A Superior Court judge put out a call in August for attorneys to help fill the gap at the New Hampshire Public Defender because the organization is currently unable to secure representation for indigent criminal defendants in Merrimack County.

In an email to more than 20 attorneys, Superior Court Judge John C. Kissinger said the state is “facing a crisis in securing representation for indigent criminal defendants in Merrimack County.”

New Hampshire Public Defender, which was established in 1972, represents the majority of indigent citizens facing criminal and delinquency prosecution in New Hampshire. It is a private, nonprofit corporation and helps to fill New Hampshire’s constitutional obligation to provide equal justice for all under the Sixth Amendment by handling 85% of the indigent caseload.

Kissinger’s email cited high staff departures and “overwhelming caseloads” as part of the cause for what he referred to as an urgent need for attorneys to take cases.

“Effective yesterday, the Concord office of the NH Public Defender program is no longer accepting new court-appointed cases,” the email says. “This means that contract counsel, who take conflict cases and are already near or beyond capacity, will be unable to fully meet the need.”

Sarah Blodgett, director of the Judicial Council, which provides funding for The Public Defender and coordinates various civil and criminal justice matters, said The Public Defender has the ability to close or reduce intake of new cases if attorney caseloads become excessive.

“With one exception, the program has not needed to do this for more than 20 years — until now. High staff turnover and case backlogs have created a perfect storm for indigent defense,” Blodgett said.

Continuing resignations

The high staff turnover, combined with fewer cases being heard during the pandemic, has led to stagnant caseloads, she said.

According to Blodgett, 26 attorneys with a combined over 200 years of experience left the Public Defender program in the 2021 fiscal year — more than twice the normal attrition rate.

She said, “An additional six attorneys have already tendered their resignations since July 1st.

When attorneys leave the program, their cases are split among the remaining attorneys, exacerbating stress levels and caseloads.”

Blodgett said the New Hampshire Public Defender has already had to close intake at its Laconia, Dover, Orford and Nashua offices.

“During these closures, contract attorneys and private attorneys have accepted a huge number of court-appointed cases — much more than these systems were designed to support,” she said. “Our indigent defense system relies on a robust, statewide Public Defender. NHPD is widely recognized as one of the best public defender programs in the country, and it is the backbone of New Hampshire’s indigent defense system.”

Blodgett said the New Hampshire Public Defender and the Judicial Council have taken steps to address these issues by recruiting experienced criminal defense attorneys as lateral hires, and by reaching out to the New Hampshire Association of Criminal Defense Lawyers to request assistance with the caseload.

“The Judicial Council has been recruiting new private attorneys to accept cases, but low reimbursement rates and challenging work make both of these efforts difficult,” she said, adding that the Judicial Council has also reached out to the Massachusetts and Vermont associations and have added about 15 attorneys to their panels, as well as trainings for defense attorneys who are new to NH state court criminal practice.

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