New Jersey Criminal Defense Attorney Blog

Covering New Jersey and Federal Criminal Law and Procedure

In Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. _____, the United States Supreme Court held, among other things, that states cannot execute someone who is mentally disabled.  The Court also left to the states the task of determining whether a death row inmate has a mental disability that could prevent their execution.  Moore v. Texas, 581 U.S. _____ (2017), decided on March 28, 2017, clarifies this aspect of Atkins and Hall.  Briefly, in Moore, the Court held that state courts must utilize established diagnostic criteria when ascertaining whether a death row inmate has a mental disability.  In reaffirming its prior holdings that executing someone with a mental disability is unconstitutional, the Court noted that even mild mental or intellectual disabilities are disabilities, and states cannot execute anyone within the entire category of intellectually disabled offenders.

In 1980, Moore and two others robbed a supermarket in Houston.  At the supermarket, Moore and the others approached a courtesy booth that held two employees.  One of them realized that a robbery was taking place and started to scream.  Moore shot her in the head and killed her.  He fled, was arrested after 10 days, charged with capital murder, tried and sentenced to death by a jury.  Moore’s appeals spanned the next three decades.  In 2014, after a two-day hearing, a state habeas court concluded that Moore had an intellectual disability.  The Texas Court of Criminal Appeals (“CCA”), the final arbiter of habeas petitions in that state, rejected this conclusion and held its own hearing.    The CCA applied the criteria set forth in a 2004 Texas case, Ex Parte Briseno, which are as follows:

  • Did those who knew the defendant well during his developmental stages (family, friends, educators, employers, and other authorities), believe he was mentally retarded, and act in accordance with that assessment;
  • Has the defendant formulated and carried out plans, or is their conduct impulsive;
  • Does the defendant’s conduct indicate that they are a “leader” or “follower”;
  • Are the defendant’s responses to external stimuli rational and appropriate;
  • Are the defendant’s responses to oral or written questions on point, or does s/he wander from one subject to the next;
  • Can the defendant lie effectively; and
  • Did the underlying offense require planning, forethought and complex execution?

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A right to a jury trial for major criminal offenses and the jury as an institution are at the center of the Anglo-American criminal justice system.  Most of a jury’s tasks are performed secretly.  This is done intentionally so as to protect the integrity of the deliberative process and encourage open and frank discussions between and among jurors.  When the verdict comes in, the only people who really know the full extent of what happened in the jury room are the jurors, themselves.  This is intentional – particularly in New Jersey where the state courts go to great lengths to protect the secrecy of jury deliberations.

In Pena-Rodriguez v. Colorado, the United States Supreme Court recently held that the secrecy of jury deliberations may be breached in order to investigate racially biased statements that a juror made about a defendant.  The defendant was convicted of groping two teenage girls in a bathroom at a Colorado racetrack where he was employed.  He denied the charges claiming mistaken identity, and called alibi witnesses at trial.  His jury acquitted him of a felony, but convicted him of misdemeanors.  The trial court sentenced him to a term of probation, and ordered him to register as a sex offender.

After trial, two jurors told defense counsel that another juror made comments about Mexicans during deliberations.  He informed his fellow jurors that he was a former law enforcement officer who had seen many cases like this one.  He referred to the defendant as an “illegal” (untrue – the defendant was a legal resident), and also stated that “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Continue reading

We have commented previously upon Megan’s Law and Community Supervision for Life (“CSL”), now known as Parole Supervision for Life (“PSL”).  The two ongoing problems with the regime that these laws create for the supervision of sex offenders still exist.  First, there is little, if any, empirical evidence that the laws accomplish anything positive, which is particularly troublesome in light of the substantial administrative costs they generate, which are borne by the taxpayers.  Further, these laws are fundamentally unfair.  They stem from a belief that the best way to manage sex offenders is to have them live in the community subject to terms and conditions of supervision.  However, at the same time, many of the terms and conditions pursuant to which they must conduct themselves are so burdensome that they make life incredibly difficult, and the parole officers who supervise them frequently act in a manner that can only be described as sadistic.  The end result is that parolees are whipsawed – they are directed to live in the community, but their daily lives are made almost impossible by unreasonable restrictions and abusive parole officers.

We can all agree that Internet access is a staple of modern life.  Imagine life with restricted Internet use or, worse, a complete ban.  Internet usage by sex offenders is frequently regulated by the terms and conditions of their parole supervision.  In many cases, those restrictions go far beyond what is necessary to manage a parolee’s conduct in a way that ostensibly protects the community and satisfies other necessary goals.  On March 21, 2017, our Supreme Court decided JI v. New Jersey State Parole Board, which addresses this problem.  The JI Court considered two issues: whether a total ban on a parolee’s internet usage is so overbroad that it serves no meaningful purpose, and whether the parole board must grant the parolee a hearing to challenge those restrictions.

