New Jersey Criminal Lawyers Blog

Police departments all over the nation are experiencing layoffs as local governments seek to right their budgets against the backdrop of the enduring recession. Paula Scully, in a story posted at APP.com, the Asbury Park Press' website, on October 8, reports that 11 of Little Egg Harbor Township's 49 sworn police offices were laid off. The lay-offs follow the local police union's (Policemen's Benevolent Association Local 295) rejection of the latest compromise proposal made by the Township.

Mayor Ray Gormley said the eleven officers were laid off effective Thursday. The Mayor noted the original number of planned lay-offs was twelve, but that one of the twelve officer positions had been preserved.

Not all matters have been settled by the lay-offs, and the mayor notes negotiations continue in order to arrive at an enduring resolution. PBA attorney Stuart Alterman noted that the union had made a series of concessions to the Township, but that the latest counteroffer from the Township, which was rejected by the union as a body, simply asked for more than the officers who make up the membership of the union were willing to give.

In Paula Scully's story from APP.com, Mr. Alterman referenced the level and serious nature of crime in Little Egg Harbor. Speaking of the Little Egg Harbor Township police force, Mr. Alterman said,

"Now that a fourth of the police force is gone, criminals will be reading the newspaper and wandering over to Little Egg Harbor..."

Whether or not the lay-offs will result in a Little Egg Harbor crime wave is unclear, and certainly is a result not to be hoped for. Nevertheless, Mr. Alterman voices an apprehension shared by many when it comes to significant lay-offs of police officers, wherever they occur. One of the indisputable functions of government is to maintain the peace. Little Egg Harbor Township's civilian and police leadership will now have to make due with less, with a core function of governmental responsibility.

A brother apparently killed his older brother and a young woman before turning the gun on himself and committing suicide. The Ocean County Prosecutor's Office is investigating. Deputy Chief Michael Mohel says at this point it appears a dispute between the two brothers, who had lived together, precipitated the tragic incident.

Rob Spahr, in a story posted at pressofAtlanticCity.com on October 7, reports that a neighbor of the brothers in the Tall Timbers development in Little Egg Harbor Township saw Bryan Mueller fall to the ground after hearing gunshots. The neighbor heard additional gunfire, which presumably were the fatal shots that killed Craig Mueller and 21-year-old Cara Ellis.

It is believed Ellis went to check on Bryan Mueller after he was shot and fallen to the ground, and then was shot by Craig Mueller before the younger Mueller turned the gun on himself, to lethal effect.

Mr. Spahr reports that the younger Craig Mueller had reportedly been furloughed from his job back in April of this year. While it seems clear the brothers were involved in a dispute, it is not known at this time what the dispute was about.

In the recent case of the State of New Jersey v. Morales, a New Jersey appellate panel, in a per curiam decision, reversed a trial court's denial of a defendant's post-conviction relief petition based on ineffective assistance of counsel. The appeals panel has remanded the case back to the trial court for reconsideration of defendant's petition. In remanding the issue back to the trial court, the appeals panel found that the trial court had acted too quickly in concluding the defendant was not entitled to post-conviction relief. The defendant's petition for post-conviction relief was based upon his contention that his lawyer should have moved for a mistrial when the jury deciding the defendant's case saw him being transported in handcuffs.

The appeals panel held that the defendant is entitled to a hearing wherein the credibility of his claim that he was seen by the jury in handcuffs can be determined. Presumably, the trial court's dismissal of the defendant's claim was based, at least in part, on the trial judge's belief that the defendant's claim was not credible, and not that, if true, it did not matter.

Though perhaps surprising to many outside the law enforcement and legal communities, a jury seeing a defendant in handcuffs can be, and often is, a constitutionally significant event. Over the years, judicial precedent has determined that it may be unconstitutionally prejudicial to the interest of defendants to show them before the trier of fact in such a way as to suggest their guilt, or that they are dangerous.

Leading the defendant to and from court in handcuffs may be, in certain circumstances, an example of such a prejudicial showing. Another example is where a defendant is surrounded by police or prison personnel in court.

The reason the courts have this general aversion toward a prejudicial portrayal of a defendant in a court proceeding before the trier of fact is our allegiance as a society to the foundational principle that a defendant in a criminal trial is presumed innocent until the state proves otherwise through the prescribed judicial process. It follows that any portrayal of a defendant that tends to short-circuit the deliberative judicial process by which a citizen is deprived of his or her freedom, in the absence of a countervailing and important interest of the state, is repellant.

Of course, there are some defendants who have convincingly demonstrated their dangerousness and respecting whom it has been found constitutionally permissible to restrain in court. Other defendant's have actually been gagged or removed from court proceedings for being serially and incorrigibly disruptive.

