New Jersey Criminal Defense Attorney Blog

Grady v. North Carolina – Satellite-Based Monitoring of Sex Offenders Can Violate Fourth Amendment Rights

May 11, 2015 | By James S. Friedman, LLC

The United States Supreme Court decided Grady v. North Carolina on March 30, 2015. After completing his prison term for sex offenses, the State determined that Grady was a recidivist sex offender, and wanted to place him on satellite-based monitoring. Grady argued that the monitoring program, which required him to wear a monitoring device at all times, violated his Fourth Amendment right to be free from unreasonable searches and seizures. Grady’s argument was based on U.S. v. Jones, where the Supreme Court held that installing a GPS tracking device on a suspect’s car was a “search” within the meaning of the Fourth Amendment. The State courts rejected Grady’s argument, finding that the monitoring program at issues was not a Fourth Amendment search. This conclusion was based, apparently in large part, upon the view that the proceeding giving rise to the monitoring was civil in nature, whereas Jones was a criminal case, which entailed different (higher) legal standards.

The Supreme Court rejected the reasoning of the State courts. First, the monitoring program was a “search” because it enabled the State to “physically intrude on a constitutionally protected area … [A] State conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” The fact that the monitoring program was civil in nature was rendered meaningless by settled law establishing “that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations [] and the government’s purpose in collecting information does not control whether the method of collection constitutes a search.”

Ultimately, however, the Court observed that the Fourth Amendment protects only against unreasonable searches and seizures. Thus, it remanded the matter to the North Carolina courts to determine whether the monitoring program was reasonable when viewed as a search. Continue reading ›

Rodriguez v. United States – Great Search and Seizure Ruling

May 4, 2015 | By James S. Friedman, LLC

The United States Supreme Court decided Rodriguez v. United States on April 21, 2015. The decision enhances Fourth Amendment protections in cases involving motor vehicle stops.

Briefly, Rodriguez, the driver, and his passenger were stopped by a Valley, Nebraska police officer for veering onto the shoulder of a State highway and then jerking back onto the road. The officer was a K-9 officer who had his police dog with him. He conducted a records check on the vehicle’s occupants, questioned Rodriguez and his passenger, checked all of the necessary documents, wrote a warning ticket, and returned the documents to the occupants with the warning ticket. Thus, the main purpose of the initial stop – the investigation of a traffic infraction – was completed.

Nevertheless, the officer did not consider Rodriguez and his passenger free to leave. He requested permission to walk his dog around the vehicle, and Rodriguez declined. The officer then instructed Rodriguez to turn off and exit the vehicle, and stand in front of his patrol car to await the arrival of a second officer. Rodriguez complied, the second officer arrived, the dog was escorted around the vehicle and alerted to the presence of drugs (methamphetamine). Significantly, approximately seven to eight minutes had passed between the issuance of the warning ticket and the alert by the dog. Continue reading ›

Don’t Assume A DWI Must End With A Guilty Plea

April 24, 2015 | By James S. Friedman, LLC

Any New Jersey Criminal Defense Attorney who practices regularly in our State’s Municipal Courts handles clients accused of DWI (Driving While Intoxicated/Driving Under The Influence). While DWI clients charged with a second or third offense frequently decide to proceed to trial because of the stakes involved, the first offense cases – which account for the majority of DWI matters – frequently end with guilty pleas, and the attorney’s function is simply to make sure that only the mandatory minimums penalties are imposed.

I recently had a first-offense DWI that was far from the norm. First, the case did not involve alcohol. My client was taking prescribed medication, had a bad reaction to it while driving, and was pulled over, tested and charged. The breathalyzer reading was zero. Her charge was based on officer observations and her failure to pass the field sobriety tests. Because the case involved drugs as opposed to alcohol, the State relied heavily on a “Drug Recognition Expert”. Simply put, this is an officer who has been trained to determine whether someone is drug-impaired based on their observations of the subject’s behavior and mannerisms. The Drug Recognition Expert prepared an expert report that was included in the discovery. The case involved State troopers, as opposed to local police officers. (For those of you who are wondering, my client’s doctor specifically told her that the medication would have no effect on her ability to drive.)

The discovery read the way DWI discovery typically reads, and included all of the sentences and phrases that attorneys doing this work can eventually recite verbatim. But this turned out to be the root of the State’s problem in this case. For purposes of this article, my client’s name was Mr. Jones. The narrative prepared by the arresting Trooper in my client’s case referred to Mr. Smith, as well as my client. The Drug Recognition Expert’s report referred to Mrs. White, as well as my client. It became clear after reviewing the discovery that the officers who worked on this case and prepared the paperwork simply did a “cut and paste” from reports prepared in other cases, but failed to proofread their work and change all of the names so that the documentation referred only to my client. Using these errors, I was able to negotiate a plea to a reduced charge which carried a must shorter suspension and sharply reduced fines and penalties. Continue reading ›

Rikers Ends Solitary Confinement for Juveniles (Finally)

February 22, 2015 | By James S. Friedman, LLC

New York’s Rikers Island is the second largest jail in the United States, housing between 11,000 and 12,500 inmates at a given time. It is also one of the most violent jails in the country.

