New Jersey Bail Reform FAQ

Answer to Your Questions About New Jersey Bail Reform

What is bail?

Bail is a financial surety to guarantee a defendant’s appearance at trial. In order to receive the money back, you have to show up at court.

My loved one was arrested, and I was told I couldn’t bail them out. What’s going on?

As of January 1, 2017, New Jersey no longer uses a monetary bail system. Under the new law, you must go to jail if you are arrested, no matter how much money you have.

Does every charged defendant sit in jail while their case is being tried?

No. A judge will decide whether a defendant stays in jail or is released while the case continues.

Does this happen for every person who is arrested?

No. When someone is charged with committing a crime, law enforcement makes a decision to charge the defendant in one of two documents: a summons or a warrant.  If a defendant is charged on a summons, they are given a court date and released.  If a defendant is charged in a warrant, they are sent to jail and a judge decides if they should remain detained until the case is over.

Does everyone charged in a warrant go to jail, even if the charge is minor?

Unfortunately, yes. Trust me, I understand how frustrating this can be. This is why getting an attorney as soon as possible is important. Having an attorney early on in a case may prevent some difficulties.

What happens after the accused go to jail? Do they sit in a cell until the case is over?

No. The law requires the defendant to appear before a judge within 48 hours of their arrest. A prosecutor will then review the defendant’s case and determines whether or not it is appropriate to continue detention until the case is over.  If the prosecutor wants to detain or arrest the defendant, he or she must file a motion with the judge.

Can the prosecutor file a motion whenever they feel like it?

Short version: Yes.

Long version: While prosecutors are afforded a lot of discretion, the Attorney General of the State of New Jersey has developed bail guidelines advising prosecutors when they should apply for continued detention.

What if the charge is minor, like shoplifting? Can the prosecutor still file a motion seeking detention?

Yes.

If the prosecutor files a motion at the first appearance in front of a judge, can I talk to the judge and convince them to release my loved one?

No. There is nothing you or an attorney can do at the first appearance in front of a judge.  Once the prosecutor files the motion, the defendant will not be released that day.

Will my loved one have to sit in jail until the case is over?

Not necessarily. The law requires that a detention hearing take place within three working days of the prosecutor filing a motion to detain the defendant.

What happens at the detention hearing?

Prior to the detention hearing, Pre-Trial Services — a division of Probation and the Courts — will review the defendant’s case and produce a document called a Public Safety Assessment.

What’s a public safety assessment?

Each defendant is assessed on the risk they will fail to appear in court and the risk they will commit another crime if released. A number of factors are considered when creating this document, including a defendant’s criminal history, the crimes alleged and the defendant’s history of coming to court.  Each defendant is then assigned a numerical value between one and six reflecting Pre-Trial Services’ assessment of those risks.  The lower the number, the lower the risk.  Pre-Trial Services also makes a recommendation to the judge as to whether a defendant should be detained or released.

Does a probation officer decide if a defendant is detained?

No. While the judge can consider the Public Safety Assessment, the judge ultimately makes the final decision and can rule against the recommendation from Pre-Trial Services.

What happens at the hearing?

Typically, the prosecutor will introduce certain documents into evidence, including the complaint and probable cause statement (a document summarizing the allegations).  The prosecutor will then argue to the judge that the defendant should be detained.  The defendant’s attorney can respond to those arguments and argue that the defendant should be released.

Does anyone testify at the hearing?

Not usually. The prosecutor can proffer documents, or offer evidence in the form of documents in support of the case. In that instance, a live witness does not need to testify.  However, a defendant is permitted to do the same thing.

How will I know the details of what the prosecutor is alleging?

The prosecutor is required to hand over a substantial amount of discovery (police reports, etc.) at the pre-trial detention hearing.  This is one of the only good things about a detention hearing — we get to see the prosecutor’s file a lot faster.

What happens if the judge detains my loved one?

If the judge detains the defendant, the defendant will likely be detained until the case is over.  There is an expedited appeal process, but it is very difficult to overturn the judge’s decision.  In addition, part of the bail reform statute imposes some strict time constraints on the prosecutor, who is required to indict the defendant within 90 days.

What if the judge releases my loved one?

If the judge releases the defendant, there may be some strings attached.  For example, the defendant may have to report to probation every other week in person to ensure they did not flee.  Some defendants are also required to wear an electronic ankle monitor to verify their location.

What do I do when my loved one gets arrested and goes to county jail?

The very first thing you should do is contact an attorney. Not only can an attorney answer questions that are specific to your case, an attorney can also represent your family member at a detention hearing. The new bail reform law is complicated, so it’s important to speak to an attorney with experience in this arena.

Can you explain this more?

Absolutely. Our team at Daniel M. Rosenberg & Associates is always available to answer your questions during a free consultation. Call our office at 609-216-7400 to get in touch.

Ed ‘NJ Weedman’ Forchion & New Jersey Bail Reform Law

‘Weedman’ Challenges NJ Bail Reform

Half a year into the new New Jersey bail reform law, and already the new law is being challenged in court. This week, on July 12 and 13, Edward “NJ Weedman” Forchion will appear in Mercer County Court for a bail detention hearing. According to a July 10 press release and his May letter to the editor of the Burlington County Times, Forchion will challenge the New Jersey Bail Reform and Speedy Trial Act in court.

Forchion was arrested in March 2017 on witness tampering charges after allegedly selling marijuana out of his Trenton restaurant, and detained by the court. The court has denied his appeals to be released on bail.

“For over 200 years, the U.S. Constitution guaranteed bail and now Gov. Chris Christie has eviscerated it with the N.J. Bail Reform Act. I am a political prisoner that has been unconstitutionally detained since March 3, 2017,” Forchion said in the press release.

