New Jersey Criminal Defense Attorney Blog

Covering New Jersey and Federal Criminal Law and Procedure

Under current New Jersey law, the maximum term of probation is five years.  Experience indicates that most defendants are typically placed on probationary terms that can run from one to three years.  Many defendants facing jail time view probation as a gift and, oftentimes, it is.  However, probation comes with terms and conditions, and the failure to comply can lead to a violation and jail time.  Some judges have an unofficial “one free bite” rule – the first violation leads to a reading of the riot act, placement on what is referred to as “strict compliance”, or an extension of the probationary term, in lieu of a prison sentence as a sanction for the violation.  Other judges are less generous and simply incarcerate the defendant once the violation is sustained.

There is a definite correlation between the length of the probationary term and the likelihood of a violation.  Put somewhat differently, people who are on probation for relatively long terms are at greater risk for violating.  This is because it can be difficult to comply with the terms, conditions and restrictions of probation for long periods of time.  Thus, people placed on terms of, for example, four or five years, are often characterized as “set up for failure”.    As to this issue, there are standard terms and conditions of probation (remaining gainfully and legally employed, staying in school, remaining drug-free, etc.), and special conditions that a judge may craft for a particular case.  As to the latter, one New Jersey judge that I regularly appeared before prior to his retirement required probationers to not enter disreputable places or associate with disreputable people.  I never understood what that meant, until one of my clients was arrested in a go-go bar during a raid.  The client was not engaged in any illegal activity – he was just sitting and having a drink.  However, he ended up receiving a sanction because he violated that term or condition.  Indeed, judges have considerable latitude in crafting unique terms and conditions, and this must be factored into assessing the likelihood of success.  This is particularly problematic when a judge imposes a term or condition that simply cannot be complied with because of the defendant’s circumstances.  Another problem is that a considerable amount of the funds that run probation systems come from fines and fees paid by probationers.  However, many of these people are impoverished and cannot afford even modest payments, sometimes resulting in a violation for failure to pay required assessments.

The concept underlying probation is that some defendant are simply better off in a community corrections setting as opposed to a county jail or prison.  Further, from an institutional and/or management perspective, probation is intended to save scarce prison resources for the worst offenders.  However, the fact is that many defendants end up violating at some point during their probationary term, and are incarcerated.  As a result, probation can actually add to the country’s overburdened jail and prison systems. Continue reading

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

The last United States Supreme Court term ended with some noteworthy criminal decisions.  One of these was Jae Lee v. United States, decided on June 23, 2017.  This is the latest case from the High Court to address the issue of effective assistance of counsel in the context of a criminal case where a non-citizen defendant resolves the charges by way of plea, thereby risking deportation.

The facts are not complicated.  The defendant sold ecstasy and marijuana to an informant, and was charged with possessing ecstasy with intent to distribute.  During plea negotiations, Lee repeatedly asked his attorney if he would be deported if he pleaded guilty, and defense counsel assured him that he would not.  Because the offense was an aggravated felony, Lee was, in fact, subject to mandatory deportation as a result of the plea.  Upon learning of this, Lee moved to vacate the plea, arguing that his attorney’s advice amounted to ineffective assistance.  His attorney apparently admitted that Lee’s defense to the underlying charge was weak, but he would nevertheless have advised Lee to proceed to trial had he known that the guilty plea would have resulted in mandatory deportation.  A Magistrate held in favor of Lee, but the District Court denied relief and the Sixth Circuit affirmed, finding that although the Government had conceded that counsel’s performance was defective, Lee could not show that he was prejudiced by the incorrect advice.  Thus, Lee satisfied the first prong of the ineffective assistance test of Strickland v. Washington, but his application failed because he could not satisfy the second prong.