JI, a sex offender, was sentenced to, among other things, CSL in 2003.  Upon release from custody in 2009, the parole board prohibited him from accessing social networking sites or chat rooms.  In 2010, it was discovered that he had visited websites that depicted child pornography.  He was not charged with violating his parole, but his sex offender treatment provider opined that the viewing of this material would not further his rehabilitation.  The board then prohibited him from using any device that could access the Internet.  Later in 2010, he was arrested for possessing a phone with which he accessed the Internet, and a board panel found him guilty of violating his terms and conditions of supervision.  He was imprisoned in 2011, and released in 2012. Continue reading

The most onerous part of the sentence in most, if not all, DWI cases is the license suspension.  The suspension can range from seven months for a first offense to 10 years for a third offense.  Because so much of New Jersey life revolves around the ability to drive, virtually every DWI client focuses first and foremost on the loss of their driving privileges.  Many DWI defendants choose to appeal their conviction and sentence, and trial counsel can ask the sentencing court to stay the sentence, including the license suspension, pending appeal.  In State v. Robertson, decided March 8, 2017, our Supreme Court addressed the standard for a stay pending appeal at two stages.  The first is a stay pending appeal from the municipal court to the Law Division of the Superior Court for a trial de novo.  The second is a stay pending appeal from a trial de novo in the Superior Court, Law Division, to the Appellate Division.

Robertson had a BAC (blood alcohol concentration) of .13.  He was convicted of a first offense DWI and, as part of his sentence, his license was suspended for seven months.  The municipal court stayed the license suspension for 20 days to allow Robertson time to commence an appeal.  After the trial de novo in the Law Division, the court found the defendant guilty and imposed the same sentence.  Defense counsel sought to continue the stay of the license suspension pending further appeal, but the State opposed the request.  The Law Division judge granted the application, providing the defendant filed his appeal with 10 days.

On further appeal, the Appellate Division observed that both of the lower courts stayed the license suspension pending appeal “without providing any statement of reasons.”  The Court sought guidance for the standard for a stay in a DWI case in existing case law, stating that if a stay is granted, driving may be limited to such activities as employment, or conditioned upon the installation of an ignition interlock device among restrictions.  The Supreme Court granted defendant’s petition for certification so as to address an issue of significant public importance concerning the standards for a stay of sentence in a DWI case. Continue reading

The New Jersey Supreme Court decided State v. Joe on March 7, 2017.  The case is significant because it relates to the issue of jail credit, which is an important issue in any case where the sentence includes the imposition of a custodial term.

Briefly, the two types of credit that arise most frequently in criminal cases are jail credit and gap credit.  By way of example, a defendant who has a single set of charges that are brought in a single indictment will be entitled to credit for any time spent in custody on those charges while the case is being resolved.  This type of credit is generally referred to as jail credit.  If the defendant is ultimately sentenced to a custodial term of five years with a three-year parole disqualifier, the jail credit will count against the three years, and the defendant will become parole eligible that much sooner.  Jail credit is not to be confused with gap credit.  Gap credit results when a defendant who has already been sentenced to a custodial term is subsequently sentenced again for different offenses committed before the earlier sentence.  Here, the defendant receives credit at the second sentence for the portion of the term of imprisonment already served on the prior sentence.  Whereas jail credit goes against the “bottom number” or parole ineligibility period, gap credit goes against the “top” or outside number.  Jail credit is generally viewed as more valuable because it effectively brings a defendant closer to parole.  (Anyone who seems confused by this brief explanation should not feel bad – credits are one of the most confusing subjects in New Jersey criminal procedure.)

In Joe, the defendant was arrested for drug offenses, but fled New Jersey.  The court issued a bench warrant for his arrest.  Joe was later arrested and charged with other offenses in New York State, and remained in custody on the New York charges from his arrest through sentencing, which was on February 13, 2012.  New Jersey filed an interstate detainer with New York on August 12, 2011, but Joe was not transferred to New Jersey until he was sentenced on the New York charges.  Joe resolved his New Jersey case by way of plea, and then requested jail credit for the time spent in pre-sentence custody in New York.  The sentencing court denied this request. Continue reading

Megan’s Law provides that registrants who have not re-offended within 15 years of their conviction or release from custody, whichever is later, and are unlikely to pose a safety threat to others, can be relieved of their registration and reporting obligations.  Given the burdens of Megan’s Law and the restrictions it places on many aspects of daily living, many registrants “watch the clock”, with an eye toward moving for a court order relieving them of their obligations as promptly as possible.  A recent New Jersey Supreme Court case has, however, made it more difficult to succeed on such a motion.

