CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: AMENDMENT TO STANDARD PLEA FORM

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: SUPPRESSION OF INTERCEPTION PHONE CONVERSATION

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: INADMISSIBLE HEARSAY

A first degree murder conviction was recently reversed because the government used hearsay declarations at trial that were determined to be inadmissible.

The defendant in this case was convicted of killing his girlfriend who was last seen at the defendant's home the night before when they ended their relationship. Shortly thereafter, her body was found in Pennsylvania. There was no evidence to establish that the murder was committed at the defendant's home or in his vehicle.

The core of the trial related to the identity of the murderer. At trial, the trial judge allowed defendant's ex-wife to testify about a threat defendant made to her several years earlier to the effect that, if she left him, he would kill her. The trial court also allowed a hearsay statement given by defendant to an employee of a local YMCA. The use of this hearsay evidence was further exacerbated by reason of the prosecutor's pointed comments to this evidence during summation.

As to the defendant's conversation with his ex-wife, the court looked to rule of evidence that related to the admissibility of "other crimes" evidence and found multiple reasons for concluding that the use of the statement was improper.

In addressing the hearsay statements given to the YMCA's employee, the court noted that the use of this statement standing alone would cause a reversal, especially given the prosecutor's comments.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: HABEAS CORPUS

Recently, the Third Circuit Court of Appeals firmed a federal court judge's decision to release a New Jersey inmate who was convicted of two murders where the inmate continued to maintain his innocence after eleven years of incarceration. The victims were part of a drug deal that went bad. Fortunately, for the defendant, this family owned a collection of funeral homes in New Jersey and had the resources to pay for two decades of litigation. The touchstone for the appellate panel's decision was grounded upon the state prosecutor's summation where the government's attorney said that he did not think that the inmate knew that the victims were to be killed. Notwithstanding, that startling concession, the inmate was convicted on a felony murder concept which allows liability for murder to be imposed upon an accomplice of the actual killer. Need to interject that this was the murder was part of a drug deal that went wrong.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: RIGHT TO COUNSEL

In May, the Court revisited that ruling in a case where an indigent defendant had an attorney assigned to him at an arraignment by the decision of the court and not at the request of the defendant. Subsequent investigative efforts produced an inculpatory statement, as well as, a letter of apology to the victim's widow. The defendant sought to suppress the information grounded upon the Jackson decision. The state court ultimately denied the request concluding that the Jackson opinion was not applicable because the defendant had not affirmatively invoked his right to counsel.

The defendant appealed the case to the United States Supreme Court which upheld the state court's decision. More importantly, however, the court overruled the Jackson case. That part of the decision seemed to be an overkill because the case could have been decided on the narrow issue as to whether the defendant invoked his right to counsel.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: RESTRICTION ON THE SEARCH INCIDENTAL TO THE ARREST EXCEPTION TO THE FOURTH AMENDMENT

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: BAIL FOFEITURES AND CLAIM FOR ATTORNEY FEES UNDER AN ASSIGNMENT OF BAIL

In January 2008, Angel Barada, absconding from a trial where he was charged with sexually abusing a seven year old girl. He was ultimately featured on "America's Most Wanted." 

Prior to his arrest, his mother posted a $75,000 cash bail. During the prosecution of the case, the mother assigned approximately $38, 000 of the bail money to the two defense attorneys who were representing Barada. After the trial court issued a fugitive's warrant and forfeited his bail, the two lawyers filed a motion to set aside the forfeiture order to allow them to enforce the assignment. The lawyers argued that since it was the public policy of the state to insure that Barada was represented by attorney, it would be better to have the cost of litigation assumed by the defendant's family rather than by the state through the Public Defender's Office. The trial court rejected the argument and denied the application.

The case was ultimately brought to the Appellate Division, where trial court's decision was affirmed. In its opinion, the appellate panel noted that the trial court did not prevent the two attorneys from returning to court for relief if Barada was ultimately located.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: MEGAN'S LAW

Awhile ago, I posted a blog that identified a case decided by the New Jersey Supreme Court that prevented municipalities from implementing residency restrictions on sex offenders. The core of that decision was grounded upon principals of preemption.

Last week, the Assembly Judiciary Committee unanimously approved a bill to effectively overrule the Supreme Court's decision by empowering local authorities to restrict where sex offenders may live in their municipality. The bill will authorize exclusionary zoning around playgrounds, parks, schools and daycare centers. It will not require sex offenders under twenty-one (21) to relocate , however, if an area has been re-zoned. Nor, will the law effectively exclude residency throughout the town.

