New Jersey Criminal Defense Attorney Blog

The United States Supreme Court recently issued an ethics code that is to guide the conduct of its justices.  There have been calls for the Court to issue such a set of ethics rules for some time, but recent revelations about the questionable ethical conduct of some of the justices apparently forced the Court to act.  Some of these problems included the fact that Justice Thomas’ wife worked to overturn the 2020 election just prior to the January 6 Capitol riot, and he continued to participate in cases relating to the riot and the election.  He also failed to disclose luxury travel provided by a wealthy conservative donor, payment of private school tuition for a grandnephew he was raising, a real estate deal involving the purchase of his mother’s house, and a loan that allowed him to purchase an elaborate RV.  Justices Alito and Gorsuch have also failed to disclose financial favors received from wealthy and powerful individuals with cases before the Court.

Clearly, the situation was so bad that the Court had to take some action to at least create the appearance that it could police itself.  However, there are still serious questions concerning how the new ethics code will be put into effect or enforced.  Exactly what activities would violate the ethics rules, and who would decide a violation actually occurred, also remain unclear.  There are no specific restrictions on gifts, travel or real estate deals.  In somewhat general terms, the new code cautions justices to avoid activities that detract from the dignity of their office, interfere with the performance of their official duties, reflect adversely on their impartiality, or lead to frequent disqualification.  Justices are also prohibited from allowing personal, political, or financial relationships from influencing their official conduct or judgement.  Justices are also barred from being a speaker, guest of honor, or being featured on the program, of certain fund raising events.

The new code also bars justices from speaking at events promoting commercial products or services, but includes an exception for events to sell books written by the justices themselves.  Obviously, any book deal for a US Supreme Court justice could be worth millions of dollars.  Also, any justice writing a book would have the resources of the Court to do so, including a team of law clerks to do the research and actual writing.

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Street Cop Training, a private company owned by a formed Middlesex County law enforcement officer, conducted a week-long seminar in Atlantic City in 2021.  The seminar was attended by about 1,000 officers from around the country, with about 240 of them from New Jersey.  Most of the New Jersey officers paid their attendance fee with taxpayer money.  In fact, approximately $75,000 in taxpayer funds were spent so as to allow the New Jersey officers to attend the conference.

The New Jersey state comptroller’s office recently issued a report saying that the seminar glorified violence and harassment, and normalized discriminatory behavior by police officers.  According to the comptroller’s report, the instructors taught unconstitutional police practices and promoted a warrior mentality.  Speakers at the conference included officers from the Warren Township police department, the Robbinsville Township police department and the Bergen County Prosecutor’s Office.  The officer from Warren apparently told the conference “I watched this car come off the highway, and I eye-F— the s— out of the female driver.  She doesn’t want to f— me back though.”  The Robbinsville officer showed a monkey on a screen while describing a black man during a traffic stop.  As part of his accompanying remarks, he stated “That’s not an 18-year-old kid dressed like Jesus coming eastbound out of Trenton.  That’s a 75-year-old Black man with a change in driving behavior, came into a gas station.”  The Assistant Prosecutor from the Bergen County Prosecutor’s Office thought the audience should know that “I would be remiss if I didn’t remind you or let you know that I have a 3-inch d—.”  The foregoing clearly demonstrates that this conference was a high-level police training seminar geared toward providing quality training to serious law enforcement officers who understand their societal role and seek only to discharge their duties in a Constitutionally correct manner.

The good news is that the report again focused a light on issues that have long existed in the New Jersey law enforcement community.  There are 72 police departments in New Jersey staffed by all-white officers.  108 departments in New Jersey are staffed by all male officers.  Only 11% of the New Jersey police force consists of female officers.  Clearly, New Jersey’s police force is not diverse in any meaningful way, and therefore does not at all reflect the State’s demographics.  The other good news is that the Robbinsville officer is now dealing with an internal affairs investigation as a result of the absolute filth that came out during his presentation.  At this time, it is not known if official action was taken as to the Warren officer or the Bergen County AP for their brilliant contributions to this highly sophisticated training event.

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Our Supreme Court recently considered whether the mere odor of marijuana coming from a vehicle during a traffic stop allows a search of the engine compartment and trunk.  In State v. Cohen, decided earlier this year, law enforcement had information from a confidential informant that the driver was bringing guns from another State into New Jersey for sale.  A “be-on-the-lookout”, or BOLO went out, and a trooper spotted the car on the New Jersey Turnpike and pulled it over for ostensible traffic violations.  When the trooper stopped the vehicle, he detected a strong odor of raw marijuana coming from the car, numerous air fresheners hanging on the rear-view mirror, and greenish-brown vegetation on the driver’s beard and shirt.  Another trooper arrived to provide backup, and the driver and his passenger were removed from the car, handcuffed and placed in separate patrol cars.  The trooper who stopped the car began a vehicle search, beginning with the passenger compartment where he located a 9mm spent shell casing in the glove compartment, but no marijuana.  The trooper did not seek a search warrant, but searched the engine compartment, where he discovered a rifle and a revolver, as well as the trunk where he located a duffle bag containing hollow point bullets.  He did not recover any marijuana from the vehicle, the driver, or the passenger.

