Advocate's Almanac

N.J. Supreme Court Rejects Defendant's Alleged Right to Perjury for Lesser Plea

2009-08-01T04:19:00.000-07:00

In State v. Taccetta, the N.J. Supreme Court rejected a defendant's post-conviction relief claim of ineffective assistance of counsel. The decision may be found here. Defendant, an alleged member of an organized crime family, faced murder and racketeering charges. His trial counsel advised him -- incorrectly -- that if he was acquitted of the murder charge, he faced a maximum of 20 years imprisonment with just over 8 years of parole ineligibility. Defendant thereafter rejected the State's plea offer, which was 20 years with an 8 year parole disqualifier. He proceeded to trial, was acquitted of murder but convicted of racketeering and other charges. He was sentenced to an aggregate term of life imprisonment with a thirty year parole disqualifier.

On his ineffective assistance of counsel claim, Defendant maintained his innocence to the murder charge. He testified that, notwithstanding his innocence, he would have accepted the State's offer. He indicated he would have perjured himself and admitted to aggravated manslaughter to gain the benefit of the plea. The Supreme Court rejected this argument. The Court held simply that a court cannot be complicit in a Defendant's perjury. So it was inappropriate for the post-conviction trial court to have found that Defendant was entitled to perjure himself. He can not be granted relief now, notwithstanding the incorrect advice provided by trial counsel.

N.J. Supreme Court Reaffirms Particularity Requirement for Warrants

2009-07-21T15:52:00.000-07:00

Today the N.J. Supreme Court reaffirmed the principle that warrants must state the place to be searched with particularity. The Court also reaffirmed the concept that the Court cannot delegate to the police the detached, neutral assessment meant for magistrates to determine whether warrant requirements are met. The decision may be found here.

In State v. Quinn Marshall, the Court reviewed a challenge to a search warrant arising out of a narcotics investigation. There were controlled buys at a particular address, but it was unclear which of two apartments in a building was the location of the buys. That was important because probable cause existed to search only that apartment. In other words, there was no basis to believe that narcotics were stored and distributed from the uninvolved apartment.

So the police came up with a novel idea. The detective asked the issuing judge to grant the warrant but to condition the execution of the warrant upon the police obtaining corroborating information as to which of the two apartments was involved in the narcotics sales. The judge granted the warrant with that condition. The police thereafter arrested a codefendant who provided information suggestive that the first floor apartment was the proper target location.

The police executed the warrant at the first floor apartment. The police discovered narcotics as well as the defendant, Marshall, whom they arrested. Marshall moved to suppress the fruits of the search due to a fatally defective warrant. The Trial Court denied the motion to suppress. The Appellate Division reversed. The Supreme Court agreed with the Appellate Division.

The issuing judge had improperly delegated to the police the discretion as to where they may execute the warrant. But warrants must describe with particularity where the police may enter. The police must be circumscribed in their entries. This is a constitutional requirement. Because the court had delegated that authority, through an unconstitutional condition, the warrant was not particularized.

N.J. Supreme Court Rejects Missing Witness Jury Charge Against Criminal Defendant

2009-07-14T18:36:00.000-07:00

For years, the decision in State v. Clawans permitted judges, in appropriate circumstances, to charge juries that a party's failure to call a witness who naturally would have been called may give rise to an inference that the witness's testimony would have been unfavorable to the party who likely would have called the witness.

Today the N.J. Supreme Court overruled that decision, insofar as it had previously permitted a Clawans charge to be given against a criminal defendant. In State v. Hill, which decision can be found here, a unanimous Court rightly recognized that such a jury charge could have the effect of reversing the burden of proof.

Hill was charged with first degree armed robbery. He was charged as an accomplice, driving codefendants to the scene and serving as the getaway driver. The main issue in the trial was his prior knowledge of the planned robbery. He testified and denied any prior knowledge. He did not call as a witness, however, his cousin who was a codefendant. The cousin had pled guilty as a juvenile and, as part of his testimony before the juvenile court, asserted that Hill did have advance knowledge of the robbery.

Neither side called the cousin as a witness in Hill's trial. The State sought and obtained, over defense objection, a Clawans charge. The jurors were therefore advised that they could find an adverse inference against Hill due to his failure to call the cousin to testify. The adverse inference would be that the cousin's testimony would be unfavorable. The Appellate Division affirmed the jury instruction. The Supreme Court reversed.

The Court was correct in reversing the ruling on the jury charge. The State bears the burden of proof to prove each element of all criminal charges beyond a reasonable doubt. Defendants have no such burden. The burden never shifts. Yet the prior application of Clawans had the effect of shifting the burden of production to the defendant. In this case, Hill indicated, for example, he no longer spoke with the cousin (not surprisingly), and that the cousin was believed to have moved out-of-state. In any event, it is unclear how a defendant could overcome an adverse inference. He should not have to. It is not the defendant's burden to produce for trial every eyewitness. Indeed, there are a host of strategic reasons why defense counsel may choose not to call eyewitnesses.

One important reason not to call every eyewitness relates to the burden of proof. Defendants may properly defend a case without calling any witnesses on the basis that the State has failed to meet its burden of proof. That is often a significant factor and strategy in not calling defendants to testify. Yet, if defendants were required to worry about an adverse inference charge, such an argument would be undermined. So too would the constitutional protections for defendants embedded in the "presumption of innocence."

So this decision is an important one.

Communications Data Warrant for Stored Email Permitted on Lower Standard Than Wiretap

2009-07-14T06:00:00.000-07:00

In a follow-up decision to the recent rejection of a suppression motion, the N.J. Appellate Division reversed a Trial Court decision which limited the State's Communications Data Warrant seking stored email to two weeks prior to execution of a search warrant. In State v. Finesmith, the Court noted that, under the State's Wiretap Act, communications data warrants are different than wiretaps and require a lower standard for issuance. They require merely "reasonable grounds to believe that the record or other information pertaining to a subscriber or customer f an electronic communication server is relevant and material to an ongoing criminal investigation." N.J.S.A. 2A:156A-29A(e). This is because the information is not being intercepted contemporaneously with its transmission, but is being acquired in post-transmission electronic storage. The decision may be found here.

