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Two issues regarding the right to privacy, and its potential impact on criminal cases, appeared in the news recently.  These issues have no relationship to each other, but can both be highly relevant to criminal cases.

The first involves a your man who was living alone in a South American country.  He was extremely poor and his family was basically gone.  Having absolutely no personal resources for even necessities, he became involved with a local gang.  To be clear, he was not one of the leaders, or even a major participant in gang activities, acting instead as the occasional lookout.  Significantly, he really did not want any part of the gang lifestyle.  He eventually fled his home country and sought asylum in the United States.  He was afraid to return to his country after leaving, because of his well-founded belief that the gang he was previously involved with may kill him.

Part of the admission process here involved meeting with a mental health therapist whose position was government-related.  The therapist took notes of their meetings, which included discussions of his gang-related activities.  Without any prior knowledge or consent of the young man or the therapist, these notes came to light in connection with a hearing that was held to determine whether he could be admitted to the United States.  The notes supported the conclusion that he was gang-involved in his home country, which will probably end his quest for admission to the United States and force his deportation back to his home country. Continue reading ›

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We receive many inquiries from defendants who are currently required to register pursuant to Megan’s Law, and are on Community Supervision for Life or Parole Supervision for Life, about termination of their overly burdensome and needlessly restrictive obligations. In light of a recent New Jersey Supreme Court case, we believe that this may be a good time to review some of the basics of a successful termination motion.

Briefly, people who are saddled with Megan’s and lifetime supervision requirements can apply for relief under the following circumstances, pursuant to N.J.S.A. 2C:7-2(f). First, the application may not be made for at least 15 years from the date of conviction or release from custody, whichever is later. Next, the applicant must be able to show that they were offense-free during that time period. Finally, the applicant must be able to show that they are not a threat to the safety of others. This last requirement is typically satisfied by submitting a written evaluation from a forensic psychologist along with the motion papers.

However, pursuant to N.J.S.A. 2C:7-2(g), certain defendants are not eligible for relief. These include defendants with more than one sex offense, or defendants convicted of aggravated sexual assault or sexual assault as defined in the State’s criminal code.

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Anyone who has ever sat through a jury trial knows the level of attention received by the jury. Tremendous care goes into selecting the jury, as is evident by the nature and extent of the questioning of whole panels and individual jurors, and the related decisions that the parties make concerning peremptory challenges.  But what happens after the jury is selected? How should the court deal with issues of juror misconduct? As the recently decided case of State v. Isakova illustrates, any inappropriate conduct by jurors that comes to a court’s attention must be taken seriously and thoroughly investigated.

Defendant was a former corrections officer who was indicted for participating in a scheme to smuggle tobacco into a jail. His conviction was reversed on appeal for various reasons. Among them was a finding by the Appellate Division that the trial court erred in failing to investigate allegations that a juror introduced extraneous information during jury deliberations.

During deliberations, Juror Number Seven sent a note to the trial judge asking him to remove Juror Number Nine because she had family that were cops, her husband was in jail, and her husband used to get things when he was in jail. The court questioned Juror Number Seven after the jury had indicated that it had reached a unanimous verdict. During that colloquy, the juror stated that Juror Number Nine was biased in her opinions and was making several jurors uncomfortable. The trial court refused to interview Juror Number Nine because it believed that there was nothing in Juror Number Seven’s note that triggered a concern about Juror Number Nine’s ability to deliberate with the other jurors. Continue reading ›

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A criminal case can end in a variety of ways including a verdict at trial, a plea, a dismissal, or admission to a diversionary program. Two diversionary programs that may be available to New Jersey criminal defendants are Drug Court and Pre-Trial Intervention, or PTI. This post focuses on some of the basics of PTI.

Generally speaking, defendants seeking admission to PTI must satisfy two criteria. First, the defendant’s current case must be their first and only encounter with the criminal justice system. Further, the charge can be no greater than third degree.

Defendants who do not satisfy these criteria may still be able to gain admission to the program if their attorney submits a statement of compelling reasons in support of their application. This statement acknowledges that the defendant does not meet the basic criteria for admission, but should be admitted to the program anyway because of the facts and circumstances surrounding their case and personal situation.

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Have you been charged with illegal possession of a firearm? Surprised to learn that your plea offer calls for a State prison sentence (typically, five years with a 42-month parole disqualifier), and that the prosecutor is not willing to even discuss it? This scenario has been playing out in courts all over New Jersey for several years now. Here’s why, and what you may be able to do about it.

Years ago, the New Jersey criminal code included a third degree offense for unlawful possession of a weapon. Depending upon the facts of the case, it was frequently possible for those charged under this section of the Code to plead to the possession charge in exchange for a term of non-custodial probation. But the gun laws changed, and the third degree offense was no longer available. Offenses in these cases are charged under the Graves Act, with the result that a State prison sentence is frequently a given.