The defendant, who entered a conditional guilty plea to a single count of unlawful possession of a weapon, moved to suppress the evidence recovered from the vehicle based on the fact that the only facts supporting the warrantless search was subjective testimony concerning the smell of raw marijuana without any marijuana actually being located.  The trial court found that the smell, without any detectible pinpoint, established probable cause to search the entire vehicle, and the Appellate Division affirmed.

The Supreme Court reversed and remanded the case.  The Court began by noting that the smell of marijuana constitutes probable cause that a criminal offense has been committed and additional contraband may be present.  However, the Court also recalled that a search which is reasonable at its inception may run afoul of Constitutional restrictions because of its intolerable intensity and scope.  The problem with the search in this case was the absence of meaningful facts other than the mere smell of marijuana coming from the passenger compartment.  The Court cited to cases that presented facts in addition to the mere odor of marijuana coming from that location.  In one case, the odor coming from the car was so strong that it suggested an amount substantially larger than what could be contained in a bag observed in the passenger compartment, coupled with the fact that the rear of the car was “hanging low” suggesting that the trunk contained heavy cargo.  In that case, a search of the truck yielded over 175 pounds of marijuana.  In another case, a search of the passenger compartment yielded a partially burned cigarette and a clear plastic bag containing half an ounce of marijuana.  When searching the rear seat, the officer detected a very heavy odor of unburned marijuana.  Locating nothing in the back seat, he opened the trunk and discovered 30 pounds of marijuana.  The Court’s point was that in both of these cases, there were facts beyond the mere odor coming from the passenger compartment that justified a broader vehicle search.

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Many defendants have either limited or no ability to speak English.  Thus, the court will supply interpreters in those cases where defendants require such services so that they can understand and participate in the proceedings.  Before COVID, live interpreter services were typically provided in court during any proceeding where they were required.  During the pandemic, many proceedings, including those where interpreters were used, were conducted virtually because in-person court appearances were suspended for health reasons.  Although live appearances have been largely reinstated, many hearings, including those requiring interpreters, are still conducted virtually.  Our Supreme Court recently considered whether a trial court may provide interpreter services in a virtual format during a live criminal jury trial.

In State v. Juracan-Juracan, the defendant spoke Kaqchikel, a language spoken by only 450,000 people worldwide.  The trial court provided him with an interpreter at his request.  However, the only available interpreter resided on the West Coast, and therefore appeared virtually.  Further, this interpreter did not speak English, but only Kaqchikel and Spanish; accordingly, a second interpreter was required to translate from Spanish to English.  This arrangement was apparently satisfactory for pre-trial proceedings.  The defendant moved for in-person interpreter services at trial.  The trial court denied this motion, asserting that it would be possible to manage this issue at trial using the same format employed to that point.  The Appellate Division denied the defendant’s motion for leave to appeal, but the Supreme Court agreed to hear the case.

In reversing, the Court recalled that there is a presumption in our courts that interpreter services will be provided in-person.  Such services were important because they helped guarantee many of a defendant’s basic rights, including a defendant’s right to be present at trial, to fully understand what was happening during the proceedings including, without limitation, all witness testimony, and to communicate effectively with defense counsel.  Thus, the Court tied interpreter services to the defendant’s constitutional guarantees of confrontation and effective assistance of counsel.

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Many people who are subject to Megan’s Law and Community Supervision for Life (CSL) or Parole Supervision for Life (PSL) regularly contact our firm to ask about relief from the requirements and obligations of these overly burdensome laws.  We file motions in all 21 New Jersey counties for clients seeking to have their registration and supervision obligations terminated, and our success record speaks for itself.

As we have discussed in other blog posts, the requirements for relief from these obligations are, generally speaking, fairly straight forward.  As to Megan’s, the registrant cannot have a conviction for more than one sex offense, and cannot have a conviction for aggravated sexual assault or sexual assault involving certain types of forceful activity.  As to both Megan’s and CSL/PSL, the parolee must be able to show that they have had no encounters with the criminal justice system for 15 years from the later of: (a) the date they were sentenced in their original sex offense case, or (b) the date they were released from any prison sentence imposed as a result of that case.  They must also show that they are not a danger to the community.