According to Forchion, the Bail Reform Act violates the Eighth Amendment of the U.S. Constitution, and contradicts precedents set by the U.S. Supreme Court in Stack v. Boyle and the N.J. Supreme Court in State v. Craig Johnson.

New Jersey voters passed the Bail Reform Act in 2014, and the law was enacted on Jan. 1, 2017. The act removes financial resources as a factor in a person’s pretrial detention, and therefore avoids letting dangerous criminals out on bail simply because they have the financial ability to buy their freedom.  

Instead, New Jersey judges now use a digitally-calculated risk score that evaluates factors such as the alleged person’s age, behavior, criminal history and severity of the crime to determine if they should be eligible for bail or not. Those who are granted bail must complete non-monetary requirements of bail at home while awaiting trial. Those who are denied bail must await trial in prison.

Getting Help With NJ Bail Reform

The attorneys at Daniel M. Rosenberg & Associates stay abreast of changes to the New Jersey legal environment militantly. If you’re looking for more information on bail reform in New Jersey, or need an experienced attorney to represent you in court, Daniel M. Rosenberg & Associates can help. Our compassionate team of aggressive defense attorneys are always available to provide consultations free of charge when you call (609) 216-7400.

 

Sources:
Forchion, E. (2017, July 10). Political Pot Prisoner Ed Forchion Ends Hunger Strike, Secures Bail Detention Hearing. Retrieved from https://www.send2press.com/wire/political-pot-prisoner-ed-forchion-ends-hunger-strike-secures-bail-detention-hearing/
Forchion, E. (2017, May 25). The Bail Reform Act violates the Constitution. Retrieved from http://www.burlingtoncountytimes.com/opinion/letters/the-bail-reform-act-violates-the-constitution/article_79c8f657-6ffd-53bb-9853-328aa1a5c28f.html
Merriman, A. (2017, March 18). NJ Weedman appeals decision to leave him in the joint. Retrieved from http://www.nj.com/mercer/index.ssf/2017/03/nj_weedman_appeals_decision_to_leave_him_in_the_joint.html

Turner Ruling Sets Questionable Precedent

Are the Courts Encouraging Prosecutors to Hide Evidence?

One cornerstone of the criminal justice process is a defendant’s right to know the specific facts and evidence the government intends to use against them in a trial.  This process is called “discovery,” and both federal and New Jersey courts require the prosecutor to turn over any evidence that is “exculpatory,” or favorable to the defense and material to the case. In the recent United States Supreme Court Case of Turner v. United States, the court addressed the consequences of a prosecutor’s failure to make a defendant aware of exculpatory evidence.

Since the 1963 case of Brady v. Maryland, precedent says a defendant’s constitutional due process rights are violated when a prosecutor withholds evidence that is “favorable to the defense and material to the defendant’s guilt or punishment.”  Evidence is “material” when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding or trial would have been different.

In Turner v. U.S., approximately 10 defendants were alleged to have brutally raped and murdered a woman shopping in the District of Columbia in 1984.  The prosecutor used the testimony of two co-defendants and an eyewitness to paint a picture of a large group attacking the mother of six. Turner, along with several other co-defendants, was convicted.

Roughly 15 years later, in post-conviction relief proceedings, the defendants discovered the prosecutor had evidence that was not disclosed in the discovery process. Namely, that an eyewitness who testified at trial had given a prior statement wherein he observed two different suspects — including convicted felon James McMillan — at the scene of the crime before they ran away. Other withheld evidence includes information that one of the prosecutor’s key witnesses was high on PCP when meeting with investigators.

Before the Supreme Court, the government argued this evidence was not material and thus did not warrant a new trial.  The defense disagreed, arguing that, had this information been disclosed, they would have pursued a different theory and argument before the jury at trial.

The Supreme Court sided with the government, holding the withheld evidence “too little, too weak, or too distant from the pain evidentiary points to [warrant a new trial].”  In essence, the court held the prosecutor’s case to be too strong, and the suppression of this evidence did not make a difference. Justices Kagan and Ginsburg voiced a strong dissent, noting the entire tenor of the trial would have been different due to a more unified defense from multiple defendants.

While the Supreme Court limited its ruling to the facts of this specific case, and did not announce any radical changes in the ethical obligations of prosecutors, the ruling still imposes no consequences for the government’s inexcusable withholding of evidence that plainly should have been disclosed.

Let me be clear: I do not believe there is an epidemic of misconduct wherein there is systemic or conspiratorial bad faith on the part of prosecutors.  The vast majority of prosecutors are ethical to a fault and take their professional responsibilities seriously.  However, when the government hides evidence, the consequences for citizens are dramatic.  Innocent people are incarcerated.  Reputations are ruined.  The public’s confidence in the justice system is eroded.  Perhaps most importantly, the process is corrupted.

There was no debate that the prosecutor in Turner v. U.S. should have disclosed the exculpatory evidence at issue.  After the Supreme Court’s ruling, this prosecutor will face no meaningful consequences for this deliberate “tipping of the scales.”  That is unjust.

Moreover, the message sent from the court to prosecutors across the country is frightening: Go ahead and kick up chalk.  We’ve got your back.  Prosecutors already, and appropriately, enjoy certain immunities given the difficult decisions they are forced to make in even the most routine case.  And prosecutors, like the rest of us, will respond to incentives and disincentives.  Unfortunately, the court missed an opportunity in Turner v. U.S. to articulate and frame the discussion in a way that would provide appropriate motivation for prosecutors to fairly and openly err on the side of a more honest and transparent system of justice.

