Criminal Law in Bergen and Passaic Counties: Prior Bad Acts Evidence (Part 2)

Recently, I explored the government's ability to use prior bad acts and other crimes  evidence in a criminal prosecution. In a recent case, the Appellate Division addressed the use of this type of evidence in a prosecution  involving  a defendant, who was convicted of, among other things, the aggravated sexual assault of his young daughter. In that case, the court reversed the defendant's conviction because the trial court improperly allowed the use of other crimes evidence.  

Specifically,  the government sought to explain why the victim succumb to the father's sexual advances by having the victim testify that the father told the victim that her sister does "this all the time" and that she was very "cooperative."  The government elicited this statement from the witness on two or three occasions during the trial and on each occasion, the trial judge gave the jury a cautionary instruction, which said in essence that this testimony could not be used to establish that defendant's  disposition to commit the crime subject of the prosecution and that it was offered "merely to establish the content of the events" and to "present a more complete picture to the jury."

The Appellate Division reversed the conviction for two reasons. The first was that the court's instruction was too general in its terms. It concluded that a trial court had a  responsibility to carefully formulate a precise explanation as to why the evidence was permitted and generally why it is usually  prohibited. The second reason was that the sister had provided a prior statement denying that she had any sexual contact with her father and, as a result, the government had failed to establish the other crimes evidence by clear and convincing evidence.

Criminal Law in Bergen County: New Jersey's Pre-Trial Intervention Program (Part 4)

Approximately 13 years ago, a defendant in a criminal case obtained admission into the PTI program over the objection of the prosecutor.  The principle cause of the government's veto was that the defendant was charged with a second degree offense. The prosecutor ultimately appealed the decision to New Jersey's Supreme Court. At the time that the Supreme Court heard oral arguments on the issue, the defendant had completed the PTI  program and as result, the defendant  moved to dismiss the appeal on double jeopardy grounds. Although the Supreme Court denied the defendant's double jeopardy claim, it referred the issue to the criminal practice committee and recommended certain rule changes.

Those changes were accepted by the committee and as a result, a defendant's admission into a PTI program over the prosecutor's objection is now stayed for 15 days in order to give the prosecutor an opportunity to appeal the decision.

In a recent decision, the Appellate Division has taken a rather hardline on the 15 day appeal opportunity limit provided to the government when it dismissed an appeal because the government failed to file its appeal timely. 

Criminal Law in Bergen County: New Jersey's Pre-Trial Intervention Program (Part 1)

New Jersey implemented its Pre-Trial Intervention Program (PTI) by court rule over 30 years ago. The twin gold of the program is to allow a defendant an opportunity to obtain rehabilitation through treatment and to provide an effective and efficient disposition of criminal cases without the stigma of a conviction. The program's core function is to augment the criminal justice system when prosecution would be ineffective, unnecessary and counterproductive.

The legislature has identified seventeen (17) non-exclusive factors that must be considered when assessing an applicant's admissibility into the PTI program. These guidelines were conceived to prevent whimsical governmental decisions. Notwithstanding these guidelines, the prosecutor has a broad range of discretion in deciding whether a defendant may be admitted into the PTI program.

If the prosecutor decides to reject an applicant's request to enter the PTI program, the applicant will have a right to appeal that decision to the trial court. In that appeal, the applicant must establish by clear and convincing evidence  that the prosecutor's decision was a clear abuse of discretion. Ordinarily, an abuse of discretion may be found by a trial court if a defendant can show that the prosecutorial veto was (a) not premised upon consideration of all relevant factors; (b) based upon irrelevant or inappropriate factors; or (c) amounted to a clear error in judgment.

Notably, people accused of drug related offenses that are not eligible for a conditional discharge under the New Jersey's drug statute may be accepted into the PTI Program. In addition, a defendant does not have to be a first time offender to qualify under the program.

Drunk Driving (DWI/DUI) in Bergen County: The Alcotest and The Responsibility to Recalibrate Every Six Months

DRUNK DRIVING (DWI/DUI) IN BERGEN COUNTY:

THE ALCOTEST AND THE RESPONSIBILITY TO

RECALIBRATE EVERY SIX MONTHS

In 2008, the New Jersey Supreme Court rendered a decision titled State v. Chun. In that case the court authorized the use of the Alcotest breathalyzer in drunk driving prosecutions where certain conditions have been met. One of those conditions required the government to establish that the Alcotest had undergone a semi-annual recalibration.

 

In a recent Appellate Division case titled State v. Pollock, the defendant contended that the results of the Alcotest should not have been admitted into evidence during his trial because the equipment used in his case had been recalibrated seven months prior to his arrest. The appellate court rejected the defendant’s argument and concluded that the semi-annual recalibration condition required by the Supreme Court in State v. Chun did not apply to a defendant who was convicted prior to the decision in Chun or where the sentencing of a defendant had been deferred pending the ruling of the Chun case. In support of its position, the court observed that the language contained in the Order that issued by the Supreme Court in Chun which required the six month recalibration responsibility suggested a prospective application only.

CRIMINAL LAW IN NEW JERSEY: THE MRI AND CRIMINAL JUSTICE SYSTEM

For years, the magnetic resonance imaging machine has been used to identify various conditions in the human body to assist in medical treatment. The newer species of this machine called the factional
 magnetic resonance imaging (FMSI) was conceived to measure the location and intensity of oxygen enhanced blood flow in the brain.  Apparently when brain neurons are activated they require more oxygen to do there work. Resultantly, a scientist can detect, with a decent level of certain, the area of the brain that is working hardest when the subject is asked to discharge certain tasks. Thus, if the subject is shown something that makes him angry or appears to be angry the FMSI machine will be able to determine whether or not emotional response is a spontaneous or merely feigned.

