New Jersey Criminal Defense Attorney Blog Covering New Jersey and Federal Criminal Law and Procedure

Articles Posted in Current Events

On October 18, 2016, NYPD Sergeant Hugh Barry responded to the home of Deborah Danner in the Bronx.  Barry found Danner, a diagnosed schizophrenic, holding a pair of scissors and experiencing a mental health crisis.  He persuaded her to drop them, but she then picked up a bat and somehow threatened him with it.  He shot her twice in her torso, killing her.  Interestingly, Barry had a stun gun, but did not use it.  Prosecutors who charged Barry with murder this week argue that he ignored his training.  Barry’s union representatives argue that he had to make a split-second decision concerning his response to Danner, and that he did not intend to harm her.

Barry, like every other defendant, is entitled to the presumption of innocence and everything that goes with it.  Further, it is almost impossible for a third party to know precisely what happened at Danner’s home unless they were there.  In evaluating Barry’s culpability, it is important to remember that at the time of the shooting, NYPD had a small, well trained unit whose members were better equipped to respond to calls involving the mentally ill.  Further, only about a year before the Danner shooting, the Department commenced training officers more generally in this area.  However, Barry never received this training.  This is not surprising.  NYPD has approximately 35,000 officers who, collectively, responded to about 157,000 calls last year that involved individuals experiencing some sort of mental health crisis.  However, as of this time, the Department has provided only about 5,800 officers with the more specialized crisis training.

Plans to train more officers are apparently proceeding.  More shifts are being trained, as are more sergeants and high-ranking officers.  The four-day training familiarizes officers with such issues as how to spot signs of mental illness, and how to empathize with someone experiencing a crisis.  During the sessions, officers interact with patients and mental health professionals. Continue reading

Most people will agree that there is a need for a certain level of efficiency in our criminal justice system, and the new procedures that went into effect in New Jersey on January 1, 2017, are a reflection of that.  The fact is that certain cases were languishing in our courts, and many defendants were languishing in county jails until there cases were resolved.  This situation created a huge financial burden on the State’s institutions, and also disrupted the lives of many defendants and their families.  Something that most people are completely unaware of is that oftentimes, defendants whose cases resolve in their favor still lose income, jobs and homes by being forced to remain in custody for extended periods simply because their cases got bogged down in an overburdened system.  The result is an increased burden on society which commences when an unemployed and homeless defendant emerges from custody.  Accordingly, there is a certain “need for speed” in resolving criminal cases.

But efficiency comes at a price.  Since the new procedures came into effect, many of us – defense attorneys, prosecutors and judges – feel increased pressure to move cases.  Problems can result when we lack the time to properly prepare a case because of what has now become an overriding need to meet a deadline.  Under the old rules, judges had more discretion to allow counsel time to fully investigate facts, prepare defenses, and do whatever else was necessary to be sure that every aspect of a file was fully vetted.  Under the new system, that may or may not be the case.  None of us want cases to remain idle or clients to sit in jail with no end in sight but, at the same time, we want to be able to thoroughly prepare cases so that the presentations we make on behalf of clients is as complete as possible.  Indeed, this is more than just a simple desire – the real issue is the extent to which our criminal justice system can work efficiently while simultaneously guaranteeing due process rights and constitutional protections.  But this begs important, related questions:  When is speed really necessary?  What areas of the system require improvement?  Where can we best use criminal justice resources?  One way to respond to these questions is with full, accurate and relatively current data about the system, but to what extent is that available, and who is collecting it?

An organization called “Measures for Justice” or “MFJ”, based in Rochester, New York, recently launched a free data portal designed to collect data about our criminal justice system.  Many states, and even counties within states, already collect statistics on their own criminal justice systems.  MFJ’s portal appears different than local data collection tools in several significant respects. Continue reading

Jeff Sessions, our new Attorney General, issued a Memorandum to all United States Attorneys on May 10, 2017 which states, in relevant part, that “it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense [] By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”

This Memorandum represents a significant departure (no pun intended) from the bipartisan support for overhauling the federal criminal justice system that had been intensifying in Congress over the last few years.  It also reflects President Trump’s campaign promise to get tough on crime.  The general targets of the new policy include narcotics and weapons offenses, and gang violence.

The problem with this Memorandum is that it also reflects a reversal of some of the more intelligent decisions made during the Obama administration concerning the federal criminal justice system, specifically, the treatment of low-level, non-violent drug offenders.  For example, former Attorney General Eric Holder instructed federal prosecutors to consider the unique facts and circumstances of a particular case, and to exercise discretion in charging narcotics offenses.  Significantly, in narcotics cases involving non-violent defendants with minimal criminal histories and no connection to organized crime, Holder instructed US Attorneys to omit information concerning drug quantities from charging documents, thereby avoiding the automatic trigger of harsh penalties.  Mr. Sessions’ Memorandum references Mr. Holder’s prior instructions in a footnote, and rescinds them. Continue reading

Dr. Salomon Melgen, a soon-to-be former ophthalmologist, who still faces criminal charges for bribing New Jersey Senator Robert Menendez, was recently found guilty of healthcare claims fraud following a seven-week jury trial.  His case is significant because it highlights some of the activities that typically cause medical service providers to becomes investigative targets and, ultimately, criminal defendants in serious healthcare claims fraud cases that can result in the loss of a professional license, an entire medical practice, and jail time.

