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Eviction cases are rising in New Hampshire, but resources remain for tenants

Evictions in New Hampshire have ticked up, slightly but steadily, in the months since federal rules designed to keep people housed during the COVID-19 pandemic ended in August.

With the recent swell, the statewide rate — which topped 56 evictions per week that month, the highest mark in nearly a year — is edging closer to pre-pandemic levels, according to data published by the N.H. Judicial Branch. That trend is playing out in area communities, too, as evictions in Cheshire County have increased markedly in recent months, the data show.

But housing advocates — including those who warned of a crisis once the federal protections lapsed — say a slate of financial and legal resources for tenants have helped stave off a worst-case scenario.

Those resources, which include federal relief for renters in need and new initiatives meant to keep eviction cases of court, “have made a really, really big difference as bad as those [eviction] numbers are,” according to Elliott Berry of the Concord-based nonprofit N.H. Legal Assistance.

Evictions in the state, which often topped 70 per week before the pandemic, had fallen to about half that number over the past year under the federal eviction moratorium. That policy, which the Centers for Disease Control and Prevention established in September 2020, protected certain tenants — based on income level and their vulnerability to homelessness — who were unable to pay rent on time or at all.

Those rules expired in July, though, putting a “meaningful number” of renters at immediate risk of eviction, Berry, who directs NHLA’s Housing Justice Project, said at the time. A subsequent effort by the Biden administration to reinstate the eviction ban, on a limited basis, was struck down by the Supreme Court in August.

Eviction filings — landlord petitions in court to remove a tenant — rose to nearly 80 per week in New Hampshire that month and have continued climbing since then, the Judicial Branch data show.

After spiking in August, the weekly eviction rate has hovered around 50 for the past two full months, according to the data. And locally, Cheshire County circuit courts in Keene and Jaffrey approved 15 total evictions last month — the most since October 2020.

Berry said Wednesday the eviction rate has clearly risen since the federal moratorium ended. But evictions prompted by tenants’ failure to pay rent may not be the only factor behind that trend, he said.

In many cases, Berry said, people are being forced out because their landlord wants to — or at least claims they want to — renovate the property. That can allow the landlord to remove a tenant for whom they don’t care, even if that person can afford rent, he said.

“I think it’s being used as a way to get around having to prove that there’s just cause for eviction,” he said. “It’s an easy thing to allege and hard to disprove. That concerns me a lot.”

Berry said those cases are anecdotal so far, since nobody in the state tracks the grounds for eviction claims, but that he’s hearing of more of those instances than ever before.

If a tenant is struggling to pay rent, area landlords have typically been willing to help them cure any obligations before turning to eviction, according to Beth Daniels, CEO of the social-service provider Southwestern Community Services.

Daniels, whose organization covers Cheshire and Sullivan counties, said there’s been a large spike in requests for housing assistance — including money to cover rent and utilities, as well as space in an emergency shelter — in recent months. Calling the issue of housing insecurity “more acute than it’s ever been,” she said SCS can help prevent eviction but finds it hard to assist people who are already homeless due to a lack of available housing in the Monadnock Region.

“All the financial resources in the world won’t matter if we don’t have anywhere to put people,” she said.

Chief among those resources is the state’s $200 million Emergency Rental Assistance program, a federal relief effort launched in March to help tenants resolve back rent and ensure a stable living situation going forward.

The program, which had disbursed nearly a quarter of those funds as of early October, when the Governor’s Office for Emergency Relief and Recovery last updated that data, is “saving thousands of people from being on the street,” according to Berry.

Southwestern Community Services, one of five agencies distributing that relief throughout the state, has approved about $5 million for renters in local communities, Daniels said Thursday. The emergency rental assistance program is expected to last through next year.

That aid could reach even more people before then, Daniels said, after eligibility for the program widened last month to include anyone who has faced financial hardship during the pandemic. (It was previously available only to people struggling for reasons due directly to the pandemic.) And tenants are now eligible to get up to 18 months’ worth of relief, she noted — up from the previous 15-month limit.

“I think between those two [changes], more folks will be able to get assistance … for a longer period of time,” she said. “So that’s good.”

Daniels encouraged renters and homeowners to visit www.homehelpnh.org for more information on the financial assistance available to them.