As with so many other issues in the criminal law context, what is constitutionally permissible with respect to the portrayal of a defendant in court comes down to a balancing between the interests of society on the one hand, and the interests of the defendant on the other.

In the State of New Jersey v. Morales, the hearing to determine the credibility of the defendant's claim is a threshold inquiry, which, if passed by the defendant, will lead to a consideration of the merit of the charge that would then be assumed to be true.

Chris Mergerian, reporting in the October 4th edition of the Star Ledger, writes that between November 3rd and 6th, New Jersey state officials expect thousands of fugitives with outstanding warrants to surrender as part of the State's third Safe Surrender program. New Jersey's Safe Surrender program is part of a broader initiative by public officials and law enforcement in states throughout the nation. New Jersey's third Safe Surrender program will be held in the Somerset section of Franklin Township.

The State's first Safe Surrender program took place in the City of Camden in 2008, and 2,245 individuals surrendered. Last year the City of Newark hosted New Jersey's second Safe Surrender program, and 4,103 individuals surrendered.

The program essentially allows individuals who are fugitives from the law to surrender without suffering a penalty for having been a fugitive. The underlying warrants an individual has on their record still must be adjudicated, but there is generally no penalty for having failed to appear in court in the past.

For November's Safe Surrender program, individuals with outstanding warrants can turn themselves in at the First Baptist Church of Lincoln Gardens, and their cases will be adjudicated close by at the McKinley Community School in New Brunswick.

Supporters of the Safe Surrender program within the law enforcement community believe the program presents a win-win situation to law enforcement and fugitives. As Chris Mergerian reports:

"Law-enforcement officials said the program benefits both police and individuals with outstanding warrants. Police don't have to mount risky operations to capture fugitives, and people have a chance to start fresh by clearing their records."

Parole Board chairman James Plousis adds that the Safe Surrender program makes economic sense as well. Again, from the Star Ledger story:

"We're doing it [the program] for a fraction of what it would cost to go arrest these people. And we're getting these people back as productive citizens."

In the Star Ledger story, past participants in New Jersey have noted how the program allowed them to get their outstanding warrants behind them, and to rejoin society as full- fledged citizens who no longer have to live outside the law.

This year officials are expecting 2,500 individuals to take advantage of New Jersey's third the Safe Surrender program.

Individuals considering surrendering through the Safe Surrender program should consult with an experienced criminal defense attorney prior to the surrender period to discuss the possible disposition of their matter and to be advised of their legal rights.

SOURCE:

New Jersey State Parole Board, press release entitled, "NJ Fugitives Get Chance to Surrender Safely," dated October 4, 2010.

nj.com, "Officials to announce N.J.'s third safe-surrender program in Somerset County" by Chris Megerian, October 4, 2010.

In its October 4th 'Around the State' feature, the Star Ledger reports the arrest of a 37-year-old Seaside Heights man, accused of an attempted home robbery in nearby Seaside Park, in which the two victims of the attempted robbery were stabbed. The man charged, Mark Snitzer, is currently being held at the Ocean County jail in lieu of $750,000 bail. We hasten to add the obvious truth that being charged with a crime is not the same thing as having committed a crime. Mr. Snitzer is entitled, at the least, to his day in court.

Mr. Snitzer has been charged with two counts of attempted murder, two counts of attempted robbery, and one count of unlawful possession of a weapon.

The attempted robbery and stabbing victims were taken to Jersey Shore Medical Center in the wake of the attack, and were listed in stable condition, according to the Star Ledger story.

Two attempted murder charges obviously represent very serious legal jeopardy. Attempting murder while in the act of another felony or felonies is an even more serious matter. It is not mentioned in the Star Ledger report, but it seems likely that Mr. Snitzer, who was arrested the morning after the crimes took place, was identified by the victims as the individual who committed the crimes. Again, it is appropriate to add here that being identified by the victims of a crime as having committed that crime is not the same thing as having committed that crime. In this country- and let's all be thankful for it- we have established court procedures informed by our state's and our nation's constitutional protections.

It is unclear what other evidence ties Mr. Snitzer to the crimes. Michael Mohel, deputy chief of detectives for the Ocean County Prosecutor's Office declined to tell the Star Ledger whether anything was stolen from the victims' home, or how the victims may have known Mr. Snitzer. Mr. Mohel noted that the case is still under investigation.