I think that the Wiretap Act distinction in this regard is arbitrary and fails to capture the significance of the retrieval of stored communication. Essentially the stored information is a complete record of the electronic communications. Retrieval of this information is tantamount to a retroactive wiretap. The nature of the information does not change with the fact that it is not being contemporaneously intercepted. The upshot is that law enforcement may, if there is no need for comtemporaneous interception (which requires a much higher standard for issuance of the warrant), simply avoid the warrant process for this same information and obtain it through a CDW.

New Jersey's privacy laws should be amended to reflect the reality that there is a legitimate expectation of privacy in even stored electronic communications data.

N.J. Supreme Court Defines "Armed With a Deadly Weapon"

2009-07-14T03:32:00.000-07:00

Under N.J. criminal statutes, robbery is in the first degree (between 10 and 20 years' imprisonment) where it is "armed." Otherwise it is second degree (between 5 and 10 years imprisonment). But how is "armed" defined where a firearm is not used?

It seems the key is whether the defendant had an intent to use the weapon in a manner capable of producing death or serious bodily injury. It must be accessible with that intent. Accordingly, the Supreme Court ruled yesterday that juries must be so charged:

"For first-degree robbery, if a weapon possessed by a defendant was not a firearm, the defendant cannot be
considered to have been armed with a deadly weapon unless he or she had immediate access to the potential weapon
and an intent to use it in a way that was capable of producing death or serious bodily injury. Because the judge’s
jury instructions in this case eliminated the issue of “intent,” a proper evaluation of the evidence was precluded and
the first-degree robbery conviction must be reversed. "

NJ Appellate Court Addresses Re-Interrogation After Break in Questionining Due to Assertion of Right to Counsel

2009-07-10T10:23:00.000-07:00

State v. Wessells (NJ Appellate Division)

Facts: An incident occurred which resulted in five individuals being shot, of whom all but two were killed. A police investigation led to the arrest of co-defendant Raheem Clay (‘Rah’). The following day the defendant, Wessells, was arrested on a traffic warrant and taken to police headquarters. Wessells was orally advised of his Miranda rights and signed a Miranda waiver form. Wessels was interviewed, but refused to give a formal taped statement. The defendant was questioned regarding an incident prior to the shootings in which he was an alleged victim of an assault. In reference to this incident, Wessels admitted he quarreled with one of the deceased victims of the shooting and then he was assaulted by the victim’s friends. The police also questioned the defendant about the triple homicide. Wessels claimed he only read about the incident in the newspaper. Wessell also gave the police Rah’s contact information. Then, the defendant requested a lawyer before continuing to answer any more questions and the interrogation terminated.

The defendant posted bail on the traffic warrants and was released. Nine days later, one of the surviving victims identified Wessells as one of the shooters. The defendant was taken into police custody in connection with the homicides and attempted murders. The police reiterated to the defendant his Miranda rights and the defendant waived his rights and agreed to give a statement without an attorney present. The defendant admitted he was at the scene of the homicide, but denied participating in the shootings. Wessells also acknowledged his previous dispute with the deceased victim and restated that he was jumped by the victim’s friends.

Holding: The court addressed the “Edwards rule,” which provides that an accused who has expressed a desire to deal with the police through counsel cannot be subject to further interrogation without counsel present, unless the accused initiates the exchange. This rule is to protect the accused from being badgered or bullied into making a statement. The Edwards rule does not address whether or not a break in custody after the invocation of Fifth Amendment rights relaxes the enforcement of the rule. In this case, the court held that a person who has asserted a right to counsel during a police custodial interrogation and is subsequently released may be interrogated again if the break in custody afforded a reasonable opportunity to consult an attorney. The court adopted a totality-of-the-circumstances test to determine if the break in custody gave the accused a reasonable opportunity to consult an attorney. This test was adopted to prevent police from circumventing the Edwards rule by releasing the accused from custody for a short period of time so the police could seek another waiver of the rights from the accused.

Opinion: The due process clause of the Fifth Amendment establishes procedural safeguards to secure citizen’s rights. While these rights should be vigorously protected, they are not and should not be limitless. The Appellate Division may or may not have made the correct ruling in this case. Defendant asserted his right to counsel. No counsel ever appeared and waived the right. Nonetheless, by establishing a totality-of-the-circumstances test, the court struck a balance between an accused’s fundamental right to counsel and the interest of justice. What I mean by this is the test prevents an individual from being worn down by trained officers and detectives prior to making a statement, while also ensuring the accused cannot retract a statement simply based upon a legal technicality. In this case, the accused had nine days to contact counsel and the police also repeated the Miranda warning to Wessells after the second arrest. Given these facts, Wessell had a reasonable opportunity to seek counsel or could have reinforced his right to counsel rather than waiving it.

Thanks to law student, Anthony D'Antonio for his summary.

N.J. Supreme Court Addresses 'Community Caretaking' Exception to the Warrant Requirement

2009-07-09T11:00:00.000-07:00

State v. Bogan(NJ Supreme Court)

Facts: A fourteen year old girl, Kathleen, was found alone and crying. She stated she had been molested earlier that day by a family friend, Anthony Bogan. The police were notified and Kathleen gave a description of Mr. Bogan. Kathleen proceeded with the police to the area where she had been molested. Kathleen identified the car she rode in with Mr. Bogan at the scene. The police rang the door bell and an adult voice responded. The officers identified themselves as the police and a twelve year old boy, Wally, answered the door. The police asked Wally if he was home alone. Wally claimed he was home alone, which was inconsistent with the adult voice that responded when the police rang the doorbell. The police walked with Wally up the steps to the landing of the second floor apartment. Wally acted timid and unsure when answering questions relating to the whereabouts of his mother. The police did not immediately enter the apartment. Wally answered a phone call which turned out to be his father. One police officer asked to speak with Wally’s father and Wally allowed him to do so. The officer entered the apartment to answer the phone while the other officers waited outside the door. The officer in the apartment noticed a man fitting Kathleen’s description in his plain view and instructed the officers to enter in and question the person. The person identified himself as ‘Anthony Green.’ The police officer on the phone with Wally’s father learned that Wally was staying with Anthony Bogan. Anthony Green indicated Anthony Bogan was his maiden name and he was read his Miranda rights. At headquarters, the police discovered Mr. Bogans had several warrants of for his arrest and read him his Miranda rights again.