Briefly, Melgen was charged in a 67-count federal indictment with fraud, falsifying medical records and submitting fictitious claims to Medicare.  Federal prosecutors alleged that between 2008 and 2013, he billed more than $190 million to Medicare, which paid him approximately $105 million.  According to the Government, the vast majority of his billings were based upon false and/or fictitious diagnoses, unjustified medical procedures, and repeated billings for unnecessary diagnostic tests.

The Government alleged that Melgen falsely diagnosed patients with a condition known as wet macular degeneration, which could cause blindness.   He then treated them with laser treatments that were both outdated and harmful, as well as injections of an expensive ocular drug, all with the goal of lining his pockets.  The Government’s medical experts characterized Melgen’s patient notes as “pure fantasy”, and testified that his basis for administering treatments was fabricated.  They stated that he treated patients whose maculae appeared normal, that his laser treatments were both inappropriate and harmful, and that there were other treatments available for this condition that posed less patient risk.  (One expert testified concerning Melgen’s use of a laser on a patient with only one functioning eye, calling it “unconscionable”.)  Other experts testified that Melgen’s Medicare billings were “in the next galaxy”. Continue reading

Dylann Roof, who infamously shot and killed nine African-Americans engaged in bible study at a Charleston, South Carolina church, chose to represent himself during the sentencing phase of his federal capital trial.  During his “presentation”, he informed the jury that there was nothing wrong with him psychologically and also stated, in essence, that he would do it again.  Any statements Roof made concerning his psychological status were, however, totally false.  At some point during the two months preceding his sentencing hearing, a Court-appointed psychiatrist examined Roof and discovered evidence of numerous mental health disorders.  Additionally, Roof had described himself as severely depressed in the months preceding the shooting.

Significantly, Roof chose to represent himself at sentencing rather than allow his defense team to do so.  His decision on this issue appears to have been calculated and deliberate.  Roof’s defense team wanted to argue to the jury that he should not be sentenced to death for his actions because of his mental health issues.  Roof, however, specifically and unequivocally did not want the jury that was going to determine whether he should die for his crimes to hear of his psychological conditions.  As a result, his jury did not learn about any of the psychiatric evaluations prepared in connection with his case prior to deciding on his sentence.   And the jury is not alone on this issue – the record of Court-ordered evaluations was sealed by the trial judge.  Sealed documents from Roof’s trial are now being slowly released; however, documents pertaining to psychiatric evaluations prepared at the request of the Court or Roof’s defense team are not included.  The transcripts of two competency hearings also remain under wraps.  Thus, the documents that could provide the best indication of Roof’s motivations for his crimes are unavailable.

In fact, the relatively small amount of available information suggests strongly that Roof is something of a psychological basket case.  Motion papers filed by Roof’s defense team prior to trial noted that he suffered from Social Anxiety Disorder, a Mixed Substance Abuse Disorder, a Schizoid Personality Disorder, Depression and, possibly, an Autistic Spectrum Disorder.  The papers also noted that Roof had a relatively high IQ, but that it was compromised by his inability to process information and poor memory.  Further, defense attorneys get to learn a lot about their clients as they work through their cases with them.  Counsel’s papers also included personal observations and assessments concerning Roof’s abilities and actions.  They informed the Court that Roof tended to focus on unimportant details, could not process information from multiple sources, displayed a heightened need for predictability, and was easily overwhelmed.  Had the jury known of these issues, the sentencing result may have been different. Continue reading

Two years ago, the Obama administration commenced an effort to grant clemency to federal non-violent drug offenders who would have received shorter prison sentences had they been sentenced under subsequently revised advisory sentencing guidelines.  Last week, President Obama granted clemency to 111 federal inmates, 35 of whom originally received life sentences.  Earlier in August, Obama granted clemency to 214 similarly situated federal inmates.  August’s clemency grants raises his total number of commutations to 673 – more than the past 10 presidents combined.

The administration is attempting to address a substantial number of clemency petitions in its final months.  This effort is apparently angering several Republicans in the House and Senate; however, and given the fact that he is finishing his second term, Washington insiders believe that Obama couldn’t care less.  Obama is, in fact, the first sitting US President to tour a prison facility, having visited El Reno FCI in Oklahoma last year where he, among other things, actually met with inmates.  He has also had lunch with clemency recipients.  All indications are that he truly believes in this and, given the end of his tenure, can act without fear of major political repercussions.

As discussed previously on this blog, the clemency initiative was intended to address the sentences of non-violent offenders sentenced under now-amended sentencing guidelines that previously set longer sentences for their particular offenses.  The problem that the administration faces is that several thousand federal inmates, including white collar defendants, defendants convicted of violent offenses and sex offenders, all applied for clemency, thereby flooding the program with petitions. 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

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

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

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