The 15-year requirement is the most frequent stumbling block to relief.  Unfortunately, many people who contact us concerning termination have had some sort of encounter with the criminal justice system while they were subject to Megan’s and PSL/CSL.  This can be, but is not necessarily, a bar to termination of registration and supervision obligations.  As to this issue, there is a crucial distinction between Megan’s Law and CSL/PSL which people need to understand. Continue reading ›

Our firm regularly represents clients seeking to be relieved of their Megan’s Law registration and Community Supervision for Life (CSL) or Parole Supervision for Life (PSL) obligations.  We therefore track the latest developments in this area of law, and report regularly on them to individuals who want to terminate these onerous and burdensome obligations.

The statutory requirements for relief are fairly straight forward.  Generally speaking, as to both registration and supervision, the client must have gone 15 years from the date of their sentence or date of their release from State custody without any encounters with the criminal justice system.  The 15-year period runs from the later of these two dates.  The client must also be able to show that they are not a danger to the community, which is typically done with the submission of a psychological evaluation as part of the moving papers.  There are also some additional requirements to be relieved of the Megan’s Law registration obligation.  In cases that arose after January, 2002, the client must have no more than one conviction for a sex offense, and cannot have been convicted of certain offenses including aggravated sexual assault.

We recently wrote an article concerning the possible impact that parole violations may have on a client’s application for termination of these requirements.  Parole violations (e.g., violations of the terms and conditions of supervision) can be disposed of in two ways.  They can be the basis for a new criminal charge in the Superior Court, or they can be handled administratively by the parole board.  If they result in a new criminal charge in the Superior Court, they will bar termination of the registration and supervision requirements because of the resulting criminal charge and conviction.  Parole violations disposed of on the administrative level do not qualify as new convictions, and therefore should not bar termination.  Clients should, however, bear in mind that a prosecutor may attempt to argue that parole violations should bar termination because they show that the client is a danger to the community.

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As stated in previous blog posts, our firm tracks new court decisions regarding statements to law enforcement and Miranda warnings.  Generally speaking, the only response to questioning by law enforcement officers during an interrogation should be “I want a lawyer”, which should bring all questioning to an immediate end.  Experience shows, however, that many people think they can simply talk their way out of a difficult situation during an interview, regardless of the fact that they are confronted with officers who are trained to elicit damaging admissions from the person being questioned.

Andreas Erazo, who is currently serving a life sentence following a guilty plea to the rape and murder of a 13-year-old victim, moved in the trial court to suppress his two statements to law enforcement.  These statements consisted of: (a) a non-custodial interview which lasted for about 90 minutes prior to which he did not receive Miranda warnings, followed by (b) a custodial interrogation that followed five hours later where he was Mirandized.  The trial court admitted the statements but the Appellate Division reversed.  The Supreme Court, in turn, reversed the Appellate Division, agreeing with the trial court that the statements were admissible since proper procedures had been followed.

The victim disappeared one night in July, 2017, and was reported missing by her mother.  The victim’s brother had previously seen her near Erazo’s apartment.  Officers spoke with Erazo and looked around his apartment twice, but found nothing suspicious.  The victim’s body was later found on the roof of a shed behind the building under a window of Erazo’s apartment.  The police asked Erazo to come to the station to provide a statement.  The statement was then set up in makeshift quarters because of Hurricane Sandy.  Initially, Erazo sat unrestrained in the lobby, but was eventually escorted to an interview room that lacked recording equipment for his first interview.  The officers did not Mirandize Erazo since they believed they were taking a witness statement.  Over the next 90 minutes, Erazo told the officers when he had last seen the victim, and also described his activities during the course of the day.  The officers offered him food, water and a bathroom break.  He was also left unrestrained in the unlocked interview room.  His only request was to smoke a cigarette.  After leaving the interview room, the officers learned that a witness saw someone matching the victim’s description enter an apartment with someone matching Erazo’s description on the day the victim disappeared.  Erazo was now viewed as a suspect, and the officers moved him to another interview room that had recording equipment for further questioning.  He was given food, water and additional cigarette breaks, and the officers did not restrain or discuss the investigation with him.

While Erazo waited unrestrained in the second interview room, which was not locked, the officers gathered information from other detectives.  As noted, the officers did not begin to interrogate Erazo until approximately five hours after the end of the first interview.  This time, however, the officers administered Miranda warnings and reviewed the Miranda form with Erazo, who initialed and signed the form.  The officers noted several inconsistencies between the first unrecorded statement and the subsequent recorded interrogation.  Erazo, who was again offered amenities such as a cigarette break, ultimately confessed and did not request a lawyer until after the officers asked for a DNA sample.  All questioning then stopped, and Erazo was arrested and later indicted on seven counts. Continue reading ›

Criminal attorneys who practice in both federal and state court regularly experience the differences between the two systems.  In the federal system, hearings are scheduled by specific date and time.  In other words, the attorneys receive dates and times from the court staff telling them when they are to appear for their hearing.  Typically, nobody else is present in the courtroom.  The hearing is held, the judge either issues a decision or further instructions, and everyone moves on from there.

