On September 20, 1992, the police received reports that someone had fallen from a 12-story cliff near the New Jersey Palisades.  They arrived in the area and found Stephen Scharf, who told them they he and his wife, Jody, were having a picnic before going to a comedy club in New York City.  Scharf also stated that they were drinking in their car, and then went to a lookout area described as their “spot”.  Finally, Scharf told the police that while he was getting a blanket and more drinks from their vehicle, Jody fell from the rocks.  Jody’s body was later found, and her blood alcohol content was 0.12.  At that time, the medical examiner could not determine a cause of death.

Other facts undermined Scharf’s story.  Jody was seeking to divorce him, alleging that he was abusive and unfaithful.  Further, at some point within the past year, Scharf had taken out a $500,000 life insurance policy on Jody.  Because of such facts, the case was reviewed again in 2004.  Finding that Jody’s injuries (primarily to her face) were inconsistent with falling off a cliff, the medical examiner changed the cause of death to homicide.  The medical examiner further determined that Jody was thrown from the cliff, and had hit a tree as she dropped down.

During trial, a number of individuals who knew Jody testified that her husband was abusive, and that she was afraid of both him and heights.  Jody was also seeing a therapist who testified that Jody had previously refused to accompany her husband to the cliffs, and that she never visited the area before.  One witness also testified that Jody had informed her that Scharf had refused to sign certain papers related to the pending divorce, and that he would “see her dead” before signing them.  The couple’s son also testified that Jody did not want to go to dinner alone with her husband. Continue reading

DWI cases can be difficult and challenging under the best of circumstances.  Careful discovery review and analysis is crucial to any positive outcome. First, the defense attorney needs to have a thorough understanding of the standard battery of field tests that police employ in assessing drivers suspected of operating a vehicle while under the influence of alcohol.  These tests include the Horizontal Gaze Nystagmus test, the Walk-and-Turn test, and the One-Leg-Stand test.  Each of these tests must be administered properly, and the steps the arresting officer is supposed to follow, including the instructions given and the subject’s performance, should be clearly outlined in the discovery that the State provides in connection with the case.

Further, cases involving alcohol typically involve a breathalyzer test.  Here again, an officer certified to administer the test must do so following a relatively long and complex list of testing protocols.  The machine and chemicals used in performing the test must also pass muster, and the related documentation must be provided to defense counsel.

This brief description of the steps the State must follow in convicting someone for DWI shows that the goal is to document the basis for the offense as thoroughly as possible so as to raise the likelihood of a conviction to the point where it can be a foregone conclusion.  Defense counsel must therefore work diligently to understand the paperwork that the State provides in support of its case, and make appropriate motions and retain required experts where necessary. Continue reading

This blog and the accompanying firm website have numerous entries concerning drug court and other diversionary programs.  One of the many stated purposes of these programs is to make the criminal justice system more efficient and effective.  Other federal and state efforts and initiatives currently being implemented share the same goal.  These programs and efforts all focus attention on a growing recognition of the need to increase the system’s overall efficiency, and to use criminal justice resources as effectively as possible.  Particularly in these times of tight budgets and cost-cutting, all of these issues warrant discussion.

Briefly, a diversionary program diverts a criminal case away from the mainstream criminal justice system to a program that is more suited to resolving the issues that gave rise to the case.  Currently, in New Jersey, the two most popular diversionary programs are Pre-Trial Intervention and Drug Court.  Pre-Trial Intervention (frequently referred to as “PTI”) is a special form of probation that has been around for many years.  The program is open to defendants with no prior criminal record and relatively low-level charges (typically no higher than third degree indictable offenses).  The defendant must be cleared for entry into PTI by a section of the Clerk’s Office known as Criminal Case Management, and by the prosecutor’s office of the county where the case is pending.  A defendant who successfully completes PTI probation will not have a record for an indictable (felony) conviction.  The disposition of that case will show as “PTI” on their criminal record.  This is very significant, since the successful defendant will not have a felony record and all of the disabilities and problems that accompany it.  In the past, defendants were accepted into PTI without having to plead guilty to any particular offense.  In recent years, more prosecutor’s offices have required the defendant to plead guilty to an offense as a prerequisite to acceptance.  The plea is then held in abeyance and, if the defendant completes the program successfully, is vacated.  Defendants who fail to complete PTI successfully are simply sentenced on their plea.