Holding: The Court addressed the community caretaking exception to the warrant requirement of the federal and state constitutions. The court stated that the police officers served as community caretakers by inquiring of a parent why a child was home alone on a school day in an apartment where a suspected crime had occurred. The court concluded an independent inquiry of the police concerning a child’s safety and welfare did not constitute an unlawful search. The court also held because the officer was lawfully on the premises when he observed the defendant in his plain view, he had a right to direct his fellow officers to question the defendant. As a result of this lawful chain of events, the statements made by the defendant after waiving his Miranda rights were admissible at trial.

Opinion: I believe the court made the correct decision in this case; however, the community caretaking exception to the Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution should be extremely limited. The facts of this case allow the exception to be invoked primarily due to the conduct of the police officers at the scene.
The criminal investigation and the child’s safety concerns were issues the police officers were dealing with concurrently. Even though the investigation led the police to the seemingly unattended child, this should not preclude the police from assuring that the child was being supervised. If the officers had entered the apartment initially or had dispersed and attempted to search the apartment the exception would not apply. In this case, the officer did not engage in any type of investigatory action relating to the criminal case. The officer merely requested to speak with the child’s father while the child was on the phone with him. In the officer’s plain view, he saw a man fitting the victim’s description of the perpetrator and acted objectively reasonably thereafter.

Thanks to law student Anthony D'Antonio for his summary.

U.S. Supreme Court Upholds the Voting Rights Act (For Now)

2009-06-23T19:04:00.000-07:00

Yesterday the Supreme Court did not, as expected, strike down the 1965 Voting Rights Act in Northwest Austin Municipal Utility District Number One v. Holder. That legislation was passed and intended to rectify the appalling history of disenfranchising African-Americans. In relevant part, the Act requires covered jurisdictions and their subdivisions (including Texas, the State in this case) to seek Justice Department pre-clearance of election-related changes, such as re-districting. Affected jurisdictions may, however, seek "bail-out" from these requirements. The issue here was whether Section 5 of the Act was unconstitutional if the affected subdivision could not obtain bail-out.

The Supreme Court did not address the constitutional question. The "avoidance doctrine" was cited as a basis to avoid the issue. The decision is found here. It has been reported that, based upon the oral argument, it was expected the Court would strike down the Act as unconstitutional. That is precisely what the lone dissenting Justice, Clarence Thomas, would have done. He claims there is no evidence that there is any continuing racial discrimination in the elections of the covered districts, so that the race-conscious remedy is unnecessary and unlawful.

The Justice Department and civil rights groups were pleased by the decision. The tenor of the Court's decision makes apparent that, if addressed in the future, the Act will likely be declared unconstitutional.

Sammy Sosa Steroid Disclosure - Breach of Attorney Confidentiality Obligations

2009-06-20T06:21:00.001-07:00

It has been widely reported that Sammy Sosa's results from the MLB "anonymous" drug testing, from 2003, have been leaked by to the press by an attorney. The positive results for steroids have been reported by The New York Times. Lost amid the hubbub about another sports hero's reputation further sullied is the issue about the source of disclosure.

It has been reported that one of several attorneys involved in the process must have leaked it. I have absolutely no idea if that is the case. If true, it is quite disturbing to me, as a practicing attorney, who has been trained not to reveal information obtained during the course of representation. There is no "juicy information" exception to confidentiality obligations.

Yet, in practice, the confidentiality obligation is sometimes honored in the breach. Some attorneys wrongly believe that disclosing to a journalist as an anonymous media source is proper. It is not. I suppose the premise of this thought process is that he or she will never be found out. But not getting caught is not the basis to disclose confidential information.

Other attorneys may believe that disclosure is proper if your client (who may be other than Sosa) is not hurt by the disclosure. I would think this is incorrect also. I suspect that the attorneys involved - possibly for MLB or another entity - expected complete confidence. Indeed, the entire basis for the testing was anonymity.

If there was a breach of confidentiality obligations, then the source may be subject to sanction under the relevant State's disciplinary system. But we, of course, do not know the source. I doubt we ever will.

Even if there is a breach, this does not help Sammy Sosa. The fact is that, if true, the information may and will be used against him in the court of public opinion. That court is a lot less forgiving - and has fewer known procedural rules for preventing - prejudice to those anonymously accused.

If the information is false, then perhaps Sosa has the basis for a defamation and/or libel claim. But there are many hurdles to such a suit. The New York Times is likely protected from liability under the applicable standards. The source will likely never become known because the Times will fight tooth and nail to prevent disclosure under the press shield laws. They will probably win this battle.

So an anonymous steroids test was not really anonymous. Shocking. The upshot is that MLB will never again be able to claim anonymity for players providing information supposedly in confidence. Like everything else in life, secrecy is relative and always subject to question.

Public Office Disqualification? Not For All Convictions

2009-06-13T04:59:00.000-07:00

Yesterday the Appellate Division of the Superior Court of N.J. decided State v. Hupka, which decision can be found here, and reversed the Trial Court decision to forfeit a former officer's right to future public office by virtue of his fourth-degree sexual contact conviction, for conduct occurring off-duty. Essentially the Court held (no pun intended) that the offense did not "touch upon" Hupka's public office. This is notwithstanding he apparently attacked a sleeping woman, obviously inconsistent with his sworn duty. There was a vigorous dissent, which urged upholding the forfeiture of public employment.

In light of the split, there will no doubt be an appeal to the Supreme Court of N.J.