The legislative action has been hotly disputed by the American Civil Liberties Union and the Public Defender's Office. These objectors have cited recent statistics from Iowa where similar local ordinances have produced a tracking problem for sex offenders because they will not register for fear of being ordered out of an exclusionary zone.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: EVIDENCE TAKEN IN VIOLATION OF DEFENDANTS' RIGHTS CAN BE USED FOR IMPEACHMENT PURPOSES

Prior to the trial in that case, the government planted an informant in the defendant's cell and elicited harmful admissions relating to the murder and robbery of the victim. The defendant ultimately testified at trial and denied complicity in the crime. When the government sought to use the informant as a witness to contradict the defendant's testimony, the defendant objected on the basis of his Sixth Amendment Right to counsel. The trial court allowed the informant's testimony to impeach the defendant's testimony. The Kansas Supreme Court determined that the trial court's ruling was in error. The United States Supreme Court reversed that decision and endorsing the trial court's original ruling. The Court concluded that the exclusion of impeachment evidence under the circumstances of the case was outweighed by the need to prevent perjury and to insure that integrity of the trial process. In short, the court found that the philosophical underpinnings of the exclusionary rule was overwhelmed by the need to ensure truth in the criminal trial process.

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: "BLACK BOX" EVIDENCE IN A VEHICULAR HOMICIDE CASE

CRIMINAL LAW IN BERGEN AND PASSAIC COUNTIES: MANIPULATING MIRANDA

It is not uncommon for law enforcement agencies to interrogate a suspect at different times and in different stages while the suspect is at the police station. Indeed, some law enforcement agencies maintained a protocol that instructed its agents to delay the Miranda Warnings until an incriminating statement has been produced. At that point, the suspect would be Mirandarized and the confession restated.

New Jersey's Supreme Court has concluded that this "question-first, warn-later" type of interrogation is conceived to undermine the holding in Miranda and the suspect's privilege against self-incrimination. In an effort to set "clear standards" that would discourage law enforcement agents from diluting these important principles of law, the court identified a number of factors to be considered to determine whether or not a suspect "knowingly, voluntarily and intelligently waived his rights" where the "question-first, warn-later" questioning occurs. Those factors included : (1) the extent of the questioning; (2) the nature of admissions made before the suspect was informed of his Miranda rights; (3) the time between the pre-and-post-warning questioning; (4) whether the same law enforcement agents were involved; (5) whether there was any pre-warning statement to the effect that information would be used against the suspect; and, (6) whether the post-warning questioning was a continuation of the pre-warning questioning.

Recently, an appellate panel rejected the government's position that this two-step strategy of interrogation was defective where a pre-warning interrogation

produced no incrimination evidence, but the post-warning interrogation did. In that opinion, the court embarked upon a painstaking analysis of the factors recited

above and concluded that the government had not proved beyond a reasonable doubt that the suspect made a knowing, intelligent and voluntary waiver of his

Miranda Warning and his rights when he gave his post-warning statement that was incriminating

DRUG LAWS IN BERGEN AND PASSAIC COUNTIES: THE WAR ON DRUGS (Part 1)

In 2007, the Department of Justice disclosed that there were 7 million people in this country that are in prison, on parole or on probation. A great majority of those prisoners have been convicted of drug related offenses. The cost for incarcerating these prisoners is approximately 3 billion dollars a year. We spend more on maintaining people in the dark dangerous dungeons that law enforcement agents call "correction institutions" then we do on education. Moreover, the first 8 months of 2007, over 1 million people were arrested in this country for drug related offenses. Over a half a million of those people were arrested for a marijuana related offenses.

Many say that this impossible situation is the product of the so called "war on drugs" that began in this country in the 1960s. During that time, the country was rife with political and social chaos and as a result many Americans began to move the government to provide better police protection including efforts to stop what appeared to be a proliferation of drug use. In 1968, president Richard Nixon responded with a well integrated anti-crime statute that made drug dealers and drug users some of America's greatest enemies.

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

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

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

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 Bergen County: Juvenile Defendants Therapeutic Screening of Juvenile Defendants and the Problem of Self-Incrimination

CRIMINAL IN BERGEN COUNTY: JUVENILE DEFENDANTS

THERAPEUTIC SCREENING OF JUVENILE DEFENDANTS

AND THE PROBLEM OF SELF-INCRIMINATION

A study conducted by Columbia University in 2004 concluded that 78% of children in the criminal justice system are under the influence of alcohol and drugs while committing their crimes.