For many years, experts have acknowledged that placement in solitary confinement can negatively impact an inmate’s mental health. Until recently, juvenile inmates at Rikers were routinely placed in solitary confinement even for minor offense including talking back, simple horseplay, possession of unauthorized amounts of clothing or art supplies, or ignoring a direct order. Some of these juveniles sat in solitary confinement – locked alone in a cell for 23 hours a day – for up to 90 days. Other juveniles sat in solitary confinement for up to one or even two years.

In August 2014, the United States Attorney’s Office in Manhattan issued a report that was highly critical of the New York City Correction Department’s treatment of teenage inmates at Rikers. It noted that the atmosphere at the jail was permeated with a “deep-seated culture of violence”, and that the use of solitary confinement for juveniles (also known as “punitive segregation”) was “excessive and inappropriate”. Forty percent of the teenage inmates were subjected to the use of force by guards at least once, and required medical assistance more than 450 times. Teenage inmates were also instructed regularly to not report their injuries to other guards or the jail’s infirmary. US Attorney Preet Bharara noted that “[t]here is a pattern and practice of conduct at Rikers that violates the constitutional rights of adolescent inmates … We are talking about a culture problem and a systemic problem – not an individualized issue …” Continue reading ›

Moneyballing Criminal Justice?

January 28, 2015 | By James S. Friedman, LLC

I recently learned about TED Talks. In short, these are presentations by people who have “ideas worth spreading”. If interested, you can learn more about TED Talks at TED.com.

Anne Milgram, the former New Jersey Attorney General, gave a TED Talk where she discusses what she calls “moneyballing criminal justice”. In brief, Ms. Milgram wants to focus more efforts upon collecting statistical data surrounding arrests, convictions, and other aspects of the criminal justice process, and use it to make better decisions concerning basic issues, including whether to release or incarcerate someone after they have been arrested for a particular offense. Ms. Milgram notes correctly that many judges rely upon instinct and experience when making this important decision, and that such decisions are therefore based upon subjective reasoning and are frequently incorrect. She wants to develop a universal risk assessment tool that State and Federal judges can use to guide their decision making as to the “release or incarcerate” decision, which is one of the first major issues addressed in any criminal matter. She likens her efforts to those used by baseball teams that selected good players using statistical analysis, as opposed to the purely subjective observations and instincts of scouts.

Many of Ms. Milgram’s observations are absolutely correct. First, the only surprise relating to the fact that we spend $75 Billion annually on criminal justice is that the number seems small. I always thought it was much larger. Prisons and jails in this country are an industry unto themselves. Next, our recidivism rate is obscenely high, leading to the obvious conclusion that a lot of this money is wasted. Indeed, it often seems that the only thing we accomplish by the end of the case is to temporarily disable a defendant from having another encounter with the system. We seem to focus more on “processing” defendants through the system, with no eye on long-term solutions to the problems associated with criminal conduct. Additionally, Ms. Milgram notes correctly that there is astonishingly little helpful statistical data describing the operations of our system. Interestingly, she failed to note that there is a federal agency called the Bureau of Justice Statistics that collects statistical data concerning various criminal justice issues. However, the manner in which BJS identifies the subjects concerning which it will collect and analyze data has always been a mystery to me. Further, many of the reports available on the BJS website are dated to the point where they are probably no longer valid. Moreover, even if the material is helpful, I don’t know too many judges who make a habit of reading statistical reports from the BJS website. Continue reading ›

Representing Defendants with Substance Abuse Issues

December 30, 2014 | By James S. Friedman, LLC

A large part of my firm’s criminal practice focuses upon representing criminal defendants with substance abuse issues. These defendants are typically addicted to cocaine or heroin. Many of these clients are simultaneously addicted to numerous substances (typically referred to as poly-substances abusers). These clients present special challenges that must be met if they are to obtain the best possible result in their cases.

It may sound overly simplistic, but attorneys representing drug-addicted defendants need to remember that their status as addicts goes hand-in-glove with their criminal charge(s), and their addiction issues will affect every aspect of the case. For example, most addicts have great difficulty taking personal responsibility for their actions. As far as they are concerned, few, if any, of the circumstances that led to their current criminal charges can be attributed to their conduct; rather, it is almost certainly the fault of someone or something else. Further, addicts have a propensity to not tell the truth. The defense attorney must be very careful in accepting as true anything that their client tells them about the facts and circumstances that led to the current criminal charges. Additionally, these clients can also be very irresponsible. They frequently miss court dates, as well as appointments with treatment providers or probation officers. Such conduct can result in the denial of admission to a diversionary program, or a violation of probation. Finally, most criminal judges – particularly those who sit in courts that see a significant number of drug addicted defendants will – almost as a knee-jerk reaction – refuse to view these defendants as credible in any way. Getting a judge to believe your client about almost anything can be difficult without something to corroborate it. However, the client can sometimes benefit from their attorney’s credibility with the court.

