New Jersey Criminal Defense Attorney Blog

Covering New Jersey and Federal Criminal Law and Procedure

Given the current political climate, protecting the rights of non-citizen criminal defendants is certainly not a popular activity.  However, and as many judges and elected representatives have repeatedly stated, our judicial system (federal and state) is supposed to be a model of fairness for other countries, particularly those where there are no meaningful due process rights or protections.  Our tradition provides that any criminal defendant – even one who is in the United States illegally – is still entitled to due process.

To help ensure this, there is a procedure which really should be utilized in most, if not all, criminal cases where the defendant is not a US citizen.  International treaties provide that a non-citizen criminal defendant must be allowed to speak to a representative of his country’s consulate to seek whatever assistance the consulate can offer.  This was a major issue in the case of Ruben Cardenas, who was executed last night in Texas.

Cardenas was arrested over 20 years ago for the murder of his teenage cousin.  Following hours of questioning by law enforcement, he admitted to sneaking into his cousin’s through a window.  He also confessed to kidnapping, raping and killing her, and leaving her body near a canal.  He was not given an attorney until 11 days after his arrest, and his defense counsel claimed that his confession was coerced and other evidence in the case was problematic for different reasons.  Representatives of the Mexican government and the United Nations all tried to stop the execution, providing this case with international visibility.  The execution was carried out despite numerous appeals that raised the deprivation of consular rights, as well as other issues.

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Prosecutors occupy a central role in our criminal justice system.  In every case, they choose the offenses the defendant will be charged with, present evidence to a grand jury to secure an indictment in a proceeding they control almost exclusively, and then represent the public in the actual criminal case where they make almost all of the decisions concerning many important matters such as plea bargains.  Additionally, their investigatory resources are generally far greater than those available to the defense.  Finally, since many people equate a criminal charge with actual guilt, they can be ahead of the game before the jury is selected and the trial starts.

They may not like to admit it, but prosecutors are not perfect.  They sometimes make mistakes that result in wrongful convictions.  The United States Court of Appeals for the Second Circuit will soon be hearing a case that may further close off the ability of the wrongfully convicted to seek redress for the resulting harm.

Under current law, suing police officers who commit misconduct is relatively simple.  In sharp contrast, federal law protects prosecutors who make mistakes that hurt defendants.  Thus, individual district attorneys in New York State are immune from suits for courtroom mistakes that result in wrongful convictions.  Further, suing New York State is a waste of time unless the plaintiff can demonstrate conclusively that they were innocent of the offense that sent them to prison. Continue reading

In 1984, Congress passed the Comprehensive Crime Control Act (“CCCA”).  This law was passed at a time when crime rates, particularly drug-related crimes, were rising nationally.  The CCCA provided, in part, that law enforcement agencies could seize the overwhelming majority of assets of individuals suspected of criminal activity.  In fact, the CCCA allowed law enforcement to seize up to three times what they could seize from criminal suspects under then-existing state laws.  In 2014, the last year for which data is available, local police agencies seized about $4.5 billion in assets.  The majority of these assets were turned over to the federal government; however, the relatively small portion given back to local police departments subsidized about 20% of their budgets.  The CCCA also gave police departments something of a windfall that paid for equipment and the establishment of narcotics task forces.

It was later found that over the decade following its passage, the CCCA resulted in a decline in crime rates of about 17% in jurisdictions where it was applied.  Obviously, this was something that relatively few people would fault, particularly in light of the fact that the law grew from a perception that crime rates were out of control.  However, new information concerning the long-term effects of the CCCA – particularly the manner in which it influences law enforcement priorities – recently became available.  This material should be of interest to anyone who seriously tracks trends in law enforcement activities.

