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Criminal attorneys frequently assert novel defenses at trial and during plea negotiations.  One of the more interesting defenses, sometimes referred to as the “Twinkie” defense, has existed for a number of years.  It sounds patently silly on the surface given its name, but may actually have some basis in reality and, under appropriate circumstances, may be used effectively in cases involving criminal defendants with mental health issues.

The earliest notable use of the defense dates back to the trial of Dan White who was charged in the 1970s with shooting George Moscone, the Mayor of San Francisco, and Harvey Milk, a city supervisor.  Defense counsel presented evidence that White was mentally ill and depressed, and that his symptoms were worsened by eating junk food.  White’s “main” defense was actually diminished capacity, but he asserted that eating large amounts of junk food contributed to his existing mental health issues.  As ridiculous as it sounds, the argument apparently assisted him in obtaining a conviction for the lesser included offenses of voluntary manslaughter, instead of murder.

Variations on the defense have been asserted since the White case by defendants with mental health problems and issues.  In or around 2017, Matthew Phelps of North Carolina was charged with his wife’s stabbing death.  He discovered her blood-covered body on the floor when he woke up one morning, but had no memory of events from the prior evening.  He believed he attacked her, but claimed that he remembered nothing because cough medicine that he took to help him sleep caused him to black out.  Similarly, Dr. Louis Chen was charged with murdering his partner and their son.  He asserted that at the time of the murders, he suffered from depression and paranoia which were worsened by his ingestion of cough medicine.  James McVay, who claimed to have mental health and addiction issues, was charged with a stabbing death.  He argued, among other things, that at all relevant times, he suffered from hallucinations caused by mixing alcohol and cough syrup.  Shane Tilley, who presented evidence that he suffered from a schizoaffective disorder, argued that he stabbed someone to death while he was intoxicated by cough syrup. Continue reading ›

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It has been long known that the United States incarcerates more individuals than any other nation on the planet.  Our combined federal, state and local jail population is staggering.  Over the last several decades, however, there has been an ongoing push to develop “alternatives-to-incarceration” or “ATI” programs.  These programs, which include drug courts and mental health courts, are designed to deal with relatively low-level, non-violent offenders who have specific problems and issues that led them to commit crimes.  The idea is to remove them from the mainstream criminal justice system and place them in a diversionary program designed to address their unique needs, thereby reducing the likelihood of recidivism.  As a result, these programs help reduce the overall prison population, thereby preserving prison resources for use in connection with more violent criminal offenders.  ATI programs exist on both the federal and state levels.

It is also well known that the current administration in Washington has adopted a “get-tough-on-crime” approach to criminal justice including, among other things, the promulgation of stricter sentencing guidelines in drug cases.  The  United States Sentencing Commission observed in a recent report that this may effectively reduce the number of defendants who can participate in the federal ATI programs.

There are many state-level ATI programs.  For example, the first drug court was created in Florida in 1989.  There are currently more than 4,000 state-level drug courts nationwide.  It is estimated that approximately 55,000 adult criminal defendants participate in state drug court programs each year. Continue reading ›

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The first mental health court was established about 20 years ago in Broward County, Florida, in 1997.  Since that time, a relatively small number of counties across the country have established these innovative and forward-thinking programs, with the result that there were approximately 300 mental health courts nationwide as of 2016.  Many of these courts are funded under a 2002 federal program known as the “Law Enforcement and Mental Health Project”.  It sounds like a lot, but the real need is still not being met.  Relatively recent data from the Bureau of Justice Statistics show that 55% of male inmates and 73% of female inmates in the United States are mentally ill.  Further, 23% of these individuals were incarcerated three or more times, thereby demonstrating an unacceptably high recidivism rate among this segment of the overall inmate population.  Additionally, over the last several decades, a considerable number of mental health commitments made previously to state hospitals and similar facilities for criminally involved mentally ill individuals have been eliminated.  This has made local jails and state and federal prisons the largest providers of treatment for people who suffer from mental illness.  Put somewhat differently, a substantial number of mentally ill people in the United States, a number of whom have relatively low-level criminal charges, are simply being warehoused in jails and prisons because we currently have no place else to put them.

