Saturday, August 29, 2009

Mandatory Joinder

State of New Jersey v. Louis E. Veney, Jr. - A Discussion

The facts in brief: The defendant was arrested after an officer observed a "marijuana blunt" in his vehicle's console and the defendant told him there was a weapon in the car.

The grand jury indicted the defendant for third-degree "unlawful possession of a weapon" (Count 1), fourth-degree "hindering apprehension" (Count 2), second-degree "certain persons not to have a weapon" (Count 3). The state also charged defendant under separate complaint-summons with disorderly persons offenses of possession of marijuana and possession of drug paraphernalia, and with two traffic offenses, operating a vehicle with a suspended drivers license and operating a motor vehicle while in possession of a controlled dangerous substance.

Prior to trial, the State moved to dismiss Counts 1 and 2 of the indictment, with no objection from the defendant. This confirmed a letter previously sent to defense counsel indicating the State's intention to dismiss those counts. The court indicated an intention to dismiss the two counts after the jury was impaneled and sworn. After the jury was sworn, the State did not move again to dismiss the counts, but the trial proceeded only on Count 3 with regard to this defendant.

The jury found defendant guilty of Count 3, "certain persons not to have a weapon." The judge granted defendant’s motion of acquittal notwithstanding the verdict. At the same hearing, the defendant pled guilty, upon the advice of his attorney and pursuant to a plea agreement, to Count 1 in exchange for state recommending 4 years prison with 18 month period of parole ineligibility, dismissal of Count 2 and dismissal of the disorderly persons and traffic offenses.

The court sentenced the defendant according to the plea agreement.

The issues: Was the defendant denied effective assistance of counsel? Was the State precluded from seeking the defendant's conviction on Count 1 of the indictment pursuant to the bar against double jeopardy? Was the State precluded from seeking the defendant's conviction on Count 1 of the indictment pursuant to the mandatory joinder rule?

The court's holding: The state was barred from prosecuting the charge of unlawful possession of a weapon under the mandatory joinder rule, as well as the doctrine of fundamental fairness. The defense attorney should have sought dismissal of the charge prior to defendant's plea, the state previously having tried defendant to conclusion on another charge arising from the same core set of facts giving rise to this charge.

The Appellate Division determined that the Constitution's prohibition against double jeopardy was irrelevant, as jeopardy had not attached when the motion for Counts 1 and 2 of the indictment was made, as the jury had not yet been impaneled and sworn. Therefore, the State would have been within its rights to try the defendant on those separate charges.

However, the mandatory joinder rule precluded such a subsequent trial. That rule was adopted to bar separate trials for multiple offenses that are known to the prosecuting attorney at the time the first trial begins, when the offenses are based essentially on the same conduct or arise from the same criminal episode and are within the jurisdiction and venue of a single court. This rule is more widely applicable than that barring double jeopardy.

[Note: The court may still order a separate trial for multiple charges when it believes the occasion warrants it due to potential prejudice to either the defendant or the State.]

In this case, the State could not have proceeded to trial on Counts 1 and 2 of the indictment after the dismissal of Count 3 by the court. Therefore, by negotiating the plea agreement with defendant, the State had indirectly accomplished what the mandatory joinder rule prohibits. The defendant was "entitled to be free of the harassment and oppression of a second trial on offenses relating to the same episode."

The Appellate Division further concluded that even had the mandatory joinder rule been inapplicable in this case, the State should have been barred from proceeding on Count 1 by the doctrine of fundamental fairness.

In considering the fairness to defendant, the court examined his reasonable expectations. The letter to defense counsel, followed by the statements made in court describing the State's intention to dismiss Counts 1 and 2 and proceed only on Count 3 with regard to this defendant would lead the defendant to believe that, in proceeding to trial on Count 3, he would not have to face subsequent prosecution on Count 1. Further prosecution would violate the spirit of the mandatory joinder rule and the doctrine of fundamental fairness.

In addition, the court concluded that defendant was denied effective assistance of counsel, as his attorney should have moved to dismiss Counts 1 and 2 prior to the entry of a guilty plea by defendant.

The end result: The conviction of the defendant was reversed and the indictment dismissed by the Appellate Division.