In the last few years New Jersey has implemented a number of mental health and substance abuse programs in the preliminary stages of a prosecution involving juveniles to determine if any special conditions have influenced the juvenile’s conduct. Needless to say, these evaluations require the juvenile to disclose rather sensitive personal information, including information which sometimes leads to new or more serious charges.

Last year, New Jersey’s Legislature passed a law that required reports and records relating to mental health and drug abuse services given to juveniles to be kept confidential prior to an adjudication of delinquency. After a finding of guilt has been entered, the trial judge may receive this protected information to assist in framing an appropriate disposition.

This statute was called Eddie’s Law. It was named after Eddie Sinclair, who committed suicide in a juvenile detention center after violating probation over a stolen bicycle.

Criminal Law in Bergen County: Ineffective Assistance of Counsel

CRIMINAL LAW IN BERGEN COUNTY:

CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

On many occasions, a disgruntled defendant will claim on appeal or in a post-conviction relief application that he was denied the effective assistance of counsel. Suffice it to say, arguments of this nature seriously confound an overriding philosophy of the criminal justice system to maintain the finality of a plea agreement or a jury verdict.

Resultantly, the standard for analyzing contentions of this nature are rather narrowly drawn. Specifically, a defendant must establish that his lawyer’s performance was so deficient that there existed "a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different". It has been said that the core of this concept is whether the "error" committed by the negligent lawyer was so serious as to undermine the court’s confidence of a jury verdict or a plea agreement.

Moreover, a court is not required to conduct a plenary hearing to analyze ineffective counsel claims in all cases. If it is determined that the defendant’s claim is vague, conclusionary or speculative a hearing is not required. Nor, is one required if the trial court determines that a hearing will not aid the court’s analysis of the defendant’s claim.

Criminal Law in Bergen County: The Exclusionary Rule and The Impeachment Exception

CRIMINAL LAW IN BERGEN COUNTY:

THE EXCLUSIONARY RULE AND THE IMPEACHMENT EXCEPTION

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Earlier this week, I wrote about the impeachment exception to the Exclusionary Rule. This exception will allow the government to impugn the credibility of a defendant with evidence previously suppressed. Like the Exclusionary Rule, the impeachment exception is not absolute in it terms.

Specifically, if the suppressed statement is not trustworthy because it was not given freely or voluntarily, the exception will not apply. Some of the factors to be used by the court to test the trustworthiness of the statement is the defendant's age, health, intelligence, the length and nature of the interrogation, the use of physical force or threats of force, the defendant's mental fatigue and advise given as to defendant's constitutional rights, i.e. Miranda Warning.

 Before the exception can be used at trial, the government must inform the defendant of its intention to use the suppressed evidence to impeach. At that point, the trial court will be required to conduct a plenary hearing to determine the voluntariness of the statement.

Criminal Law In Bergen County: The Exclusionary Rule and The Impeachment Exception

CRIMINAL LAW IN BERGEN COUNTY:

THE EXCLUSIONARY RULE AND THE IMPEACHMENT EXCEPTION

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For quite some time now, the law has suppressed evidence obtained in violations of certain principles involving the right to be free of unreasonable searches and seizures, the right to counsel, the right to remain silent and the rights provided under the landmark decision of Miranda v. Arizona.

The so-called Exclusionary Rule is not absolute, however, one of its noted exceptions relates to the government's ability to impeach the credibility of a defendant with evidence previously suppressed. Thus, if a defendant provides a statement admitting he is guilty to a crime, that statement can be used to attack his credibility, if he takes the witness stand and denies he is guilty, even though the statement has been suppressed because the defendant did not receive his Miranda Warning.

The philosophical basis for this exception is that the Exclusionary Rule can not and should not provide a defendant with the license to prostitute the truth.

Criminal Law in Bergen County: Megan's Law can Preempt Local Ordinances

New Jersey's Megan Law was conceived to among other things, track the location of certain sex offenders.
For quite sometime now, various municipalities have enacted ordinances which have imposed greater restrictions on convicted sex offenders by impairing their ability to live within certain distances from parks, playgrounds, school and child care facilities.
A few weeks ago, a appellate court concluded that these ordinances were invalid because Megan's Law had pre-empted this area of the law.

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

DRUG LAWS IN NEW JERSEY: THE WAR ON DRUGS

Criminal Law in New Jersey: The Right to a Speedy Trial

DRUG LAWS IN NEW JERSEY: THE FRAILTIES OF THE DUQUENOIS- LEVINE