Articles Posted in Trial Practice and Procedure

Mississippi has tried Curtis Flowers six times for allegedly murdering four employees at a furniture store.  Flowers is black and three of the four alleged victims were white.

Mississippi has not been able to convict Flowers because the prosecutor(s) handling each trial are flaming racists who got caught doing something no trial attorney should do.  At the first two trials, they struck (e.g., removed with a peremptory challenge) all of the qualified black prospective jurors.  Both juries convicted Flowers and sentenced him to death, but the Mississippi Supreme Court reversed the convictions because of prosecutorial misconduct.  At the third trial, the State used all 15 of its challenges to strike black prospective jurors, and the jury again convicted Flowers and sentenced him to death.  The Mississippi Supreme Court reversed again, this time because of a violation of Batson v. Kentucky, which held that once a defendant establishes a prima facie case of discrimination concerning the manner in which challenges are being used, the State must give race-neutral explanations for its challenges, and the trial judge must determine whether those reasons are valid or just a pretext for discrimination.  The fourth and fifth trials ended in mistrials.  At the fourth trial, the State used 11 challenges against black prospective jurors.  No racial information concerning the prospective jurors at the fifth trial exists (or it was at least conveniently omitted from the State’s papers).  At the sixth trial, the State used six challenges.  Five were directed against black prospective jurors.  One black juror was seated.  Flowers raised a Batson claim, but the trial judge found that the State’s proffered explanations were race-neutral.  The jury convicted Flowers and sentenced him to death, and the Mississippi Supreme Court affirmed.  The United States Supreme Court vacated the judgment and remanded the case, but the Mississippi Supreme Court affirmed again.

The United States Supreme Court reversed, finding that the surrounding facts and circumstances demonstrate that the trial judge’s conclusion at the sixth trial that the State’s reasons for striking one of the black prospective jurors were race-neutral was clearly erroneous.  In doing so, the Court noted that four categories of evidence factored into its decision, where the State had a persistent pattern of striking black prospective jurors at each trial.  Continue reading ›

Defendants frequently decide to change attorneys while their case is pending before the court.  Substitutions of counsel happen very frequently in criminal cases.  In fact, it is not uncommon for a criminal defendant to change attorneys repeatedly during the course of their case for any number of reasons.  Sometimes, a substitution can occur because the client does not feel the current attorney is paying sufficient attention to their matter.  The client may also feel the attorney is not on track for obtaining the desired result.  Other times, there is simply a clash of personalities.

Both the federal and state Constitutions guarantee an accused the right to effective assistance of counsel.  A basic element of this guarantee is the defendant’s right to the attorney of their choice.  However, a defendant’s right to change attorneys during the case is not absolute; rather, it is balanced against the Court’s calendar and scheduling issues.  Thus, timing and scheduling can affect a client’s decision to change attorneys.  This is particularly true when the defendant decides to change attorneys after a case has been listed for trial, and especially on the eve of trial.

Because changing attorneys almost always result in a delay of proceedings, our State’s Supreme Court has held repeatedly that a trial court must consider the following factors when deciding to allow a substitution of counsel:

a. The length of the requested delay.

b. Whether other adjournments have been requested and granted;

c. The balanced convenience or inconvenience to the litigants, witnesses, counsel and the Court;

d. Whether the requested delay is for legitimate purposes, or whether it is dilatory, purposeful, or contrived;

e. Whether the defendant contributed to the circumstances which give rise to the request for a continuance;

f. Whether the defendant has other competent counsel prepared to try the case;

g. Whether denying the continuance will result in identifiable prejudice to the defendant’s case and, if so, whether this prejudice is of a material or substantial nature;

h. The complexity of the case; and

i. Other relevant factors that may be unique to the matter at bar. Continue reading ›

Our Supreme Court decided State v. Brown on February 4, 2019.  The case is very significant because it addresses the ongoing issue of the State’s obligation to produce discovery in a timely manner.

The facts surrounding the discovery violation and its ramifications in this case are somewhat complex.  Suffice it to say that a week after the start of trial – after jury selection, opening statements and the examination of four State witnesses – the prosecutor produced 18 reports to defense counsel.  These reports concerned facts discussed in the testimony of the officers who had already testified.  The following week, the prosecutor produced yet another item of discovery.  Ultimately, the defendants were convicted of murder, robbery and a weapons offense.  The trial court denied their post-trial motions and imposed sentence, and the Appellate Division affirmed their convictions and sentences.