According to a recent study prepared by professors at Florida State University (“FSU”), the asset forfeiture system established by the CCCA has had unintended consequences over time.  First, it has apparently caused law enforcement to heavily target drug-related offenses.  It has also apparently motivated local police to focus their efforts in poorer urban areas where it is easier to make drug-related arrests that frequently result in the seizure of assets.  In some instances, the assets seized may amount only to a few hundred dollars.  It can, however, add up very quickly if enough people are arrested.  Continue reading

One of the worst things that can happen in a juvenile case is a waiver to an adult court.  In some cases, usually because of the severity of the offense, a prosecutor will ask the juvenile judge hearing the case to “waive” or transfer a particular juvenile matter to an adult criminal court where it will be disposed of using procedures employed in adult criminal cases, including the imposition of an adult sentence.  The prosecutor’s office in at least one New Jersey county currently has a policy of automatically seeking a waiver in every juvenile case involving a weapon, regardless of the surrounding facts and circumstances.  Waiver is not necessarily automatic; however, defense counsel must work diligently to overcome a prosecutor’s request for a waiver to adult court.

There are some cases where waiver may arguably be appropriate.  In most cases, however, waiver accomplishes nothing, and this view seems to be gaining traction.  A series of United States Supreme Court decisions issued over the last several years are based clearly on the idea that juveniles cases must be treated differently from adult cases because juveniles are not like adults.  The Court has recognized that juveniles have less experience generally, and are less developed both intellectually and emotionally.  A recent study from the Campaign for Youth Justice demonstrates that many states may be starting to take this view seriously, and are enacting juvenile justice reforms that address juvenile defendants “in a developmentally appropriate way.”  The report can be viewed at www.campaignforyouthjustice.org.

The report observes that approximately 36 states now have laws designed to prevent minors from being incarcerated in adult prisons or jails (where, not surprisingly, they are frequently the first victims of sexual assaults).  Further, many states are working on legislation that will reduce the exposure of juveniles to the adult criminal justice system in various ways. Continue reading

Criminal attorneys frequently assert novel defenses at trial and during plea negotiations.  One of the more interesting defenses, sometimes referred to as the “Twinkie” defense, has existed for a number of years.  It sounds patently silly on the surface given its name, but may actually have some basis in reality and, under appropriate circumstances, may be used effectively in cases involving criminal defendants with mental health issues.

The earliest notable use of the defense dates back to the trial of Dan White who was charged in the 1970s with shooting George Moscone, the Mayor of San Francisco, and Harvey Milk, a city supervisor.  Defense counsel presented evidence that White was mentally ill and depressed, and that his symptoms were worsened by eating junk food.  White’s “main” defense was actually diminished capacity, but he asserted that eating large amounts of junk food contributed to his existing mental health issues.  As ridiculous as it sounds, the argument apparently assisted him in obtaining a conviction for the lesser included offenses of voluntary manslaughter, instead of murder.

Variations on the defense have been asserted since the White case by defendants with mental health problems and issues.  In or around 2017, Matthew Phelps of North Carolina was charged with his wife’s stabbing death.  He discovered her blood-covered body on the floor when he woke up one morning, but had no memory of events from the prior evening.  He believed he attacked her, but claimed that he remembered nothing because cough medicine that he took to help him sleep caused him to black out.  Similarly, Dr. Louis Chen was charged with murdering his partner and their son.  He asserted that at the time of the murders, he suffered from depression and paranoia which were worsened by his ingestion of cough medicine.  James McVay, who claimed to have mental health and addiction issues, was charged with a stabbing death.  He argued, among other things, that at all relevant times, he suffered from hallucinations caused by mixing alcohol and cough syrup.  Shane Tilley, who presented evidence that he suffered from a schizoaffective disorder, argued that he stabbed someone to death while he was intoxicated by cough syrup. Continue reading

It has been long known that the United States incarcerates more individuals than any other nation on the planet.  Our combined federal, state and local jail population is staggering.  Over the last several decades, however, there has been an ongoing push to develop “alternatives-to-incarceration” or “ATI” programs.  These programs, which include drug courts and mental health courts, are designed to deal with relatively low-level, non-violent offenders who have specific problems and issues that led them to commit crimes.  The idea is to remove them from the mainstream criminal justice system and place them in a diversionary program designed to address their unique needs, thereby reducing the likelihood of recidivism.  As a result, these programs help reduce the overall prison population, thereby preserving prison resources for use in connection with more violent criminal offenders.  ATI programs exist on both the federal and state levels.