The mental health courts with a sufficiently long track record are, however, providing support for the conclusion that these specialized programs work and work well.  A recent three-year study issued by the Florida Institute of Technology demonstrates that defendants who participated in one mental health court program in Florida experienced a significant reduction in recidivism after receiving court-ordered treatment, as opposed to a jail sentence.  This study examined 118 participants in an unidentified court.  It showed that 90% of the program participants were not re-arrested three months after release.  81% were still charge-free after six months, and 54% had not re-entered the criminal justice system after three years.  Finally, program participants who did re-enter the system were arrested for offenses that were much less severe than their original charges.  Against this backdrop, the study’s authors asserted that the targeted, community-based treatment ordered by the court assisted program participants in developing the social skills necessary to deal with their issues in a way that allowed them to remain arrest and charge-free.

Unfortunately, too many states, including New Jersey, still lag behind in establishing mental health courts.  This is particularly unfortunate in light of the State’s positive experience with drug courts, which are specialized courts designed to deal with defendants whose criminal conduct was motivated by addiction issues.  Experience dictates that drug courts work.  They provide treatment, counseling and therapy for people suffering from drug addiction thereby reducing the likelihood that they will re-enter the system, while also freeing jail and prison resources for violent offenders.  Continue reading ›

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Our personal information is constantly being collected by third parties without our realization.  Every time we use one of our devices, we expose personal details and information to collection by any number of entities that use the data for various purposes.  Privacy is clearly on the decline as the use of one device or another becomes a standard and unavoidable part of life.  An individual cannot be part of modern society absent a cell phone and/or computer.  These facts all have serious implications for criminal defendants.

In 1979, the United States Supreme Court decided Smith v. Maryland.  There the Court discussed what has become known as the “Third Party Doctrine”, which provides that individuals do not have a reasonable expectation of privacy in information voluntarily given to a third party (e.g., telephone carrier or bank).  This information is then available to Government agencies, including law enforcement agencies.

The Court is now scheduled to hear a case that asks what the police and prosecutors can legitimately do with personal data that is collected from third parties.  Carpenter v. United States could greatly alter Fourth Amendment principles and procedures as they must be applied in cases involving data resulting from the use of cellphones, computers, and similar devices. Continue reading ›

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Under current New Jersey law, the maximum term of probation is five years.  Experience indicates that most defendants are typically placed on probationary terms that can run from one to three years.  Many defendants facing jail time view probation as a gift and, oftentimes, it is.  However, probation comes with terms and conditions, and the failure to comply can lead to a violation and jail time.  Some judges have an unofficial “one free bite” rule – the first violation leads to a reading of the riot act, placement on what is referred to as “strict compliance”, or an extension of the probationary term, in lieu of a prison sentence as a sanction for the violation.  Other judges are less generous and simply incarcerate the defendant once the violation is sustained.

There is a definite correlation between the length of the probationary term and the likelihood of a violation.  Put somewhat differently, people who are on probation for relatively long terms are at greater risk for violating.  This is because it can be difficult to comply with the terms, conditions and restrictions of probation for long periods of time.  Thus, people placed on terms of, for example, four or five years, are often characterized as “set up for failure”.    As to this issue, there are standard terms and conditions of probation (remaining gainfully and legally employed, staying in school, remaining drug-free, etc.), and special conditions that a judge may craft for a particular case.  As to the latter, one New Jersey judge that I regularly appeared before prior to his retirement required probationers to not enter disreputable places or associate with disreputable people.  I never understood what that meant, until one of my clients was arrested in a go-go bar during a raid.  The client was not engaged in any illegal activity – he was just sitting and having a drink.  However, he ended up receiving a sanction because he violated that term or condition.  Indeed, judges have considerable latitude in crafting unique terms and conditions, and this must be factored into assessing the likelihood of success.  This is particularly problematic when a judge imposes a term or condition that simply cannot be complied with because of the defendant’s circumstances.  Another problem is that a considerable amount of the funds that run probation systems come from fines and fees paid by probationers.  However, many of these people are impoverished and cannot afford even modest payments, sometimes resulting in a violation for failure to pay required assessments.

The concept underlying probation is that some defendant are simply better off in a community corrections setting as opposed to a county jail or prison.  Further, from an institutional and/or management perspective, probation is intended to save scarce prison resources for the worst offenders.  However, the fact is that many defendants end up violating at some point during their probationary term, and are incarcerated.  As a result, probation can actually add to the country’s overburdened jail and prison systems. Continue reading ›

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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 ›

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The last United States Supreme Court term ended with some noteworthy criminal decisions.  One of these was Jae Lee v. United States, decided on June 23, 2017.  This is the latest case from the High Court to address the issue of effective assistance of counsel in the context of a criminal case where a non-citizen defendant resolves the charges by way of plea, thereby risking deportation.

