Two weeks ago, Jaye Duncan was the type of lawyer handling 100 cases at once.
As a Manchester public defender, Duncan represented dozens of clients, helping them to advocate for favorable bail conditions, enter plea agreements, and defend themselves against their charges. The caseload is the norm for judges, prosecutors, and attorneys in New Hampshire’s larger cities.
“You certainly don’t touch every single case every single day, thank goodness,” she said in an interview. “But it’s an open file. It’s something that needs your attention.”
Soon, Duncan will be on the other side of the process. On Dec. 2, she was sworn in as one of the New Hampshire Judicial System’s three magistrates. Starting in January, she will be in charge of setting defendants’ bail – in a brand-new role some are hoping improves the state’s criminal justice system.
The new system allows the three magistrates to take the role of judges and set bail for people who are arrested for serious crimes. It is designed to speed up bail on weekends, when courts are closed.
Following a broad bail law signed by Gov. Chris Sununu this summer, Duncan and two other attorneys were sworn in to their positions last week. The others are Frank Weeks, a police captain with the University of New Hampshire Police Department in Durham who has prosecuted cases, and Stephanie Johnson, a private attorney who previously served as assistant county attorney in Rockingham. Duncan, who also briefly served as assistant county attorney in Rockingham County, is the one magistrate with public defender experience.
Under the law, anyone who is charged with one or more of 12 serious offenses – ranging from murder to assault to possession of child sexual abuse images – must get a bail determination within 24 hours of their arrest. If they are arrested on a weekend, they will now go before one of the three magistrates, who are empowered to set their bail determination telephonically.
The magistrates are able to set any bail conditions that a judge could set: They could order the defendant to enter services, impose a curfew, require them to live at a specific address, maintain employment, refrain from drugs and alcohol, and more.
The three magistrates were picked by state Supreme Court Chief Justice Gordon MacDonald, Superior Court Chief Justice Mark Howard, and Circuit Court Administrative Judge Ellen Christo. Each magistrate was required to be a member of the New Hampshire bar and have three years relevant experience; they will serve for five-year terms.
The court has not indicated how much magistrates will be paid, but an administrative order states that it will be “consistent with similarly situated positions within the Judicial Branch.”
The magistrate’s order on bail is not necessarily the last word. The new law provides that the defendant or prosecutors can request the magistrate’s decision be reviewed by a judge, which must happen within 48 hours. Over the weekend, the magistrates will be setting bail determinations, not conducting bail hearings, which are more formal and often involve reviewing more evidence. And bail conditions can always be changed by a judge after they are initially set to take into account new information or arguments by either side.
It’s not yet known how often prosecutors or defense attorneys might try to override magistrates’ decisions by requesting a follow-up hearing before a judge. But supporters of the new magistrate system are hoping that simply creating a process for setting bail over the weekend will reduce the backlog and help defendants achieve more certainty after their arrests.
Duncan knows that backlog. In Manchester and Concord courts, judges can sometimes be faced with 20 arraignment hearings a day. That kind of workload prevents defendants from getting bail determinations and attorneys from helping their other clients, and makes it harder for judges to write their decisions.
The new system is not in effect yet; the magistrates will start Jan. 1. Currently, Duncan and her two peers are undergoing intensive planning and training from the judicial system to prepare.
It’s giving Duncan and the others a new window into the court system. “Seeing the backside to it, it’s been pretty interesting,” she said.
Some of what the job will entail logistically is still not known, Duncan says. But there are some certainties.
Like judges, the magistrates will need to take into account whether releasing the defendant would pose a danger to themselves or others, and will need to hear arguments from law enforcement, prosecutors, and defense attorneys. And like judges, they will need to consider what bail conditions would best help the defendant rehabilitate and victims to remain safe.
Having been involved with the system for more than 15 years, Duncan says she’s up to it.
“It was pretty immediate once I saw that this was now an opportunity. I knew really quickly that it was something I was interested in pursuing,” she said.
When it comes to ordering pretrial services – programs intended to help defendants with mental health or substance use disorder treatment and other areas – not all defendants will have the same opportunities, Duncan noted.
“Not every county’s resources are the same or equal to other other counties in terms of pretrial services or substance use disorder treatment programs, but some counties certainly do have some great resources available to criminal defendants,” she said.
New Hampshire already has a bail commissioner system in which quasi-volunteers are trained to meet with recently arrested people, in person or virtually, and determine whether they can be released ahead of an arraignment or bail hearing by a judge.
That system is not going away; bail commissioners may still meet people charged with any offense that is not on the list of 12 serious crimes listed in the new law.
Some are already skeptical of the magistrate system. Gov.-elect Kelly Ayotte said during her campaign that she would prefer the state return its bail laws to pre-2018, the year of a major reform, and that she is not sure about the magistrate system.
“It’s really unclear yet how it’s going to be implemented,” she said in October.
And now that the new program has been established, determining how successful it is at setting proper bail might be a difficult metric to track.
Albert “Buzz” Scherr, a University of New Hampshire Franklin Pierce School of Law professor who was recently elected as a Democratic state representative in Portsmouth, has been intimately involved with the bail reform discussions and helped to craft the compromise bill signed this year.
Scherr says he hopes the magistrate system will help speed up proceedings, but he is not sure the outcomes will change significantly.
“It tends to be the case that people charged with the (12 serious) crimes, they already tended to be held at a much higher rate than people charged with other crimes. So it’s unclear what we compare the rate under magistrates to (in order) to add meaning to it.”
To Scherr, the real victory would come if the new reforms changed the perception by some around the current bail system – that too many people are being released when they shouldn’t be.
“I think it’s going to be: Has it helped the court system? Are the police still complaining? And if the police are still complaining, are their complaints justified any more?”
On a basic level, Duncan is hopeful the addition of magistrates will help reduce court backlog and waiting times for defendants.
Success, she said, would be “people having bail determinations made quickly without languishing in jail, especially if it’s a situation where services are necessary – mental health or drug-type services
“I think having these kinds of issues addressed quickly, rather than the wait-and-see approach, would be successful for this program.”
As for the actual workload, Duncan isn’t sure what to expect next month. Because arrests for serious offenses are less prevalent than other offenses, it is hard to predict what a weekend will look like.
“It could be a fire hose and it could be a trickle,” she said.