Justice for Megan: Implementing Megan’s Law

Tragedy in Hamilton Township, NJ

In July 1994, convicted sexual offender Jesse Timmendequas brutally raped and strangled Megan Kanka to death across the street from her New Jersey home. Megan was only 7 years old. Kanka’s family felt that, had they known a convicted sex offender lived nearby, they could have better protected their daughter and their family.

This tragic incident prompted a three month campaign that would soon inspire Megan’s Law, a ruling that requires notification of high-risk sex offenders’ whereabouts to be made public.

Megan’s Law in Action

After becoming New Jersey law in 1994, Megan’s Law was signed into federal law as of 1996 and is implemented across all 50 states. The controversial law has caught some backlash throughout the years for its privacy infringement and potential to victimize offenders who pose little to no threat to the community. However, Megan’s Law continues to prevail and officials are pleased with its progression.

Initially, the purpose of Megan’s Law was to help notify communities and neighborhoods when sex offenders lived or moved close by. The law requires convicted sexual offenders to register with the proper authorities, and neighboring communities, schools and organizations are made aware of their presence. It has since grown into a vast online community of registrants, including those with one-time and repeating offenses.

The New Jersey online registry includes the sex offender’s name, descriptions of the conviction and offense, address and a photograph of moderate to high-risk offenders. All of this information is available for public review, now accessible through a 900 number and CDs at police stations around the state. Details and extensive information on low-risk offenders are only made available to law enforcement and officials.

Megan’s Law Crimes

Convictions or adjudications of the following crimes require a person to register under Megan’s Law:

  • Aggravated Sexual Assault
  • Sexual Assault
  • Aggravated Criminal Sexual Contact
  • Criminal Sexual Contact (if victim is a minor)
  • Kidnapping (if victim is under 16 years of age)
  • Endangering the Welfare of a Child (in certain circumstances)
  • Luring
  • False Imprisonment (if victim is a minor)

Community Notice of Convicted Offenders

To ensure a community’s safety, local organizations and corresponding law enforcement must be notified of an offender’s release. The State Department of Corrections and Human Services are responsible for informing county prosecutors and law enforcement agencies about the presence of all sex offenders within the community.  In turn, the prosecutors must determine risk to the community – the likelihood that the offender will commit another crime.  

Prosecutors classify sex offenders who reside in the community as one of three tiers, based on the degree of risk they pose to the public:

  • Tier 1 Offenders – Sex offenders present a low risk of re-offense.
  • Tier 2 Offenders – Sex offenders post a moderate risk of re-offense.
  • Tier 3 Offenders – Sex offenders show a relatively high risk of re-offense.

The sex offender internet registry includes information pertaining to sex offenders within Tier 3 and some Tier 2 offenders. However, it excludes any information about those in Tier 1. Offenders who challenge the prosecutor’s risk determination receive hearings. Notification can proceed when the court issues a final order authorizing the county prosecutor to provide relevant information to the appropriate groups of individuals.  

Removal from Megan’s Law

Sex offenders may apply to the Superior Court of New Jersey to terminate their Megan’s Law requirement. This is only permitted if the offender has not committed another offense within 15 years following their conviction or release from a correctional facility.

Legal Support with Megan’s Law

Megan Kanka’s death was a major blow to the New Jersey community. However, her death is a reminder that we should do all we can to secure the safety of our families and our children. Take advantage of the resources provided to the public and don’t hesitate on asking questions.

If you have questions regarding Megan’s Law or sexual assault charges in New Jersey, Daniel M. Rosenberg & Associates are available to help. Call us today at (609) 216-7400 to get a free consultation on your case.

Bail Reform in New Jersey: A Sixty-Day Checkup

Bail Reform in New Jersey: A Sixty-Day Checkup

The new year brought with it a titanic shift in New Jersey’s criminal justice system. Signed by Governor Christie on August 11, 2014, the Bail Reform Law included an amendment to the New Jersey State Constitution that — for the first time in the state’s history — authorized the pretrial detention of defendants without bail. This NJ bail reform law did not take effect until January 1, 2017, and has since been met with mixed reviews. The most meaningful assessment and analysis, however, comes from our state’s appellate courts. Both these courts and the New Jersey Supreme Court give binding direction and instruction to judges, prosecutors and defense attorneys.

With a little over 60 days of contentious litigation having passed, the appellate division has already settled — for the time being — two of the most pertinent issues in pretrial detention hearings.

What Evidence Must the Prosecutor Provide to a Defendant?

The first case wherein the procedures of pretrial detention were addressed came on February 8, 2017, in State v. Robinson. The defendant was arrested and charged with murder. In the Preliminary Law Enforcement Information Report (PLEIR), a document that briefly summarizes the evidence available to law enforcement at the time of the arrest, police noted that law enforcement possessed surveillance footage relevant to the case. The defendant demanded that the prosecutor produce this footage, but the prosecutor refused. The judge presiding over the detention hearing ordered the prosecutor to turn over certain discoveries, including the surveillance footage. The state appealed.

An appellate court upheld the judge’s order at the detention hearing, finding that the plain language and purpose of the law compelled the production of materials relevant to the probable cause upon which the state relies when seeking detention. Moreover, the appellate court held that information included in the Affidavit of Probable Cause, a document that briefly spells out the evidence supporting the arrest of a defendant, is also subject to discovery. Finally, the appellate court made no distinction between materials in the possession of the police and materials in possession of the prosecutor. In short: If the police have it, so does the prosecutor.

Can the Prosecutor Rely on Hearsay at the Detention Hearing?