It is, however, possible to apply for something known as a “Graves Act Waiver”. If successful, the defendant will be placed on non-custodial probation with appropriate terms and conditions. In order to qualify for a waiver, the typical defendant must have little to no criminal record. They should also be able to document a life style punctuated by things that demonstrate the ability to live a successful, law-abiding and productive life in the community. The application for the waiver is prepared by the defendant’s lawyer, and is typically supported by documentation such as letters of reference from employers and community leaders, documentation showing achievement in employment and/or education, records of military service, and the like. The application will be ruled upon the county assignment judge, or that judge’s designee.

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Many attorneys – both defense attorneys and prosecutors – will knowingly try to introduce objectionable material at trial.  The reason for this is simple.  The attorney believes that the jury has to hear it.  It makes a difference in their case, and the effort to introduce it is strategic.  Even if it is met with an objection from the other side, and the objection is coupled with a curative instruction from the Court, what often matters is that the jury heard it and they may be thinking about it.  The system functions on the assumption that the jury follows the Court’s instructions, and will therefore comply with a curative instruction to ignore what was said.  But we all know that in reality, human nature takes over.  Regardless of the Court’s instruction to ignore it, there is every reason to assume that what will ultimately happen is that the jury heard the objectionable material and human nature does the rest.  This is the reality of a criminal justice system that relies upon the thinking and actions of ordinary people.  It may not be consistent with the rules, but the fact is that it happens in criminal trials every day.  A good criminal trial attorney will assume that the jury sees, hears and considers everything without exception, even over their objection and regardless of the court’s instructions.  (And, by the way, counsel should still object and request the curative instruction.  It may not make much of an impact on the jury, but it could be the difference between winning and losing in the Appellate Division.)

The impression that certain objectionable statements made upon the jury was at the heart of the recently decided case of State v. Tung.  There the issue was whether the trial court erred in admitting evidence that the defendant exercised his Fourth Amendment right to refuse to consent to a warrantless search; evidence that the defendant exercised his Fifth Amendment right to counsel; and an interrogating officer’s opinion that the defendant lied.

The Appellate Division reversed the defendant’s convictions for murder, aggravated arson, and other offenses.  At trial, the jury repeatedly heard that during a pretrial recorded statement, the defendant refused to consent to searches of his property, and had requested counsel.  Such references were clearly capable of producing an unjust result at trial because they improperly encouraged the jury to draw negative inferences against the defendant because he had invoked his Fourth and Fifth Amendment rights.  The trial court did not excise these references, and did not provide a cautionary/curative instruction. Continue reading ›

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Last year, in State v. RG, our Appellate Division addressed the issue of whether a criminal defendant who is not mentally competent can be involuntarily medicated to restore their competency so that they can proceed with their case.  This was the first time a New Jersey appellate court addressed this issue.  The case provides a valuable opportunity to review some of the basics concerning criminal defendants with mental health issues.

Every defendant is expected to participate in their own criminal case.  This means that they must be able to understand that they have been charged in a criminal court with a criminal offense.  Further, they must be able to recall the facts that gave rise to the case, and have the ability to discuss them in a meaningful way with their attorney.  They must be able to provide defense counsel with any information they may have concerning those facts, as well as defenses to the charges.  They must be able to evaluate plea offers, and to decide whether they wish to resolve their case by way of plea or proceed to trial.  They must have a basic understanding of how a trial works, and their right to testify before a jury.  They must also understand the respective roles of the defense attorney, the prosecutor and the Judge hearing the case.  If they cannot do these things, they may be declared incompetent for purposes of proceeding with their matter.

In New Jersey, a defendant who appears to be incompetent will have to undergo a competency evaluation.  These evaluations are generally conducted by a state psychologist at a public facility known as the Ann Klein Forensic Center.  The psychologist will generate a report that describes the evaluation, and presents findings and conclusions.  If the defendant is deemed competent, the case can proceed.  If the defendant is deemed incompetent, the case will typically be adjourned until the defendant is restored to competency.  As a practical matter, this means that the Judge hearing the matter will list it for a 60-90 day review and, and that time, will see where the defendant stands in terms of fitness to proceed.  (Once the case has gone on long enough, and after a series of court reviews concluding that the defendant remains incompetent, defense counsel should be thinking about moving to dismiss the charges.) Continue reading ›

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Most people associate penalties in criminal cases with probation, incarceration and/or fines.  There is, however, another court-imposed obligation that can be imposed in any case involving financial loss.  A sentencing judge can, and frequently does, order the defendant to pay restitution as compensation for any monetary losses sustained by the victim. A restitution obligation frequently comes as a surprise to most clients, who are typically focused on the other types of penalties that may be imposed.  Ideally, any client facing charges involving a financial loss or property damage must understand from the beginning of the case that a plea arrangement or guilty verdict after trial could entail a restitution obligation in addition to other penalties.