Drug Court, which is a more recent development, is another popular diversionary program.  It is designed for defendants whose criminal conduct is motivated by substance abuse problems.  For example, a defendant may be charged with a series of burglaries, and it is ultimately discovered that they committed the offenses so that they could obtain items to sell in order to have money to purchase narcotics.  Non-violent defendants with drug problems may be eligible for admission into Drug Court.  The defendant has to be evaluated by a trained substance abuse counselor who, in turn, prepares a report for the court and counsel.  That report describes the defendant’s drug problem, and makes treatment recommendations.  Defendants deemed acceptable by the court are admitted into the program.  Instead of receiving a conventional sentence on their criminal charges, they are sentenced to a term of Drug Court probation.  The term is typically five years, but they can be discharged earlier if they complete all of the steps of the program in a shorter period of time.  As with PTI, defendants who are admitted into Drug Court can be required to enter a guilty plea on the underlying criminal charges, and can be sentenced on that plea if they violate the terms and conditions of their Drug Court supervision.  Every New Jersey county has a Drug Court judge who is trained to handle these cases and, during their tenure as Drug Court judge, develops considerable experience with defendants with substance abuse issues. Continue reading

This blog focuses almost exclusively on criminal law and criminal procedure, making this posting something of a oddity.  With that said, however, this posting may certainly be viewed as a comment on an issue that is significant in any criminal case, which is the selection of defense counsel.  When it comes to choosing a lawyer, the obvious things that come to mind are knowledge of law and procedure, years of experience, and whether the attorney has previously handled cases involving the charge at issue.  But a criminal case is a highly stressful experience, and one of the most important factors in selecting legal representation is something that many clients do not consider until it may be too late.  An astonishingly large number of clients fail to ask themselves if they can work with the lawyer they are thinking of using under highly pressured circumstances for what may be an extended period of time.  The likelihood of a positive result in the case frequently diminishes with the extent to which the defendant is at loggerheads with their attorney.

Most clients shop for attorneys the same way they shop for everything else.  They seek attorneys online, and start their search by viewing websites.  The New Jersey Supreme Court’s Committee on Attorney Advertising recently recently issued a Notice to the Bar dated May 4, 2016, reminding all New Jersey attorneys that certain items currently appearing on many attorney websites may be presented in a way that is misleading and/or easily taken out of context.  This Notice appears to have been issued after the receipt of numerous grievances from clients who may have thought their lawyer was “Super” or “the Best” when the case started, but apparently changed their view before it was over.

Specifically, an attorney’s website may state that the lawyer is a “SuperLawyer”, one of the “Best Lawyers in America”, one of the “Best Lawyers in New Jersey”, and on and on and on.  These are all designations issued by various organizations, business entities or publications, and come with attractive shields or badges that the attorney receiving the designation may – and almost always does – post on their website.  The Notice observes that such awards have little if anything to do with an attorney’s actual knowledge, skill, experience, or ability to handle people.  In fact, many of them are are little more than popularity contests between and among attorneys.  Because they are frequently given based upon the number of endorsements that the recipient received from other attorneys, the award process often degenerates into “I’ll endorse you if you endorse me”.  Thus, the recipient did not necessarily receive the award or designation because they are really good at what they do; rather, they received the award because they know a lot of attorneys who are willing to endorse them in return for the same favor, and the person who knows the largest number of attorneys willing to issue an endorsement wins the purported prize.  Further, these awards may also be given based upon simple membership in an organization, the payment of money to the issuing entity, or the recipient’s willingness to respond to legal questions on the issuing entity’s website.  In fact, there is at least one website that claims to be able to rank attorneys numerically.  However, this site also appears to be driven by attorney advertising.  The site tells consumers that its purpose is to assist them in navigating the legal jungle, while simultaneously telling attorneys that its purpose is to assist them in growing their practices.  This begs an important and obvious question – is the site’s numerical rating of an attorney influenced in any way by the amount of advertising the attorney purchases?  If so, this is one of the concerns of the New Jersey Supreme Court, and its Committee on Attorney Advertising, as articulated in the Notice.  (If any of this is inaccurate, I will certainly be more than willing to correct or edit it.) Continue reading

Many defendants focus exclusively on only one issue in their case – Am I going to jail?  If there is even a possibility that this question may be answered affirmatively, follow-up issues concerns the length of the sentence and the facility where it may be served (e.g., state prison vs. county jail).  What often gets lost in the discussions concerning this aspect of a criminal case are the collateral consequences of sentencing.

Collateral consequences are other things that happen to someone with a felony conviction that have little to do with jail or prison time.  These consequences follow a defendant upon release from custody, and can affect virtually every aspect of their life.  A Federal Judge in the Eastern District of New York just wrote a 42-page opinion concerning collateral consequences that should be required reading for every trial judge (Federal and State) in the United States.