The second case, State v. Ingram, was decided March 1, 2017. The defendant was arrested and charged with various firearms offenses. As is the practice of prosecutors, the state relied upon an affidavit of probable cause and the PLEIR at the detention hearing, and did not produce any testimony from police officer(s) or other witnesses. The judge found that probable cause existed that the defendant committed the offense, and ordered the defendant held without bail. The defendant appealed.

On appeal, the primary issue was whether the prosecutor was required to produce live testimony when establishing probable cause, as opposed to relying upon the probable cause affidavit and the PLEIR. In other words, can the prosecutor proffer documents instead of calling live witnesses?

The appellate court held that the prosecutor is not required to call live witnesses. The court noted that federal criminal courts employ a similar system of pretrial detention and permit the proffering of documents instead of live testimony. The court further rejected the defendant’s argument that the plain language of the Statute, providing a defendant with a right of cross examination, also compelled the state to produce live testimony. Rather, the court held that if the state opted to produce live testimony, the defendant has a right to cross-examine the witness. The court declined to hold that the state was required to produce a witness, though. Finally, the court expressed concern over the volume of detention hearings and the risk of “mini-trials” monopolizing judicial resources.

The court did convey discretion to the judge and held that a judge could demand the prosecutor produce a live witness. The court did not address a defendant’s right to produce evidence by way of proffer in lieu of live testimony.

Conclusion

Sixty days in, the appellate courts have spoken regarding two significant issues pertaining to pretrial detention hearings. If this were a boxing match, it would be a split decision. Defendants walked away with a victory in that prosecutors must produce more discovery than they would prefer to hand over at this early stage. Prosecutors succeeded in holding off defendants’ demands for live testimony and an early crack at cross-examining law enforcement or other witnesses.

To be sure, NJ bail guidelines (Pretrial Detention) are far from settled. At some future juncture, the New Jersey Supreme Court will consider these issues, and those decisions will dictate procedure with far more authority. There are also countless other questions that will arise, and the devil is often in the details of the particular facts and circumstances before the courts. For now, though, pretrial detention hearings are simultaneously the law of the land and a work in progress.

If someone you know has been taken into custody as a result of being charged with a crime in New Jersey, the attorneys at Daniel M. Rosenberg & Associates, LLC can help. Knowing the law and the leanings of local judges and prosecutors is invaluable when presenting a defense to any criminal accusations and trying to avoid pretrial detention. Call (609) 216-7400 for an immediate, free consultation with experienced and compassionate counsel.

New Jersey Bail Reform and Speed Trial Act Is Now in Effect

New Jersey Bail Reform: It’s Here

During the general election of 2016, New Jersey voted to amend its state constitution. The people decided to remove money from their state’s bail equation and also to speed up trial dates for criminal defendants in New Jersey. The resulting Bail Reform and Speed Trial Act went into effect Jan. 1, 2017. Ultimately, the law aims to foster a more equitable situation for criminal defendants and make New Jersey a safer place.

New Jersey’s Jail Problem

In 2013, New Jersey jails were overcrowded with inmates. The overwhelming majority of these people were not convicts; they were simply awaiting their day in court but could not afford to pay bail.

Often, a lack of bail money means the difference between awaiting trial behind bars or within the comforts of one’s own home. In fact, the Drug Policy Alliance of New Jersey and consulting firm Luminosity found that a striking 38.5% of New Jersey inmates only remained in jail due to financial constraints.

Inmates’ situations grew worse with time — some were forced to stay behind bars for months on end. Based on numbers from October 2012, the state Attorney General’s Office discovered that New Jersey inmates spent an average of 314 days in jail before trial.

One young mother was stranded in jail for 17 months because she — like the majority of Americans — did not have access to $17,500. She was not a flight risk, she was not accused of a violent crime — she simply did not have enough money to be released from jail. The woman told a representative of WHYY Public Media, “I missed 17 months of my children’s lives. You know, birthdays and holidays and everything. You miss a lot. You come home, and everything is different.”

Not only is unnecessary incarceration devastating for inmates and their families, but it also drains the pockets of taxpayers who annually spend tens of thousands of dollars per inmate. When it became clear to New Jersey lawmakers that bail reform was in everyone’s best interest, they decided to solve the problem.

The Bail Reform and Speed Trial Act

In 2014, with support from Gov. Chris Christie, state lawmakers began drafting the bill (S946/A1910) that would become the Bail Reform and Speed Trial Act. After years of work by New Jersey legislators, the law went into effect Jan. 1, 2017.

At its core, the law says that criminal defendants are entitled to a timely trial and that financial circumstances should not play a major role in a person’s incarceration.

Before the act, nearly all criminal defendants could be released on bail — whether they were charged with a violent crime or a relatively minor offense like a traffic violation. Going forward, a judge will decide whether a defendant will be granted bail based on that defendant’s behavior — not their bank account.

Decisions will be, in part, informed by a digital risk assessment tool created by the Laura and John Arnold Foundation, in addition to existing New Jersey bail guidelines. The assessment tool evaluates a defendant’s behavior, type of alleged crime, criminal history, age, and other factors. The tool is intended to calculate the likelihood that a defendant will engage in any of the following three actions while released on bail:

  1. Risk that the defendant will skip their court date
  2. Risk that the defendant will commit another crime
  3. Risk that the defendant will commit a violent crime

Once given a defendant’s information, the digital tool produces a risk score. That number does not replace the judge’s sound reasoning, but rather, supplements it. The judge will consider each defendant’s risk score as they decide whether that person should await trial in jail or at home.

