these cases and did not have the procedures in place immediately after this important new law went into effect in 2007,” Chief Justice Lynn said.

The report released today said that the “documentary trail in these cases” does not clearly answer “why things went awry in 2008.” Interviews conducted as part of the internal review indicated that in the 2007 cases, in which the deadlines were met, the county attorney “sought out the Clerk and deputy clerks” to let them know that immediate action had to be taken to meet legal requirements. That did not happen with the three cases in 2008.

The report noted that in civil cases of this type, the standard practice would be that the party seeking immediate action by the court would file a motion making that request with the court clerk. This was not done in the 2008 cases, nor did the prosecutor bring the issue to the attention of the clerk's office. “Had the County Attorney's Office filed a separate motion in each case, or pursued the Clerk's Office staff as it apparently did in 2007, it is more likely than not that the file would have been presented to a judge for the required ruling” and the cases would not have been dismissed, the report found. The report also indicates, however, that the new statute places the responsibility for meeting the statutory deadlines on the Court and states that without specific procedures in place for handling these types of cases, “the timelines of the statute would not be met.”

In two of the 2008 cases, the clerk's office did not bring the file to the attention of a judge until after the 10 day deadline for the judge to make a probable cause determination had already expired. In the third 2008 case, the judge did have the file within the 10 day period but at the request of the defense, but did not make a probable cause finding after the defense contended that an evidentiary hearing had to be conducted first. Ultimately, that resulted in the missed deadline. Finally, the report suggests that because the parties in the cases were litigating what appeared to be a number of more significant issues of first impression under the new law– such as the constitutionality of the statute and whether proceedings under it were open to the public – this may have served to mask the issue of the timelines set by the law.

The new procedures implemented on April 7, 2009 should ensure that there is no re-occurrence of the above problems in the future, Chief Justice Lynn said. He also noted that the legislature has recently made changes in the law which, if signed by the Governor, would effectively set aside a NH Supreme Court decision, State v. Fournier, which said that the language of the original 2007 law required that these cases be dismissed if time deadlines were missed. Fournier was one of the three cases dismissed in 2008.

Related links

April 09, 2009: Chief Justice Lynn Launches Internal Review of Court Procedures Following Case Dismissals

April 09, 2009: Text of Chief Justice Lynn's Letter