Chevelle Nesbeth, the defendant and a college student from Connecticut who apparently had no meaningful prior criminal record, was entering the country at Kennedy Airport.  She was coming from Montego Bay, Jamaica.  In a random bag inspection, customs agents noticed what they viewed as unusually dense handrails on her suitcases.  Further inspection revealed approximately 600 grams (or 2 1/2 pounds) of cocaine, with an estimated street value of $45,000.  Nesbeth elected to proceed to trial, arguing that she received the bags from friends and knew nothing about the drugs.  The jury did not believe her, and convicted her of importing drugs and possession with intent to distribute.  Under the Federal advisory sentencing guidelines, Nesbeth faced a sentence including, among other punishments, a custodial term of 33 to 41 months. Continue reading

The Fourth Amendment to the United States Constitution, as well as the analogous provisions of New Jersey state law, set rules concerning the manner in which officers can search a person, and/or their home, office or vehicle.  This body of law plays a central role in maintaining personal liberty and privacy, and impacts upon the rights and freedoms of every citizen.  However, at least one sitting US Supreme Court Justice (Breyer?) has noted that our Fourth Amendment case law is in “disarray”, or words to that effect.  This stems, at least in part, from the fact that these cases arise in a wide array of scenarios, and are very fact-sensitive.  This creates opportunities for widely divergent interpretations of facts and related applications of law, with the result that existing search and seizure case law is frequently unclear.  Indeed, this area of law demonstrates plainly and numerous individuals can have different views and opinions of the same plot line, and therefore reach different legal conclusions and results.  The New Jersey Supreme Court recently decided State v. Bivins.  This case, which is somewhat refreshing in its clarity, helps to define the limits of search and seizure activities in drug cases where the search is conducted pursuant to an “all-persons-present” search warrant.

In Bivins, the police obtained a no-knock warrant to search a residence believed to be involved in drug trafficking for narcotics and related contraband.  The terms of the warrant allowed the police to search the residence, and “all persons present reasonably believed to be connected to said property and investigation.”  The affidavit supporting the warrant stated, among other things, that the residence was “open for the sale of narcotics twenty-four (24) hours a day, seven (7) days a week.”  One of the state troopers involved in the execution of the warrant asserted that people were “in and out of the house at all times” and there may have been “a lot more occupants in there than [those] seen.”

This trooper also testified that when the police were entering the residence, he learned that two individuals had departed and were heading toward a grey Pontiac.  The trooper approached his designated location and saw a grey Pontiac approximately five or six houses down the block from the target residence.  The trooper also observed two individuals in the car, who were later identified as defendant Bivins and his cousin.  Significantly, the trooper did not personally observe Bivins or his cousin leave the residence and enter the Pontiac.  Bivins and his cousin were removed from the vehicle and searched, and each had 35 bags of cocaine. Continue reading

We have written before about federal sentencing issues.  A recent US Supreme Court decision again focuses our attention on this important topic and, specifically, the central role that the advisory guidelines play in the federal sentencing process, and how sentencing mistakes can – and should – be corrected.

By way of background, sentencing in federal cases is governed largely by the the advisory sentencing guidelines promulgated by the United States Sentencing Commission.  The concept underlying the advisory guidelines is relatively simple.  They are designed to promote uniformity in sentencing.  Thus, if two defendants with roughly similar backgrounds are convicted of the same offense and appear for sentencing before two different judges in two different jurisdictions, the advisory guidelines help ensure that the defendants will receive roughly the same sentence.  In this respect, the guidelines restrict the discretion of the sentencing judge.

The central role of the advisory guidelines in federal sentencing cannot be overstated.  As a general matter, current law does not require  judges to impose the sentence that the guidelines contemplate for a particular offense, which is why defense attorneys (and some of the more intellectually honest US Attorneys) refer to them as “advisory”.  There is a list of factors in the federal sentencing statute that district court judges are supposed to consider when fashioning a sentence in a particular case, and the guidelines is one of the items on that list.  However, unless there is a good reason to “depart” or “vary” from a guidelines sentence, most judges will typically sentence a defendant within the guidelines range for the offense at issue.  This is because a “within range” sentence is presumed reasonable, so the likelihood of reversal for a sentencing error is reduced.  (In the simplest sense, “departures” and “variances” are reasons to sentence a defendant to something less that what the guidelines call for.  They are not easily obtained, and are not available in every case.) Continue reading

Prior articles on this blog have discussed our increasing dependency on our electronic devices.  Many members of my generation are still getting somewhat used to smart phones, I-pads, and the like.  However, for our children who have grown up with them, using these devices is perfectly natural and an ordinary part of life.  These things are all second-nature to them.  The younger generation will never understand our take on these devices because they did not grow up in a time when a Princess slim-line rotary telephone (remember those?) was cutting-edge technology.

