Practice of Law

At some point in the development of the American criminal justice system, somebody decided that it was a good idea to provide defendants with library resource materials so they could either defend themselves or assist their trained criminal defense attorneys in defending them. Without putting too fine a point on it, it is my personal opinion that this has turned out to be one of the stupidest things any attorney or judge ever thought of, for the following reasons.

No Legal Training – Let’s start with the most obvious points. Most criminal defendants have no formal legal training. Understanding the contents of a statute, case, or legal treatise is simply beyond their ability. Most defendants who spend their days in the prison library refuse to acknowledge that it is virtually impossible to read and understand legal materials without formal legal training. My experience with clients who perform their own research and write their own briefs has revealed repeatedly that a defendant will, for example, latch onto an isolated phrase in a particular source because the few words at issue seem to advance their cause; however, they almost invariably take the isolated quote out of its larger context. When read as part of the larger case or statute, it becomes clear that the phrase lacks the meaning contemplated by the defendant, and therefore does little – if anything – to improve their position.

No Knowledge of Court Rules – But the problems go far beyond this. Defendants also do not understand that in addition to statutes and cases, there are procedural rules that affect virtually every aspect of a criminal case. They refuse to see that legal arguments may stem from a given source, but must then be brought before the court in a manner consistent with all applicable procedural rules. This means that arguments cannot typically be raised when and how the defendant wants to raise them. The procedural rules act as an overlay to substantive sources, and govern the manner in which the latter can be used. This point is simply lost on jailhouse lawyers. Continue reading ›

Major changes to the processing of criminal cases in New Jersey will take effect on January 1, 2017. On the surface, these changes address two areas of criminal practice: (a) pretrial release and bail; and (b) speedy trial. However, it is anticipated that these changes will ultimately affect virtually every aspect of a New Jersey criminal case. This post is the first of a series addressing criminal justice reform in New Jersey.

Pretrial Release and Bail – Criminal cases in New Jersey are commenced with the issuance of a Complaint-Summons or Complaint-Warrant. As under the current system, defendants receiving Complaint-Summonses will simply get a court date, and then be released. However, the new procedures significantly affect defendants who receive Complaint-Warrants. Under the existing procedure, these defendants are given a dollar amount that they must post for bail. They are released if they can post that bail, and remain in custody if they cannot. The primary issue that the changes to the current system seek to address concerns defendants who receive low bails (often as low as $500.00), but are forced to remain in jail – sometimes for months, if not longer – because they cannot afford it. The changes focus upon two problems that result from jailing this group of defendants. First, these defendants, whose economic circumstances are often fragile at best, frequently lose their jobs and their homes as a result of prolonged incarceration. Further, jailing people costs money, and the State, the counties and the municipalities, cannot afford it. Thus, the changes are designed arrange for the prompt release of non-violent defendants who are not flight risks so that they do not face the consequences of needless incarceration stemming from their inability to pay even a modest bail, and to conserve public funds that could be better spent elsewhere.

The new procedures result in a shift from a system of pretrial release and bail that is based upon a defendant’s economic resources to a system that focuses more on an assessment of the likelihood that a defendant will appear for court when instructed to do so, as well as the danger they present to the community if they are released while their case is pending. These procedures represent a substantial departure from current bail practice in New Jersey. The precise mechanics of the new bail system will be the subject of a future blog post.

Articles Posted in Practice of Law

Jailhouse Lawyering is at Epidemic Proportions – and Defendants are Getting Hurt (and Doing it to Themselves)

Criminal Justice Reform in New Jersey – Major Changes Effective January 1, 2017