Most everyone knows, or should know, that anyone charged with a crime in our country is entitled to a strong presumption of innocence, which presumption is rebutted only if and when they are actually convicted of the crime.
This legal principle, long embedded in Anglo-American jurisprudence, is especially relevant in our current climate in New Hampshire, when we have only recently been advised of the grand jury indictments of a sitting justice of our state Supreme Court (and, later, her husband) for a variety of alleged misdeeds.
An indictment does not mean that the accused has been found guilty of a crime, but rather is merely a formal accusation, essentially and supposedly that, based on the available evidence, there existed “probable cause” to charge the accused with a crime.
A Grand Jury will examine proposed criminal cases based upon presentations by the prosecutor and testimony of witnesses. In current practice, an accused who is the subject of a Grand Jury proceeding may not even know that he or she is the subject of the proceeding, and does not even have the right to appear and make his or her case for innocence before the Grand Jury votes on whether to issue an indictment (called a “true bill”) or refuses to issue an indictment (called a “no true bill”).
And anyone who does appear before a Grand Jury generally does not have the right to be accompanied before the Grand Jury by counsel- so one can often see the spectacle of a person testifying before a Grand Jury with their counsel outside in the hall and they must leave the Grand Jury room (where secrecy prevails) and step outside from time to time to consult with counsel.
An indictment only indicates that at least a majority of the members of the Grand Jury have determined, based upon the presentation by the prosecutor and the testimony of witnesses, that there appears to be sufficient evidence to bring criminal charges to trial, and that the prosecutor can proceed with a criminal case. It is definitely not a finding of guilt or innocence. Guilt or innocence is ultimately determined by a petit jury (or a judge if a jury trial has been waived by the defendant).
Many non-lawyers possibly have not heard what is common belief among many lawyers: that a prosecutor directing the activities of a Grand Jury could probably indict a ham sandwich.
Thus, the Supreme Court justice who now stands indicted has not been found guilty of anything. And although she has been previously placed on administrative leave from her duties on the Court, she remains a sitting justice of that court, and she is certainly entitled to the presumption of innocence.
It is important to note that our small state does not have so-called intermediate appellate courts that are sometimes present in much larger states- rather, appeals from decisions of the trials courts in our state go directly to our state Supreme Court, consisting of 5 justices, appointed by the Governor with those appointments confirmed by a majority vote of the Executive Council. Justices and judges so appointed and confirmed serve until age 70, or until they resign, die in office, or are removed by appropriate legal process, i.e., impeachment.
Neither the Governor, nor the Executive Council, nor do the citizens of our state, have the power to remove any state court judge, whether a justice of the Supreme Court or otherwise. The only mechanism in our state for removal of a state court judge is the process of impeachment, in which a bill of impeachment is adopted by the NH House of Representatives and the matter is tried by the NH Senate sitting as an impeachment court.
A reliable source has reported that there have been only two judicial impeachment actions brought in our state’s history: the first, early in our state’s history, did not proceed (for a reason or reasons not terribly clear), while the second, in more recent times, produced a valid bill of impeachment by the House, but the accused was acquitted in his trial by the Senate.
Based on complaints about the judiciary heard from time to time from various citizens, it is reasonable to conclude that the impeachment process is considered by many to be an imperfect way to deal with allegations of judicial misconduct.
In this writer’s last term of service in the NH House, he introduced and championed a proposed constitutional amendment that would have provided for the ability of citizens to remove state court judges by the process of citizen petition recalls. Wacky California is perhaps the best example of a state that has such a process (for many state officials in addition to judges). With the fairly recent history of citizen petition recalls in California having successfully removed several justices of that state’s supreme court, including its chief justice, as well as its governor (that is how Arnold Schwarzenegger became governor after the recall ouster of Grey Davis). For its adoption, that proposed constitutional amendment would have required a super-majority of supporting votes in both houses of the General Court and a super majority of votes by citizens in the next general election. Needless to say, the proposed amendment was opposed by many interest groups or so-called stakeholders, and it only garnered a relatively few votes in the NH House, so it did not even proceed to the Senate or to the electorate at large.
So, what is the effect on persons seeking justice through the courts, with our Supreme Court currently operating with only four justices?
With an even number of justices actively sitting on the Court, the possibility of an even split in votes on case decisions is not merely a remote possibility. But since the Chief Justice effectively presides over the decision process of the court, it is entirely possible that if he finds that an even split may be forthcoming in a case, the ultimate decision in that case may be deferred until such time as the Court is up to full staffing. But this is mere speculation.
In any event, litigants with cases before the NH Supreme Court, or whose cases are expected to go before that court, may find that decisions in their cases may not be issued as quickly as they might like.
But do not rush to judgment on the guilt (or innocence) of the Justice who has been indicted. As previously stated, she is entitled to the same presumption of innocence you would want applicable to you if you were charged with a crime.