Defendants with low risk scores who are allowed to leave jail must complete their bail requirements through an alternative, non-monetary system. For example, a defendant might have regular phone calls or visits with a court-designated supervisor, maintain employment or schooling, or submit to drug testing and electronic monitoring, among other options.

At the other end of the spectrum, high-risk offenders may be denied bail — even if they can pay a hefty sum.

Additionally, the Bail Reform and Speed Trial Act dictates that any person who is arrested in New Jersey must receive a pretrial detention hearing within 48 hours. During this hearing, the court will utilize the assessment tool so that they can make a bail decision.

National Bail Reform

On a given day, U.S. jails hold around one-third of the country’s incarcerated persons. That means that there are currently about 730,000 jailed people who have not been convicted but are simply awaiting trial. Just as it was in New Jersey before the Bail Reform and Speed Trial Act, many people across the rest of America remain behind bars for months on end before they see a courtroom. This unfair practice — which disproportionately impacts low-income and African American populations — has inflicted much emotional pain on families across the country.

Overincarceration is also a burden to the federal taxpayer. In 2013, the Bureau of Justice Statistics released a report on U.S. correctional expenditures between 2005 and 2011. The report stated that local governments annually spent more than one-third of all funds spent by state and local governments on correctional institutions.

New Jersey’s Bail Reform and Speed Trial Act brought bail reform to the national discussion table. Six other states (Virginia, Delaware, Colorado, West Virginia and Hawaii) have also modified their approaches to bail and incarceration. With this momentum, top U.S. lawmakers may begin to consider changing the country’s criminal justice system.

Earnest, Aggressive Defense

The attorneys at Daniel Rosenberg & Associates have long supported the measures in the Bail Reform and Speed Trial Act. We believe this new legislation will positively impact those who are navigating New Jersey’s justice system. 

If you or someone you know is currently jailed in New Jersey, contact Daniel M. Rosenberg & Associates. No matter how much time you have spent in jail, we can help you protect your rights and make decisions that serve your best interests. Call us today at (609) 216-7400 to get a free consultation on your case.

 

 

Sources

  • Conte, Michaelangelo. “Bail Reform Assuming Nearly All Defendants Be Released Takes Effect.” NJ.com, The Jersey Journal, 3 Jan. 2017, www.nj.com/hudson/index.ssf/2017/01/bail_reform_assuming_nearly_all_defendants_be_rele.html. Accessed 31 Jan. 2017.
  • Henrichson, Christian, et al. “The Price of Jails.” Vera Institute, May 2015, www.vera.org/publications/the-price-of-jails-measuring-the-taxpayer-cost-of-local-incarceration.
  • Hernandez, Joe. “N.J. Will Eliminate Cash Bail, Speed Up Criminal Trials in 2017.” New Jersey Association of Counties, njac.org/n-j-will-eliminate-cash-bail-speed-up-criminal-trials-in-2017/. Accessed 31 Jan. 2017.
  • Kyckelhahn, Tracey. “Local Government Corrections Expenditures, FY 2005–2011.” Bureau of Justice Statistics, U.S. Department of Justice, Dec. 2013, www.bjs.gov/content/pub/pdf/lgcefy0511.pdf.
  • McCarthy, Niall. “Survey: 69% Of Americans Have Less Than $1,000 In Savings.” Forbes, 23 Sept. 2016, www.forbes.com/sites/niallmccarthy/2016/09/23/survey-69-of-americans-have-less-than-1000-in-savings-infographic.
  • Rosenberg, Daniel M. “Bail Reform in New Jersey.” Daniel M. Rosenberg & Associates, 7 Aug. 2014, www.danielmrosenberg.com/bail-reform-in-new-jersey/.
  • Herring, An-Li. “U.S. Jurisdictions Take Steps To Reform ‘Dishonest’ Bail System : NPR.” NPR.org, 17 Dec. 2016, www.npr.org/2016/12/17/505852280/states-and-cities-take-steps-to-reform-dishonest-bail-system.

The Night Of: A True Portrayal of Criminal Law

A New Jersey’s Criminal Defense Lawyer’s Opinion of “The Night Of”

It’s my experience that “true crime” TV isn’t always so true — the crimes are unrealistic, the detectives are more entertaining (and sometimes better looking…) than they are accurate, and in many cases, TV trials could not be further from reality. I have to admit, though, I was riveted as I watched HBO’s “The Night Of.” This eight-part limited series is the first crime show I’ve seen in a while that rings true to my experience as a lawyer and what my clients experience as they go through a trial.

More than solving the whodunit, “The Night Of” is about how incarceration brutalizes people, even before they get their day in court. In a sadly accurate way, “The Night Of” follows the main character, Naz, as he transforms from a good guy, from a good family, putting himself through college to a bulked-up, tattooed menace while awaiting trial on Rikers Island.

 

Real Trials in New Jersey

There are many steps in a criminal trial proceeding and, for the most part, “The Night Of” accurately follows these. As I watched the series, I was glad to see a television series follow along with the reality of a criminal case so closely.

New Jersey Arrests

The judicial system starts with a complaint, which is a document the police will file against a person who is arrested and accused of committing a crime. The complaint is a charging document that law enforcement produce containing the basic allegations of criminal conduct. A complaint can only be filed if a third party, such as a Judge or court administrator, agree probable cause exists that the defendant committed the crime alleged.

How quickly a person gets charged depends on the offense. If a person is pulled over and found with marijuana on them, the arrest and charges come quickly. For something that requires retroactive investigation, such as a murder or home burglary, a charge will come at the conclusion of their investigation. The vast majority of my clients with Daniel M. Rosenberg & Associates are arrested fairly quickly.

