Trial Practice and Procedure

Consular Rights of Non-Citizen Criminal Defendants

November 9, 2017 | By James S. Friedman, LLC

Given the current political climate, protecting the rights of non-citizen criminal defendants is certainly not a popular activity. However, and as many judges and elected representatives have repeatedly stated, our judicial system (federal and state) is supposed to be a model of fairness for other countries, particularly those where there are no meaningful due process rights or protections. Our tradition provides that any criminal defendant – even one who is in the United States illegally – is still entitled to due process.

To help ensure this, there is a procedure which really should be utilized in most, if not all, criminal cases where the defendant is not a US citizen. International treaties provide that a non-citizen criminal defendant must be allowed to speak to a representative of his country’s consulate to seek whatever assistance the consulate can offer. This was a major issue in the case of Ruben Cardenas, who was executed last night in Texas.

Cardenas was arrested over 20 years ago for the murder of his teenage cousin. Following hours of questioning by law enforcement, he admitted to sneaking into his cousin’s through a window. He also confessed to kidnapping, raping and killing her, and leaving her body near a canal. He was not given an attorney until 11 days after his arrest, and his defense counsel claimed that his confession was coerced and other evidence in the case was problematic for different reasons. Representatives of the Mexican government and the United Nations all tried to stop the execution, providing this case with international visibility. The execution was carried out despite numerous appeals that raised the deprivation of consular rights, as well as other issues.

Turner, et al, v. United States – A Primer on Brady Basics

September 13, 2017 | By James S. Friedman, LLC

It has been said that the defense attorney is frequently the most ignorant person in the room. The reason for this unflattering description is that s/he knows the least about what actually happened at the crime scene. The prosecutor has an army of investigators tasked with developing as much information as possible concerning the alleged underlying offenses. The defendant knows what happened because s/he was presumably present when the relevant events transpired. Defense counsel is the last person to arrive on the scene and, more often than not, lacks the resources to conduct an investigation rivaling that of the prosecuting authority. Thus, the defense attorney’s best (and frequently only) reliable source of information is the discovery received from the State or the Government. Generally speaking, the prosecutor must turn over anything that may be exculpatory or used to obtain a conviction. The failure to do so may violate the principles set forth in Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Brady held, among other things, that the Due Process clause is violated if the Government withholds evidence that is favorable to the defense and material to a defendant’s guilt or punishment. In Turner, the United States Supreme Court rejected a Brady claim because both prongs of this test were not satisfied.

The seven defendants in this case, including Christopher Turner (“Turner”), were indicted, tried and convicted for the kidnapping, robbery and murder of Catherine Fuller (“Fuller”). The centerpiece of the Government’s case was that Fuller was attacked by a large group of individuals. Their direct appeals were rejected. In post-conviction proceedings, the petitioners alleged that the Government withheld seven pieces of evidence that were both favorable to them and material to their guilt insofar as the missing items could have been used to undermine the Government’s “group” theory and suggest an alternative theory, which was that Fuller was attacked by, at most, one or two individuals.

Significantly, the Government did not contest the claim that the withheld items were favorable to the defense, but did challenge the conclusion that these items were material. As to this point, the Court found that evidence is “material” when it is reasonably probable that its disclosure would have changed the result of the proceeding. Reasonable probability of a different result occurs where the fact that the evidence was missing undermines the confidence in the trial’s outcome. To reach these conclusions, the missing evidence must be evaluated in the context of the entire record. Continue reading ›

State v. Tier – New Jersey Supreme Court Clarifies Defendant’s Discovery Obligation Concerning the Production of a Defense Witness’s Oral Statements

May 2, 2017 | By James S. Friedman, LLC

New Jersey has among the most liberal criminal discovery rules in the country. The State is obligated to provide defense counsel with a substantial body of material early in the case. This is unlike many – if not most – other jurisdictions. For example, in the federal system, significant amounts of discovery typically appear shortly before trial, leaving defense counsel with little time to review, analyze and investigate its content. In New York County, the only discovery defense counsel may receive early in the case is a “People’s Voluntary Disclosure Statement”, which is a set of form questions that have been drafted and answered by the District Attorney’s Office. (Basically useless.) Not so in New Jersey – Here, defense counsel receives significant discovery up front, often without making a formal request.

What are defense counsel’s discovery obligations to the State? They are obviously different because defense counsel has to be concerned with their client’s right to remain silent, protection of work product, and the fact that the State – not the defense – has the burden of proof. In State v. Tier, decided May 2, 2017, the New Jersey Supreme Court clarified defense counsel’s post-indictment reciprocal discovery obligations concerning the oral statements of defense witnesses. As the Court noted, this was an issue of first impression in New Jersey.

