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Clients often attempt to articulate facts substantiating a violation of their constitutional rights.  Sometimes, the client’s description of the relevant facts can be used to at least articulate a legal basis for such a violation.  More frequently, however, the client’s description bears little, if any, relation to a constitutional violation.  What quickly becomes obvious is that most clients (indeed, most people) cannot identify their basic constitutional rights.  Non-lawyers may have vague notions of the right to be free from unreasonable searches and seizures or the right against self-incrimination, but these are only two of many constitutional rights that we all have.  Further, most people are also unaware that the federal Constitution is only one source of such rights.  State constitutions, including New Jersey’s, may guarantee different constitutional rights, or different (higher) levels of protections relative to their federal analogs.

The recently decided New Jersey Supreme Court decision of State v. Bass contains an extensive discussion of one of our most fundamental constitutional rights, which is the right to confrontation.  Simply put, a criminal defendant has the right to confront and cross-examine the witness(es) against them.  Justice Patterson’s unanimous opinion discusses different permutations of that right and also demonstrates that, where necessary, New Jersey will depart from federal law to chart its own course in this important arena.

After an evening of drugs, cross-dressing and, presumably, sexual activity, in a Neptune Township motel room, defendant David Bass shot and killed Jessica Shabazz, and shot and wounded James Sinclair.  Defendant, Shabazz and Sinclair were the only individuals present when the relevant events occurred.  Sinclair, who had a long criminal history, was the State’s lead witness at trial. Continue reading ›

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The New Jersey Supreme Court recently decided State v. Saladin Thompson, which discusses the use of peremptory challenges to strike potential jurors based on their race.  The decision focuses our attention on jury selection, which is one of the most important and difficult phases of any jury trial.

Many clients who come in for intake interviews ask similar questions, regardless of the nature of their case or charges.  Almost every client wants to know how their case will resolve – what their position will be, and how the case will affect them, when it is all over.  Sometimes, at the very beginning of a case, an attorney can only speculate on how it may end.  This is frequently because discovery may not be available at the very early stages of the case, and it may be almost impossible to have a meaningful discussion concerning the conclusion of the case absent that material.  Further, a case sometimes has to “mature” before the attorney can develop a sense of the direction it is taking.  Repeated discussions with the assigned prosecutor, as well as participation in motion hearings and status conferences before a judge, also provide defense counsel with important insight into the course, and ultimate outcome, of the case.

It is particularly difficult to determine the outcome of a case when a trial is imminent, because the first step in the trial process – jury selection – contains so many unknowns.  A jury will decide whether to convict or acquit, but nobody involved in the case knows who these key players are until they are actually selected and qualified as jurors.  Juries are selected from large groups of individuals who are questioned so as to ascertain their fitness for service in a particular case.  An individual’s responses to the questions are supposed to enable the judge and attorneys to determine whether they are a good “fit” for that case.  Generally speaking, potential jurors can be excused for two reasons.  The first is “for cause”.  This can occur when there is an articulated, somewhat obvious, reason that undeniably renders the prospective juror unfit for service at that trial.  As a simple example, a prospective juror may be excused for cause if they have a personal relationship with one of the attorneys, the judge, or a victim, in the case.  Continue reading ›

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The recently decided NJ Supreme Court case of State v. Baum stemmed from a prosecution for aggravated manslaughter and death by auto.  Baum, the driver, struck and killed two teenage girls who were walking in the bicycle lane of a major roadway in Kinnelon.  Baum had battled alcoholism for approximately seven years preceding the accident, and also suffered from depression.  His blood alcohol was more than four times the legal limit at the time of the accident.  He had taken a prescribed anti-depressant the night before the accident.  He also took Librium that morning to control his symptoms of alcohol withdrawal.

At trial, Baum argued that he lacked the mental capacity to act purposely, knowingly and/or recklessly (the required mental states for the charged offenses) because of his intoxication, which he claimed was involuntary due to his mental diseases or defects of alcoholism and depression.  He presented expert testimony at trial to support the proposition that his drinking was automatic behavior rather then the product of conscious thought.  His jury, apparently unconvinced by this defense, convicted him of two counts of first-degree aggravated manslaughter, and two counts of second-degree death by auto.  The Court sentenced him to two consecutive 20-year prison terms with an 85% parole disqualifier.

