New Jersey Criminal Defense Attorney Blog

Amend New Jersey Constitution to Help Guarantee an Independent Judiciary

April 20, 2014 | By James S. Friedman, LLC

New Jersey judges are currently appointed for initial seven-year terms. At the end of this period, a judge’s appointment is reviewed by the Governor and the State Senate with an eye toward determining whether they should be reappointed with tenure, which would guarantee the security of their position until they reach the mandatory retirement age of 70. The current administration has used this framework to construct a judiciary that reflects its own policies. Judges who issue decisions during their initial seven-year term that are not in tandem with the administration’s views and choices stand a good chance of being denied tenure, which results in their removal from the bench. Many New Jersey judges and lawyers have voiced concerns over the facts that such actions rob judges of the independence that is requisite to a court system that functions properly and fairly, and helps deliver justice to the State’s citizens.

One example that has remained with me for some time illustrates the point. A number of years ago, much closer in time to when the current regime came to power, a non-tenured criminal judge rendered a decision in a case that was favorable to the defendant, who was a sex offender. The judge was not simply trying to be “nice” to the defendant; rather, he did exactly what the relevant statute required in that case and under those circumstances. Put somewhat differently, he simply did his job. Nevertheless, he was subsequently denied tenure, apparently because of this decision.

But it does not end in the State’s trial courts. Two New Jersey Supreme Court justices, one Democrat and one Republican, have been denied tenure. It’s pretty clear that this occurred because the current administration view the New Jersey Supreme Court as an “activist” court with judges that “legislate from the bench”. The debate over the administration’s efforts to remake the Supreme Court in its own image has taken on added prominence recently since the Chief Justice is completing his initial seven-year term and is up for reappointment. Failing to reappoint a sitting Chief Justice would be virtually unheard of, even in a State with politics as colorful as New Jersey, but it is conceivable given the administration’s actions in this area. Continue reading ›

Intersection of Mental Illness and Criminal Justice Makes News With Increasing Frequency

April 6, 2014 | By James S. Friedman, LLC

During the same week in early April, 2014, the New York Times published two seemingly unrelated stories highlighting the increasing contacts that law enforcement personnel have with mentally ill individuals, and the problems that result from these encounters. The fact that one of the Nation’s largest newspapers ran both of these stories within a relatively brief period of time suggests strongly that issues surrounding mentally ill criminal defendants are not being addressed adequately, and require more appropriate attention.

One story discussed James Boyd, who was homeless and camping in the Sandia Foothills near Albuquerque, New Mexico. Boyd was not allowed to camp there, and police moved in to arrest him. He had a history of mental illness, and told the officers that they better not try to arrest him because he was a federal agent. The officers subsequently shot and killed him, saying later that he displayed two knives and threatened them. The entire episode was captured on video taken by an officer’s helmet camera that was later released by the Albuquerque Police Department, and is available on Youtube.

Boyd, like so many others, are having more frequent encounters with the criminal justice system because of a lack of adequate mental health services. State and local governments are slashing these services because of funding issues, with the result that the lack of available treatment is causing the mentally ill to engage increasingly in criminal conduct. This, in turn, is forcing police to attempt to function as mental health professionals, and turning County jails and State prisons into mental hospitals. Many of these defendants are arrested, sent to jail, then to a halfway house, and then back onto the street – only to repeat the cycle over and over again.

New Jersey Supreme Court says State’s Wiretap Act is Constitutional

March 28, 2014 | By James S. Friedman, LLC

Edward Ates appealed his Bergen County conviction and life sentence for the murder of his son-in-law in Ramsey, New Jersey. The Appellate Division affirmed, and the New Jersey Supreme Court granted certification to consider, among other issues, Ates’ assertion that New Jersey’s Wiretapping and Electronic Surveillance Control Act was unconstitutional.

The cell phone conversations underlying Ates’ argument were between Florida, Louisiana and New Jersey. New Jersey law enforcement authorities obtained an order from a New Jersey wiretap judge to monitor the conversations. In issuing the order, the judge complied with all of the procedures required by the wiretap statute. Ates argued that the conversations should have been suppressed, and the Wiretap Act should be declared unconstitutional, because New Jersey authorities could not intercept and monitor out-of-state cell phone conversations from New Jersey; rather, the New Jersey authorities should have asked the proper officials in Florida and Louisiana to consent to the wiretaps. The Act was also constitutionally defective because it allowed New Jersey authorities to act outside their jurisdiction and wiretap individuals with no connection to New Jersey.