In the Matter of AD, JB and CM was decided on February 7, 2017.  The case involved three registrants who sought relief from their Megan’s requirements.  AD was convicted of third-degree endangering the welfare of a child, which triggered Megan’s Law reporting and registration obligations.  He moved to be relieved of these restrictions 15 years after his conviction.  Initially, his motion was unopposed, and was apparently successful.  However, while on supervision, he had been convicted of violating a condition of his Megan’s sentence by not notifying his parole officer of a change of address.  The State eventually learned of this and sought reconsideration of the Court’s Order removing him from Megan’s.  AD’s argued that his application should be granted because the offense he committed was not a sex offense, but this was rejected.  Similarly, JB was convicted of second-degree sexual assault.  During his term of supervision, he failed to notify law enforcement of a change of address and, as a result, ultimately pleaded guilty to a fourth-degree offense.  This charge and guilty plea ultimately resulted in the denial of his application to be relieved of registration and reporting requirements.  The Court rejected his argument that the offense he pleaded guilty to during his term of supervision should not bar his application because it was not a sex offense.  Finally, CM pleaded guilty to third-degree aggravated criminal sexual contact and was required to comply with Megan’s Law.  He later applied to terminate his Megan’s obligations, but this application was denied because he violated a final restraining order during his term of Megan’s supervision.  Once again, the trial court rejected the argument that this offense was irrelevant because it was not a sex offense.

The issue before the Supreme Court in each of these cases was whether the term “offense” as used in the relevant provision of the registration and reporting statute referred only to a sex offense, or to a broader category of activities that included crimes, disorderly persons offenses and petty disorderly persons offenses.  Put somewhat differently, did the term “offense” in the registration statute mean sex offense, or any criminal offense? Continue reading

In State v. Bacome, decided January 31, 2017, two Woodbridge detectives observed the defendant-driver and a passenger in a Ford Bronco.  The passenger, who was in the front seat, was later identified as the vehicle’s owner.  The detectives claimed that both men were known drug dealers.  They followed the Bronco to Newark, but lost sight of it in an area purportedly known for drug trafficking.  They then assumed that the Bronco would return to Woodbridge with drugs purchased in Newark.  They spotted the Bronco after returning to Woodbridge, and stopped it when they saw the passenger was not wearing a seatbelt.

Each detective approached the Bronco from opposite sides of the vehicle.  One detective stated that Bacome leaned forward and appeared to be reaching under his seat.  He immediately ordered Bacome out of the car.  The other detective then ordered the passenger from the car, and both men complied.  Each was questioned separately about their trip, and gave contradictory responses.  Since the passenger was now out of the car, the detective was able to to see rolled up paper shaped like a straw and a small piece of steel wool.  Both items were indicative of drug use.  The passenger consented in writing to a vehicle search.  The search yielded crack cocaine and other paraphernalia.  Both men were arrested.

The trial court denied defendants’ motion to suppress the drugs and other seized items, finding that the vehicle stop based upon the seatbelt violation was lawful.  Further, the removal of both men from the Bronco was also lawful because the detectives had reasonable and articulable suspicion of criminal activity. 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

While investigating a noise complaint at an apartment complex, an officer observed James Legette standing on a common porch.  The officer approached and Legette partially opened a door leading into his area.  The officer then smelled burnt marijuana, entered the porch area, and identified himself as an officer.  As Legette began to walk away, the officer requested identification.  Legette responded that he had to retrieve his identification from the apartment, and the officer replied that he would have to accompany him.  Legette entered the apartment and the officer followed.  The officer noticed a bulge in Legette’s sweatshirt.

After entering the apartment, Legette presented his identification and the officer radioed a request to check for outstanding arrest warrants.  Legette them removed his sweatshirt and asked a woman who was in the apartment to place it in the bedroom.  The officer then seized the sweatshirt from the bedroom and took Legette, who appeared anxious, outside.  Obviously, the officer did not have a search warrant.

The arrest warrant check was negative, and Legette did not consent to a search of the sweatshirt.  The officer had a police dog sniff the sweatshirt.  A “metallic” noise could be heard when the dog moved the sweatshirt.  The officer then discovered a loaded handgun in the sweatshirt. Continue reading

I have never believed that most lawyers or judges take juvenile delinquency cases seriously.  Many of them frequently refer to these matters as “kiddie crime”.  Indeed, it is not unusual for a judge who has sat in an adult criminal trial court to feel offended as a result of being transferred to a juvenile court.

Attorneys and judges who have such views of the juvenile justice system have, however, failed to see its importance.  One of the system’s most significant functions is to prevent juvenile offenders from becoming adult offenders.  It is generally believed that a juvenile who is charged with acts of delinquency is more susceptible to rehabilitation because they are young, and the probability of successful rehabilitation decreases as the juvenile moves toward, and eventually attains, adulthood.  Thus, successfully retraining and rehabilitating juvenile offenders while they are still relatively young reduces the likelihood that they will incur criminal charges as an adult.  The theory is simple – offending behavior that is corrected at an early stage in life will remain corrected.

Nevertheless, there are juveniles who commit the most serious crimes regardless of their age and relative inexperience.  These crimes include murder, armed robbery and sex offenses.  Juvenile offenders who engage is such conduct are typically “waived up” to the adult court, where they are subjected to the adult criminal process like any other adult criminal defendant.  Must we somehow balance the fact that they were juveniles when they committed their crimes against the severity of their offenses? Continue reading