Archive for June 2010

NEW JERSEY CRIMINAL DEFENSE LAWYERS REVIEW FEDERAL COURT DECISION DISMISSING CASE AGAINST BURLINGTON COUNTY PROSECUTOR FOR BLOCKING DNA TESTING WHICH ULTIMATELY LED TO REVERSAL OF CONVICTION.

A District Court Judge of the United States District Court of New Jersey recently ruled that a defendant previously convicted of murder who had his convicted vacated after DNA testing cannot pursue a civil rights claim against the Burlington County Prosecutor who attempted to block the testing. The vacated conviction resulted from the defendant using the NJ law allowing for those convicted of a crime to move before the same court of conviction for DNA testing. The U.S. District Court Judge held that the actions of the Burlington County Prosecutor were protected under a qualified immunity. The defendant spent 17 years incarcerated. In early 2005, DNA testing of the physical evidence taken from the crime scene demonstrated that semen and hair found did not match the defendant. Separate claims against Burlington County investigators were not dismissed but can proceed to trial.

Legal Quote of the Week:

Let the law never be contradictory to custom: for if the custom be good, the law is worthless.

Voltaire, Philosophical Dictionary, 1764

NEW JERSEY CRIMINAL LAWYERS REVIEW IMPORTANCE UNITED STATES SUPREME COURT OPINION REGARDING THE INVOCATION OF MIRANDA RIGHTS OF A DEFENDANT WHO REMAINS SILENT FOR AN EXTENDED PERIOD OF TIME WITHOUT STATING HIS DESIRE TO REMAIN SILENT.

In a decision of importance to NJ criminal attorneys, the U.S. Supreme Court recently held that in order to invoke the protections set forth in the Miranda warnings or the Sixth Amendment right to counsel protection the suspect must communicate to the interviewing police in an effective manner. In the case before the Court, the suspect remained silent during a 3 hour period of interrogation during which the suspect did not communicate to the police that he wished to remain silent, that he did not want to speak to police or that he wanted an attorney. Toward the end of the interrogation, the suspect did answer “yes” to a question that implicated him in the commission of the offense. The response was introduced against the suspect in his murder trial. An invocation of the Miranda right or the right to counsel requires the some communication of either of a desire to remain silent or of no desire to speak to the police. If communicated, those assertions would be enough to cut off questioning by invoking the constitutional protections of Miranda or the Sixth Amendment right to counsel.

Legal Quote of the Week:

While the Declaration was directed against an excess of authority, the Constitution was directed against anarchy.

Robert H. Jackson, The Struggle for Judicial Supremacy, 1941

NEW JERSEY LAWYERS PONDER RECENT CASE PROVIDING GUIDANCE ON MUNICIPAL COURT JUDGE RECUSAL.

The issue in this appeal is whether a part-time municipal court judge must recuse himself when the judge and the defense attorney are adversaries in an unrelated matter. Terence McCabe was charged with failure to turn over a controlled dangerous substance, which is a disorderly persons offense. Terence McCabe’s attorney and the New Jersey Municipal Court Judge were opposing counsel in an unrelated estate case. The Municipal Court Judge, also a private attorney, represented a claimant against an estate who challenged the validity of a will. The defense attorney filed a motion to recuse the Judge and argued recusal was necessary to avoid an actual or potential conflict of interest and an appearance of impropriety. The Municipal Court Judge denied the motion, finding that finding no actual or apparent conflict of interest.

The Superior Court denied defense counsel’s motion for leave to file an interlocutory appeal without oral argument. The Superior Court cited Rule 1:12-1(f) as a reason and concluded: “ That counsel for the defendant and the judge represented adverse parties in a probate matter without more is not the basis for a reasonable belief that ‘ fair and unbiased hearing and judgment’ would not occur.” However, the Supreme Court granted defense counsel’s motion for leave to appeal and ordered a stay of the municipal court proceedings pending the outcome of this appeal. The Supreme Court of New Jersey ruled that Part-time municipal court judges must recuse themselves whenever the judge and a lawyer for a party are adversaries in some other open, unresolved matter.

Legal Quote of the Week:

Moderation is power.

George W. Keeton, ed., Harris’s Hints on Advocacy, 1943

NEW JERSEY LAWYERS REVIEW RECENT APPELLATE DIVISION RULING ON THE CONSTITUTIONALITY OF A SEARCH INCLUDING WHETHER THE NEW JERSEY CONSTITUTION REQUIRED A WARRANT PRIOR TO THE SEARCH.

The case before the NJ Superior Court, Appellate Division, involved law enforcement entering a private residence to effectuate an investigative detention of a suspect. During the effort to detain the defendant for investigative purposes, law enforcement entered a private residence and the defendant resisted resulting in an arrest and a search of his person and the subsequent recovery of a controlled dangerous substance on his person. The police returned without a warrant and seized additional evidence sought to be used against the defendant in the criminal proceedings. The Appellate Division ruled that law enforcement had no constitutional justification to enter the defendant’s residence without a warrant but the recovery of evidence came from the search incident to arrest (for the charge of resisting police) and was therefore a seizure of evidence permissible under the NJ Constitution. The second entry by police into the residence did not meet constitutional standard without a search warrant and therefore suppressed any evidence seized by the police during that search.

Legal Quote of the Week:

You don’t have to see the lion if you see his hair.

Jewish folk saying

Joseph L. Baron, A Treasury of Jewish Quotations, 1936