In analyzing Ates’ arguments, the Supreme Court noted that the Wiretap Act permits interceptions to investigate criminal activity in New Jersey, and requires a judge to find that a particular offense has been, is being or will be committed in New Jersey, and that interception may provide evidence of the New Jersey offense. The Act allows authorities to monitor conversations outside New Jersey from a listening post within New Jersey. Thus, the statute requires actual connections between the subject conversations(s), the offense(s) at issue, the investigation of those offenses, and the State of New Jersey. The fact that Ates’ arguments were far from novel was reflected in the Court’s review of a long list of Federal and State cases that have rejected similar challenges to wiretap statutes. Continue reading ›

Reduced Federal Sentences for Non-Violent Drug Offenders – It’s About Time (and money)

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

We have known for some time that the United States incarcerates more people than any other industrialized nation on the planet. The federal prison system, which has grown approximately 700% since 1980, currently holds about 216,000 inmates. Additionally, states, counties and municipalities each have their own prison systems. It is estimated that approximately 25% of the world’s convicts are held in US prisons.

The sheer number of incarcerated inmates is only one issue. In prison, inmate numbers translate into dollars quickly. The current annual maintenance cost of the federal prison system alone is approximately $74 Billion. State and local governments also have substantial budgets for their own prison systems and facilities. For example, a recent study estimated that the New York City prison system spends approximately $168,000 per inmate each year. This sum is considerably larger than the annual income of many American households. Further, recidivism rates suggest strongly that a significant amount of these resources are wasted. Some of the most recent data available show that approximately 70% of released inmates are re-arrested within three years of release. Thus, in many cases, incarceration briefly removes someone from society, but does not necessarily address the long-term problems and issues that caused them to engage in criminal conduct. Finally, most US offenders are incarcerated for narcotics-related offenses.

Against this backdrop, Attorney General Eric Holder is backing a broad-based effort to reduce or eliminate mandatory minimum federal prison sentences for many drug offenders. Holder’s argument is simple. He wants to reduce federal prison spending and re-focus prison resources on more violent offenders. His critics respond by saying, among other things, that mandatory minimum sentences for low-level drug offenders aid in the enforcement of our narcotics laws by pressuring “smaller” defendants to cooperate with police and prosecutors in their efforts to move against larger suspects and targets. Continue reading ›

Fourth Amendment Basics – Order of Protection Barring Presence In Home Negates Standing to Challenge Search

March 7, 2014 | By James S. Friedman, LLC

Antoine Cortez-Dutrieville wanted to challenge the seizure of evidence, including heroin and other paraphernalia, from the home of his child’s mother, Portia Newell. At some point, however, Newell had obtained an order of protection which, among other things: (a) barred him from contacting her for most purposes, (b) “evicted and excluded” him from her home; (c) provided that he had no right or privilege to be at her home; (d) provided that her consent to his presence in her home could not override the dictates of the order; and (e) provided that he could be arrested without a warrant for violating the terms or conditions of the order. At the time of the search and seizure, Dutrieville argued that he had been staying at Newell’s home for three days with her consent. He also admitted that he was subject to the order of protection at all relevant times.

The district court rejected his challenge to the search and seizure, and the Third Circuit Court of Appeals affirmed. These courts concluded that Dutrieville lacked standing to raise the challenge because he lacked a legitimate expectation of privacy in Newell’s home and/or any personal items he had in the home such as his overnight bag, since the order of protection barred him from being at the searched premises. Dutrieville argued that he was there with Newell’s consent. These courts found that most overnight guests in a home could raise such a challenge on this basis, since that status creates a reasonable expectation of privacy that society is prepared to recognize. However, pursuant to applicable State law, Dutrieville’s presence in Newell’s home violated the order of protection and exposed him to criminal sanctions. This gave Dutrieville the status of a squatter or trespasser who occupies property unlawfully. Because his presence was wrongful, he lacked the objectively reasonable expectation of privacy necessary to seek suppression of the seized evidence.