The issue before the Supreme Court was whether the jury charge set forth Baum’s defense in a way that would allow the jury to understand and apply it in light of the facts of the case and Baum’s mental health history.  Affirming the Appellate Division, the Court ruled that the trial judge’s jury charge accurately and intelligibly outlined all of the relevant concepts. Continue reading ›

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A US Magistrate Judge in California ruled recently that technology giant Apple could be required to create specialized software to help federal investigators bypass the security protocols on the encrypted Iphone 5S used by Syed Farook, one of the San Bernardino shooters.  This ruling conflicts with the ruling of a US Magistrate Judge in Brooklyn, who found that he could not order Apple to take steps to bypass the security features of an Iphone seized during an earlier drug investigation.

The media coverage of the more recent San Bernardino case has been far more extensive because it involves the December 2, 2015 mass-shooting committed by a married couple who were radicalized by ISIS.  The facts and events giving rise to the older Brooklyn case are far more ordinary.   But for the Iphone issue, that matter arises from just another relatively routine federal narcotics investigation – one of who-knows-how-many that play out in federal courts across the country every single day.

But a review of the ordinary drug case reveals far more about the development of the cell phone security issue that is at the heart of this debate.  The drug case involves an alleged methamphetamine dealer named Jun Feng, who’s phone was seized during the 2014 search of his Queens, New York residence.  Investigators sought to access his phone to obtain information that is fairly routine in drug cases, such as contact lists.  According to prosecutors in that case, Apple had assisted federal agents in extracting information from Iphones tied to criminal investigations approximately 70 times in seven years.  To law enforcement’s surprise, Apple suddenly changed its position as to such issues in Feng’s case.  Feng entered a guilty plea last October, but attorneys for both Apple and the Government continued to press the Court for a ruling and the Court ruled against the Government. Continue reading ›

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John Mahoney shot and killed his father.  He was subsequently indicted for first-degree murder, weapons offenses and hindering apprehension, and the case proceeded to trial.  His defense was battered child syndrome – his actions toward his father were motivated by the latter’s physical and emotional abuse.  The jury convicted him of, among other things, first-degree aggravated manslaughter.

During deliberations, the jury sent the judge an unsolicited note saying, in part, that Mahoney should have significant therapy.  Shortly after the verdict, a juror wrote to Mahoney saying that he should have a second chance in life.  Mahoney responded, and the juror wrote him another letter saying that she struggled emotionally about the facts of the case.  This juror then wrote a letter to the judge that revealed the mental impressions of the jury, and stated further that this was a complicated and emotionally difficult case.  The juror asked the judge to place Mahoney on probation and require him to undergo extensive mental health therapy.

A second juror also wrote to Mahoney, the judge and defense counsel.  This letter also revealed the jury’s mental impressions, as well as that juror’s own issues with the case.  This juror apparently spoke to the other juror that wrote to Mahoney, and stated that s/he planned to contact defense counsel and write to the judge.  Significantly, the second juror stated that the jury was conflicted in convicting Mahoney of aggravated manslaughter.  Like the first juror, this juror believed that Mahoney needed treatment as opposed to punishment.  S/he also wrote to defense counsel on behalf of several jurors.  This letter revealed the jury’s deliberative mental impressions, and indicated that the jury wanted Mahoney to receive treatment rather than punishment. Continue reading ›

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Robert Goodwin recently learned that New Jersey is serious about convicting defendants charged with insurance fraud.  He was found guilty at trial of second-degree insurance fraud and sentenced to a prison term of seven years on account of false statements made to an insurance carrier in connection with an insurance claim stemming from the arson of his girlfriend’s car.  The Appellate Division vacated his conviction, finding that the trial court erroneously instructed the jury, in essence, that the defendant could not be convicted of insurance fraud unless the carrier actually relied upon the defendant’s false statements and paid the claim.  The Supreme Court reversed, finding that the carrier did not have to actually suffer a loss by paying a claim in order for the defendant to be convicted of the crime.  The Court found that it was sufficient if the statement could simply influence the carrier’s decision to pay the claim – even if the claim was ultimately denied and not paid.