NJ State Trooper Trial - Thorough Defense but Uninspired Closing

2009-06-04T10:04:00.000-07:00

Attorney William Subin is defending State Trooper Robert Higbee in a vehicular homicide trial in Cape May County, NJ. He has called multiple experts to discuss highly technical aspects of the accident reconstruction and Higbee's "amnesia" about certain aspects of the crash. He has called 39 character witnesses. Higbee testified extremely effectively, a sure sign that he was well prepared. In my opinion, Subin has done an extremely thorough job. In my further opinion, this tragic situation should NOT have resulted in any criminal charges in the first place.

My respectful disagreement with Subin -- a fine attorney -- is the manner by which he presented his closing argument today. Subin remained, true to form, extremely thorough and thoughtful. Yet, respectfully, I feel that Subin missed the opportunity to take the upper hand and to harness the natural advantages of his position. Subin is, after all, a dream defendant. An unblemished State trooper, former football star, community volunteer, friend to everyone, ever-helpful and polished. He spends his days and nights protecting the public. Thirty-nine of his friends, colleagues and acquaintances all agree that Robert Higbee is one of the best people they have ever met. He is the poster boy for a good citizen.

Instead of jumping right in and pounding on these obvious points with every fiber of his being, Subin instead spent more than an hour parsing for the jury the most boring and technical minutiae of the vehicular homicide statute and jury charges. By doing so, he virtually conceded that the jurors should be hyper-critical in their review of Higbee's actions that night.

But this is not a bench trial. This is not a civil trial. This is a criminal trial where twelve people -- including some who were brought to tears by Higbee's earlier testimony -- will make a fundamental choice: does Robert Higbee deserve to be criminally convicted?

Subin will likely win this trial. For justice sake, I sure hope so. But in my opinion Subin would have been better served in his closing argument by pointing to his client, referencing his testimony and his 39 character witnesses and sitting down.

Should Defense Attorneys be Able to Report Client Confessions When Another Has Been Convicted of the Crime?

2009-05-22T08:00:00.000-07:00

Last night, I attended the installation dinner for the Association of Criminal Defense Lawyers of New Jersey. This is a wonderful organization with some of the finest attorneys in the State. The keynote speaker was the extremely thoughtful, New Jersey Supreme Court Justice, Barry Albin. Justice Albin was, before his appointment to the Bench, a prominent defense attorney.

The topic of the talk was the above question: should the Rules of Professional Conduct be amended to permit attorneys to report client confessions, when another has been convicted of the crime? Justice Albin appeared to believe that the Rules of Professional Conduct in N.J. should, as they have been in MA, be amended to permit attorney disclosures to prevent manifest injustice. Justice Albin contended that the Rule would come into closer conformance with moral norms.

While I highly respect Justice Albin, I am not so sure I agree with him that attorneys should be permitted to disclose such client confessions. As an initial matter, I do recognize the troublesome question of anyone, particularly an attorney, remaining silent while an innocent person serves a jail sentence. On top of that moral quandary, the emotional toll on the attorney would be enormous. That being said, there are simply too many problems, in my mind, which would flow from such permitted disclosure.

First, the attorney-client privilege is intended to promote candid communications by clients. If the Rule were changed, such candor would be unwise for clients. This purpose would be undermined.

Second, such an exception could place attorneys at risk. If a hypothetical client is an admitted murderer, would he hesitate to eliminate his attorney if he knew the attorney were permitted to turn him in?

Third, such disclosures might be misused to disrupt legitimate convictions. There is little reason to believe that a client's confession is necessarily truthful. Perhaps false, manufactured confessions might be made to cast doubt upon a cohort's conviction. One Sean Connery-Blair Underwood film comes to mind.

Fourth, it is far from clear how such disclosures would even be used to avoid manifest injustice. If an attorney did disclose to authorities, what would happen? No doubt the authorities would investigate. The client is represented by counsel and could not be questioned. Even if he were questioned, he would deny the purported confession. Would his former attorney now be a witness against him? If authorities could not corroborate the confession, where would that leave the already-convicted? How could authorities prosecute the confessor? Presumably law enforcement did not already have sufficient evidence to charge the confessor.

Fifth, if the disclosure Rule were amended for attorneys, then why not for other protected communications? In other words, would priests and physicians then be permitted to make similar disclosures? This would rework the Rules of Evidence substantially and cause havoc among the public's expectations, formed by centuries of jurisprudence.

In sum, this is a very interesting and troubling situation. The proposed cure may, however, be equally problemmatic.

NJ Death Penalty Repeal Leads to Split on Sentencing Remedy for Pending Case

2009-05-15T03:47:00.001-07:00

On May 12, 2009, the NJ Supreme Court decided State v. Fortin. The decision may be found here. In 1985, Fortin was charged with capital murder. In August 2000, six months before the penalty phase of his trial, the Legislature adopted a law to "take effect immediately," which permitted imposition of life without parole in certain capital cases. This was more severe than the prior sentencing scheme, which permitted a 30-year parole disqualifier. In 2001, defendant was convicted and found by a jury deserving of the death penalty. The Supreme Court then reversed and remanded the case for a new trial. Incidentally, the Court then noted that the use of the new sentencing scheme would have had ex post facto constitutional problems.

After the new trial, in 2007, Fortin was once again convicted. But before the sentencing phase, the Legislature amended the statute and replaced the death penalty with a mandatory life imprisonment without parole penalty. Previously, Fortin could have been sentenced to life in prison with a 30-year parole disqualifier, a lesser sentence.

The State requested that Fortin be sentenced automatically to life without parole under the new statute. The Trial Court refused, citing the constitutional prohibition on ex post facto laws (those imposing greater penalties than existed at the time of the crime). The Appellate Division agreed. The Supreme Court affirmed in part and reversed in part.