While they seem to be thoroughly in tune with the latest technological rages and crazes, our kids do not necessarily appreciate the darker side of modern technology which, in addition to all kinds of devices, includes a bewildering array of apps and social media products and services.  Last week, an 18-year-old Ohio woman learned the hard way that misuse of this technology can have dire consequences.

Marina Alexeevna Lonina (age 18) and an acquaintance identified as Raymond Boyd Gates (age 29) have been charged in connection with the rape of one of Lonina’s classmates.  Lonina and the victim, who was 17 at the time of the incident, attended the same high school outside Columbus.  Lonina, Gates, and the victim were socializing at a Columbus residence when, at some point, Gates allegedly forced the victim to have sex with him.  Lonina “Periscoped” (live-streamed in real time) the rape.  One of Lonina’s friends, who was located in another State, viewed the live-stream of the rape and contacted law enforcement.  During the evening preceding the sexual assault, Lonina had also photographed the victim in the nude.  A Franklin County grand jury indicted Lonina and Gates for kidnapping, rape, sexual battery, and pandering sexually oriented material involving a minor.  Lonina was also charged with illegal use of a minor in nude material or performance, which related to photographing the victim the night preceding the rape.  These latter two charges appear to be variations of distributing child pornography.  Each defendant now faces over 40 years in prison. Continue reading

One of the many defendants I have represented in federal district court in New Jersey resolved his case by pleading guilty to certain offenses that typically call for the imposition of a prison sentence.  After long and difficult negotiations with the US Attorney’s Office, and in light of other facts and circumstances unique to that case, I successfully persuaded the Government to recommend a sharply reduced sentence.  Had the court adopted the Government’s recommendation, my client would have received non-custodial probation.

I participated in a chambers conference with the judge and the US Attorney at a hearing prior to the sentencing date.  During this conference, which was off the record, the judge stated that they “always” place defendants like my client in jail.  The judge said this before reading a pre-sentence investigation report (one had yet to be prepared), a sentencing memorandum from either attorney (also not prepared at this stage), or the Government’s formal request for a reduced sentence (same).  Neither had the judge seen correspondence from friends or family members, or heard oral argument in connection with sentencing.  I foolishly believed that the judge would actually do their job, consider all of this material when it had been properly presented, and probably see things differently once a full record had been made.

Foolish was right – even on a full record consisting of all of the foregoing items, this judge still sentenced my client to a (brief) custodial term, and then denied my motion for reconsideration.  In other words, this judge did what they “always” did in this type of case, regardless of what was in the record.  Ultimately, making a full record turned out to be a total waste of time and effort.  The judge could not have cared less about the unique facts and circumstances of this case or any of the submissions, but rather focused solely on their past practices in what they viewed as similar cases with absolutely no regard for anything else.  In my mind, this was as astonishing example of thoughtless, cookie-cutter justice at its worst. Continue reading

A free and independent judiciary is a cornerstone of our constitutional structure.  In our system, judges are supposed to remain free of political pressure to the fullest extent possible so that they can interpret and apply our laws without having to fear political reprisals resulting from their decisions.  Anybody who has successfully completed a middle school social studies class knows that in this country, the judiciary is supposed to act as a check on the other two branches of government.  The notion of a free and independent judiciary is, however, being reduced to little more than a nice sentiment.  In reality, the federal judiciary, as well as state judicial systems throughout the country, are increasingly under assault from both the executive and/or legislative branches of government.

As a threshold matter, it is important to remember that no judicial system in the United States can be wholly free of politics.  Judges are elected to the bench in 38 states.  In these states, judges have to run political campaigns just like candidates for the legislative or executive branches which, of course, includes raising money.  Campaign spending in a recent Arkansas judicial election reached $1.2 million.  In a relatively recent Wisconsin judicial election, the amount exceeded $2.6 million.  The issues of campaign finance and money in politics are discussed frequently in the context of executive and legislative elections.  The same problem appears to be growing in the judicial arena as well, but does not appear to be receiving the same level of attention.  (Personally, I think the idea of an elected judge is patently silly, and totally contrary to the kind of judiciary that best fits within our constitutional democracy.)

Further, in states that do not elect judges, candidates are appointed to the bench by elected representatives.  Judicial appointments thereby become campaign issues at the time of the election and re-election of those representatives, and those elected to positions of power typically appoint judges who are either members of the same political party, who share their political views, and/or who contributed significant sums to their campaign.  Against this backdrop, it is completely naive to assume that all politics can be removed from the judicial appointment process.  Given the foregoing, some politics in the process is inevitable, and American society has apparently decided to accept this. Continue reading