The Supreme Court reversed and ordered a new trial.  The Court found, among other things, that the State’s failure to produce the underlying discovery items until after the commencement of trial was a violation of Brady vs. Maryland, which requires the State to turn over exculpatory material prior to trial.  The failure to timely provide the discovery at issue to the defense inhibited counsel’s ability to cross-examine witnesses in a meaningful way, to impeach witnesses, and to present exculpatory evidence and evidence of third-party guilt.

Continue reading ›

Criminal justice reform in New Jersey is now two years old.  As we gain more experience with the underlying rules and  procedures, it is worth reviewing whether they are achieving their stated goals and the effect they are having on our criminal justice system.  State v. Hyppolite, recently decided by the New Jersey Supreme Court, discusses the State’s discovery obligations prior to a detention hearing, and what happens when the prosecutor fails to meet it.

Hyppolite stemmed from a shooting and homicide in Jersey City.  The police identified Michael Gregg as a witness and interviewed him on two separate occasions.  Gregg gave his first statement shortly after the shooting, and said that he heard three to four shots but did not see the shooter.  Some months later, he gave a second statement where he, among other things, identified the defendant as the shooter.  The defendant was arrested and charged with murder and weapons offenses, and the probable cause affidavit submitted in support of the complaint stated that he was positively identified as the shooter by an eyewitness.  The State moved for pretrial detention, and produced by way of discovery materials regarding Gregg’s second statement, but failed to provide any information concerning the first statement.  The Court ordered the defendant to be detained.

The State subsequently produced additional discovery after the defendant was indicted, including materials concerning Gregg’s first statement, recordings of interviews of other alleged witnesses which contradicted Gregg’s version of events, and an application for a communications data warrant for Gregg’s phone.  This was the first time defense counsel received this material.  Counsel moved to re-open the detention hearing.  The trial court denied the application, and the Appellate Division denied leave to appeal  The Supreme Court, however, granted leave to appeal.

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This past November, the New Jersey Supreme Court decided State v. Kiriakakis.  There the Court upheld the constitutionality of a sentence within the range authorized by a jury verdict that included a mandatory period of parole ineligibility, or parole disqualifier.

Understanding this holding requires a review of basic sentencing concepts.  First, the New Jersey Code of Criminal Justice authorizes ranges of sentences for different degrees of criminal offenses.  Generally speaking, someone convicted of a fourth degree offense can receive a sentence of up to 18 months.  A third degree offender can receive a sentence within a range of three to five years.   A second degree offender can be sentenced to between five and ten years.  With some notable exceptions not relevant here, a first degree offender can be sentenced within a range of ten to twenty years.  A sentence for a particular defendant within the statutory range is supposed to be based upon a balancing of aggravating and mitigating factors that are also listed in the sentencing section of the Code.  These factors are supposed to help guide the judge to customize the sentence to the needs of the case.  Our judges have considerable discretion to impose sentences within the applicable statutory ranges, so long as they follow the proper procedures.

Sentencing involves more than just setting a number within a range based upon a balancing of factors listed in the statute.  Some sentences are a “flat” number, which is simply a term of years standing alone.  However, sentences can, and often are, composed of two separate numbers.  The “top” number is the highest or outside number of years that a defendant will serve.  The “bottom” number is the amount of time that a defendant must serve before becoming eligible for parole.  The latter may be referreed to as a “period of parole ineligibility”, “parole disqualifier”, or “stip”.  (Both of these numbers can be reduced by “credits”, but that issue is not relevant here). Continue reading ›

A defendant has the right to address the court at sentencing.  Such statements are offered in mitigation of punishment, and typically include acceptance of responsibility and/or some showing of remorse for the underlying conduct.  The New Jersey Supreme Court recently addressed the parameters of this right in State v. Jones.  As the Court noted, there is relatively little case law on this issue, so the guidance offered by this opinion is valuable and worth a comment.