The answer to the question of how to handle this situation was not addressed by the revised statute. In other words, how do we treat defendants whose sentences were not yet rendered at the time of the statute's enactment? The Court majority adopted a "hybrid" approach, which is not set forth in the statute. The Court reasoned that, because defendant had knowledge of the possible death penalty at the time of the crime, then it is not fair to continue with the death penalty sentencing procedure (as previously in place but now repealed) before the jury. If the jury chose death, then it would not be unfair -- or violative of ex post facto -- to sentence defendant to life imprisonment as under the new statute. If, however, the jury rejected a death sentence, then defendant would be sentenced under the prior statutory scheme to life with a 30-year parole disqualifier.

In dissent, Justices Albin and Long argued that the majority's analysis was wrong and ignored the ex post facto problem previously recognized in its earlier Fortin decision. The Court was permitting imposition of a greater penalty than that permitted when Fortin committed the crime. Accordingly, the life-without-parole option is constitutionally infirm. The majority's hybrid analysis cannot be squared with the Court's earlier Fortin decision on this basis.

Search & Seizure Decision Reveals NJ High Court Split

2009-05-11T12:09:00.000-07:00

In N.J., the automobile exception is no more. Police may not conduct warrantless searches of automobiles even after arrests of the occupants unless there is an exception -- usually exigency -- which prevents the obtaining of a warrant. In State v. Pena-Flores, the Court reaffirmed those principles in the context of opportunity to apply for a telephonic search warrant. Those warrants were held to the same requirements as non-telephonic warrants. Justice Long wrote for the Court majority.

In dissent, Justice Albin (joined by Chief Justice Rabner and Justice Rivera-Soto) opined that the Court had long departed from the correct path. The automobile exception, they wrote, is sound. Instead the Court has required law enforecment to meet an "amorphous" exigency requirement. The upshot, they contend, will be that officers will impound vehicles more regularly, so that they will not be second-guessed as to whether exigency requirements have been met. The result will be the delay of drivers in administrative limbo, under the guise of supposedly ensuring greater privacy rights.

This is a very interesting split. Perhaps it foreshadows a reversal, in the event the composition of the Court changes. Justice Albin writes that "Stare decisis is not a command to follow the mistakes of the past."

Bail Source Hearings in New Jersey

2009-05-06T17:12:00.000-07:00

New Jersey seomwhat recently passed new ""Bail Source" statutes, N.J.S.A. 2A:162-13 et seq., which provide prosecutors with tools to mandate judicial inquiry into the source of bail for defendants in a wide range of circumstances. The statute is silent on a number of procedural questions, including burdens of proof and persuasion when source hearings are ordered. Last week, a Trial Court Judge's opinion on these issues was approved for publication. The opinion may be found here.

The Court essentially concluded that: the State bears the burden of persuasion that the bail does not satisfy the
requirements of the statute, N.J.S.A. 2A:162-13(b). However, upon prima facie proof by the State that the bail is unreliable, insufficient, or tainted, then the burden of production shifts to the defendant.

Hearsay Admitted Under "Tender Years" Exception Found Not to Violate Confrontation Clause

2009-05-06T16:46:00.000-07:00

The New Jersey Supreme Court recently decided State v. Coder, a matter exploring whether a young child victim's statement, found admissible under the "tender years" exception to the hearsay rule was nonetheless barred under the Confrontation Clause. The decision may be found at http://www.judiciary.state.nj.us/opinions/supreme/A-28-08%20State%20v%20Terry%20Coder.pdf
In this case, the victim told her mother, moments after the event, that the landlord had touched her in her private areas. The child later could not even remember the event, which occurred when she was three years old. The Supreme Court ultimately concluded that there was no Confrontation Clause problem because the child's statement was not "testimonial," that is, the statement was not made within the law enforcement investigative process. Rather it was made outside of this process and before even an investigation began.

Trials for Those Who Authorized and Justified "Enhanced Interrogation Techniques"?

2009-05-03T06:15:00.000-07:00

There has been much debate about what, if anything, to do about senior Bush Administration officials and attorneys who authorized and justified -- through legal memoranda and policy decisions -- techniques such as waterboarding and other methods deemed advisable to extract information from suspected terrorists.

What is apparent from these debates is that the premises of debaters appears to define their respective answers. In other words, agendas are at hand. This is not surprising or problemmatic. What is maddening about these discussions, however, is that they are circular. What is more, the questions raised -- what is torture, did it work, should we prosecute -- are separate questions without a ready answer.

Was It Torture?
I am far from an authority on this question. Nonetheless, I am prepared to accept that waterboarding is torture. I am also prepared to accept that no reasonable person can, with a straight face, claim otherwise. There is little doubt in my mind that waterboarding was the least of what suspected terrorists endured under Bush policies. Now that we have that question out of the way, the next issue is whether to do anything about it.

Who Was Responsible?
The curent debate is whether any inquiry and prosecution should be launched for those responsible. Who are those responsible? Plainly senior Bush Administration officials are responsible, leading up to and including former President Bush. Those senior officials who authorized torture should be included.

Legal counel is often lumped into this group. Various memoranda were prepared to justify, as perfectly legal, the practices which many (including me) regard as torture. But the inclusion of government attorneys in a group of potential target defendants is really troublesome. Those attorneys were asked to provide legal advice, perhaps even to find a rationale, under law, to justify a particular position. To my mind, they were not part of any criminal conspiracy. The alternative is to say that attorneys are responsible for clients' activities. This is a dangerous position and would create precedent where, in the future, attorneys may decline to give advice. Clients will act without advice, probably a more precarious position for them and for us.

Should We Prosecute?
This is an extremely complicated question. In order to prosecute, we must be convinced that laws were willfully broken. This means that we must be certain that the Executive Branch of the Government actually had no authority to authorize the actions. Is that the case? Once again, I am no authority on Executive Branch authority. But I suspect the issue is not "cut and dried." We do have a strong Executive. That coupled with a time of crisis may translate into ample authority. If we conclude that, in no circumstances, was there lawful authority, would the federal courts see it that way? Would this be considered a "political question" the courts would not undertake? Moreover, there has been some call for prosecution in the War Crimes Tribunal at The Hague. Is this what we want as a society? Is the prosecution of a former American President the type of precedent we wish to promote?