For the same reasons, Dutrieville also lacked any objectively reasonable expectation of privacy in the overnight bag that he brought with him for his unlawful visit. He was barred legally from Newell’s home, and therefore was prohibited from using it as a place to store his personal effects. Continue reading ›

Defense Counsel’s Failure to Investigate Defendant’s Mental Fitness for Trial Supports Ineffective Assistance Claim

March 2, 2014 | By James S. Friedman, LLC

In Newman v. Harrington, No. 12-3725 (7th Cir. 8/9/13), the Court affirmed a district court ruling on a habeas petition which found that the failure of defense counsel to investigate known deficiencies concerning his client’s mental capacity, and to raise the issue of defendant’s fitness to stand trial with the State trial court, constituted ineffective assistance.

Newman, a homicide defendant, was 16 when he shot and killed the victim. Newman’s mother hired an attorney to defend her son and, at their first meeting, provided counsel with extensive material documenting her son’s long history of mental and cognitive deficits. Further, Newman responded to the trial judge’s questions concerning his right to testify at trial with simple “yes” or “no” answers. During this colloquy, Newman failed to display any meaningful understanding of the proceedings. Thus, both defense counsel and the trial judge had reasons to question Newman’s fitness for trial, but there was no pre-trial fitness hearing. Newman went to trial, was convicted, and received a custodial term of 47 years that was affirmed on appeal.

The following year, Newman sought State-court post-conviction relief. His petition was supported by, among other things, an evaluation by a clinical psychologist which stated that Newman had cognitive deficits, was mildly to moderately retarded, was never fit to stand trial, and that his many mental health issues were obvious to anyone who attempted to speak with him. Further, his IQ was 54, and his intellectual abilities were in the “extremely low” range. His reading and math skills ranged from those of a child of 4 to one of 7. Newman could not tell time, could not deal with abstract concepts, and had a poor memory. Continue reading ›

Hinton v. Alabama – Easily Avoidable Ineffective Assistance of Counsel

February 28, 2014 | By James S. Friedman, LLC

The United States Supreme Court decided Hinton v. Alabama, No. 13-6440 (Per Curiam), on February 24, 2014. This case is a “must read” for all defense attorneys because it highlights the importance of some of the most fundamental requirements of competent representation of criminal defendants. If nothing else, it is a very strong reminder to always remember the basics, including investigating ALL aspects of a case, understanding thoroughly ALL of the relevant statutes, and remaining current with applicable law.

This was a capital case arising from shootings that occurred during a series of robberies. Ballistics evidence was the only physical evidence in the case. The State’s case turned on whether its ballistics expert could convince the jury that six bullets recovered from the crime scenes matched a gun recovered from the defendant’s home. Under the circumstances, it was clear that defense counsel required a highly qualified ballistics expert in order to raise doubt about the only physical evidence in the case.

Not surprisingly, defense counsel required public funds to pay for experts, and such payment was governed by statute. Counsel believed that the relevant statute limited his available funding to a total of $1,000.00 under the circumstances, and sought approval for that amount from the trial court. As to this issue, however, counsel was acting on outdated law. In fact, the applicable statute contained no such limit, but rather provided that counsel could be reimbursed “for any expenses reasonably incurred in such defense to be approved in advance by the trial court.” The trial court was uncertain about the maximum it could allow for defense experts, but invited defense counsel to seek reimbursement beyond the requested $1,000.00. Defense counsel was not aware of the fact that the statute did not limit him to the requested $1,000.00, and did not take the trial court up on its invitation to file subsequent applications seeking additional funding. Continue reading ›

Warrantless Cell Phone Searches Incident to Arrest

February 19, 2014 | By James S. Friedman, LLC

The United States Supreme Court has granted certiorari in two cases that consider whether the police can conduct a warrantless search of an individual’s cell phone incident to arrest. Courts have held previously that the police can search an individual’s person and effects at the time of arrest, but cell phones often contain a substantial amount of personal data totally unrelated to the arrest or the relevant charges.