It is also well known that the current administration in Washington has adopted a “get-tough-on-crime” approach to criminal justice including, among other things, the promulgation of stricter sentencing guidelines in drug cases.  The  United States Sentencing Commission observed in a recent report that this may effectively reduce the number of defendants who can participate in the federal ATI programs.

There are many state-level ATI programs.  For example, the first drug court was created in Florida in 1989.  There are currently more than 4,000 state-level drug courts nationwide.  It is estimated that approximately 55,000 adult criminal defendants participate in state drug court programs each year. Continue reading

The first mental health court was established about 20 years ago in Broward County, Florida, in 1997.  Since that time, a relatively small number of counties across the country have established these innovative and forward-thinking programs, with the result that there were approximately 300 mental health courts nationwide as of 2016.  Many of these courts are funded under a 2002 federal program known as the “Law Enforcement and Mental Health Project”.  It sounds like a lot, but the real need is still not being met.  Relatively recent data from the Bureau of Justice Statistics show that 55% of male inmates and 73% of female inmates in the United States are mentally ill.  Further, 23% of these individuals were incarcerated three or more times, thereby demonstrating an unacceptably high recidivism rate among this segment of the overall inmate population.  Additionally, over the last several decades, a considerable number of mental health commitments made previously to state hospitals and similar facilities for criminally involved mentally ill individuals have been eliminated.  This has made local jails and state and federal prisons the largest providers of treatment for people who suffer from mental illness.  Put somewhat differently, a substantial number of mentally ill people in the United States, a number of whom have relatively low-level criminal charges, are simply being warehoused in jails and prisons because we currently have no place else to put them.

The mental health courts with a sufficiently long track record are, however, providing support for the conclusion that these specialized programs work and work well.  A recent three-year study issued by the Florida Institute of Technology demonstrates that defendants who participated in one mental health court program in Florida experienced a significant reduction in recidivism after receiving court-ordered treatment, as opposed to a jail sentence.  This study examined 118 participants in an unidentified court.  It showed that 90% of the program participants were not re-arrested three months after release.  81% were still charge-free after six months, and 54% had not re-entered the criminal justice system after three years.  Finally, program participants who did re-enter the system were arrested for offenses that were much less severe than their original charges.  Against this backdrop, the study’s authors asserted that the targeted, community-based treatment ordered by the court assisted program participants in developing the social skills necessary to deal with their issues in a way that allowed them to remain arrest and charge-free.

Unfortunately, too many states, including New Jersey, still lag behind in establishing mental health courts.  This is particularly unfortunate in light of the State’s positive experience with drug courts, which are specialized courts designed to deal with defendants whose criminal conduct was motivated by addiction issues.  Experience dictates that drug courts work.  They provide treatment, counseling and therapy for people suffering from drug addiction thereby reducing the likelihood that they will re-enter the system, while also freeing jail and prison resources for violent offenders.  Continue reading

Our personal information is constantly being collected by third parties without our realization.  Every time we use one of our devices, we expose personal details and information to collection by any number of entities that use the data for various purposes.  Privacy is clearly on the decline as the use of one device or another becomes a standard and unavoidable part of life.  An individual cannot be part of modern society absent a cell phone and/or computer.  These facts all have serious implications for criminal defendants.

In 1979, the United States Supreme Court decided Smith v. Maryland.  There the Court discussed what has become known as the “Third Party Doctrine”, which provides that individuals do not have a reasonable expectation of privacy in information voluntarily given to a third party (e.g., telephone carrier or bank).  This information is then available to Government agencies, including law enforcement agencies.

The Court is now scheduled to hear a case that asks what the police and prosecutors can legitimately do with personal data that is collected from third parties.  Carpenter v. United States could greatly alter Fourth Amendment principles and procedures as they must be applied in cases involving data resulting from the use of cellphones, computers, and similar devices. Continue reading

Under current New Jersey law, the maximum term of probation is five years.  Experience indicates that most defendants are typically placed on probationary terms that can run from one to three years.  Many defendants facing jail time view probation as a gift and, oftentimes, it is.  However, probation comes with terms and conditions, and the failure to comply can lead to a violation and jail time.  Some judges have an unofficial “one free bite” rule – the first violation leads to a reading of the riot act, placement on what is referred to as “strict compliance”, or an extension of the probationary term, in lieu of a prison sentence as a sanction for the violation.  Other judges are less generous and simply incarcerate the defendant once the violation is sustained.

