New Jersey Criminal Defense Attorney Blog

Covering New Jersey and Federal Criminal Law and Procedure

We recently passed the first anniversary of criminal justice reform in New Jersey.  As discussed regularly on this blog, these far-reaching changes to criminal practice and procedure in the State affect the handling of all criminal cases in the Superior Court.  The primary areas that these changes impact upon are bail reform and the speed with which criminal cases progress through the system.

As discussed in previous posts, the new procedures assume those charged with criminal offenses will not be incarcerated pending trial or other case disposition.  Prosecutors can, however, seek to detain a defendant while their case is pending before the court.  This is accomplished by means of a detention motion filed by the State, which is followed by a detention hearing.  After considering, among other things the arguments of counsel and the Public Safety Assessment (the “PSA” – a sort of score sheet that rates the defendant for risk of failure to appear in court in the future and likelihood of committing new offenses), the court decides whether to release the defendant with or without conditions, require the posting of a bail, or detain the defendant without bail.  The defendant can appeal an adverse detention decision.

SN was charged with sex offenses.  The PSA gave him the lowest possible scores for risk of committing additional offenses and risk of failure to appear, but still recommended detention regardless of the low scores.  The State sought pretrial detention, arguing that there was a serious risk that defendant would fail to appear in court, that he was a danger to the community, that he would intimidate the victim, her mother and other witnesses to obstruct justice, and that he was a flight risk because he had relatives living in another country. Continue reading

Generally speaking, there are two broad categories of searches.  Either a search can be made with a search warrant, or it can be warrantless.  Our law prefers searches that are made pursuant to a warrant.  A warrantless search will be valid only if the search and seizure activities fall within one of the recognized exceptions to the warrant requirement, each of which has its own detailed requirements.

Evidence seized pursuant to a search conducted with a warrant is, as a general rule, harder to suppress than evidence seized without a warrant.  Defense counsel must carefully review the warrant paperwork, which consists of an application submitted in support of the warrant, the warrant itself, and the return on the warrant, so as to locate defects in the application process that can serve as the basis for a suppression motion.  The identification of such defects was the basis for the recent New Jersey Supreme Court decision in State v. Boone, which was decided on December 18, 2017.

Boone faced a series of narcotics and weapons charges stemming from contraband that the police located in his Hackensack apartment in August, 2012.  The search of his apartment was conducted pursuant to a warrant.  Boone moved for an order suppressing the evidence since the warrant application lacked any information as to why his specific unit should be searched. Continue reading

Discovery rules in criminal cases can vary greatly between jurisdictions.  New Jersey has some of the most liberal discovery rules in the nation.  It is common for discovery to be produced well before an indictment.  Further, under current rules, all discovery must ordinarily be produced at or just prior to indictment.  This relatively early discovery production enables defense counsel to quickly come up to speed on the case, identify witnesses, perform any necessary investigations, and identify any areas where expert testimony may be required.

In sharp contrast, prosecutors in some other jurisdictions are not required to produce discovery until relatively late in the proceedings, with the result that important discovery which could impact significantly upon a defense case may not arrive until the eve of trial.  New York recently took a very small step toward addressing the problems and issues that result from eleventh-hour discovery production.

New York State’s Chief Judge recently issued an Order requiring district attorneys to review their files for Brady material and produce it at least 30 days before major trials.  The Order takes effect on January 1.  Brady material gets its name from the landmark 1963 United States Supreme Court decision of Brady v. Maryland, and includes exculpatory material and/or material that could be construed as favorable to the defendant. Continue reading

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