The cases are Riley v. California and United States v. Wurie. In Riley, the defendant is challenging a police officer’s search of his smartphone. In Wurie, DOJ is seeking review of an appellate decision requiring warrants to search a cell phone. These cases come on the heels of recent cases examining related issues, such as requiring a warrant to track a cell phone’s location, and to use GPS tracking devices.

Technology has progressed far beyond the point where a cell phone can be viewed as a simple communications device. A cell phone really is a pocket computer. Modern cell phones can be used to store incredible amounts of data, both internally and via remote services accessed through the Internet. This private data includes, but is not necessarily limited to, text messages, e-mails, call records, documents, photos, videos, and related items. This private material – which will almost always reveal intimate details concerning a person’s digital life – may have no relation of any kind or nature whatsoever to the arrest or the charges. Continue reading ›

Computing Restitution Awards in Child Porn Cases

February 12, 2014 | By James S. Friedman, LLC

In 1997 and 1998, an eight-year-old girl known as “Amy” was sexually abused and raped repeatedly by her uncle. Amy’s uncle received a custodial term of 10 years, and was ordered to pay $6,325.00 in restitution. The assaults were photographed, and the photos were placed on the Internet and spread around the world. Nobody really knows who photographed the assaults or placed them on the Internet, and it is impossible to know how many people viewed them or shared them with others. When Amy was older, she learned that thousands of people were viewing these images, and said that it made her feel that the abuse was re-occurring and would never end.

A federal statute requires defendants in child porn cases to pay the full amount of restitution to victims such as Amy. On its face, the statute arguably requires each defendant to make full payment notwithstanding the portion of harm they actually caused. Amy eventually retained an attorney who computed the full amount of restitution due her at $3.4 million. Her attorney began serving restitution demands for $3.4 million on child porn defendants everywhere, regardless of how many pictures of Amy were implicated in their respective cases, or whether they were convicted of simple possession, as opposed to distribution.

Doyle Randall Paroline of Texas subsequently pleaded guilty to possession of child pornography, and received a two-year term and ten years of supervised release. Two of the 300 images discovered on his computer hard drive were of Amy. As a result, Amy’s attorney served him with a demand for $3.4 million in restitution. Paroline’s attorney argued recently before the US Supreme Court that his client, who was convicted of possession, as opposed to production and/or distribution, should not have to pay that much because it was out of all proportion to any harm Amy sustained from his conduct. Amy’s attorney argued that the statute literally requires full payment from each defendant.

New US Supreme Court Case Addresses Issues Concerning Mental Health Evaluations in Criminal Cases

January 8, 2014 | By James S. Friedman, LLC

The United States Supreme Court recently decided Kansas v. Cheever, 571 U.S. _____ (12/11/13), which discusses whether the Fifth Amendment prohibits the Government from introducing evidence from a criminal defendant’s court-ordered mental health evaluation to rebut the defendant’s presentation of expert testimony supporting a voluntary intoxication defense.

The defendant was charged initially in the Kansas state courts with capital murder. In an unrelated case, the Kansas Supreme Court invalidated the State’s death penalty scheme. The State then dismissed its charges and allowed federal authorities to prosecute the defendant under the Federal Death Penalty Act. In the federal case, defendant sought to introduce evidence of his intoxication by methamphetamine at the time of the offense, asserting that this negated his ability to form the intent requisite to the offense. The District Court ordered Defendant to submit to a psychiatric evaluation to assess this issue, and a psychiatrist interviewed Defendant for approximately five to six hours.

The federal case went to trial, but was subsequently suspended and dismissed without prejudice. The U.S. Supreme Court also reversed the Kansas Supreme Court’s decision, finding that the State’s death penalty statute was constitutional. Kansas then commenced a second prosecution against Defendant who, in turn, presented a voluntary intoxication defense supported by testimony by a professor of psychiatric pharmacy. The State then sought to rebut this with testimony from the psychiatrist who previously interviewed Defendant in connection with the aborted federal prosecution. This testimony apparently included statements Defendant made during the Court-ordered evaluation. Defense counsel objected, arguing that such testimony would violate Defendant’s Fifth Amendment rights since Defendant had not voluntarily agreed to that examination. The trial court agreed with the State, but the Kansas Supreme Court reversed.