There is a definite correlation between the length of the probationary term and the likelihood of a violation.  Put somewhat differently, people who are on probation for relatively long terms are at greater risk for violating.  This is because it can be difficult to comply with the terms, conditions and restrictions of probation for long periods of time.  Thus, people placed on terms of, for example, four or five years, are often characterized as “set up for failure”.    As to this issue, there are standard terms and conditions of probation (remaining gainfully and legally employed, staying in school, remaining drug-free, etc.), and special conditions that a judge may craft for a particular case.  As to the latter, one New Jersey judge that I regularly appeared before prior to his retirement required probationers to not enter disreputable places or associate with disreputable people.  I never understood what that meant, until one of my clients was arrested in a go-go bar during a raid.  The client was not engaged in any illegal activity – he was just sitting and having a drink.  However, he ended up receiving a sanction because he violated that term or condition.  Indeed, judges have considerable latitude in crafting unique terms and conditions, and this must be factored into assessing the likelihood of success.  This is particularly problematic when a judge imposes a term or condition that simply cannot be complied with because of the defendant’s circumstances.  Another problem is that a considerable amount of the funds that run probation systems come from fines and fees paid by probationers.  However, many of these people are impoverished and cannot afford even modest payments, sometimes resulting in a violation for failure to pay required assessments.

The concept underlying probation is that some defendant are simply better off in a community corrections setting as opposed to a county jail or prison.  Further, from an institutional and/or management perspective, probation is intended to save scarce prison resources for the worst offenders.  However, the fact is that many defendants end up violating at some point during their probationary term, and are incarcerated.  As a result, probation can actually add to the country’s overburdened jail and prison systems. Continue reading

It has been said that the defense attorney is frequently the most ignorant person in the room.  The reason for this unflattering description is that s/he knows the least about what actually happened at the crime scene.  The prosecutor has an army of investigators tasked with developing as much information as possible concerning the alleged underlying offenses.  The defendant knows what happened because s/he was presumably present when the relevant events transpired.  Defense counsel is the last person to arrive on the scene and, more often than not, lacks the resources to conduct an investigation rivaling that of the prosecuting authority.  Thus, the defense attorney’s best (and frequently only) reliable source of information is the discovery received from the State or the Government.  Generally speaking, the prosecutor must turn over anything that may be exculpatory or used to obtain a conviction.  The failure to do so may violate the principles set forth in Brady v. Maryland, 373 U.S. 83 (1963).  Specifically, Brady held, among other things, that the Due Process clause is violated if the Government withholds evidence that is favorable to the defense and material to a defendant’s guilt or punishment.  In Turner, the United States Supreme Court rejected a Brady claim because both prongs of this test were not satisfied.

The seven defendants in this case, including Christopher Turner (“Turner”), were indicted, tried and convicted for the kidnapping, robbery and murder of Catherine Fuller (“Fuller”).  The centerpiece of the Government’s case was that Fuller was attacked by a large group of individuals.  Their direct appeals were rejected.  In post-conviction proceedings, the petitioners alleged that the Government withheld seven pieces of evidence that were both favorable to them and material to their guilt insofar as the missing items could have been used to undermine the Government’s “group” theory and suggest an alternative theory, which was that Fuller was attacked by, at most, one or two individuals.

Significantly, the Government did not contest the claim that the withheld items were favorable to the defense, but did challenge the conclusion that these items were material.  As to this point, the Court found that evidence is “material” when it is reasonably probable that its disclosure would have changed the result of the proceeding.  Reasonable probability of a different result occurs where the fact that the evidence was missing undermines the confidence in the trial’s outcome.  To reach these conclusions, the missing evidence must be evaluated in the context of the entire record. Continue reading