This new technology is prompting some scientist to project the FMSI as the new lie detector. Moreover, the sciences associated with the FMRI is much more sophisticated and better received then the science associated with the polygraph which has been rejected historically by courts across the country.

DRUG LAWS IN NEW JERSEY: THE WAR ON DRUGS

In 1999, fifty African-American men and women, who constituted 80% of the population of Tulia Texas, were arrested for drug related offenses. The motivating force behind these arrest was a rogue cop who later offered false testimony at trial to secure their convictions.

This dark tale of official misconduct was first exposed by an investigative reporter and as a result of the dogged effort of a capable legal team, the group was ultimately released and pardoned.

The story is now part of a book titled “Tulia : Cocaine and Corruption in a Small Texas Town”. This book  was written by the investigative reporter who uncovered the legal travisty.  His name was Nate Blaksley. The basic theme of the book and a new movie soon to be released, is that the social and political hysteria created by the so called “Drug War” has diluted some of the most basic safeguards provided to Americans who are accused of a crime, especially ones that relate to drugs.

DRUG LAWS IN NEW JERSEY: THE FRAILTIES OF THE DUQUENOIS- LEVINE FIELD TEST (Part II)

Last summer, a boyfriend and girlfriend who were partners in an organic food business were arrested at the U.S. /Canada border by a Royal Canadian Mounted Police Officer who accused them of smuggling hashish across the border. The item that precipitated this arrest was a brick sized sample of raw organic chocolate which the police believed to be hashish. The chocolate  was field tested by a Duquenois-Levine Test and the result was positive for a Controlled Dangerous Substance (CDS).  Apart from the fact that the Mounty separated them from their one year old baby, they were told that they face life imprisonment. After much effort they where released on bail pending prosecution.

Still interested in marketing their products in New York,  the couple decided to enter the U.S. again, a few weeks later. This time, however, they hired a immigration lawyer to cross the border ahead of them so as to inform the authorities that they were on a legitimate business trip. One of the products they were carrying was tea tree oil from Australia. The oil tested positive for a (CDS).  The customers officers believed that the substance was hash oil.

 Subsequent laboratory  determined that the products contained no illicit drugs. At that point,  however the couple had spent $20,000 in legal fees. 

CRIMINAL LAW IN NEW JERSEY: THE NEW PROCEDURAL CHANGES TO MEGAN’S LAW

New Jersey’s Megan’s law allows the government to closely monitor sex offenders convicted of certain offenses. The government’s right to maintain vigilance over a convicted  sex offenders is influenced by a risk assessment scale which considers, among other things, the likelihood of a sex offender’s recidivism. Categorically, that assessment is grounded upon three tiers: Tier 3(high risk); Tier 2( moderate risk); and, Tier 1(low risk).

 Last month New Jersey’s Supreme Court implemented a new instruction manual for trial judges that identifies the procedure to be followed when addressing tier designation, tier modification or tier termination. The most innovative aspects of the procedure is an in camera proceeding  where the defendant, his/her counsel and the prosecutor can discuses with the judge in his chambers sensitive issues that may influence the judge’s decision making. Notably, at this in camera hearing, the defendant has the right to personally address the court.

Dirty Judges in Pennsylvania Sentence Juveniles to Detention Facilities for Profit

Two judges in Pennsylvania recently pled guilty to a federal tax evasion indictment involving $2,600,000 in kickbacks they received from sentencing thousands of juveniles to a youth facility owned in part by a well- heeled personal injury lawyer.

This outrageous scheme had two illicit levels. The first was when Judge Michel T. Conahan, who controlled the purse strings of Luzerne County, where the facility was located, virtually steam rolled the private detention center into existence by squeezing the competition, suffocating complaints and authorizing the money to build the center.

 

The next phase related to Judge Conahan’s friend, colleague and neighbor, Judge Mark A Ciavella , who worked the juvenile court in Luzerne County. Judge Ciavella sentenced juvenile offenders to the detention facilities at twice the rate that existed throughout the state in order to insure that the facility had a steady source of income. His illegal agenda became so notorious that defense lawyers refused to represent clients before his court because they were not allowed to argue their client’s cause . Incredibly, detention center workers were told at the beginning of the day how many inmates could be expected even before the judge heard the evidence or the juvenile’s defense. In one case, Judge Ciavella sent a 13 year old first offender to detention because he failed to appear, as a witness in a case where his parents never received notice. In another case, he sentenced a juvenile to five months in boot camp because he acted as a lookout for a friend who stole some DVD’s from a Walmart. He too was a first offender.

Both of these crooked judges will be sentenced under a plea agreement that will expose them to seven years in jail

Criminal Law in Bergen and Passaic Counties: The Right to a Speedy Trial (Part 2)

The United States Supreme Court has recognized the "impossibility" of determining, with precision, when an accused's right to a speedy trial has been denied when it observed: "[w]e find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days months." Thus, a delay of five years was held not to violate a defendant's speedy trial right, while a delay of a mere ten months was determined to be a deprivation of a defendant's speedy trial right.

The courts in New Jersey have experienced a similar inability to calculate the extent of a tolerable delay in this area of the law with anything approaching mathematical exactitude. It has been said, however, that delay must be "reasonably explained and justified". Indeed, it was observed that "there comes a when delay extended for an extraordinary length of time so weights the scale ... that time becomes the decisive factor." At the very least, when the delay is "excessively long," "the burden upon defendant to satisfy the other factors is correspondingly diminished."