Fortunately, the Supreme Court reached a different conclusion and reversed.  The Court found that Lee could demonstrate that he was prejudiced by showing a reasonable probability that but for his attorney’s errors, he would have gone to trial rather than plead guilty.  The Government argued that Lee could not show that he was prejudiced by accepting a plea where he had no viable defense to the underlying charge, and his sole hope of a victory at trial stemmed from the possible occurrence of some unexpected and unpredictable event that would have led to an acquittal.  The Court characterized this argument as an attempt by the Government to adopt a per se rule as to an inquiry that demanded a case-by-case analysis based upon the totality of the evidence.  The Government also overlooked the fact that the inquiry focused on a defendant’s decision making process, which may not be grounded exclusively in the likelihood of a conviction after a trial.  While it is true that the chance of a conviction after trial is an important factor in deciding to accept a guilty plea, there are cases where even the lowest possibility of success at trial may appear attractive to a defendant.  Finally, the Government posited that Lee’s decision to reject the plea would have been irrational because of the increased prison exposure resulting from a loss at trial.  But the Court could not find that a decision by someone in Lee’s position to risk a long prison term in exchange for even a small chance of avoiding deportation was irrational. Continue reading

The New Jersey Supreme Court decided State v. Rosario on June 6, 2017.  The case is important because, among other things, it discusses and distinguishes between the two most common types of police-citizen encounters, which are field inquiries and investigative detentions.

The facts are uncomplicated.  Police received an anonymous tip that defendant was selling illegal drugs from her home in a residential development, as well as from her vehicle.  One night, an officer patrolling the development noticed a moving silhouette in a parked car, which turned out to be the defendant’s vehicle, and decided to investigate further.  He pulled his patrol car up behind, and perpendicular to, the defendant’s car in such a way that the latter was blocked in.  The officer then activated his rooftop alley light which was aimed at the defendant’s car, but did not activate the siren or emergency lights.  The alley light enabled him to see a woman, who turned out to be the defendant, in the driver’s seat.  He observed her moving around in the driver’s seat and leaning toward the passenger’s seat.  He then exited his cruiser and approached the driver’s side door of the defendant’s car.  The window was partially open, and he asked the defendant for her license and other documents.  She produced the requested material, and the officer recognized her as the subject of the previously received anonymous tip and recalled that he had previously arrested her on narcotics-related charges.  He asked the defendant what she was doing, and she responded that she was smoking a cigarette, but the officer did not see a cigarette or butt.  He then asked her why she was moving around and turning toward the passenger seat when he pulled up, and she responded that she was putting on make-up and turned to put it away in her purse.  The officer then asked her how she could do that in the dark, but she did not respond.  He then asked if there was anything in the vehicle he should know about and, according to the officer, the defendant responded that she had the same thing he arrested her for previously.  According to the officer, the defendant then simply reached over to the passenger seat for an eyeglass case.  She opened it and the officer could see a white powdery substance.  The officer then arrested the defendant.  The trial court denied the defendant’s suppression motion, the Appellate Division affirmed, and the Supreme Court granted certification.

The Supreme Court began by recalling that field inquiries, and investigative detentions or “Terry” stops, are two of the three types of encounters that an individual can have with law enforcement.  A field inquiry involves a situation where an individual, under all of the surrounding circumstances, reasonably believes that they cannot simply walk away without answering the officer’s questions.  In an investigative detention, the person reasonably believes that their freedom of movement has been restricted.  Thus, an investigative detention, unlike a field inquiry, is a temporary seizure of the person, and must therefore be based upon the officer’s reasonable and particularized suspicion that the person has engaged, or is about to engage, in criminal activity.  The nature and quality of these encounters are measured from the perspective of the individual who is the subject of the stop. Continue reading

Law enforcement agencies that investigate child pornography cases face special technological challenges when tracking the distribution of contraband on the Internet, and then in building a case against a specific defendant.  A case in point is “Dreamboard”, an online bulletin board that advertised and distributed child pornography.  Dreamboard users employed encryption software, peer-to-peer networks and the so-called “Dark Web” to share images between and amount members/subscribers in 13 different countries.  In fact, all Dreamboard subscribers were required to use specific encryption software when viewing and/or sharing images.  Further, each file description had a specific link and password which allowed access to images through another website that stored encrypted files.  Dreamboard was the target of a 2009 sting operation that resulted in approximately 70 convictions.  The site was infiltrated through the efforts of several dozen law enforcement agencies including, without limitation, the Departments of Justice and Homeland Security, and 35 domestic ICE offices.