The facts are not complicated.  The defendant sold ecstasy and marijuana to an informant, and was charged with possessing ecstasy with intent to distribute.  During plea negotiations, Lee repeatedly asked his attorney if he would be deported if he pleaded guilty, and defense counsel assured him that he would not.  Because the offense was an aggravated felony, Lee was, in fact, subject to mandatory deportation as a result of the plea.  Upon learning of this, Lee moved to vacate the plea, arguing that his attorney’s advice amounted to ineffective assistance.  His attorney apparently admitted that Lee’s defense to the underlying charge was weak, but he would nevertheless have advised Lee to proceed to trial had he known that the guilty plea would have resulted in mandatory deportation.  A Magistrate held in favor of Lee, but the District Court denied relief and the Sixth Circuit affirmed, finding that although the Government had conceded that counsel’s performance was defective, Lee could not show that he was prejudiced by the incorrect advice.  Thus, Lee satisfied the first prong of the ineffective assistance test of Strickland v. Washington, but his application failed because he could not satisfy the second prong.

Fortunately, the Supreme Court reached a different conclusion and reversed.  The Court found that Lee could demonstrate that he was prejudiced by showing a reasonable probability that but for his attorney’s errors, he would have gone to trial rather than plead guilty.  The Government argued that Lee could not show that he was prejudiced by accepting a plea where he had no viable defense to the underlying charge, and his sole hope of a victory at trial stemmed from the possible occurrence of some unexpected and unpredictable event that would have led to an acquittal.  The Court characterized this argument as an attempt by the Government to adopt a per se rule as to an inquiry that demanded a case-by-case analysis based upon the totality of the evidence.  The Government also overlooked the fact that the inquiry focused on a defendant’s decision making process, which may not be grounded exclusively in the likelihood of a conviction after a trial.  While it is true that the chance of a conviction after trial is an important factor in deciding to accept a guilty plea, there are cases where even the lowest possibility of success at trial may appear attractive to a defendant.  Finally, the Government posited that Lee’s decision to reject the plea would have been irrational because of the increased prison exposure resulting from a loss at trial.  But the Court could not find that a decision by someone in Lee’s position to risk a long prison term in exchange for even a small chance of avoiding deportation was irrational. Continue reading ›

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The New Jersey Supreme Court decided State v. Rosario on June 6, 2017.  The case is important because, among other things, it discusses and distinguishes between the two most common types of police-citizen encounters, which are field inquiries and investigative detentions.

The facts are uncomplicated.  Police received an anonymous tip that defendant was selling illegal drugs from her home in a residential development, as well as from her vehicle.  One night, an officer patrolling the development noticed a moving silhouette in a parked car, which turned out to be the defendant’s vehicle, and decided to investigate further.  He pulled his patrol car up behind, and perpendicular to, the defendant’s car in such a way that the latter was blocked in.  The officer then activated his rooftop alley light which was aimed at the defendant’s car, but did not activate the siren or emergency lights.  The alley light enabled him to see a woman, who turned out to be the defendant, in the driver’s seat.  He observed her moving around in the driver’s seat and leaning toward the passenger’s seat.  He then exited his cruiser and approached the driver’s side door of the defendant’s car.  The window was partially open, and he asked the defendant for her license and other documents.  She produced the requested material, and the officer recognized her as the subject of the previously received anonymous tip and recalled that he had previously arrested her on narcotics-related charges.  He asked the defendant what she was doing, and she responded that she was smoking a cigarette, but the officer did not see a cigarette or butt.  He then asked her why she was moving around and turning toward the passenger seat when he pulled up, and she responded that she was putting on make-up and turned to put it away in her purse.  The officer then asked her how she could do that in the dark, but she did not respond.  He then asked if there was anything in the vehicle he should know about and, according to the officer, the defendant responded that she had the same thing he arrested her for previously.  According to the officer, the defendant then simply reached over to the passenger seat for an eyeglass case.  She opened it and the officer could see a white powdery substance.  The officer then arrested the defendant.  The trial court denied the defendant’s suppression motion, the Appellate Division affirmed, and the Supreme Court granted certification.