Restitution is not confined to adult cases, but can be required in juvenile matters as well.  The Administrative Office of the Courts recently promulgated new, uniform guidelines that are to be followed when imposing restitution in juvenile cases.  These guidelines, among other things, require the prosecutor to make every effort to provide information concerning restitution at the time of the plea.  If this is not done, the judge hearing the case shall, at the time of the plea or the adjudication of delinquency (which frequently occur at the same hearing), order the prosecutor to provide information concerning restitution within 30 days.

Sometimes in juvenile cases, a judge may ask for a pre-disposition report to be prepared in advance of sentencing.  This report contains information about the juvenile that will factor into the sentencing judge’s findings and conclusions.  Under the new guidelines, if the court asks for a a pre-disposition report, the prosecutor will be ordered to submit restitution information and a recommendation to the Family Division for inclusion in that report.  Defense counsel will, of course, have the opportunity to review that report prior to sentencing.

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In my experience, client calls from jail or prison facilities come in two forms.  Sometimes, a client will call me directly from the facility using the facility’s telephone equipment.  On other occasions, I will receive a call from a friend or family member who will then “third-party” the client in from the facility.  Both methods of contact present serious problems.  The third party call involves having someone on the line who is not part of the case, and has no reason to listen to attorney-client conversations.  Thus, this method of calling an attorney presents serious attorney-client privilege issues.  I always advise clients to never discuss their case with anyone who has no need to know about it.  A criminal case is a sensitive matter; information must be shared on a strictly “need-to-know” basis, and in a manner consistent with applicable rules governing privileged communications.

Direct calls using jail or prison telephones are highly problematic for other reasons.  State v. Jackson involved calls made by an inmate at the Essex County Jail outside of Newark, New Jersey.  That facility ostensibly allows inmates to make unmonitored and unrecorded calls to attorneys and Internal Affairs.  Otherwise, inmates are informed at the beginning of all calls that they may be recorded or monitored.  Inmates also sign a release form stating that they understand that calls are subject to monitoring and recording, and may be intercepted, and Jackson signed that form.  Similarly, inmates at the Middlesex County Jail, the other facility in this case, receive a pamphlet stating that “[t]elephone calls may be monitored and recorded except calls to the Internal Affairs Unit and legal telephone calls.”  Further, the inmate hears “[t]his call may be recorded or monitored” at the beginning of each monitored call.

Defendants in each of these cases made calls from these jails.  The Middlesex County Prosecutor’s Office then served grand jury subpoenas on the jails to obtain the recordings, and the defendants moved to suppress.  The motion judge suppressed the calls because the subpoenas, in his view, violated the New Jersey Wiretapping and Electronic Surveillance Control Act.  He believed that a separate warrant or wiretap order was necessary even though the Wiretap Act allows jails to monitor inmate calls.  He also believed that an inmate’s consent or knowledge that calls would be monitored or recorded was invalid because of the imbalance of power between the inmate and the facility.  In an effort to be sensitive to inmate privacy concerns, he suppressed the calls in both cases.

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Mississippi has tried Curtis Flowers six times for allegedly murdering four employees at a furniture store.  Flowers is black and three of the four alleged victims were white.

Mississippi has not been able to convict Flowers because the prosecutor(s) handling each trial are flaming racists who got caught doing something no trial attorney should do.  At the first two trials, they struck (e.g., removed with a peremptory challenge) all of the qualified black prospective jurors.  Both juries convicted Flowers and sentenced him to death, but the Mississippi Supreme Court reversed the convictions because of prosecutorial misconduct.  At the third trial, the State used all 15 of its challenges to strike black prospective jurors, and the jury again convicted Flowers and sentenced him to death.  The Mississippi Supreme Court reversed again, this time because of a violation of Batson v. Kentucky, which held that once a defendant establishes a prima facie case of discrimination concerning the manner in which challenges are being used, the State must give race-neutral explanations for its challenges, and the trial judge must determine whether those reasons are valid or just a pretext for discrimination.  The fourth and fifth trials ended in mistrials.  At the fourth trial, the State used 11 challenges against black prospective jurors.  No racial information concerning the prospective jurors at the fifth trial exists (or it was at least conveniently omitted from the State’s papers).  At the sixth trial, the State used six challenges.  Five were directed against black prospective jurors.  One black juror was seated.  Flowers raised a Batson claim, but the trial judge found that the State’s proffered explanations were race-neutral.  The jury convicted Flowers and sentenced him to death, and the Mississippi Supreme Court affirmed.  The United States Supreme Court vacated the judgment and remanded the case, but the Mississippi Supreme Court affirmed again.

The United States Supreme Court reversed, finding that the surrounding facts and circumstances demonstrate that the trial judge’s conclusion at the sixth trial that the State’s reasons for striking one of the black prospective jurors were race-neutral was clearly erroneous.  In doing so, the Court noted that four categories of evidence factored into its decision, where the State had a persistent pattern of striking black prospective jurors at each trial.  Continue reading ›

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