This is similar to “The Night Of.” The police arrested Naz fairly quickly for homicide, and mostly through a comedy of errors — the traffic stop, the 911 call about a burglary, the blood on his hand from her cut the night before and the knife in his car, for example. These details helped the police come to the conclusion Naz committed the crime.

Setting Bail In New Jersey

After being arrested, a Judge immediately assigns bail to the accused. If the person can make the bail, they pay it and get released from prison. If not, in New Jersey, the accused must attend a first appearance within 72 hours. At the first appearance, a Judge will advise him or her of the charges, of their constitutional rights and will review and potentially lower the bail if asked.

This is a crucial step in the criminal justice process and shows why it’s so important to obtain an attorney early. The accused are allowed to have an attorney at the first appearance, which allows me to argue their bail be set lower and to begin a dialogue with the prosecutor’s office.  In cases that garner media attention, it is critical that a defendant have an attorney who will strongly assert their innocence to prevent the unfair assumption by the public that they are guilty simply because they were charged.

“The Night Of” is a bit unusual in that Naz’s attorney approached him while seeing him in the holding cell. Typically, I will receive a call from a person’s family or loved ones to hire me on their behalf.  However, it is not unheard of for some attorneys to “hover” in certain areas to attract potential clients.

Awaiting Trial In New Jersey

After the first appearance, everything dies down for a significant period. If the defendant was able to make bail, they go home. Those who can’t make bail must wait for their trial in prison, and are entitled to have a bail review approximately every 30 days. During this waiting period, the county prosecutor reviews the case and decides whether to dismiss the case, remand it to Municipal Court or proceed as a felony in Superior Court.

When the prosecutor decides to move forward with the case in Superior Court, they must start collecting evidence to present to the Grand Jury — a selection of 23 jurors who decide if there is probable cause and evidence that supports the charges. Only 12 jurors have to agree for the case to move on to court.

I worked as an Assistant Prosecutor in the Grand Jury Unit for more than two years, so I’m intimately familiar with this process. Working with a Grand Jury is nothing like what you see on TV. It can take anywhere from three or four months to more than a year to get the case before the Grand Jury.

New Jersey Court and Trial

When the Grand Jury indicts a matter, the case formally enters the court system, and the first court proceeding is scheduled. Overall, the waiting process can take a year-and-a-half to two years from when a person is charged to when the case goes to trial. If the accused doesn’t have the money for bail, they will spend this time incarcerated.

This is where the bulk of “The Night Of” falls — Naz is accused of murder, neither he nor his family can make bail, and he spends a significant (although undisclosed in the show) period incarcerated waiting for his trial.

 

The Impacts of Prison

Although I would call the show’s portrayal of the trial grandiose, “The Night Of” did an exceptional job at telling the story of the American incarceration experience. Sadly, I’ve seen what Naz has been through many times with my clients.

I know from personal experience that incarceration does change people. For defendants like Naz, who are largely upstanding citizens, the experience comes as a rude awakening. These are people who typically never expected to end up incarcerated and treated like criminals. Unfortunately, our criminal justice system too often embraces a “one size fits all” approach to those accused of a crime without considering an individual’s specific circumstances.

In the show, Naz had to adapt to his surroundings for survival. This is a real depiction — I have seen clients change, losing the values they once had as they were forced to adapt to prison life. Whatever life they have on the outside is nonexistent inside a prison. It’s a terrible thing to see from the outside looking in.

In my experience, clients become akin to a turtle, retreating into their shell the longer they have been incarcerated. They often become quiet, subdued, introverted, tense and guarded, constantly protecting their physical and mental health. This adaptation can change a person, regardless of whether or not they are convicted.

“The Night Of” also accurately depicts an often overlooked element of the criminal justice system — the impact of incarceration and trial on the accused’s family. Not only is Naz’s family shamed in their community, but Naz’s father also can no longer work as a taxi driver because his taxi is evidence in the investigation. Both of Naz’s parents picked up extra work to make ends meet and pay their son’s attorney fees.

My clients’ families often face the same hardships, having to adjust their lives to help finance a trial and encounter the press and community gossip while still attending church, work or school. To some of my clients’ families, it almost feels as if they are on trial too.

 

Presumption of Guilt

Another component of “The Night Of” that rang true to me was the presumption of guilt.  While in some cases my clients are guilty of the crimes of which they are accused, it seems they often receive a guilty verdict in the court of public opinion before a court of law.

It is every American’s right to be considered innocent until proven guilty, however, law enforcement and prosecutors will often read into evidence with the assumption that my client is guilty. This is often true of the general public, as well. When my client’s picture is on the front page of the local newspaper with a headline that outlines allegations, many people assume my client is guilty.

Many times this is not true and my clients are innocent, despite how the evidence may make them appear. I was happy to see this unfortunate circumstance depicted in “The Night Of.” I don’t fault the lead detective for initially believing that Naz was guilty of murder — the evidence he had suggested so. Too often, though, the general public assumes this presumption of guilt only occurs in movies or on television. I have too many clients who will tell you this also happens in real life.

Both they and Naz experience irreparable damage during this time, an impact that cannot be undone if they are finally vindicated. I recently represented a young man whose charges were dismissed after two years. His reaction?

“Where do I go to get the last two years of my life back?”

Sadly, I don’t have an answer.

This is why obtaining experienced, diligent counsel is incredibly important — without representation from a knowledgeable attorney, the accused’s temporary nightmare could become their reality for many years. The Daniel M. Rosenberg & Associates legal team knows the nuances of criminal proceedings in New Jersey intimately, and we have a reputation for delivering optimal outcomes for our clients. If you or your loved one have been accused of a criminal charge, please call our firm at 609-216-7400 for a free consultation.