She and Berry also credited a number of steps being taken by New Hampshire courts to protect tenants, including a voluntary option for mediation rather than traditional eviction proceedings.

The new statewide program, which builds off pilot initiatives launched in Concord and Claremont courts earlier this year, involves a neutral third party who can help resolve landlord-tenant disputes before they go to trial. The parties reached an agreement in more than 70 percent of cases in those pilot locations, court officials have said.

Even in mediation cases, which in most courts must be requested before a formal eviction case begins, Berry said it’s important for tenants to know their rights.

“I worry, too often, that mediation can become simply where the players — the tenant, the landlord and the mediator — kind of believe that it’s only a question of when the tenant’s going to leave, not if,” he said. “If it’s done with that unspoken assumption, that’s problematic.”

But recent efforts to involve housing advocates in landlord-tenant disputes have helped allay those concerns, Berry said.

Those include an initiative by the Manchester circuit court to schedule all eviction cases on the same day each week, he said. That has made it easier for staff from N.H. Legal Assistance and the local community action agency to refer at-risk tenants for financial relief and get their cases delayed or dismissed. The court in Nashua plans to start handling eviction cases the same way in December, Berry said.

“I think the court system is trying really hard to respond to [the rise in evictions],” he said.

A similar effort is underway in the Monadnock Region, where the courts now share their weekly docket with Southwestern Community Services each Monday so the organization knows when it would be helpful to have someone at the courthouse, according to Daniels.

She did not know as of Thursday if local courts will adopt the new scheduling tactic used in Manchester but wasn’t ruling it out.

“We may not need it as much in this area right away,” Daniels said. “… But there could come a day when it makes more sense for our staff member to be at the court rather than in the office.”

Supreme Court task force addresses NH public defender shortage
  • Updated

The so-called “Great Resignation” that continues to affect businesses and organizations across the country has hit N.H. Public Defender — essentially the state’s largest law firm — where 32 attorneys have departed over the past 15 months.

N.H. Public Defender contracts with the state of New Hampshire to provide representation to indigent clients in criminal, juvenile, and involuntary commitment proceedings throughout the state.

“We’re losing an attorney every two weeks,” said NHPD Executive Director Randy Hawkes. “We try to find competent lateral hires but it’s difficult. The job market is favorable for anyone looking right now and the pay rates for private practice far and away outstrip public defender pay scales.”

Attorney salaries at NHPD start at $53,000 with a cap of $86,900 after 11 years. Lateral hires allow attorneys to come in from other firms at the same pay rate they were receiving.

By comparison, Hawkes said most salaries at New Hampshire county attorneys’ offices start in the 60s and attorneys at Committee for Public Counsel Services (the Massachusetts version of NHPD) will be starting at just over $63,000 in December.

“There’s been an outflux, if you will, across our southern border,” he said.

Sarah Blodgett, director of the N.H. Judicial Council, which provides funding for the Public Defender, the Indigent Defense Fund and the Contract Attorney Program, said the council recently received $900,000 in federal funding for the next two years that can be used for lateral hires.

“Randy has been aggressively recruiting lawyers from across the country to come to Public Defender’s office and has had some success,” she said. “And now we have this pot of money, but as Randy said, we’re competing with better salaries and frankly easier jobs. This is a hard job.”

In September, N.H. Supreme Court Chief Justice Gordon MacDonald requested that a task force be formed and chaired by Justice Patrick Donovan to address NHPD’s attrition problem, which has led to approximately 2,000 criminal cases in the Circuit Court without appointed counsel.

The task force, made up of attorneys and judges from around the state, released a report with recommendations on Oct. 27.

The report states that NHPD and county attorneys across the state are confronting “dangerously high caseloads” and recommends increased recruitment efforts, early case resolution, a scheduling pause, public awareness, training and mentoring, rule changes that would allow pro hac vice (allowing attorneys from outside jurisdictions to represent indigent clients), and additional funding.

“This problem is significant. Ultimately, more resources are needed by the public defender’s office and the county attorneys’ offices across the state,” Justice Donovan said. “The private bar needs to step in as well.”

In August, Superior Court Judge John C. Kissinger emailed more than 20 attorneys asking for their help in what he referred to as “a crisis in securing representation for indigent criminal defendants in Merrimack County.”