The Supreme Court began by recalling that field inquiries, and investigative detentions or “Terry” stops, are two of the three types of encounters that an individual can have with law enforcement.  A field inquiry involves a situation where an individual, under all of the surrounding circumstances, reasonably believes that they cannot simply walk away without answering the officer’s questions.  In an investigative detention, the person reasonably believes that their freedom of movement has been restricted.  Thus, an investigative detention, unlike a field inquiry, is a temporary seizure of the person, and must therefore be based upon the officer’s reasonable and particularized suspicion that the person has engaged, or is about to engage, in criminal activity.  The nature and quality of these encounters are measured from the perspective of the individual who is the subject of the stop. Continue reading ›

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Law enforcement agencies that investigate child pornography cases face special technological challenges when tracking the distribution of contraband on the Internet, and then in building a case against a specific defendant.  A case in point is “Dreamboard”, an online bulletin board that advertised and distributed child pornography.  Dreamboard users employed encryption software, peer-to-peer networks and the so-called “Dark Web” to share images between and amount members/subscribers in 13 different countries.  In fact, all Dreamboard subscribers were required to use specific encryption software when viewing and/or sharing images.  Further, each file description had a specific link and password which allowed access to images through another website that stored encrypted files.  Dreamboard was the target of a 2009 sting operation that resulted in approximately 70 convictions.  The site was infiltrated through the efforts of several dozen law enforcement agencies including, without limitation, the Departments of Justice and Homeland Security, and 35 domestic ICE offices.

Dreamboard users obviously had to have both a level of technological skill, as well as the appropriate equipment and software, to be members.  The Dreamboard case was, however, not unique in this regard.  In a recent Louisiana case, a defendant set his computer to wipe the hard drive clean if a password was not entered within a few seconds of opening the device.  Another defendant asked an undercover agent posing as a minor to send him a picture during an online chat.  Law enforcement personnel are not allowed to distribute pornography, so the agent’s smartphone would not allow him to send a photo.  This ultimately led the defendant to believe that the agent was using a smartphone, at which point he ended the conversation.

If it all sounds complicated, that’s because it is.  The possession and distribution of online pornography is becoming increasingly sophisticated in terms of technology and scope.  These cases can include the use of password protection, encryption, file servers and/or peer-to-peer networks, software designed to eliminate evidence, remote storage, partitioned hard drives, and the like.  These cases are further complicated by the fact that pornography has gone global, and frequently involves the use of mobile devices, apps, and social media sites including What’s App, Kik Messenger, Instagram and Snapchat.  Finally, cases can involve terabytes of data.  (One terabyte equals about 1,000 gigabytes, and can hold approximately 3.6 million images or 300 hours of video.) Continue reading ›

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On October 18, 2016, NYPD Sergeant Hugh Barry responded to the home of Deborah Danner in the Bronx.  Barry found Danner, a diagnosed schizophrenic, holding a pair of scissors and experiencing a mental health crisis.  He persuaded her to drop them, but she then picked up a bat and somehow threatened him with it.  He shot her twice in her torso, killing her.  Interestingly, Barry had a stun gun, but did not use it.  Prosecutors who charged Barry with murder this week argue that he ignored his training.  Barry’s union representatives argue that he had to make a split-second decision concerning his response to Danner, and that he did not intend to harm her.

Barry, like every other defendant, is entitled to the presumption of innocence and everything that goes with it.  Further, it is almost impossible for a third party to know precisely what happened at Danner’s home unless they were there.  In evaluating Barry’s culpability, it is important to remember that at the time of the shooting, NYPD had a small, well trained unit whose members were better equipped to respond to calls involving the mentally ill.  Further, only about a year before the Danner shooting, the Department commenced training officers more generally in this area.  However, Barry never received this training.  This is not surprising.  NYPD has approximately 35,000 officers who, collectively, responded to about 157,000 calls last year that involved individuals experiencing some sort of mental health crisis.  However, as of this time, the Department has provided only about 5,800 officers with the more specialized crisis training.

Plans to train more officers are apparently proceeding.  More shifts are being trained, as are more sergeants and high-ranking officers.  The four-day training familiarizes officers with such issues as how to spot signs of mental illness, and how to empathize with someone experiencing a crisis.  During the sessions, officers interact with patients and mental health professionals. Continue reading ›

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