What would be the goal of such prosecutions? It is easy to claim that trials would have deterrent effect on future torturers. But it is far from clear this would be the case. Perhaps the goal would be re-establish our world leadership as enemies of torture, and strong proponents of the rule of law. But would prosecutions actually have this result? Maybe the true motive for some proponents is a type of payback for perceived extra-lawful actions and fabrications of the Bush Administration. But such revenge motivation would be dangerous precedent and weken the Executive Branch for generations.

Did It Work?
Former Vice President Cheney has been calling for the Obama Administration to release classified memoranda purportedly extolling the virtues of enhanced interrogation techniques. These documents will, according to proponents, prove waterboarding's usefulness for extracting information.

This is, in my opinion, a red herring. First, there is no doubt in my mind that those subject to torture will provide information. Of course they would do so. They would want to end the torture. Second, there is no evidence that most of the information obtained was actually accurate. You can bet that if I were subjected to torture (or threatened with it), I would, if necessary, spin a tall tale to avoid the whole thing. Third, so what? Is there a suggestion that torture is justified based upon a risk-utility analysis? It is easy -- as a mantra -- to claim that the saving of even a single American life is worth the price we pay. But did we actually save lives because of these techniques or because of other actions we undertook? We lose so much of our ideals, and create such a troublesome precedent in the eyes of the world, when we avoid our own standards of law and decency. We must be mindful of the historical significance of our actions.

It has been interesting to hear President Obama carefully deflect questions about possible prosecutions. He is rightfully concerned about the potential impact such prosecutions would have on Executive Branch authority. he is rightfully concerned with the host of ancillary issues inhenerent in a declaration of past unlawfulness by our leaders. President Obama has urged us to move forward, and not to harp on the mistakes of the last administration. I do not believe President Obama is asking us simply to "play ostrich" to torture. On balance, I agree with the concept that we should learn from past errors and move forward carefully to avoid the same mistakes.

Withdrawing from the Defense of a Criminal Case

2009-05-01T08:08:00.000-07:00

There is a very interesting recent article discussing the potential pitfalls of withdrawing from a criminal case. The article, found at http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1202430344963, notes the continued duties of confidentiality and possible conflicts with the client. The author, a N.Y. defense attorney, further explores how the withdrawal may be perceived by the public. There can very well be adverse impact on the client by virtue of the withdrawal. In high-profile cases, there will surely be rampant speculation about the reason for withdrawal. The same may be said for an attorney being removed by the client.

There are many reasons why an attorney may seek to withdraw. Without exhausting the possibilities, fee disputes, non-payment, strategic disputes, and an attorney's ethical inability to continue representation come to mind. In my experience, attorneys do not wantonly seek to withdraw. They recognize there is a stigma and possible adversity to the client -- and sometimes to the attorney -- where there is withdrawal. It is not a decision to be taken lightly. If undertaken, care must be taken not to run afoul of ethical prohibitions.

An attorney should remain close-lipped about client disputes, including the reason(s) for withdrawal. Likewise, an attorney should refrain from grousing about the client who discharges him. It happens. It is not pleasant. Move on. Remain professional. If you must continue to deal with the press on the matter, be sure to coordinate with the client and new counsel about any statements.

Cross-Examination Techniques - As Varied as the Cases You Try

2009-04-30T11:04:00.000-07:00

I had the real pleasure of lunching with a colleague today, who is one of the most experienced criminal trial attorneys in New Jersey. He served for more than 25 years as a county prosecutor and is now a well-regarded defense attorney. He is the consummate gentlemen.

We decided to go out and to speak about cross-examination. Strange as it may seem -- given that cross- is the lifeblood of trial attorneys -- I could not remember the last time I sat down with a colleague to compare techniques and ideas for approaching this subject. He had the same lack of memory. We also agreed that it was difficult to find the time even to watch others' styles. The result of all this is that our colleagues have a wealth of unshared experience. I made a "Note to Self," to remedy this situation.

We discussed the varied styles of our colleagues whom he had seen in action. The upshot was that their styles varied and, unsurprisingly, seemed to correspond with their respective personalities. Where cross-examiners we have seen got into trouble was where their approach deviated from their personality or where the approach was unsuited to the case theme. In other words, it was unhelpful for the cross-examiner to fight witnesses in a scattershot manner.

So we discussed some effective techniques. They included:

1. short, crisp questioning to lock in the witness
2. telling your story through deliberate questioning in an organized manner
3. reinforcing case theme through cross-examination
4. not "swinging at every pitch," but choosing selective topics for cross
5. modulating your voice to impact the effect of the question on the jury
6. altering rhythm, speed and tone to accentuate particular questions
7. maintaining jurors' trust in YOU as the questioner
8. remaining mindful of jurors' reactions to questioning
9. knowing when to sit down
10. never cross-examining unless the witness has offered harmful evidence, or, if not, the witness can support your case

Perhaps most importantly, BE YOURSELF before the jury. Otherwise juries will react badly if they lose trust in you. Happy cross-examining.

Criminal Defense - Everyday Ethical Conundrum

2009-04-27T13:54:00.000-07:00

Recently I guest-lectured for a local law school's professional responsibility class. The topic was the prohibition on the knowing presentation of false testimony. For this subject, the students read Nic v. Whiteside, the U.S. Supreme Court decision denying an ineffective assistance of counsel claim, due to counsel's informing the court that the defendant intended to testify falsely. The defendant had no right to an unfair trial, one in which he provides false testimony.

But the more significant question - in my mind at least -- was whether the attorney actually knew that defedant was intending to testify falsely. If not, then the attorney had no business advising the court of the client's intentions. A client is not entitled to lie. but he is entitled not to have his attorney tell the court he will do so, when the attorney has no such knowledge.

So, did the attorney know? Well, maybe. The client did change his story to the attorney. But this may happen innocently. In the real world, is this enough for an attorney to claim that the client is fabricating? Is the answer simply not to ask a client pertinent questions? Should a client only speak in hypotheticals?