According to the task force report, Judge Kissinger has successfully recruited private practitioners to accept cases in Merrimack County, and one task force recommendation includes investigating how to secure malpractice coverage for retired practitioners willing to accept cases on a pro bono basis.

NHPD’s contract establishes case limits of 70 open cases per attorney and allows the program to limit the intake of new cases when those levels have been reached.

Hawkes said NHPD caseloads have exceeded contractual limits statewide for more than two years.

In August, before the new lawyers started, there were only 123 attorneys on staff who averaged 91 open cases each. This is 30 percent above the maximum set by NHPD’s state contract.

Today a quarter of all public defenders in the state have more than a hundred open cases.

“The new lawyers are all very intelligent, capable, committed lawyers who will become excellent public defenders. But we cannot give them 80 or 90 cases on day one. There is a learning curve, and caseloads must be developed over time,” Hawkes said.

Another factor that keeps attorney caseloads high is attrition. When experienced attorneys leave an office, Hawkes explained, that office must absorb the cases the departing attorney leaves behind.

“As caseloads have risen, public defenders have gone above and beyond their obligations because they don’t want defendants to go unrepresented. But burgeoning caseloads have taken a toll on our staff,” he said. “Public Defender has seen unprecedented attrition over the past year and a half.”

Prior to the pandemic, Hawkes said about 10 to 12 attorneys left NHPD.

“Unfortunately, the situation today is a challenge for us at a time when we need every able body in the indigent defense system we can maintain,” he said. “It’s particularly troubling when we lose experienced attorneys. The criminal justice system, not only public defenders but prosecutors — it behooves the entire system to retain experienced people because they know how to move cases and they work well together.”

Hawkes explained that the departure of experienced NHPD attorneys presents the “doubly painful” issue of remaining caseloads.

“When our experienced counsel leave, they often have over a hundred cases that have to be absorbed by the remaining attorneys in that office,” he said. “And this exacerbates the caseload crisis.”

The ultimate measure of what constitutes competent and diligent representation, Hawkes continued, is “whether an attorney has sufficient time to meet with all clients, review all discovery (including audio and video evidence), conduct all necessary investigation, consult with experts when necessary, file appropriate motions and conduct pretrial litigation, attend all pretrial conferences and other hearings, explore diversion or treatment options, negotiate with prosecutors, and prepare adequately for trial.”

Current workloads, he stressed, “threaten NHPD attorneys’ ability to do those things, and the Rules of Professional Conduct provide no exception for lawyers who represent indigent persons charged with crimes.”

Contract and assigned cases

Robin Melone, a criminal defense attorney and president of the N.H. Association of Criminal Defense Lawyers, as well as a task force member, described the NHPD, which represents approximately 85 percent of cases coming through the system, as a crucial first line of defense.

When the NHPD cannot take cases because of conflicts of interest, she continued, cases get pushed to the Judicial Council for assignment.

The two mechanisms for assigning cases through the Judicial Council are contract and assigned cases.

Contract cases allows an attorney to take a certain number of units of wage each fiscal year in exchange for a flat fee per case. If, at the end of the year, the attorney doesn’t complete his or her contracted units, he or she is required to pay the money back.

The reimbursement rate for fiscal year 2021 was set by the Judicial Council at $300 per unit.

A Class A felony case, which includes serious crimes such as murder or sex crimes, equals 8.3 units, or $2,490. Misdemeanor cases are one unit, or $300.

The other form of contracting through the Judicial Council includes assigned cases.

These often include conflict cases involving situations where Public Defender is unable to accept co-defendants in a criminal case.

In a situation like this, attorneys who have agreed to be assigned cases work for $60 an hour for most cases and $100 for Felony 1 crimes.

Melone has taken both contract and assigned cases as a criminal defense attorney and said she understands the difficulties that can arise for attorneys in terms of time, money, and work.

She believes the discussion about money and public defenders has often been seen as awkward but that it remains a reality that needs to be addressed.

“If attorneys in bankruptcy or real estate or other practices talk about money, it’s not a problem. But because criminal defense is considered a passion and a drive for most people who do it, talking about money becomes a gauche and inappropriate thing to do,” she said. “But I think that people can both love the law and also be businesspeople, you know. I don’t do this for charity.”