The trial court hearing Goodwin’s case instructed his jury that the defendant could be found guilty if the false statement could simply affect the carrier’s decision to pay or deny the claim.  Thus, the question for the trial court was whether it was reasonable for the carrier to include the false statement in the larger mix of information that was reviewed and considered in connection with a decision to pay or deny the claim.  If it was reasonable for the carrier to consider the false statement as part of the decision-making process, the defendant making that statement could be convicted.  The Appellate Division reversed, issuing a somewhat convoluted decision that, in brief, found that the carrier had to actually rely upon defendant’s false statements.  Accordingly, the Appellate Division believed that for the defendant  to be found guilty, the false statement had to factor prominently in, and actually motivate, the carrier’s decision to pay the claim.

The Supreme Court had to determine which of these standards was correct – was it sufficient for the false statement to reasonably affect the carrier’s decision (the relatively relaxed standard set by the trial court), or did the false statement have to actually motivate the carrier’s decision (the standard set by the Appellate Division, which placed a heavier burden on the State).  The Court approved of the trial court’s standard, reversed the Appellate Division, and remanded the case to the trial court to, among other things, reinstate defendant’s conviction and seven-year prison sentence. Continue reading ›

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In 1963, just two weeks after his 17th birthday, Henry Montgomery killed Charles Hunt, a Louisiana deputy sheriff.  Montgomery was originally sentenced to die but, on retrial in 1970, received a mandatory sentence of life without parole.  Montgomery is now 69 years of age and, by all accounts, became a model member of the prison community over the last 46 years.

In 2012, a divided United States Supreme Court ruled in Miller v. Alabama that the Eighth Amendment forbids mandatory life without parole sentences for juvenile murderers.  Montgomery, who received such a sentence, sought release from prison based upon, among other things, the Supreme Court’s ruling in Miller.  However, the Louisiana Supreme Court refused to apply Miller retroactively and, in 2014, denied Montgomery’s petition.  In fact, Louisiana was one of several states that refused to apply Miller retroactively.  As a result, juveniles in these states whose cases were no longer subject to direct review could not challenge their mandatory life without parole sentences, notwithstanding the holding in Miller.  Montgomery’s attorneys subsequently sought review in the US Supreme Court.

The Court heard oral argument in Montgomery v. Louisiana on October 13, 2015, and issued its decision on January 25, 2016.  The majority opinion addressed two issues.  First, the Court discussed whether its prior ruling in Miller was a substantive rule of law which should be applied retroactively.  The Court also considered whether the rule could be applied in a case like Montgomery’s which was on collateral, as opposed to direct, review. Continue reading ›

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The latest decision from the NJ Appellate Division involving sex offenders, State v. F.W., consists largely of a rather complex discussion concerning the interrelationship of Community Supervision for Life (“CSL”), Parole Supervision for Life (“PSL”), The Sex Offender Monitoring Act (“SOMA”), and the Ex Post Facto clauses of the Federal and New Jersey State Constitutions.  That part of the decision is for attorneys and academics.  However, the decision is noteworthy because it reviews significant elements of the regimen used to supervise sex offenders living in the State.  Offenders subject to CSL or PSL and related requirements such as GPS monitoring need to understand the array of rules and restrictions governing their movements in the community, and their rights if they are accused of a violation.

Sex offenders in New Jersey, like most States, are subject to a bewildering array of regulations.  Sex offender supervision in New Jersey began with CSL, which was enacted in 1994 as part of Megan’s Law.  The Legislature enacted the current supervision law, PSL, in 2003.  The number of defendants sentenced under CSL is dropping with the passage of time, but there are still many CSL offenders in the parole supervision system.  F.W. was sentenced under CSL.

The decision reminds us that CSL and PSL differ in several significant ways.  A violation of CSL is a crime and must be handled as any criminal case.  Thus, the matter is heard by a Superior Court judge, and the defendant is represented by competent defense counsel and has all of the procedural protections typically afforded a criminal defendant.  In sharp contrast, PSL offenders who violate the terms and conditions of their supervision can have their matters prosecuted as a criminal case involving a fourth degree charge or, alternatively, have their matters disposed of as parole violations.  If the latter course is adopted, the matter will be heard by the Parole Board.  The offender will have a relatively cursory administrative hearing before the Board that lacks all of the procedural protections available in a regular criminal case.  As to punishment, the Board can revoke parole and return the offender to prison.  Additionally, a CSL defendant adjudicated guilty of a violation and sentenced to a prison term can ultimately be released on parole.  PSL defendants who are imprisoned as a result of violations (even if the violation stems from an offense identical to that committed by a CSL defendant) may not be released on parole.   Thus, with respect to violations, a PSL offender will have fewer procedural protections than a CSL offender, but could face the same or even greater punishment. Continue reading ›

