Pelham - Windham News | June 6, 2014 - 7 Behind the Scenes with Windham’s Police Prosecutor by Barbara O’Brien
When Heather Newell was still in law school in Massachusetts, she had no intention of entering the field of criminal law. All that changed, however, after she spent time as an intern with the Londonderry Police Department. “After that, I was hooked,” Newell said, referring to her experiences with law enforcement in 2002. Three years later, in 2005, Newell became the full-time prosecutor
for the Windham Police Department. “It’s a wonderful place to work,” Newell told the group of residents gathered for one of the weekly sessions of the Windham Citizen Police Academy. The program is being held for a total of nine weeks, culminating with a graduation later this month. In addition to serving as Windham’s full-time prosecutor, Newell
also works for the Epping, East Kingston, Fremont and Brentwood Police departments on a part-time basis. Taking those attending the May 22 session of the Citizen Police Academy on a virtual tour of her job, Newell explained that she usually enters the process after an arrest has already been made by police. On some occasions, however, she assists during an investigation, prior to taking the matter to a judge. “It’s my responsibility to take care of the details, the paperwork, the legality of the issue,” she said. “If one little mistake is made, the whole case can be gone.” Court action, which is Newell’s forte, starts with an arraignment,
where the person arrested enters a plea. If someone has been released on bail following an arrest, the arraignment is generally held in district court 35 days after the arrest. If the person who was arrested has not made bail, an arraignment is scheduled for the next day in which court is in session. If someone is released on personal recognizance (P.R.), he or she “just signs on the dotted line,” guaranteeing that he or she will show up in court at the appointed time. The arresting complaint must match the appropriate state statute, Newell explained. “We have to hit every element in every complaint to get a conviction,” she said. “That’s why they have a paper-pusher like me.” There are three types of charges a person can face when arrested: a violation, a misdemeanor or a felony. Violations, which are non-criminal offenses, include mostly motor vehicle or disorderly conduct incidents. Someone convicted of a violation can receive up to a $1,000 fine, but will not face any jail time. A misdemeanor is a criminal offense and a conviction will result in a criminal record. A Class A misdemeanor, which is the more serious, can possibly result in jail time up to 12 months and up to a $2,000 fine. Class A misdemeanors include aggravated driving under the influence, driving under the influence with a child in the vehicle, shoplifting and theft. Class B misdemeanors, which include the first-time possession of marijuana or a first driving while intoxicated arrest, as well as simple assault, does not result in jail time, but can carry a fine of up to $1,200. For the Town of Windham, cases involving violations and misdemeanors are heard in Salem District Court. Felonies, which are the most serious of possible charges, are
arraigned in district court and, if the person arrested pleads not guilty, move forward to a probable cause hearing, which is also held in district court. During a probable cause hearing, no witnesses are called nor is any evidence introduced. If the judge finds that probable cause exists, the case then goes to the Rockingham County Attorney, after which a Grand Jury is convened. If the arrestee is indicted by the Grand Jury, then the case is heard in Rockingham County Superior Court in Brentwood. There are five district courts in Rockingham County, none of which has a judge who is permanently assigned to one court. Presiding judges often rotate from one court to another. Technology is making things a little bit easier to hear cases, however, Newell explained, as
Attorney Heather Newell became Windham Police’s full-time prosecutor in 2005.
some cases are conducted through video arraignments and probable cause hearings. “It takes time to make the transition,” she said. “We’re not quite there yet.” The vast majority of cases never go to trial, Newell said, adding that about 90 percent of cases are negotiated before the trial begins. “There’s not enough time, enough judges, enough room to hear all the cases,” she stated. It’s up to the prosecutor to determine which cases will be negotiated and which will not, Newell explained. “Some cases are very serious, but most of them are due to stupid mistakes people make,” Newell commented. Someone who has been arrested has the right to a court-appointed attorney only if the possibility of serving time in jail exists and only if the person facing charges is found to be indigent. He or she must fill out a financial affidavit and the court determines if he or she is entitled to a court-appointed attorney. An individual who is charged with driving while under the influence of drugs or alcohol for the first time is not entitled to a court-appointed attorney and can wind up paying $2,500 to $7,500 to hire an attorney, not to mention the cost of any fines and a court-mandated alcohol program. Even a first DUI offense can be a very costly experience, Newell said. “In New Hampshire, a driver’s license is a privilege, not a right,” she added. For those cases that do go to trial, it can be very difficult getting witnesses to testify. “People will call 9-1-1, if they see something going on,” Newell said, “but witnesses who want to come to court and testify is a whole different situation.” Not only do some people not want to get involved to this extent, there is also the issue of having to take time off from work. The current witness fee is only $12 per day. “Witnesses must be credible to be believed by a judge,” Newell said. “It’s how a witness is able to articulate on the stand that can make a difference.” “If the prosecutor isn’t ready to go when it’s time for a trial, the judge can just toss out the case,” Newell said. “Judges have no tolerance with prosecutorial delays.” Making the situation more difficult, defense attorneys try to make things as difficult as possible, hoping that the case will be dismissed on some kind of technicality. The prosecutor is not done when the trial is over, however. “Sentencing is the hardest part,” Newell said. “There are guidelines. There are mandatory minimums. There is an escalating scale,” she
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explained. “It’s the prosecutor’s job to figure out where someone fits.” “People come in with every excuse under the sun,” Newell continued. “It’s my job to figure out who’s telling the truth and who’s not,” she said. “It really comes down to a judgment call. There are so many different things to take into consideration.” There’s all the difference in the world between a kid who shoplifts a video game because he or she feels entitled and somebody who steals food because he’s got nothing to eat, she said. Newell explained that her job at the Windham Police Department is a salaried, non-union position, which is under the direct supervision of Police Chief Gerald Lewis. Ultimately, however, as an attorney, Newell has an ethical obligation to both the bar and the court system. “It’s a group effort here at the Windham Police Department,” Newell said. “We’re a family. We’re all on the same team.”
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