University of New Hampshire

School of Law

School of Law
Court Victory for School Gives Indigent Defendants Right to Counsel at Arraignment

Court Victory for School Gives Indigent Defendants Right to Counsel at Arraignment

A recent New Hampshire Supreme Court ruling that ensures indigent defendants in criminal cases have a right to counsel at arraignment is due in large part to the University of New Hampshire School of Law’s Criminal Practice Clinic, its Social Justice Institute, and two UNH Law alumni who spent much of their last year in law school documenting the problem.

The ruling “will bring substantial and dramatic change to the practice of most district courts in the state,” said Professor Albert “Buzz” Scherr, who along with Professor Charles Temple worked closely with now-alumni Lauren Breda JD ’11 and Jay Duguay JD ’11, on the project.

“We’ve changed a practice that’s been going on in New Hampshire for decades, that has been having a negative effect on people at the moment they first engage in the criminal justice system,” Scherr says. “Often these are people who are having their first intersection with the criminal justice world in their lives. If things go badly at that arraignment through no fault of theirs, they can lose a job, be separated from their family, not have access to medication that they need, and their life could just go downhill.”

“It’s very painful to watch people try to represent themselves in that circumstance,” Scherr continues, “when the other side is the police department and a professional prosecutor against them. It’s just a very painful thing to watch the system grind these individuals up the first time they ever show up in court.”

Scherr, who runs the school’s International Criminal Law and Justice Programs and is chair and president of the New Hampshire Civil Liberties Union, says he and Temple, who runs the school’s Criminal Practice Clinic, had been talking about the issue with colleagues in the criminal justice community for some time and decided that the school should take on the issue, and involve students in the effort.

The effort was inspired in part by The Defender Initiative at Seattle University School of Law, which is “aimed at providing better representation for people accused of crimes and facing loss of their liberty in juvenile and other court proceedings and in the process increase fairness in and respect for the courts.”

“This is part of a broader national effort,” Scherr says. “As we got in touch with them, we decided to become one of their project states.”

In 2010, Scherr and Temple enlisted the help of clinic students Breda and Duguay to research the problem in New Hampshire. The third-year students spent more than a week observing arraignment proceedings in Manchester District Court.

“We were trying to establish with our empirical research that people who couldn’t afford their own lawyers were not being represented by appointed lawyers at their arraignments,” Temple said. “Things were happening at the arraignments that might not have happened, had those people been represented by counsel.”

Breda and Duguay observed 54 arraignments at which people who were charged with misdemeanors and couldn’t afford a lawyer were arraigned. In no instance was anyone who couldn’t afford representation appointed a lawyer, Scherr said.

Breda and Duguay ultimately focused on a Sudanese refugee who was accused of simple assault. It was apparent at her arraignment that she had trouble understanding English; that she didn’t know whether to plead guilty or not guilty and only wanted to go home to her infant child. After the arraignment at which she did not have a lawyer, she ended up in jail. The NH Supreme Court heard oral arguments on the resulting case, Nygn v. Manchester District Court, this January, more than a year after Scherr, Temple, Breda and Duguay began their work.

“It’s very rewarding to realize that all of the hard work Jay and I put in as law students could potentially in the future make a huge difference in the way criminal defendants are treated in New Hampshire courts,” says Breda, who is now a clerk at the Merrimack County Superior Court. “You never imagine when you're asked to work on a project as a law student that it could have a real impact in the real world."

“When Lauren and I were first approached about working on the right-to-counsel project, I was intrigued and excited about contributing to an initiative with a potentially broad impact on the rights of criminal defendants in my home state,” says Duguay, who works for the New Hampshire Public Defender. “When the Supreme Court issued its opinion explicitly recognizing the right to counsel at arraignment, I was delighted to see that our hard work had paid off to the benefit of NH criminal defendants. Being a part of a project like this as a practicing lawyer would have been exciting, but to have that experience as a law student was incredible.”

Scherr agrees. “It’s a perfect example of what a practice-based education is really about,” he says. “Lauren and Jay got to work on a real case that has made, and will make, a huge difference in how the criminal justice system operates in this state. That’s what is called impact education.”