A Lawyer’s View on Josh Huff’s Weapons & Drug Charges

Eagles Receiver Josh Huff Faces Weapons, Drug Charges in NJ

Josh Huff of the Philadelphia Eagles made headlines this week when he was arrested in New Jersey for possessing a firearm without a permit. The wide receiver was arrested Nov. 1 in Gloucester City and charged with Unlawful Possession of a Weapon and Disorderly Persons Possession of a Controlled Dangerous Substance (Marijuana, less than 50 grams).

If found guilty of illegally possessing a firearm, Huff will receive a minimum sentence of five years in New Jersey State Prison with a mandatory three-and-a-half-year term of parole ineligibility due to a state law known as the Graves Act.

New Jersey takes firearm charges very seriously and, in this criminal defense attorney’s opinion, so should Huff. New Jersey employs some of the strictest firearms laws in the nation. Many gun owners from other states, such as Pennsylvania, are shocked when they learn about New Jersey’s gun laws.

While most residents are permitted to possess most firearms in their home without a permit of any sort, carrying a firearm outside the home is problematic for several reasons:

  • New Jersey Gun Laws Are Complex — It can be incredibly difficult to navigate New Jersey gun laws. For example, I represented a client who had a permit to carry a firearm in one state and was traveling to another state where he was also legally permitted to carry a firearm. He was arrested and charged, however, because while traveling through New Jersey he secured his firearm in the trunk of his motor vehicle while it was loaded, which is illegal in the Garden State.
  • New Jersey Gun Laws Are Subject to Interpretation — To make matters more complex, New Jersey gun laws can be somewhat vague and therefore allow for inconsistent application of the law. For example, New Jersey law states a person may lawfully travel with a firearm from one location to another as long as they follow carrying laws and firearms are permitted at both the point of departure and the destination, such as from a private home to a gun range. The person may still be arrested for violating carry laws, however, if law enforcement does not believe they are traveling to and from those locations.
  • New Jersey Gun Laws Are Harsh — Due to Directives from the Office of the Attorney General, prosecutors are often unable to negotiate a resolution that is fair and consistent with the interests of justice. Even if a defendant simply possessed a firearm contrary to the specific and nuanced stator requirements, and never used or intended to use the firearm for an illegal purpose, the threat of a prison sentence is very real.

While New Jersey law does contain a legal mechanism to apply for a permit to carry a firearm, these permits are tremendously difficult to obtain. Drawing on personal experience from my years as a Prosecutor who received these applications, I would estimate that the vast majority of the individuals who obtained these permits were armored car drivers.  For individuals employed in other fields, or simply seeking a permit to carry a firearm for their own protection, there is a steep hill to climb.

Given the complexity of the law, and the high stakes associated with a conviction for Unlawful Possession of a Firearm, legal advice and counsel is not just preferable — it is necessary. Attorneys experienced in the intricacies of New Jersey law will know how to advocate the best case for their clients. For instance, recently the courts permitted defendants who negotiate a Graves Act Alternative sentence to argue for a more lenient sentence when they appear before a Judge. Several of my clients have avoided incarceration altogether due to this recent change in the law.

If you are a loved one are facing firearms charges in New Jersey, the criminal defense attorneys with Daniel M. Rosenberg & Associates can help. We are experienced in all facets of New Jersey weapons law and provide sound legal advice and honest and aggressive legal representation.

New Jersey’s Bail Reform: What to Expect in 2017

It’s Coming: New Jersey Bail Reform

New Jersey has been making headlines recently after passing comprehensive bail reform legislation that will change how criminal defendants await their trials. The constitutional amendment, which will go into effect Jan. 1, 2017, allows judges to deny bail to high-risk offenders and release low-risk offenders from jail using a non-monetary system.

The Reform Explained

The bill originated in the Senate and was later amended to also allow for the pre-trial release of low-risk defendants and the establishment of an alternative bail system. In final reading, the bill (S946/A1910) passed the Senate 29-to-5 and the General Assembly 53-to-7 with nine abstentions in the summer of 2014. New Jersey voters enacted the law that autumn by passing — 891,373-to-550,698 — a general election poll question.

Before the amendment, all defendants — regardless of the severity of their accused crimes — were eligible for bail due to a 2007 repeal of the death penalty that nullified the only legal exception.

A significant part of the reform shifts the qualitative elements of bail from money to risk. In the former bail system, how much money a defendant had determined whether or not they would await trial in jail. Under the reform, judges will determine how long a defendant is in jail based on their risk. Risk will be determined based on factors like the severity of the crime, the defendant’s criminal history, if he or she poses a threat to the community if released and the person’s likelihood to hinder the legal process if released.

Low-risk defendants allowed release will complete bail through an alternative system. Examples of the non-monetary bail include remaining in the custody of a court-designated supervisor, maintaining employment, maintaining an educational program and regularly participating in a pre-trial program.

Although jail costs are expected to go down, the state will need to hire more judges and law enforcement officials — an estimated cost increase of more than $20 million — to facilitate the new workload. Court filing fees have already been raised in preparation for the added expense.

Although it won’t be in full-effect until next year, three judicial districts — Passaic County and the Camden and Morris/Sussex districts — will participate in a pilot program of the reform starting in March 2016.

National Bail Reform

On a national scale, bail reform has become a hot topic as increasingly more groups and politicians criticize the cash bail system for how it disproportionately affects the poor and African American populations. The recent high-profile cases of Trayvon Martin, Michael Brown, Eric Garner and Kalief Browder have helped turned the public’s gaze toward injustices in the criminal justice system.