Dreamboard users obviously had to have both a level of technological skill, as well as the appropriate equipment and software, to be members.  The Dreamboard case was, however, not unique in this regard.  In a recent Louisiana case, a defendant set his computer to wipe the hard drive clean if a password was not entered within a few seconds of opening the device.  Another defendant asked an undercover agent posing as a minor to send him a picture during an online chat.  Law enforcement personnel are not allowed to distribute pornography, so the agent’s smartphone would not allow him to send a photo.  This ultimately led the defendant to believe that the agent was using a smartphone, at which point he ended the conversation.

If it all sounds complicated, that’s because it is.  The possession and distribution of online pornography is becoming increasingly sophisticated in terms of technology and scope.  These cases can include the use of password protection, encryption, file servers and/or peer-to-peer networks, software designed to eliminate evidence, remote storage, partitioned hard drives, and the like.  These cases are further complicated by the fact that pornography has gone global, and frequently involves the use of mobile devices, apps, and social media sites including What’s App, Kik Messenger, Instagram and Snapchat.  Finally, cases can involve terabytes of data.  (One terabyte equals about 1,000 gigabytes, and can hold approximately 3.6 million images or 300 hours of video.) 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

50 years ago last week, the United States Supreme Court decided In re Gault, which guaranteed juvenile defendants many of the same due process rights held by adult criminal defendants.  For the first time, a Court held that juvenile matters are, in fact, adversarial criminal proceedings, and that juvenile criminal defendants therefore have a right to a defense attorney, procedural protections, and the opportunity to present their version of the underlying facts in an open hearing.

The facts of Gault are relatively simple.  Gault, age 15, was accused of making obscene telephone calls to a neighbor and, as a result, was sentenced to a six-year custodial term in a violent youth facility.  Significantly, an adult charged with a similar offense would have been fined $50.00, and sentenced to up to two month in jail.  Gault was also on probation at the time of this incident for being in the company of another teen who stole someone’s purse, although he was not accused of any wrongdoing in connection with that incident.  There was no trial in the case involving the telephone call.  In fact, there is no transcript or any record of what occurred during his hearings in juvenile court.  Gault purportedly confessed to making the calls with a friend.  His parents were not present in court, or even informed of the charges prior to his alleged confession.

The underlying issue in Gault was the extent to which states could dispense with due process rights in juvenile criminal matters in the interest of doing what was believed to be in the juvenile’s best interests.  However, courts around the country were grappling with this problem prior to Gault.  There are cases dating back to the 1800’s that raised the same question.  Further, just a few months before Gault, the New Jersey Supreme Court ruled that a juvenile may not be entitled to the full panoply of constitutional rights, but must still receive the basic elements of due process and fair treatment. Continue reading

Effective January 1, 2017, Missouri sex offenders guilty of 13 different sex crimes based on acts committed on or after August 28, 2006, are subject to additional security requirements.  They will be required to wear GPS monitoring devices for the rest of their lives.  This includes defendants who were sentenced before this requirement was enacted.  This raises two important issues.  First, many of these defendants resolved their cases prior to the first of this year, and this requirement was not included in their original plea arrangement or sentence.  Additionally, it makes daily functioning in the community as a convicted sex offender that much more onerous and burdensome.  Both of these issues require careful consideration.

The GPS devices at issue alert authorities if an offender “lingers” near a school or park.  When the device activates, the defendant receives directions from a state official to, for example, report immediately to a probation officer.  The devices are also waterproof, and will alert the authorities if a defendant attempts to remove it.  The new rules affect hundreds of sex offenders throughout the state.

The first problem that the implementation of this GPS monitoring technology raises is that it was not contemplated by plea deals agreed to, or sentences imposed, prior to January 1, 2017.  Defendants who resolved their cases prior to the implementation date agreed to plead guilty based upon certain stated terms and conditions, all of which were presumably included in the records of their cases.  At sentencing, the court imposed certain terms and conditions of supervision with which they had to comply prospectively.  They were presumably advised by competent counsel, received notice of all of the requirements of community supervision, and consented to them in connection with the disposition of their cases.  In short, they knew the deal, and consented to it.  Now, after the fact, the rules are being changed with the addition of new, burdensome requirements that are apparently permanent.  How the terms and conditions of a plea arrangement or sentence can be so altered with no discussion or debate runs roughshod over basic concepts of due process, as well as fairness and decency. 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