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

Articles Posted in Current Events

Bail Reform went into effect in New Jersey almost two years ago.  Its stated goals included, among other things, a reduction in jail populations.  At the heart of this issue was the implementation of a screening tool known as a Public Safety Assessment, or “PSA”, which is prepared by Pre-Trial Services.  The PSA is basically a scoresheet that evaluates each defendant to determine what, if any, terms of pre-trial release should be imposed by the Court, or if the defendant should be remanded to a county jail.  The PSA is used on a State-wide basis.  In other words, it is used in all counties for all defendants in the Superior Court.

I have always believed that the PSA is problematic because of its “one-size-fits-all” approach to the State’s defendant population.  I also believe that this concern is supported by the fact that the algorithm underlying the PSA does not account for all individual variations that may exist between and among all defendants.  Given that we have now had some experience with bail reform and the PSA, this may be a good time to take a hard look at the new pre-trial release procedures to see how well they work within the larger context of our State’s criminal justice system.

We can all agree that every jurisdiction wants to reduce its jail population.  Toward that end, New Jersey has not been the only state to adopt some sort of bail reform.  States all over the country are doing the same thing for the same reasons.  This is not surprising given the national experience over the last several decades.  We know that inmate populations have been rising nationally for decades.  In 1970, daily local jail populations were at about 157,000 inmates.  By 2015, that number exceeded 700,000.  Close to 11,000,000 people are  admitted into jails annually in this country.  Given these staggering numbers, coupled with the costs associated with building and maintaining jails as well as the societal costs stemming from incarceration, we need to constantly ask if enough is being done to reduce our jail populations to the lowest possible levels. Continue reading

The face of the United States Supreme Court has changed considerably in a relatively short time.  Two very conservative judges – Brett Kavanaugh and Neil Gorsuch – have now joined the bench.  At least in some circles, it was believed that Gorsuch’s appointment would not have a monumental impact since he was replacing Antonin Scalia, who was a reliably conservative vote.  Now that Kavanaugh has been confirmed and sworn in, there is a solid five-judge conservative voting bloc,  As a result, defense attorneys need to be mindful of possible changes in the following areas:

Search and Seizure – The exclusionary rule is a judicial remedy designed to exclude evidence discovered as a result of police misconduct.  Essentially, the rule states that when tainted evidence is obtained as a result of wrongdoing by law enforcement, other evidence stemming from the original evidence is “fruit of the poisonous tree”, and must also be suppressed.  Justice Kennedy, who Kavanaugh replaced, was not a major fan of Mapp v. Ohio, which applied the exclusionary rule to the states.  Kavanaugh’s anticipated opposition to the exclusionary rule may send a message to prosecutors that it is to be overturned.  Given Kavanaugh’s history, do not be surprised if prosecutors start arguing that Mapp is to be reconsidered or overruled.  In fact, there may now be five votes on the Court that would hold in this way.  This momentous change would, in essence, allow law enforcement officers to ignore constitutional protections when collecting evidence.

Gun Rights – The Court previously took relatively few gun cases, but its new conservative majority will probably start reading the Second Amendment more broadly.  As a result, there will almost certainly be more cases that address the scope of gun control.  In fact, Justices Thomas and Alito, as well as Justice Gorsuch, have previously sought unsuccessfully to rule on more Second Amendment cases.  With Kavanaugh now on the bench, the “rule of four”, which allows four of the nine justices to grant cert, would be satisfied thereby adding additional gun control cases to the Court’s docket.  Thus, open issues, such as whether the right to bear arms outside the home, may be addressed.  The Court may also be asked soon to rule on issues concerning concealed carry permits, and on the validity of laws banning assault rifles. Continue reading

What is drug addiction?  How is it to be defined?  Is it some sort of disease, or just another form of illegal conduct?  Commonwealth v. Eldred, a case now before the Massachusetts Supreme Judicial Court, may soon provide guidance on these issues.  This case is important for any criminal attorney who represents addicts, particularly those who are placed on probation and then violate the terms and conditions of their supervision with, as frequently happens, a positive urine screen.  It is therefore worth a comment, even though it is from another jurisdiction.