Melone said she thinks public defenders need to be paid better for their time, adding that this is one of the keys to keeping a viable Public Defender’s office in the state, but that money is not the only issue.

“People don’t do this for the money, but the financial piece is becoming more of an issue. Salaries have not been adjusted and I think we need to do everything we can to nurture and show value to the experienced attorneys that we have,” she said. “If we continue to lose them, I have serious concerns about the program.”

Private criminal defense

Richard Guerriero of Keene, president of the N.H. Bar Association, is currently a private criminal defense attorney but spent 20 years at the Public Defender as its director of training.

While he’s encouraged, the courts and the bar are working to solve the problems with the public defender shortage, ultimately, he believes the solution involves more funding.

“The private criminal defense bar must do all that it can to help, but volunteerism is only going to diminish the crisis, not solve it,” he said. “You have to remember that contract and assigned counsel lose money at the current rates, so although everyone is stepping up to do more, it is a big ask, especially on the heels of the pandemic.”

Guerriero said his firm has accepted as many contract and assigned counsel cases as they are able to, but they are at their limit and he worries that it will be very difficult for untrained volunteer attorneys to provide competent representation.

“Criminal defense is an area of law that requires special training and knowledge, just like family law, tax law, or other areas,” he said. “The good news is that our court and our bar recognize the importance of the right to counsel. I am confident that the problem will be solved and that the bar will do everything in its power to work with the courts towards that end.”

Strafford County Attorney Thomas Velardi said that Chief Justice MacDonald asked him to join the criminal defense task force to make it a multilateral collaborative effort.

One of the themes he continues to emphasize as part of the task force, and in his day-to-day work, is that the criminal justice system is “a gentle balance between prosecution bar, defense bar, and bench.”

“Any time that suddenly becomes unbalanced with any one of those three legs of the stool, so to speak, you’re going to have problems for the other two legs. It’s simply unavoidable,” he said. “I was very gratified that the chief justice asked me to join. My fellow county attorneys supported my joining the task force as president of our association.”

Velardi said he found the meetings, chaired by Justice Donovan, to be productive. He echoed Hawkes’s concern regarding the lack of experience issue that comes with attrition.

“When you have a significant amount of attrition on either side of the bar, in order to replace those people who are likely to have more experience than the people replacing them, you have a steep curve to educate your opponent,” he said.

Velardi described the defense bar as the inverse of the prosecution bar and said, “One can’t thrive and survive without the other being healthy.”

“The county attorneys are concerned about this because even though we’re widely known to prosecute offenders, the offenders are part of our constituents. We need to make sure we’re minding the constitutional rights of the accused, as well. That’s why prosecutors are part of this dialogue,” he said.

Asked if he was optimistic the gap in counsel for indigent criminal defense will be alleviated in the coming year, Justice Donovan said he has hope that it will be but hesitated to say the problem will be solved in that time frame.

“I am, by nature, optimistic,” he said. “So, will it be alleviated? I hope so. Will it be fixed? Not in 12 months’ time.”

This article has been changed to correct starting salary information for attorneys at the Committee for Public Counsel Services.

Steve Bannon indicted in Jan. 6 case

WASHINGTON — Former White House adviser Stephen Bannon was charged Friday with two counts of contempt of Congress after refusing to comply with a subpoena from the House committee investigating the Jan. 6 attack on the U.S. Capitol.

He was indicted by a grand jury in Washington — a rare move by the Justice Department to escalate the consequences of a dispute involving Congress. Court records indicate only three such cases have been filed in D.C. since 1990.

The charges against Bannon each carry a maximum sentence of one year in jail and may serve as a warning to others seeking to avoid or defy the Jan. 6 committee.

Attorney General Merrick Garland in a news release said the charges reflect the Justice Department’s commitment to “show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law.”

Neither a lawyer for Bannon nor a spokesperson immediately responded to requests for comment. He is expected to turn himself in next week ahead of his first court appearance in the case.

Bannon, 67, was subpoenaed Sept. 23, one of a number of former advisers to President Donald Trump who have balked at answering the select committee’s questions about the events before and during the riot that sought to prevent Congress from formally certifying the election of Joe Biden.