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On July 2, 2009, at 11:30 pm, a car pulled up next to a woman who was walking to her home in Jersey City.  The passenger got out, approached her, tapped her hip with a gun, and asked for her phone.  The woman surrendered her purse which contained her phone and other valuable items.  She ran to a police station to report the crime.  While there, a patrol unit had stopped a car matching the description she gave police.  She was driven to the scene to view the car and the two occupants, but said that neither was the robber.  A few hours later, officers spotted another car matching the description of a car involved in several robberies in Jersey City that night.  The police stopped the car and discovered three individuals inside.  The occupants gave conflicting stories when questioned, and were taken to the police station and photographed.

Three days later, a detective asked the victim to come to the station to attempt to try to identify the robber from photobooks.  The photos of two of the three individuals removed from the second car, including that of the defendant, were placed in the photobooks before the victim saw them.  The victim selected defendant’s photo, saying that she was “pretty positive” he had robbed her.  The victim also viewed the vehicle, and said that it “looked like” the car from the robbery.  Based on this, defendant was arrested.

Six weeks after the robbery, the police arrested Stebbin Drew, who resembled the defendant, and found the victim’s cell phone in his possession.  A State Trooper called the victim in August to tell her this.  The victim told the assistant prosecutor about this call more than one year later during jury selection in defendant’s trial.  The assistant prosecutor told defense counsel about the call on the morning of the second day of trial.  The State called the victim as its first witness and, during cross-examination, defense counsel asked the victim about the Trooper’s call.  Counsel then moved for a mistrial, asserting that he had been denied exculpatory information.  The trial judge denied the motion.  During a subsequent discussion about a State Police report that the prosecutor’s office had located which noted that Drew possessed the victim’s cell phone when he was arrested, defense counsel renewed his motion for a mistrial.  The trial court again denied the motion.  The victim viewed Drew’s arrest photo during further testimony, and stated that he was not the robber.  The jury convicted defendant of, among other things, armed robbery, and the trial court imposed a 20-year term with an 85% parole disqualifier subject to the No-Early-Release Act. Continue reading ›

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The NJ Appellate Division recently decided the companion cases of State v. Fitzpatrick and State v. Brister.  These cases focus primarily on the statutory bar date prior to which the State must appeal from a trial court’s denial of the imposition of a Drug Offender Restraining Order, or DORO.  Although the discussion concerning this issue is important, the decision raises another problem which can potentially arise at any sentencing hearing that should be met with a defense objection.

Both defendants pleaded guilty to third degree drug charges and were sentenced to special terms of drug court probation in lieu of custodial terms in State prison.  At sentencing, the  prosecutor – for the very first time in either case – informed the Court and defense counsel that it would seek DOROs against each defendant.  Defense counsel objected to the DOROs because they were not mentioned at the time of the plea.  On December 2, 2014, after briefing and further argument, the trial court denied the imposition of a DORO in either case and sentenced each defendant to drug court probation as contemplated by the plea agreements.  On December 9, 2014, the trial court entered Orders granting the defense motions to preclude in imposition of DOROs in either case.  The State filed Notices of Appeal as to the denial of the DOROs on December 23, 2014.

The Appellate Division began its discussion by recalling that the purpose of a DORO is to prevent drug offenders from returning to the same location(s) where they previously traded in illegal drugs.  The Court also noted that because the State’s efforts to appeal a criminal sentence raise constitutional/double jeopardy concerns, the State can pursue such an appeal only when the sentence is illegal, or when it is expressly authorized by statute.  The DORO statute expressly authorized the State to appeal the denial of a DORO, but required that the Notice of Appeal had to be filed and served within 10 days.  The defendants were sentenced, and the DOROs were originally denied, on December 2, 2014.  The Notices of Appeal were not filed and served until December 23, 2014.  Because the State failed to comply with the statutory 10-day deadline, the Court dismissed the State’s appeals for lack of jurisdiction. Continue reading ›

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