Briefly, Jones and a co-defendant  were charged with the robbery of a woman and her daughter in a park in New Brunswick.  Jones subsequently pleaded guilty to first degree robbery and a second degree certain-persons-not-to-have-weapons charge.  The State’s sentencing recommendation was 15 years with an 85% parole disqualifier subject to the No-Early-Release Act, with a concurrent 7-year sentence on the certain persons charge.  At the sentencing hearing, defense counsel asked the Court to correct the pre-sentence report to note that the gun was unloaded at the time of the robbery, and to honor the plea agreement and sentence Jones in accordance with the State’s recommendation.  The Court then asked Jones if he wanted to speak.  Jones stated that the was “a hundred percent guilty” of the offense, but was not sorry for what he did.  The sentencing judge then stated “You’re not sorry?”, to which Jones replied that the victim was not the target, and then stated “Other than that, then that’s it.”  The Court then asked the State if it wished to be heard, and the prosecutor stated that the victim was “the intended target once [Jones changed] his mind in the park.”  Jones then asked to be heard again, but the Judge denied his request.

Jones did not appeal, but instead filed a pro se motion for post-conviction relief.  His issues were eventually disposed of by an excessive sentencing panel which held, among other things, that the sentencing court did not violate Jones’s right to allow him to speak at his own sentencing.  The Supreme Court granted certification to review this claim. Continue reading ›

A state trooper stopped a vehicle on I-295 in Burlington County.  The basis for the stop was a damaged tail light.  The vehicle, which also changed lanes without signaling, had three occupants – the driver, a front-seat passenger, and a six-year-old child in the back seat.  The trooper smelled burnt marijuana upon approaching the passenger side of the vehicle, and then asked the front passenger, the defendant Hagans, to step out of the vehicle.  He arrested, handcuffed, and Mirandized him, and called for backup.  He then asked the driver, Shonsheray Chandler, to step out of the vehicle.  He Mirandized her and asked her about the presence of Marijuana in the car.  She denied both knowing the defendant possessed marijuana, and that she had been smoking it in the car.  He handcuffed Chandler and placed her in the back seat of the police car.

The trooper asked Chandler to consent to a vehicle search.  Prior to reading her the consent form, he stated “it would be a lot easier if you would just make things easy.”  He read her the form, told her that she could refuse to consent, and that she could leave absent some other reason to hold her.  He also told her that she could be present during the search if she consented, and could withdraw consent at any time.  At first, Chandler refused to consent to the search.  The trooper responded by saying that he was going to apply for a search warrant which would just prolong the inevitable, and that he just wanted to make things easier.  Chandler then consented to the search.  In fact, the record indicated that she repeatedly consented to the search after her initial denial.  The trooper then re-read the consent form in its entirety and again asked Chandler if she consented to the search, and she responded in the affirmative.  The trooper also repeated for the mobile video recorder (“MVR”) that Chandler initially denied consent, but then changed her mind.  The vehicle search yielded a bag of marijuana and a handgun.

The defendant admitted that the marijuana and gun were his, and was charged accordingly.  During a suppression hearing, the trial court found that based upon the totality of the circumstances, the consent to search was valid and not coerced.  The Appellate division affirmed. 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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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 ›

New Jersey has among the most liberal criminal discovery rules in the country.  The State is obligated to provide defense counsel with a substantial body of material early in the case.  This is unlike many – if not most – other jurisdictions.  For example, in the federal system, significant amounts of discovery typically appear shortly before trial, leaving defense counsel with little time to review, analyze and investigate its content.  In New York County, the only discovery defense counsel may receive early in the case is a “People’s Voluntary Disclosure Statement”, which is a set of form questions that have been drafted and answered by the District Attorney’s Office.  (Basically useless.)  Not so in New Jersey – Here, defense counsel receives significant discovery up front, often without making a formal request.

What are defense counsel’s discovery obligations to the State?  They are obviously different because defense counsel has to be concerned with their client’s right to remain silent, protection of work product, and the fact that the State – not the defense – has the burden of proof.  In State v. Tier, decided May 2, 2017, the New Jersey Supreme Court clarified defense counsel’s post-indictment reciprocal discovery obligations concerning the oral statements of defense witnesses.  As the Court noted, this was an issue of first impression in New Jersey.

The facts are not complex.  Neighbors contacted the police because they believed that CL was having a physical altercation with her boyfriend, Tier.  The officers approached the house and heard a woman scream “Help, he’s trying to kill me.”  They kicked in the door and saw Tier on top of CL, strangling her.  A grand jury indicted Tier for kidnapping and attempted murder. Continue reading ›

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