Many States, including New Jersey, have drug court programs. These are diversionary programs which focus upon providing treatment in lieu of penal sanctions. They are staffed by people who have special training and experience in working with addicts. Generally speaking, a defendant has to have a serious addiction issue and a relatively minimal criminal background to be accepted into the program. (An offender with a record of violent offenses or sex offenses will have hard time finding an in-patient program that will accept them.) The drug court program is, however, difficult to complete. Clients have to be committed, focused, and willing to work hard in order to graduate successfully from drug court. I have encountered drug addicted clients who would rather accept a county jail or State prison sentence rather than have their case diverted to drug court because they believe the former is easy while the latter is, relatively speaking, too difficult. Continue reading ›

Vehicle Stops Just Got Easier to Uphold – Another Fourth Amendment Setback

December 17, 2014 | By James S. Friedman, LLC

The United States Supreme Court has ruled 8-1 that a police officer can stop a vehicle based upon a mistaken understanding of the law without violating the federal Constitution. Heien v. North Carolina, No. 13-604.

An officer in North Carolina stopped a vehicle because of a broken brake light. State law requires vehicles to have only a single functioning stop lamp, which the car in question had. The stop was therefore based upon the officer’s mistaken understanding of the law. The officer began to issue a warning ticket for the broken brake light, but became suspicious of the movements of the vehicle’s occupants. The owner consented to search of the car, the officer discovered cocaine, and the owner was charged with trafficking.

At oral argument, Appellant’s lawyer argued that “[t]he government should be presumed to know the laws.” He argued further that “[i]t would undercut public confidence in law enforcement and the common law rule upon which the criminal law is built to say the government doesn’t have to be presumed to know the law when it acted.” Continue reading ›

Off-Label Use of Psychotropic Meds to Sedate Prison Inmates

December 14, 2014 | By James S. Friedman, LLC

National Public Radio recently ran stories concerning the off-label use of psychotropic medications to sedate nursing home residents to make them more pliable and easier for staff to control. Unfortunately, this abuse does not occur only in nursing homes. It happens in jails and prisons in the United States and other countries.

Several stories have recently appeared concerning the use of these mind-altering medications to control inmates in Canadian prisons. This has, however, been a concern in US jails and prisons, as well. I have spoke with mental health professionals who service prison populations, and they confirm that it happens here with increasing frequency.

One of the most routinely used drugs is known is quetiapine, more commonly known by the brand name Seroquel. This medication is approved only for treating bi-polar disorder and schizophrenia; however, it is apparently given as a sedative to jail and prison inmates who do not have such disorders just to make them easier to control. Continue reading ›

Texas Execution of Schizophrenic Inmate Highlights Place of Mentally Ill in Criminal Justice System

December 3, 2014 | By James S. Friedman, LLC

Scott Panetti may be dead by the time you read this. As of this moment, Texas is scheduled to execute him tonight, and his lawyers are probably doing handstands trying to get the US Supreme Court to review his case.

In 1992, Panetti, who has (had?) a long history of schizophrenia and other mental health issues, dressed himself up in camo and shot his in-laws in front of his wife and daughter. He then changed into a suit and surrendered to the police.

The Texas criminal justice system, once again distinguishing itself as a model of fairness and decency, ruled that Panetti was competent not only to stand trial, but also to represent himself. Panetti appeared at trial dressed as a cowboy. He attempted to subpoena approximately 200 witnesses including, without limitation, John F. Kennedy, Jesus, and the Pope. During jury selection, he asked prospective jurors if they had any Indian blood. He referred to demons in his opening statement. His argument to the jury was apparently premised on the “fact” that he became a character called “Sergeant Iron Horse” at the time of the homicides. His defense was that he did not kill his in-laws – “Sarge” did. Continue reading ›

After 20 Years, New Jersey’s Megan’s Law Has Accomplished Little

November 3, 2014 | By James S. Friedman, LLC

It has been 20 years since New Jersey enacted Megan’s Law, which require convicted sex offenders to register with local authorities in the community where they live. Whether and to what extent the law has accomplished anything remains a hotly debated subject.

Briefly, the law requires, among other things, that convicted sex offenders undergo an assessment that is supposedly geared towards determining their risk of re-offending. Offenders in the lowest tier (one) are placed under what is considered to be the most lenient level of supervision. Offenders in tiers two and three are supervised more strictly, and appear on the New Jersey State Police Internet Sex Offender Registry. The other States and the Federal system have enacted similar laws.

A State-wide army of parole officers are charged with supervising convicted sex offenders throughout New Jersey. Once an offender is placed under parole supervision, the parole officer responsible for their case has tremendous latitude over where they can live and work and what kind of job they can have. An offender’s parole officer can also restrict their ability to socialize with minors, even if the latter are members of the offender’s own family. It is extremely difficult to challenge the actions of a parole officer. Typically, the offender must receive a determination from the parole board that denies their request to adjust the terms or conditions of their supervision. That determination must then be appealed to the Appellate Division of the New Jersey Superior Court. The overall process of challenging restrictions can easily take a year or more. Continue reading ›