The facts are not complex. Neighbors contacted the police because they believed that CL was having a physical altercation with her boyfriend, Tier. The officers approached the house and heard a woman scream “Help, he’s trying to kill me.” They kicked in the door and saw Tier on top of CL, strangling her. A grand jury indicted Tier for kidnapping and attempted murder. Continue reading ›

Major US Supreme Court Ruling Concerning Secrecy of Jury Deliberations

April 30, 2017 | By James S. Friedman, LLC

A right to a jury trial for major criminal offenses and the jury as an institution are at the center of the Anglo-American criminal justice system. Most of a jury’s tasks are performed secretly. This is done intentionally so as to protect the integrity of the deliberative process and encourage open and frank discussions between and among jurors. When the verdict comes in, the only people who really know the full extent of what happened in the jury room are the jurors, themselves. This is intentional – particularly in New Jersey where the state courts go to great lengths to protect the secrecy of jury deliberations.

In Pena-Rodriguez v. Colorado, the United States Supreme Court recently held that the secrecy of jury deliberations may be breached in order to investigate racially biased statements that a juror made about a defendant. The defendant was convicted of groping two teenage girls in a bathroom at a Colorado racetrack where he was employed. He denied the charges claiming mistaken identity, and called alibi witnesses at trial. His jury acquitted him of a felony, but convicted him of misdemeanors. The trial court sentenced him to a term of probation, and ordered him to register as a sex offender.

After trial, two jurors told defense counsel that another juror made comments about Mexicans during deliberations. He informed his fellow jurors that he was a former law enforcement officer who had seen many cases like this one. He referred to the defendant as an “illegal” (untrue – the defendant was a legal resident), and also stated that “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Continue reading ›

State v. Legette – Important Clarification of the Ability of Police to Seize Evidence During an Investigatory Stop

February 5, 2017 | By James S. Friedman, LLC

While investigating a noise complaint at an apartment complex, an officer observed James Legette standing on a common porch. The officer approached and Legette partially opened a door leading into his area. The officer then smelled burnt marijuana, entered the porch area, and identified himself as an officer. As Legette began to walk away, the officer requested identification. Legette responded that he had to retrieve his identification from the apartment, and the officer replied that he would have to accompany him. Legette entered the apartment and the officer followed. The officer noticed a bulge in Legette’s sweatshirt.

After entering the apartment, Legette presented his identification and the officer radioed a request to check for outstanding arrest warrants. Legette them removed his sweatshirt and asked a woman who was in the apartment to place it in the bedroom. The officer then seized the sweatshirt from the bedroom and took Legette, who appeared anxious, outside. Obviously, the officer did not have a search warrant.

The arrest warrant check was negative, and Legette did not consent to a search of the sweatshirt. The officer had a police dog sniff the sweatshirt. A “metallic” noise could be heard when the dog moved the sweatshirt. The officer then discovered a loaded handgun in the sweatshirt. Continue reading ›

New Jersey Adopts Federal Standard for Sentencing Juvenile Defendants Found Guilty of Crimes that Carry Life Sentences

January 22, 2017 | By James S. Friedman, LLC

I have never believed that most lawyers or judges take juvenile delinquency cases seriously. Many of them frequently refer to these matters as “kiddie crime”. Indeed, it is not unusual for a judge who has sat in an adult criminal trial court to feel offended as a result of being transferred to a juvenile court.

Attorneys and judges who have such views of the juvenile justice system have, however, failed to see its importance. One of the system’s most significant functions is to prevent juvenile offenders from becoming adult offenders. It is generally believed that a juvenile who is charged with acts of delinquency is more susceptible to rehabilitation because they are young, and the probability of successful rehabilitation decreases as the juvenile moves toward, and eventually attains, adulthood. Thus, successfully retraining and rehabilitating juvenile offenders while they are still relatively young reduces the likelihood that they will incur criminal charges as an adult. The theory is simple – offending behavior that is corrected at an early stage in life will remain corrected.

Nevertheless, there are juveniles who commit the most serious crimes regardless of their age and relative inexperience. These crimes include murder, armed robbery and sex offenses. Juvenile offenders who engage is such conduct are typically “waived up” to the adult court, where they are subjected to the adult criminal process like any other adult criminal defendant. Must we somehow balance the fact that they were juveniles when they committed their crimes against the severity of their offenses? Continue reading ›

State v. Hannah – Admitting Social Media Postings into Evidence at Trial

January 16, 2017 | By James S. Friedman, LLC

Arnett Blake, his girlfriend Cindy Edwards, and his former girlfriend Terri Hannah, all attended a party in Vineland, New Jersey. At some point, Edwards encountered Hannah in the bathroom. While there, Hannah allegedly made rude remarks about Edwards. Hannah then left the bathroom and told Blake that she should “F___ [his] girlfriend up”. Later, when Edwards and Blake tried to leave the party, Hannah approached Blake with a closed fist. Blake pushed her away, and security detained him. Edwards was then going to say something, but saw Hannah holding a high-heeled shoe. Hannah hit Edwards in the face with the shoe. Blake saw Hannah hit Edwards. When Hannah was escorted out, Edwards saw she was not wearing shoes. Hannah and Edwards later exchanged communications on Twitter which included a Tweet from Hannah saying, among other things, “shoe to ya face bitch.”