We have all been down this road many times.  A client has a relatively low-level drug charge, which is typically the latest in a series of minor drug offenses or other petty offenses geared toward obtaining money to buy drugs.  The client’s criminal history and behavior are consistent with addiction.  They plead guilty and are placed on probation (or, in New Jersey, accepted into drug court, which is a form of probation).  One of the terms or conditions of their probation is that they remain drug-free.  In fact, this is always a standard term of probation in these cases.  The client subsequently reports to their probation officer and are asked to, among other things, provide a urine sample.  The sample tests positive and a violation is filed, with the result that the client is now facing the possibility of prison time.

Julie Eldred, a defendant with a relatively long drug history, was sentenced to probation for stealing jewelry to obtain money to purchase narcotics.  Her first urine test – taken only days after her probationary term began – was positive, and she was briefly jailed as a penalty.  In Ms. Eldred’s case, the Massachusetts Supreme Judicial Court will determine whether Ms. Eldred’s relapse warranted the imposition of a criminal sanction.  In doing do, the Court will opine on whether addiction is a mental disease that inhibits the addict’s ability to avoid using illegal substances, or some other kind of condition that will respond simply and directly to rewards and punishments. Continue reading

Legislation governing the ownership and use of firearms, and the operation of gun shops, typically originates on the federal and/or state level.  As any New Jersey gun owner knows, our State already has some of the most restrictive gun laws in the country.  Certain cities and towns in different states including New Jersey are, however, apparently attempting to take action on the municipal level by implementing local ordinances that sharply restrict the operation of gun shops in their areas.

Officials in New Jersey who are purportedly fed up with what they perceive as insufficient federal or state action on gun control are using local-level policy rarely used to regulate gun dealers by adopting local zoning regulations that effectively ban gun shops from their municipalities.  Piscataway, a suburb of New Brunswick, does not have a single licensed gun dealer, and almost certainly will not at anytime in the near future. A Town Council resolution adopted on June 14 of this year is, in essence, designed to guarantee that a gun dealer cannot open in that town. The resolution bans gun stores from opening within 1,000 feet of schools, parks, health care facilities, and other locations that are viewed as sensitive. While the new zoning law does not explicitly forbid gun stores from opening in the town, it makes dealers subject to conditions that cannot be satisfied from any location in the municipality.

This is the first such ordinance in New Jersey, and one of several that have appeared in different municipalities all across the country. There are 24 municipalities in California with such location restrictions, and another two in New York. “There’s a growing concern about gun violence and the federal government’s inability to do anything comprehensive,” said Steven Cahn, the council member who drafted the ordinance. “The point is to demonstrate that as local officials, we’re not helpless. We can use our authority. Hopefully, other communities will do something similar.”

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At some point in the development of the American criminal justice system, somebody decided that it was a good idea to provide defendants with library resource materials so they could either defend themselves or assist their trained criminal defense attorneys in defending them.  Without putting too fine a point on it, it is my personal opinion that this has turned out to be one of the stupidest things any attorney or judge ever thought of, for the following reasons.

No Legal Training – Let’s start with the most obvious points.  Most criminal defendants have no formal legal training.  Understanding the contents of a statute, case, or legal treatise is simply beyond their ability.  Most defendants who spend their days in the prison library refuse to acknowledge that it is virtually impossible to read and understand legal materials without formal legal training.  My experience with clients who perform their own research and write their own briefs has revealed repeatedly that a defendant will, for example, latch onto an isolated phrase in a particular source because the few words at issue seem to advance their cause; however, they almost invariably take the isolated quote out of its larger context.  When read as part of the larger case or statute, it becomes clear that the phrase lacks the meaning contemplated by the defendant, and therefore does little – if anything – to improve their position.

No Knowledge of Court Rules – But the problems go far beyond this.  Defendants also do not understand that in addition to statutes and cases, there are procedural rules that affect virtually every aspect of a criminal case.  They refuse to see that legal arguments may stem from a given source, but must then be brought before the court in a manner consistent with all applicable procedural rules.  This means that arguments cannot typically be raised when and how the defendant wants to raise them.  The procedural rules act as an overlay to substantive sources, and govern the manner in which the latter can be used.  This point is simply lost on jailhouse lawyers. Continue reading

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