What can be said for certain at this time is that the police knew enough about the circumstances surrounding the crimes to arrive at Mr. Snitzer's door the morning after the robbery. It is likely the arrest occurred pursuant to an arrest warrant, as the police arrested Mr. Snitzer at his home and there was no indication of exceptional circumstances attending the arrest. Generally speaking, police can arrest someone in public without the need of an arrest warrant if they have probable cause that a crime was committed. , A judge or magistrate will determine whether the officer had probable cause to make the arrest, if the arrest is challenged by a criminal defense attorney. However, and again, generally speaking, when police arrest individuals in their homes, particularly in cases where the police go to the homes with that intention, an arrest warrant is necessary.

The crimes in this case took place at approximately 9 p.m. on Saturday evening, and the arrest of Mr. Snitzer occurred at 8 a.m. on Sunday morning. That timing, and the likelihood that an arrest warrant was issued for Mr. Snitzer- and therefore issued between the time the crimes took place and the arrest- suggest that police decided early on, for whatever reason or constellation of reasons, that Mr. Snitzer was their man. In this country, that's not the end of the story for Mr. Snitzer. Now the Ocean County Prosecutor's Office must decide whether to prosecute Mr. Snitzer. If so, the State will have the burden of proving its case to a jury that Mr. Snitzer, beyond a reasonable doubt, committed the crimes with which he's been charged.

We'll keep tabs on this case as it progresses through the criminal justice process.

In a story that appeared in the online edition of the Star Ledger on October 6, reporter Steve Strunsky writes that the lawyer for Dharun Ravi issued a statement in which he expressed some confidence that his client would not face bias or hate crime charges in connection with the tragic case that caused Rutgers student Tyler Clementi to take his own life.

Mr. Ravi's lawyer, Steven D. Altman, takes his confidence from what he sees as the Middlesex County Prosecutor's Office deliberate handling of the case against Mr. Ravi. As Steve Strunsky reports, Mr. Altman feels a thorough collecting of the facts surrounding the case will benefit his client, and that, "nothing will be learned to justify, warrant or support the filing of any bias criminal complaint."

Meanwhile, Middlesex County Prosecutor Bruce Kaplan maintains that no final decision has been made with respect to any additional charges being filed against Mr. Ravi. Mr. Kaplan says that decision awaits an evaluation of all the evidence currently being gathered.

For now, Mr. Ravi and Molly Wei, also charged in connection with the case, have been charged with third and fourth degree invasion of privacy crimes.

It is interesting to note that New Jersey's hate crime statute, as it then existed, was reviewed by the United States Supreme Court in the 2001 case of New Jersey v. Apprendi. At the time of the Apprendi case, an interesting aspect of New Jersey's hate crime statute was codified as N.J.S.A. 2C: 44-3(e), which, as a result of the Apprendi decision, was repealed by the New Jersey state legislature .

For the majority of the Supreme Court Justices in Apprendi, the problem with New Jersey's hate crime statute was that it allowed a judge to impose an enhanced prison sentence if the judge was satisfied, by a preponderance of the evidence, that the elements of the hate crime statute has been satisfied. Specifically, the justices in the majority had two problems with this scheme. First, in cases where a jury decided guilt on the underlying crime, the justices thought it improper for the judge presiding over the case to make a separate finding of guilt with respect to the elements of the hate crime statute. Second, the standard of proof under which the judge was to make that determination- a preponderance of the evidence- was a far lower evidentiary standard than what is used in criminal trials: beyond a reasonable doubt.

Under the New Jersey hate crime statute as it was written at the time of Apprendi, a judge could condemn a defendant to prison time over and above that prescribed for the underlying crime, and do so on the basis of a civil law standard of proof. The holding in Apprendi struck down the New Jersey hate crime statute as a violation of constitutional protections owed defendants facing a loss of their freedom. Here is Justice Stevens, writing for the Court in Apprendi:

"In sum, our reexamination of our cases in this area, and of the history upon which they rely, confirms the opinion that we expressed in Jones. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." 526 U. S., at 252-253 (opinion of Stevens, J.); see also id., at 253 (opinion of Scalia, J.).[16]

The New Jersey statutory scheme that Apprendi asks us to invalidate allows a jury to convict a defendant of a second-degree offense based on its finding beyond a reasonable doubt that he unlawfully possessed a prohibited weapon; after a subsequent and separate proceeding, it then allows a judge to impose punishment identical to that New Jersey provides for crimes of the first degree, N. J. Stat. Ann. § 2C:43-6(a)(1) (West 1999), based upon the judge's finding, by a preponderance of the evidence, that the defendant's "purpose" for unlawfully possessing the weapon was "to intimidate" his victim on the basis of a particular characteristic the victim possessed. In light of the constitutional rule explained above, and all of the cases supporting it, this practice cannot stand."