What does all of this mean to you? The Appellate Division has reiterated the protection afforded to defendants from multiple trials stemming from the same instance of criminal conduct. Except in instances where the court orders separate trials for separate counts of an indictment, you will be subjected to only one trial, freeing you from the additional stress and expense of facing additional trials at a later date regarding the same indictment.

Thursday, August 20, 2009

Miranda Rights and Juveniles

State of New Jersey in the Interest of A.S., August 12, 2009 - A Discussion

The facts in brief: A 14-year-old girl, A.S. was accused of molesting the 4-year-old grandson of her adoptive mother. Had she been an adult, the acts described would have constituted first-degree aggravated sexual assault. A.S. had been abandoned by her substance-abusing biological mother at the age of nine, and began living with her adoptive mother when she was eleven. She was reading at a third-grade level although she was in high school. She had no prior experience with the police, courts, or legal system.
After a detective with the county prosecutor's office interviewed the victim, A.S. appeared for questioning with her adoptive mother, at which time A.S. confessed to the acts alleged. At trial, the Family Court judge conducted a suppression hearing to determine the admissibility of this confession.
From the tape of the interview as well as A.S. testimony during the suppression hearing, the judge learned that the prosecutor had directed A.S.' mother to read to A.S. her Miranda warnings. When A.S. asked what a lawyer would do for her, her mother responded simply, "Suppose to represent you," and then told A.S. that she'd have to talk eventually and that they already knew what she'd done. A.S.' mother, without obtaining the juvenile's consent, told the prosecutor that he could question her. It was only then that A.S. signed the waiver.
When A.S. again asked what an attorney would do on her behalf, her mother and the prosecutor told her that he would represent her and ensure that her rights were not violated, but could not speak for her. She was told by her mother, "When the questions are asked, you have to answer the question" and by the prosecutor, "... you're the only one that can actually speak the truth here." A.S. was not asked again whether she would like to have an attorney; instead, her mother expressed impatience at the delay A.S. was creating and the prosecutor told A.S., "the truth is only gonna help you," and that "an attorney that's an assistant prosecutor was gonna review all this information," and "the more truthful you are and the more complete you are, okay, the better it looks for you, okay."
The two adults proceeded to question her until she confessed to the acts alleged. Throughout, the antagonism of her mother toward A.S. was clear as she repeatedly insisted that A.S. confess to the prosecutor.
During the hearing, A.S. stated that she understood "some of" her rights, and that when she refused to answer questions, she was intending to invoke her right to "remain silent," until she was badgered into responding. She also stated that she never asked for an attorney because they didn't do anything but just "sit there." The judge determined that the confession was indeed admissible, if troubling.

The issues: Was A.S.' waiver of her right to counsel and right to remain silent under Miranda v. Arizona given knowingly and voluntarily? Did A.S. invoke her right to remain silent?

The court's holding: The Appellate Division determined that the confession, in fact, should not have been admitted into evidence.
In the case of a juvenile, the standards regarding the waiver of Miranda rights are exacting.
As the court discussed, "To admit the confession of a juvenile over the age of fourteen, the State must demonstrate, beyond a reasonable doubt, that the statement was knowingly, intelligently, and voluntarily given," based upon factors including the suspect's age, education, intelligence, advice as to constitutional rights, repetition and length of questioning, and the suspect's prior encounters with the law. When a juvenile is being interrogated, the role of a parent takes on a special significance. The parent’s role is to support the juvenile and guide her, not to be an additional adversary in an unfamiliar and intimidating setting. The court emphasized the necessity for adult protection with a juvenile suspect.
With regard to A.S. specifically, nothing was done to contribute to her comprehension of her rights, discuss whether waiver was an appropriate course for her to take, or explain to her what the practical effects of a waiver would be.
In addition, A.S.’ long silences suggested that she was indeed attempting to invoke her right to silence, requiring further inquiry from the prosecutor with regard to A.S. wishes, rather than further interrogation. The courts have held that a request by a defendant to terminate an interrogation must be scrupulously honored, no matter how ambiguous, even when the person being questioned is an adult. This requirement imposed by the courts upon prosecutors is all the more important when the suspect is a juvenile.
Most troubling to the court was the evident conflict of interest resulting from A.S.’ mother’s relationship to the victim and her actions in the best interests of her grandson, to the detriment of her adopted daughter. The purpose of a parent’s presence at the interrogation of a juvenile is to provide a buffer between law enforcement and the child. No such buffer was created here.
The facts of this case, reviewed as a whole, rendered A.S.’ confession substantially unfair. The court found that, “In circumstances such as those existing in the present matter, where the adult advisor is known to have a close family relationship to the victim and the alleged perpetrator, the prudent approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights and her potential culpability.”