Politicians wary of increasing budget constraints have also been talking of making changes to the costly criminal justice system most of America employs now. New Jersey is one of just a few states including Virginia, Delaware, Colorado, West Virginia and Hawaii spearheading the movement to change the way they approach bail.

Reform Supporters

The old cash bail system has many critics, and consequently many key lawmakers have spoken out in support of the reform. Some of the new law’s biggest praise came from New Jersey Supreme Court Chief Justice Stuart Rabner, who called the legislation the most significant criminal justice reform measure the state has enacted in years, and American Bar Association President and New Jersey attorney Paulette Brown, who said the reform was “fresh thinking” and an example for other states to follow.

The attorneys at Daniel Rosenberg & Associates have supported the bail reform from the beginning; we believe the new system will have a dramatic impact on New Jersey’s criminal justice system.

The vast majority of incarcerated individuals in New Jersey are awaiting trial, not serving a sentence. Many are accused of relatively minor nonviolent crimes and bail is typically set low, however not everyone can afford to pay the amount. This system has disproportionately affected those with limited financial means.

Many who do choose to pay bail do so to avoid spending time in prison, rather than making decisions about whether or not to pursue their constitutional right to trial based on consideration of the evidence. These defendants often feel they are forced to choose between their freedom and going to trial. This isn’t fair or just.

Sources

Bail Reform in New Jersey
Passaic County Courts will be testing grounds for criminal bail reform
New Jersey Bills
Voters Approve Bail Reform Measure
General Public Question 1
NJ Supreme Court Chief Justice
Bail Reform
When Freedom Isn’t Free
There’s Never Been a Better Time for Bail Reform

New Jersey’s New Juvenile Waiver Law: What’s Different?

New Jersey’s New Juvenile Waiver Law: What’s Different?

A significant reform of New Jersey’s juvenile waiver law took effect March 1, 2016, and with it came the opportunity to better protect the children of the Garden State who encounter the criminal justice system. The reform establishes stricter policies surrounding juvenile waivers — which prosecutors may file in a juvenile case to request the defendant be tried as an adult in adult court — including older age restrictions and eliminating solitary confinement as a punishment for minors.

Gov. Chris Christie signed the bill — S2003/A4299 — into law on Aug. 10, 2015.

The difference between how adult criminal courts and juvenile family courts handle cases in New Jersey is dramatic, and the previous law left many minors susceptible to the possibility of being tried and imprisoned as if they were an adult.

The stakes are much higher in adult criminal court. For example, a juvenile in New Jersey who is charged with armed robbery in juvenile court can receive any one of a number of punishments, ranging from probation to a maximum of four years incarceration in a juvenile facility. In adult criminal court, convicted armed robbers may do anywhere between 10 – 20 years in New Jersey State Prison. Juveniles are typically eligible for parole after serving one third of their sentence, while adults are required to serve 85% of their sentence prior to parole eligibility.

Criminal convictions in juvenile court are also kept private, protecting the minor from the many consequences of having a public criminal record. If a juvenile is waived into a adult court, however, this privacy is also waived and their criminal convictions and sentences become public record. In some instances, their criminal public record will follow the juvenile for the rest of their life.

Comparing the old and reformed law side by side, there are many changes that now protect our minors.

Old Waiver Law

  • Prosecutor has 30 days to file for waiver.
  • Juveniles aged 14 and older can be waived to adult criminal court.
  • If a juvenile is convicted of a non-waivable crime following waiver to adult criminal court, the conviction remains an adult conviction.
  • If a juvenile is convicted in adult criminal court, and receives a sentence of incarceration, the juvenile serves that sentence in an adult facility.
  • Juveniles are held in an adult county jail pending the resolution of their matter if they are unable to afford bail.
  • Solitary confinement is an allowable form of punishment in juvenile facilities and detention centers. There is no time limit on solitary confinement.

New Waiver Law

  • Prosecutor has 60 days to file for waiver.
  • Juveniles aged 15 and older can be waived to adult criminal court.
  • If a juvenile is convicted of a non-waivable crime following waiver to adult criminal court, the conviction reverts to a juvenile conviction and the matter is returned to juvenile court.
  • If a juvenile is convicted in adult criminal court, and receives a sentence of incarceration, the juvenile serves that sentence in a juvenile facility, unless the State overcomes that presumption.
  • Juveniles are held in a juvenile facility pending the resolution of their matter if they are unable to afford bail, unless the State overcomes that presumption.
  • Solitary confinement is no longer permitted as a disciplinary measure in juvenile facilities and detention centers. Time limits are now enforced for solitary confinement used for safety and other measures.

This change in the law directly impacts many Burlington and Camden county youths.

Data from the New Jersey Juvenile Justice Commission for July 2016 shows a total of 583 youths — 557 of them boys and 411, or 70.50%, African American — are a part of the juvenile justice system. The largest percentage of these minors — 19.38%, or 113 youths — were sentenced in Camden County. Eleven, or 1.89%, were sentenced in Burlington County.

The juvenile waiver law reform will positively impact these children and our greater community, reducing the disproportionate effects on the black population and stopping the school-to-prison pipeline. Studies show juveniles jailed in age-appropriate facilities are also less likely to experience abuse and die from suicide.

The law and procedure pertaining to an involuntary waiver to adult criminal court is complex and nuanced, and the consequences are serious. But, there are many instances where a juvenile waiver hearing can be used to the juvenile’s advantage and significantly alter the scope and direction of the case. If your child or a loved one is charged with a juvenile offense, the attorneys at Daniel M. Rosenberg & Associates include two former juvenile prosecutors who are experienced and knowledgeable in New Jersey’s rapidly changing legal framework.