The state system is very different.  Criminal judges have lists of matters that are scheduled for a given date, most often a Monday or a Friday.  Most of these matters consist of arraignments, sentencing hearings, and relatively simple status conferences.  Any given judge could have several dozen matters scheduled for the same time slot on one of those days, usually 9:00 am.  The courtrooms and hallways are crowded with attorneys and defendants waiting to be heard, while the judge makes their way through the list.  Many judges complete their list by the 12:30 lunch break.  Matters unheard in the morning are held over until the afternoon, or given a new date.  This means that attorneys, many of whom have to tend to other matters in other counties, are therefore detained in that court until they are heard or rescheduled, leaving other clients in other courts to simply sit and wait, and preventing the judges in the other counties from properly managing their list.

Numerous changes were implemented in the state system at the start of the pandemic with an eye toward meeting COVID safety requirements.  Probably the most revolutionary change was the implementation of Zoom for court hearings.  Zoom changed many things.  It enabled state court staff to break up a long and congested calendar into specific time slots, each of which contained a relatively small number of matters.  Defense attorneys and prosecutors had a better idea of when their appearance in court was actually necessary.  Attorneys could sit in their offices and transact other business while waiting for their matter to be called, rather then wasting time sitting in the back of a courtroom, or driving between counties.  Further, defense attorneys no longer had to devote large blocks of time to travel significant distances to cover a hearing that typically lasted between five and ten minutes.

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Justice Clarence Thomas is in the news again.  I don’t know if there has ever been a United States Supreme Court justice that has had so much media focus.  And, as is usually the case with Justice Thomas, it’s negative.

Harlan Crow is a Texas real estate billionaire.  He likes to travel to exotic destinations such as Indonesia and Bohemian Grove, an exclusive retreat in Northern California.  He also owns a 105-acre lakeside retreat in the Adirondack mountains.  Mr. Crow is also very active in conservative politics, making donations to all kinds of conservative causes, including conservative republican politicians and the Federalist Society.

Mr. Crow apparently does not like to travel to these places alone, so he takes Justice Thomas and his wife, Ginny, with him.  Indeed, this has been going on for years.  In addition to the trips (which the overwhelming majority of Americans could never afford), Mr. Crow likes to purchase gifts for Justice Thomas.  Some of these include a Bible previously owned by Frederick Douglas (estimated value – $19,000.00), and a bust of Abraham Lincoln (estimated value – $15,000.00).  He also donated $175,000.00 to name a wing after Justice Thomas in the library of the latter’s childhood home.  He also purchased real estate owned by Justice Thomas in Savannah, Georgia.  The Justice and his family received $133,000.00 for the property.  Mr. Crow has indicted that he wants to one day construct a museum on the site to tell the Justice’s story.

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Recent media have contained numerous stories about Tyre Nichols, who was savagely beaten to death by Memphis police officers.  Over the last several years, police misconduct has received considerable media attention, as it should.  However, while police misconduct obviously continues to be a significant criminal justice problem, recent events in a New York State courtroom highlight another problem that negatively affects the integrity of our criminal justice system.

Joseph Franco, a former New York City narcotics detective, was charged in 2019 with perjury and other crimes stemming from his 20-year involvement with collecting evidence of drug cases in Brooklyn, Manhattan and the Bronx.  Between 500 and 600 convictions in these boroughs, all of which stemmed from his work, were overturned.  Mr. Franco’s case recently proceeded to trial, which a New York State Judge short-circuited by dismissing the charges with prejudice because of prosecutorial misconduct.

The prosecutors, who worked in the Police Accountability Unit in the Manhattan District Attorney’s Office, wrongfully withheld evidence from the defense.  This evidence included surveillance videos, communications between prosecutors, investigative memos, and the contents of confiscated cellphones.  There were also several hundred audio files of interviews of a prosecution witness, which were recorded while she was held at Rikers Island.  The existence of this evidence apparently came to light after Mr. Franco’s trial had begun.  The Judge found that prosecutors had failed to turn over evidence to Mr. Franco’s attorneys on three separate occasions, and held that this was a major ethics violation warranting dismissal.  Since the dismissal was with prejudice, the Manhattan DA will not be able to prosecute Mr. Franco again on the underlying charges. Continue reading ›