The end result: In the end, the Appellate Division did uphold the adjudication of the Family Court. It had no choice, though it was gravely disturbed by the way the confession was handled and the findings of the Family Court judge with regard to its admissibility. The Family Court judge had indicated at trial that even without the confession he would have come to the same findings. It is the job of the Family Court judge to determine credibility, and he found the victim had given enough credible testimony to result in adjudication of A.S. as a delinquent and her registration with Megan's Law. It was not the place of the Appellate Division to dispute those findings.

What does all of this mean to you and your child?: The court has reiterated the great importance of protecting the rights of all defendants, but especially those of juveniles.

Certainly, if you have a conflict of interest with regard to a child in your care who has been arrested, it would be in the best interests of all concerned for you to obtain representation for the child to preserve his or her rights before any questioning begins. Failing to do so would merely drag out the process, harming the victim, harming the juvenile defendant, and increasing the expense.

If, as in most cases, you do not have a conflict of interest and are truly interested in protecting your child, do not allow him or her to be questioned without legal representation. If you cannot afford it, know that a public defender must be appointed on his or her behalf. Even if you can afford it, if there is no time given to you to to obtain private representation prior to initial questioning, a public defender must be assigned to protect your child. If you can obtain private representation, do so.

Prosecutors and police officers will always do all that is in their power to convince their suspect to waive his or her rights to counsel and silence and to confess; juveniles are treated no differently than adults in this. While they are not permitted to trample the rights of you or of your child, they will always, always tell you that it is in your child's best interest to talk, that the child would be helping himself and that they are there to help.

It is when they convince you of this, when you agree to permit your child to talk to the police or prosecutor unrepresented, that the defense attorney eventually retained to represent your child has the most difficult job ahead. It decreases the likelihood that your attorney can help, it decreases the likelihood that you will see a positive outcome to your child's case, and it increases the danger that your child will be adjudicated a delinquent and face the most severe types of punishment.

Thursday, August 13, 2009

Oh, really?

According to a recent article in the New York Daily news (Original Source Here), not only do 70% of Americans think that it is right for a woman to take her husband's name upon marriage, but a full fifty percent actually think it should be required by law. Of the ones who favor the name change, some of them voiced the reasoning "that women should lose their own identity when they marry and become a part of the man and his family."


Now, I recognize that only 815 people were surveyed. I also recognize that statistical data can easily be manipulated by those asking the questions, and that we have no indication that this was an accurate cross-section of all Americans. Still, the statistic is disturbing.

For the sake of perspective, I was married in March and I changed my name from Pelc to Symbouras. However, I knew that I had the choice, and that the choice was mine alone. My husband never even brought up the issue; I did, and his reaction was, "I'm happy that you want to take my name, but it's entirely up to you. I'd never push it." It is for this reason, this recognition of choice above all, that I absolutely did not lose my identity.

As someone who was planning a wedding, I frequented wedding-related websites and was in contact with other women across the country and around the world who were also getting married. Every once in a while the question would be posed regarding a marital name change, and the responses were interesting. Many women, especially in New Jersey, are choosing to keep their premarital surnames. Many are changing them entirely as I did, hyphenating them, or dropping their middle names, bumping their maiden name to middle name status. Many, to my surprise, relayed their fiance's insistence that they change their names. Raised, as I was, to be independent and fairly opinionated, that surprised me. It grates on me.

This is 2009, after all. Women are, in the legal world, equals. Sure, there's still much more to gain in the real world, but our predecessors have fought long and hard for our equality and to a large extent have achieved it. Born in 1970, I was raised with the perspective that I could do anything I pleased with my life; that there was nothing I could not achieve, no career I could not pursue. We vote. We serve on juries. We seek educations. We run companies. We create, invent, achieve.

And still... we need to lose our own identities? No. No, we don't.
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