The upshot of this scenario is that an attorney is placed in an unusual position. What is most troubling is that, on occasion, an attorney is essentially being asked to be an arbiter of a client's veracity. The black-and-white scenarios are easy. Of course, no attorney should knowingly permit false testimony before a court. Likewise, every defendant is entitled to testify. But what about the gray situations, where an attorney suspects that a client may be lying. What obligation does the attorney have to the client, and what obligation to the court?

What also of a defense attorney who argues an alternative scenario but knows the scenario to be false? The ethics rules do not speak to this precise subject. Attorneys may argue from the evidence presented at trial. What if the inference sought to be drawn is an incorrect one?

What if an alibi witness is not credible? Is it the client's or attorney's decision whether to pursue an alibi defense relying upon that witness?

There are no easy answers to these questions, which can leave criminal defense attorneys betwixt and between theuir obligations to provide the best defense to the client, while remaining firmly within the bounds of law and legal ethics.

Warrantless GPS Tracking - Invasion of Privacy?

2009-04-26T05:34:00.000-07:00

Former U.S. Attorney for N.J., Christopher Christie, now running for Governor, has come under fire for authorizing warrantless GPS tracking of individuals. To be clear: all such authorizations were accompanied by court authorization by federal magistrates, though not through warrants. In 2007, the Justice Department recommended -- but did not require -- that federal prosecutors obtain warrants for such electronic surveillance. Nonetheless, this decision was to be made on a case-by-case basis.

GPS tracking does involve a privacy invasion. Through this technology, the government can learn details about a person's whereabouts and travel. This can hardly be disputed. But this is not the end of the analysis. The follow-up questions are whether (1) such surveillance implicates constitutionally-protected privacy interests, or (2) electronic surveillance laws are implicated. If the answer to these questions are "NO," then any outrage being expressed by civil rights organizations may fall on deaf ears in the courts, Congress or the public at large.

As for question 1, it is far from clear that the federal constitution includes such a privacy interest. Individuals are themselves traveling publicly, so it is difficult to imagine a "zone of privacy" protecting one's location. This is not the case where, for example, the government uses thermal scanners to determine location within a home. It is nonetheless troubling to know that the government can institute surveillance based upon GPS tracking, even without judicial warrant authorization. But, then again, the government can lawfully surveil people without GPS without any authorization.

As for the second question, it appears to me that electronic surveillance laws also do not address the issue of GPS tracking. In the absence of such prohibitions, remedying the situation becomes more difficult. An attorney colleague from N.Y. recently faced this situation in a motion to suppress GPS tracking results obtained without a warrant. The court noted that the federal wiretap act provides no remedy, even if a violation were found to have occurred. The existence of a right but not a remedy seems to be a common theme in electronic surveillance litigation. In N.J., the Supreme Court recently held in State v. Reid that we have state constitutional protections in the information held by internet service providers. This is to be compared with federal constitutional interpretation. No federal constitutional privacy right exists. Nonetheless, in Reid, the State argued that there should be no remedy for violation of this right, which the State contended existed under the state Wiretap Act and not the state Constitution. In a sense, the State was correct: N.J.'s Wiretap Act provides for suppression only of unlawfully intercepted "communications," generally the contents of phone calls.

So what is to be done? Electronic surveillance laws have simply not kept up with technology. The government's surveillance techniques seek to harness cutting-edge technology. So the law should be revised to reflect the reality of possible government overreaching. The ACLU has suggested that Congress amend federal law to address cell phone and GPS technology. According to an ACLU staff attorney, "Tracking the location of people's cell phones reveals intimate details of their daily routines and is highly invasive of their privacy." A warrant should be required, according to the ACLU, before such surveillance techniques are approved. Presumably the ACLU would seek a suppression remedy, if this evidence were obtained in the absence of judicial authorization.

Irrespective of the outcome, it is apparent that new technologies raise issues about increased invasions of privacy. We should be prepared to address these so that the public is aware of this situation and a possible absence of rights and/or remedy under law.

Wikipedia - Inadmissible Evidence

2009-04-25T05:24:00.000-07:00

In a not-particularly-shocking decision, the Appellate Division of the Superior Court of NJ reversed a trial court which had admitted a Wikipedia article into evidence. The appellate court held that Wikipedia articles are too malleable to be reliable. This makes sense.

I am reminded of the hilarious scene from a recent "30 Rock" episode where the narcissistic Jenna has landed a role reprising Janis Joplin. One of the skit writers, Frank, suggested she research Joplin on Wikipedia to make sure she really absorbs the nuances of the singer's character. Yet prankster Frank had planned -- and carried through -- on his scheme to edit the Joplin Wikipedia article with bizarre and wholly manufactured quirks about the late singer. The humorous result was that Jenna's Joplin was replete with irrelevant character traits and preferences, none of which made any sense.

The fact is that Wikipedia articles can, and are, edited continuously, often inaccurately. While some articles no doubt are entirely accurate, this does not hold true for all of them. Seek out, for example, an article on your favorite topic. Chances are that you will take issue with the article. This is not to say that Wikipedia is not extremely helpful and genius in the "real world," outside of trials. It is. But it's limitations must also be understood. Usefulness and evidential value are different standards altogether.

1776 - Arguments for Independence

2009-04-24T10:01:00.000-07:00

Last night I saw the play, 1776, at the Paper Mill Playhouse in Millburn, NJ. It was terrific. Why am I writing about this in a trial attorney's blog? Because the performance impressively encapsulated various arguments for and against the Declaration of Independence, together with certain language which was ultimately excised from the text (no pun intended).

John Adams, the self-proclaimed "A-Gi-Ta-Tor," expressed the historical imperative for declaring independence. Thomas Jefferson, who drafted the Declaration of Independence, included lofty language meant to call into question -- and presumably to seek abolition -- of slavery.

