Archive for January 2011

New Jersey Lawyers Practicing Federal Criminal Defense Before The United States District Court for the Distsrict of New Jersey Review Recent Appellate Decision Declining to Extend the Fair Sentencing Act Retroactively

The Fair Sentencing Act (FSA), recently signed into law by President Obama, addresses the disparity between the sentencing ranges applicable to a defendant convicted of an offense involving crack cocaine and the sentencing range applicable to upon convictions for other types of illegal narcotics. Prior to the FSA, the sentencing range for defendants convicted of an offense involving crack cocaine was substantially higher than other forms of illegal narcotics. The Third Circuit Court of Appeals has recently ruled, however, that the FSA cannot be applied retroactively to authorize a District Court Judge to sentence appellants below the mandatory minimum term in effect when they were sentenced. Another provision of the FSA also raised the minimum amount of crack cocaine necessary to trigger the five year mandatory minimum prison term from five grams to 28 grams. In the case before the Court, the appellant pled guilty to possession of less than 28 grams but the Court relied upon the Savings Statute to rule against retroactivity of the FSA as the intent of Congress must be expressly provided in order to “release or extinguish any penalty” under an existing statute. Congressional intent under the FSA was not so expressly provided according to the Court.

Legal Quote of the Week:

Evil is obvious only in retrospect.

Gloria Steinem, Outrageous Acts and Everyday Rebellions, 1983

New Jersey Lawyers Review Superior Court of New Jersey, Appellate Division, Opinion Declaring Stateaments made by Defendant During and After a Polygraph Examination Inadmissible

A Superior Court of New Jersey, Appellate Division, decision rendered recently in a high profile murder case in Cape May County, NJ held that statements given by a defendant both during and after a polygraph examination are not admissible against the defendant in his upcoming jury trial. The Court upheld a decision of the trial judge which ruled the statements inadmissible due to coercion by law enforcement against the defendant to take the polygraph examination in the first place along with inadequate information provided to the defendant regarding his right against self-incrimination. According to the both the trial level judge and the Appellate Division, the defendant successfully invoked his privilege not to speak to law enforcement when he initially declined an offer to take a polygraph. According to the decision, the defendant initially declined the offer but was further encouraged to cooperate by law enforcement who informed the defendant that the test would be “a tool to help us to even clear you more.” Only a portion of a Miranda statement was read to the defendant prior to administration of the test.

Legal Quote of the Week:

As citizens of this democracy, you are the rulers and the ruled, the law-givers and the law-abiding, the beginning and the end.

Adlai E. Stevenson
Speech, Chicago, September 29, 1952


New Jersey lawyers practicing before the Municipal Courts in the State of New Jersey should be well-versed regarding the case of State v. DiSomma which holds that a refusal conviction is not a prior violation under the DWI statute. The decision in DiSomma was rendered in 1993 and, since that time, the legislature of the State of New Jersey has made numerous revisions to both the DWI and the refusal statutes without clarifying on modifying either statute in response to the DiSomma decision. Based upon the NJ Supreme Court’s statutory interpretation, the court recently concluded that in fact DiSomma represents the correct statutory interpretation and that other cases to the contrary are overruled.

In this case, the Court considered the statutory language and other available information in light of the guiding principle that any reasonable doubt concerning the meaning of a penal (criminal ) statute be strictly construed in favor the defendant. In considering both the DWI and refusal statutes, the Court recognized that the statutes contained different proof requirements and were intended by the legislature to be separate violations. The Court could find no cross reference between the statutes and, as such, was unwilling to interpret the statute in a manner that would violate the requirement of strict construction for penal statutes.

Legal Quote of the Week:

To assume is to fool one’s self.

Jewish folk saying