Hannah was charged with simple assault and proceeded to trial in municipal court. There, she testified that she approached Blake at the party because she heard rumors that she planned to hurt Edwards, and she wanted to be sure that Blake understood that this was untrue. She also testified that she was escorted from the party when she started yelling, that she did not see Edwards that night, and that she never hit anyone with a shoe. This testimony was somewhat supported by that of a security guard who removed Hannah from the party and instructed her to not return, but also did not see her hit anyone with a shoe.

The municipal judge found Hannah guilty and, after a trial de novo, a Superior Court judge did the same. Hannah then appealed her conviction to the Appellate Division. Continue reading ›

State v. Gorthy – A Criminal Defendant Cannot Be Compelled To Assert An Insanity Defense After Refusing To Do So

December 26, 2016 | By James S. Friedman, LLC

June Gorthy met a mental health therapist at a conference in 1998, and then tried to commence a relationship with him. The therapist rejected her many overtures, which were expressed repeatedly in numerous gifts, letters and telephone messages. Gorthy then left her home in Colorado, drove to New Jersey, repeatedly contacted the therapist, and was ultimately arrested while sitting on the floor outside his office. She was carrying a knife. Guns, ammunition, another knife and an axe were discovered in her truck during a consent search. Not long after her release from jail, she again began contacting the therapist, and was arrested and charged with stalking and weapons offenses. She was then admitted to pre-trial intervention. The conditions of her supervision required her to cease contacting the therapist. She complied initially, but then called him 74 times during a three-week period. She was then charged in a superseding indictment with stalking and weapons offenses.

Prior to trial, Gorthy filed a motion questioning her competency, and the trial court found her competent. Before trial, her attorney served notice of the possible assertion of an insanity defense. This notice was supported by a psychiatrist’s report which concluded that Gorthy was delusional at all times relevant to the commission of the underlying offenses. The psychiatrist also noted that any decision by Gorthy to not assert an insanity defense would be knowing, but not voluntary or intelligent.

Over her attorney’s objection, Gorthy ultimately refused to assert an insanity defense. At a hearing, the trial judge explained to Gorthy what would occur if she was acquitted by reason of insanity versus what could occur if she did not assert the defense. She remained steadfast in her refusal to assert the defense. The trial court found that her delusional state rendered her incapable of refusing to assert the defense in a knowing, intelligent and voluntary way, and then asserted the defense on Gorthy’s behalf as to the stalking charge. As to that count, Gorthy was found not guilty by reason of insanity. The jury convicted Gorthy on the weapons counts. The trial court sentenced Gorthy to probation on the weapons counts, and civilly committed her on the stalking count. Continue reading ›

New Expungement Procedure for Certain Non-Indictable Offenses

December 13, 2016 | By James S. Friedman, LLC

There is increasing concern over the efficiency of our State’s court system. Everyone seems to want the system to work more efficiently. The most obvious examples of this desire is the soon-to-be-implemented criminal justice reform package (bail reform and speedy trial), which was the subject of prior blog posts. But other procedures are being implemented that will hopefully make the Courts run more smoothly, including the new expedited expungement procedure for certain non-indictable offenses. Municipal court defendants with eligible offenses should take immediate advantage of this procedure.

An expungement allows someone convicted of an offense to, in effect, hide the fact of that conviction from certain individuals and entities. The primary benefit seems to be in the area of background checks by prospective employers. The expungement procedure for an indictable (felony) conviction appears in the New Jersey criminal code. Anyone who is in the running for an expungement should take advantage of this procedure as soon as they are able to satisfy all of the statutory criteria. (Not every offense is eligible for expungement. Further, a certain amount of time must have passed since the completion of the sentence before the application can be filed with the court.)

The expungement process requires a fair amount of work, and can take many months to complete successfully. As of April 18, 2016, the criminal code was amended to allow for the expedited expungement, without the assessment of a fee, of all information concerning or relating to an arrest or charge for a disorderly persons offense, petty disorderly persons offense, or ordinance violation, where the charge has been disposed of with a dismissal, acquittal at trial, or discharged without a finding of guilt by the defendant. Continue reading ›

Criminal Justice Reform in New Jersey – Speedy Trial in Effect as of January 1, 2017

December 9, 2016 | By James S. Friedman, LLC

Ever wonder why criminal cases languish in the system prior to resolution? Frequently, good reasons frequently exist for a case to drag on over a period of months, or even years. Further, the passage of time can actually help the defendant by effectively weakening the State’s case through the loss or disappearance of physical evidence or witnesses, or the discovery of exculpatory evidence. But the same cannot be said of every criminal matter. Some cases can be resolved quickly, thereby freeing limited resources that can then be focused on more complex matters.

In any event, and starting January 1, 2017, the criminal justice reforms that have been enacted in New Jersey will emphasize moving criminal cases through the system more promptly and efficiently. In a prior blog post, we commented upon one of the major elements of the new reforms, which is bail reform. The other major element is speedy trial.

Speedy trial is pretty much what it sounds like. Cases will be on a more defined schedule which is designed to bring them to trial or other resolution within a set time frame. This is not a new concept. The federal system, New York State, and many other jurisdictions have had some form of speedy trial for years. But this is new for New Jersey, and it merits discussion because of the significant impact it will undoubtedly have on our criminal courts. Continue reading ›