Articles Posted in Current Events

Anyone who has been following the news over the past few months understands that serious instances of police misconduct have occurred (and continue to occur) throughout the country.  The manner in which the police have handled George Floyd, Rayshard Brooks, and the protesters in Washington DC and Portland, Oregon, to name some of the more obvious incidents, have all raised serious questions concerning encounters between law enforcement representatives and ordinary citizens.  There is talk in Congress and the state legislatures about reforms ranging from defunding the police to clamping down on the influence of police unions on the disciplinary process to making that process more transparent.

The New Jersey Senate Committee on Law and Public Safety held hearings on police reform in June.  One of the bills that was debated was S2656, which would make public police internal affairs and disciplinary records.  Numerous civil rights and other organizations are supporting the bill.

The bill would remove the Open Public Records Act exception to police internal affairs records and grant the public access to complaints, allegations and charges filed against individual police officers; transcripts and exhibits from disciplinary trials and hearings; dispositions of proceedings; final written opinions and/or memoranda on the disposition and the discipline ultimately imposed, including the agency’s factual findings and analysis of the conduct of the officer(s) that was/were the subject(s) of the hearing; internal affairs records; and video recordings of the incidents underlying the complaint(s), charges, or internal affairs investigation.

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We frequently handle cases where the discovery states that law enforcement has identified our client as being gang-affiliated.  Police agencies frequently collect information on individuals who they think are gang-involved and enter it into a database, which is then used to investigate criminal activity.  Recent experiences in California, however, demonstrate that these databases should not be trusted.

California has long maintained a database called CalGang.  The database, which is not open to civilians and is therefore largely secretive, contains the names and personal information of approximately 80,000 individuals.  Most of the people identified in CalGang are not white, and are suspected of being gang-affiliated.    CalGang has been a source of problems and complaints for years, and there have been calls to reform it or shut it down.

CalGang plainly illustrates the fact that a database is only as good as the information that is entered into it.  A 2016 audit revealed that it contained numerous inaccurate entries, including identifying information for one-year-old children.  People were also entered into the database based upon overly subjective criteria including, without limitation, the neighborhood where law enforcement encountered them or the color of their clothing.  According to the people who run CalGang, wearing a red hat, shirt or sneakers is enough to make you a gang member. Continue reading ›

Formal criminal proceedings in indictable (felony) matters begin with a prosecutor’s presentation of the State’s case to a grand jury.  A grand jury consists of a body of 23 citizens who listen to the State’s witnesses and review any documents or other materials the State wishes to display, and then decides whether the State has shown that there is probable cause to conclude that the defendant committed a crime.  Probable cause is a “baseline” showing that a crime was committed and the defendant committed it.  This standard is far lower than the “beyond a reasonable doubt” burden of proof standard that the State must satisfy at trial.  If the standard is met, the grand jury votes an indictment, which lays out formal charges.  The 1947 Constitution provides that “[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury[.]”  Thus, the institution of the grand jury has a Constitutional basis, and the fair and procedurally correct operation of the grand jury has Constitutional significance.

The first instance of a grand jury can be traced back to the Assize of Clarendon in 1166, an Act of Henry II of England.  Thus, the roots of the grand jury as an institution of Anglo jurisprudence can be traced back almost a thousand years in our legal history.

There are certain rules that have always been viewed as fundamental to the proper functioning of a grand jury, and secrecy is probably the most important one.  The grand jury operates in secrecy for good reason.  Secrecy protects defendants.  If the defendant is “no-billed” (the panel fails to vote an indictment and formally charge the defendant with an offense), their reputation will hopefully remain intact.  Further, the identities of witnesses who testify for the State (which may include undercover officers or confidential informants) are shielded from disclosure.  Thus, the fact that the grand jury operates in secrecy benefits both defendants and the State. Continue reading ›

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 ›

Discovery in New York State criminal cases has long been completely unfair to defendants.  The New York discovery rules have not been substantially revised since 1979.  More than a dozen reform bills that have been introduced over the last 40 years have been successfully blocked by the State’s district attorneys’ association which has argued, among other things, that providing information concerning witnesses places them in danger.

What little discovery was available in New York included something called a “People’s Voluntary Disclosure Statement”.  This basically useless document, which was just a couple of pages in length, was composed of a set of questions and responses drafted by the district attorney’s office with the goal of providing as little case-related information as possible.  Because of the lack of meaningful discovery, motion practice was similarly laughable.  Defense attorneys would typically file an omnibus motion at the beginning of the case seeking every conceivable form of pretrial relief without really knowing what was needed for their case.  Given the absence of information that could be obtained through meaningful discovery procedures, such a motion could not be tailored to the specific needs of a particular case and did little, if anything, to create a record for appeal.

Most criminal cases do not proceed to trial.  In fact, between 95 and 100 percent of all criminal cases nationally resolve by way of plea deal.  Under the prior New York rules, district attorneys were able to withhold information from defense counsel until just prior to trial.  This created two problems.  First, defense attorneys were forced to negotiate and evaluate plea offers with virtually no information.  Defendants were, therefore, placed in the unenviable position of making major decisions concerning their cases with little, if any, information regarding the strengths and weaknesses of the People’s case.  Additionally, if the defendant decided to proceed to trial, counsel would be forced to work through the majority of their trial prep time without important information that could form the basis for investigation of the underlying facts, effective cross-examination of witnesses, and viable defenses.

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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 ›

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