What all this means for Mr. Ravi and Ms. Wei is that, should they be charged with a bias crime, the jury will have to determine their motivations for the crimes charged- if crimes they are determined to be- and they must determine those motivations beyond a reasonable doubt.

The confession of the defendant Peter O'Brien, who is awaiting a retrial for the murder of his mother and her longtime boyfriend has been ruled to be admissible for a second time. The initial conviction of O'Brien was reversed last year by the New Jersey Supreme Court, which said the trial judge improperly took on the role of the prosecutor while presiding over the trial. State v. O'BRIEN, 984 A. 2d 879 - New Jersey Supreme Court 2009.

Superior Court Judge Wendel E. Daniels ruled that O'Brien's confession to the murder can be introduced at trial to a jury. In 2006, Superior Court Judge Edward J. Turnbach, now retired, held a hearing to determine if O'Brien's confession could be introduced to the jury. Judge Turnbach ruled the confession could be introduced to the jury as it was not coerced. Judge Daniels wrote in his opinion, "there is no factual basis for the defendant's claim that he was improperly or illegally interrogated by law enforcement."

It will be interesting to see if this pretrial ruling causes the defendant to think twice about continuing to trial. The defendant will likely take his chances with 12 new jurors. The first trial resulted in the jury returning a guilty verdict and the Judge sentencing the defendant to an aggregate minimum custodial term of 130 years.

Although Peter O'Brien's confession is likely to be used by the jury to conclude he is guilty and did commit the murders, a recent study conducted by Brandon L. Garrett, professor of Law at the University of Virginia School of Law, the findings of which are published in an article by Professor Garrett in a recent issue of the Stanford Law Review, show how and why innocent people confess to crimes they did not commit. Professor Garrett's law review article goes beyond that demonstration and shows how even DNA evidence, available before trial and which clears an innocent party who confessed, can fail to overcome the evidentiary weight afforded a confession by the trier of fact in a criminal trial.

The study's findings were reported in The New York Times on September 13 by reporter John Schwartz. It has long been known by people in the academic, legal and law enforcement communities that people can and do confess to crimes they did not commit. The people most at risk of confessing to a crime they did not commit are people who are, for one reason or another, more susceptible to suggestion. Generally speaking, such people are comprised of the mentally impaired; the mentally ill; young people; and people who are otherwise impressionable.

What Professor Garrett's study shows, which is both informative and alarming, is that people not generally considered to be in danger of confessing to a crime they did not commit may nevertheless do so. These are people for whom the interrogation process has gone beyond endurance and who confess with the sole motivation of ending the interrogation process. Later, when they try to rescind the confession, they are unable to do so. While a criminal defendant is free to argue in court that his confession was false, that argument is frequently seen as self-serving.

Even more alarming are the cases covered in Professor Garrett's study where defendants who had falsely confessed had been cleared of their crimes by DNA evidence before their trials began. Nevertheless, in eight such cases, the defendant who falsely confessed was convicted anyway. How? In one case, the prosecutor argued that the DNA found on the victim may have belonged to a prior sex partner, and that the absence of the defendant's DNA on the victim should not overawe the defendant's detailed confession to the crime.

How was the defendant's confession detailed if he in fact did not commit the crime? How, in other words, might an innocent defendant know details of a crime only the real offender and the police would know? Often, apparently, because interrogation procedures are contaminated. As John Schwartz reports in the Times:

"Professor Garrett said he was surprised by the complexity of the confessions he studied. 'I expected, and think people intuitively think, that a false confession would look flimsy,' like someone saying simply, "I did it,"' he said."

"Instead, he said, 'almost all of these confessions looked uncannily reliable,' rich in telling detail that almost inevitably had to come from the police. 'I had known that in a couple of these cases, contamination could have occurred,' he said, using a term in police circles for introducing facts into the interrogation process. 'I didn't expect to see that almost all of them had been contaminated.'"

Professor Garrett's study and Mr. Schwartz's report provide important insights into how interrogations and prosecutions can go wrong, and lead to innocent people spending years upon years in prison. Their contributions are especially relevant and timely in light of the recent Supreme Court case of Berghuis v. Thompkins, which held that law enforcement personnel can continue to question a suspect, and to use what that suspect says against him in court, where the suspect does not expressly invoke his right to remain silent.

SOURCES:

State v. O'BRIEN, 984 A. 2d 879 - New Jersey Supreme Court 2009.

"Judge Denies hearing for Toms River man's murder confession" by Kathleen Hopkins, Staff Writer, Asbury Park Press, October 5, 2010, app.com.

"The Substance of False Confessions, by Brandon L. Garrett, Professor of Law, University of Virginia Law School, Public Law and Legal Theory Working Paper Series, Year 2009, Paper 136.