Perhaps the most interesting arguments, however, came from those members of the Continental Congress who doubted the viability of revolution or the wisdom of breaking from their homeland. As a separate matter, Rutledge of South Carolina pointed out the essential hyposcrisy of Jefferson's personal position and those of purportedly abolitionist northerners. And he had a great voice, singing a tremendous "Molasses to Rum," describing the Triangle Trade.

What trial lawyers can take from this advocacy is that the "correct" position does not always convince people or carry the day. Hopefully our juries will reach the correct decision, though perhaps not for the right reasons. Yet we must always be mindful of provincial concerns and prejudices -- including self-interest -- which may impact a particular decisionmaker's reasoning.

Trial lawyer or not: go see this performance.

N.J. Court Adopts "Reasonable Continuation" Doctrine

2009-04-22T08:17:00.000-07:00

Yesterday, in State v. Finesmith, the Appellate Division of the Superior Court of N.J. adopted the "reasonable continuation doctrine," which had previously been approved by federal courts. Essentially this doctrine permits certain re-entry to a premises to continue a search previously authorized by warrant.

The facts in Finesmith are interesting. Wyoming authorities revealed IP addresses ascribed to Mrs. Finesmith indicating peer-to-peer file sharing of certain child pornography videos. N.J. authorities obtain a search warrant for the home to search for computers and other evidence. At the home, the police find 5 computers. On one, they find child porn. In a statement later suppressed per Miranda, Defendant admitted he was the user of that computer.

Mrs. Finesmith then helpfully told police that Defendant had another laptop which he took to and from work. Defendant indicated it was at work. Police went there, but the laptop was not present. Then Defendant -- whose counsel was assured would not be further interrogated -- was questioned and revealed that the laptop must be in his van at his house. This statement was likewise suppressed. But the police returned to the house and seized the laptop from the van.

The Court held that the original warrant was valid basis for the police to re-enter the house in these circumstances to search for the missing laptop. There was no mention of the fact that the polcie did not have any warrant for the van. In any event, the Court further found that there was no problem with the police relying upon the improperly-obtained statement about the precise location of the laptop. The reason for this was the Court's finding that the laptop was inevitably discovered, and that police would have continued looking until it was found.

The Court's analysis left, in my opinion, much to be desired in terms of analysis of purported inevitabiliy. For one thing, the police did not have a warrant for the van. For another thing, it is far from clear that the police would have returned to the house, would have done so promptly and would have entered the van, in the absence of the statement obtained in violation of Miranda. Finally, it is apparent that the evidence was seized as a direct result of the Miranda violation. here was no attenuation. The Court in fact found there was a Miranda violation giving rise to suppression of statements. This violation was all the more egregious because the police apparently misled Defendant's counsel by telling him there would be no questioning. The police also did not advise Defendant that he had counsel, even though he specifically invoked his right to counsel.

It will be interesting to see whether the N.J. Supreme Court ever accepts this case and rules on the merits.

Major Change in Search Incident to Arrest Law

2009-04-22T07:25:00.000-07:00

Yesterday the U.S. Supreme Court decided in Arizona v. Gant that police cannot automatically search for evidence in a vehicle following the arrest of an occupant. Such a search is permissible only where it is reasonable to believe (1) the occupant could access the vehicle at the time of the search, or (2) the vehicle contains evidence of the offense of arrest. In Gant, the driver was arrested for driving on a suspended license and was handcuffed and placed in a police vehicle. Therefore, he did not have access to the vehicle The offciers could not reasonably believe they would locate evidence related to the suspendedlicense charge in the vehicle. So the search was unreasnable.

The Gant decision dramatically changes the New York v. Belton rule, announced in 1981 and highly criticezed since that time. Belton essentially permitted officers to search a vehicle each time an occupant was arrested. No more.

In N.J., the Supreme Court has long departed from Belton and granted greater protections under the N.J. Constitution. In State v. Eckel, the Court held that, without access to the vehicle, there can be no search incident to arrest of the vehicle.

State Layoff Emergency Regulation Upheld

2009-04-18T09:01:00.000-07:00

The Appellate Division of the Superior Court more or less upheld the State furlough regulation promulgated under emergency circumstances. See the decision here.

The Court nonetheless indicated that the staggered layoff of individual employees -- as opposed to whole units -- may not meet state law requirements.

Exclusionary Rule Update

2009-04-13T08:14:00.000-07:00

The U.S. Supreme Court reaffirmed the "good faith" exception to the exclusionary rule in Herring v. United States. Essentially the Court found that the rule -- to suppress unlawfully seized evidence -- will only be applied where the application would have a deterrent effect on police misconduct. In dissent, Justice Ginsburg rejected the deterrence-only principle and sought to reinforce the notion that the exclusionary rule is the only real remedy to address a 4th Amendment violation. New Jersey has rejected the "good faith" exception under its own Constitution. As the N.J. Supreme Court held in State v. Novembrino, the exclusionary rule serves not just to deter police misconduct, but also as "an indispensable mechanism to vindicate the constitutional right to be free from unreasonable searches."

Forfeiture by Wrongdoing in N.J. Criminal Courts

2009-04-12T10:56:00.000-07:00

On April 2, 2009, the N.J. Supreme Court moved toward adoption of a "forfeiture by wrongdoing" exception to the hearsay rule. In State v. Byrd, the Court indicated that the time had come for N.J. to adopt the rule that a defendant forfeits the right to confront a witness's out-of-court statement implicating him when he causes that witness's "unavailability" at trial. In other words: if you scare a witness into not testifying, then the earlier statement can be used against you anyway. The Court sent a proposed rule to the legislature for its adoption. Because there is no such rule now, Byrd was entitled to a new trial. What will be interesting is not whether such a rule will be adopted, but rather how such a rule will be implemented. Left unsaid is how trial courts will determine whether there has been such coercion or intimidation, or whether such misconduct has been proven to arise from the defendant's actions. Even assuming such a hurdle is met, is the very evidence of coercion admissible as well? There are significant reasons why the right of confrontation is fundamental to our criminal justice system. Only time will tell whether "forfeiture by wrongdoing" is a workable doctrine in New Jersey.