Bannon worked in the White House in 2017, but the committee is focused on his conversations and activities as an outside adviser and activist in the run-up to Jan. 6 when hundreds of Trump supporters protesting the election’s outcome turned violent, attacked police and stormed into the Capitol building, forcing lawmakers to flee for their safety.

In particular, the House select committee wants to question Bannon about conversations Jan. 5 at the Willard Hotel, when pro-Trump activists sought to persuade Republican lawmakers to block certification of the election. The committee’s subpoena also noted that Bannon was quoted predicting “hell is going to break loose” on Jan. 6.

David Laufman, a former senior Justice Department official now in private practice, said it is unclear whether even criminal charges will persuade Bannon to cooperate.

“But it was essential for the Justice Department to hold Mr. Bannon accountable for his brazen flouting of the subpoena, and in doing so to send a message to others who might defy the select committee’s investigative authorities,” he said. Laufman represents two of the Capitol Police officers who responded to the riot.

The panel has issued subpoenas to at least 20 Trump aides, including former White House chief of staff Mark Meadows. Meadows did not appear Friday for a scheduled deposition, officials said.

In a joint statement, the House panel’s chairman, Rep. Bennie Thompson, D-Miss., and vice chair, Rep. Liz Cheney, R-Wyo., said Meadows’s actions “defy the law” and will force the committee to consider “contempt or other proceedings to enforce the subpoena.”

They said the committee has already talked with more than 150 people who are cooperating and providing information to the investigation.

“Mr. Meadows, Mr. Bannon, and others who go down this path won’t prevail in stopping the Select Committee’s effort getting answers for the American people about January 6th, making legislative recommendations to help protect our democracy, and helping ensure nothing like that day ever happens again” the two lawmakers said.

Former Justice Department official Jeffrey Clark appeared for a closed-door interview with the panel last week, but he refused to answer questions about whether Trump attempted to use the department to overturn the election, according to people familiar with the matter.

Others who were said to have been at the Willard Hotel and engaged in discussions ahead of Jan. 6 also have been subpoenaed as lawmakers examine what role, if any, the Trump team’s “command center” there played in the violence that followed.

Other individuals subpoenaed include Trump’s 2020 campaign manager Bill Stepien, senior adviser Jason Miller, national executive assistant Angela McCallum and former Trump national security adviser Michael Flynn.

This week, the panel issued subpoenas to 10 other Trump administration officials, including John McEntee, the former White House personnel director; Ben Williamson, a former deputy assistant to the president; Nicholas Luna, the former president’s personal assistant; and Molly Michael, the Oval Office operations coordinator.

The charges against Bannon are misdemeanors, punishable by up to a year in jail and a fine of up to $1,000.The case marks Bannon’s latest brush with the criminal justice system since becoming a close adviser to Trump.

In 2020, he was charged in a federal case alongside three others in what prosecutors described as a massive fundraising scam targeting the donors of a private campaign to build a wall along the U.S.-Mexico border. Bannon, who had pleaded not guilty, was accused of pocketing more than $1 million from his involvement with “We Build the Wall” while representing to the organization’s backers that all of the money was being used for construction. He was pardoned before the case could go to trial — one of Trump’s last acts as president.

Bannon also was a key witness in special counsel Robert Mueller’s investigation of Russian interference in the 2016 presidential election and ultimately testified as a prosecution witness against Trump confidant Roger Stone, who was convicted by a jury and also pardoned.

Court records indicate that the three similar contempt cases have been filed in D.C. federal court since 1990 all resulted in guilty pleas, although the convictions did not stand.

President Ronald Reagan’s former assistant secretary of state Elliott Abrams and former senior CIA official Alan Fiers Jr. each served less than a year of probation and community service for taking part in a coverup of the Iran-contra scandal, court records show. Fiers and Abrams were pardoned by President George H.W. Bush in 1992.

Scott Bloch, head of the federal agency that protects government whistleblowers during the George W. Bush administration, pleaded guilty in 2010 and was sentenced but was later allowed to withdraw his plea and admit instead to destruction of property. He also served probation.

Rep. Elise Stefanik, R-N.Y., one of Trump’s most fervent defenders on Capitol Hill, noted on Twitter that in two more recent instances of contempt votes by Republican majorities — against then-Attorney General Eric Holder in 2012 and former IRS official Lois Lerner in 2014 — the Justice Department decided not to file charges.