NJ Legal Beat
Tuesday, May 25, 2010
Reflections on 25 Years in the Law (Part Three)
My first job after law school was in the Union County Prosecutor’s Office in Elizabeth NJ. It was a great job. I was on my feet in court before the end of my first week on the job. I started prosecuting juvenile crimes in the juvenile section after six months. Not long after that I was handling jury trials on the adult trial team. I gained a lot of trial experience as well as experience working with the local media. One of the cases that I remember as a little different was a robbery of a suburban grocery store by an ex-convict. He insisted that he was shoplifting, but we proved that he was committing a robbery. (Union County Courthouse pictured below.)
The W.M. case hit my desk in a pretty routine distribution of the files on the suburban trial team. The only thing that caught my attention was that it was a second degree robbery. Most cases that hit my desk were third- and fourth-degree cases, so a second- or a first-degree crime usually stood out. As my trial team investigator and I did a little more investigation, we found out that this was not the average robbery.
W.M. had served hard prison time for a prior robbery conviction. While in custody, he decided that when he was free, he wouldn’t risk the rather substantial penalties for second-degree robbery (5 to 10 years) or first degree robbery (10 to 20 years). Therefore, he decided on a shoplifting scheme. If he were caught and convicted of a shoplifting, he would be exposed to a maximum of six months in jail, but most likely would pay only a fine.
One fine day, W.M. traveled to a grocery store in suburban Union County. While his accomplice waited outside, W.M. went into the store, emptied the contents of a thirty pound bag of dog food, and filled the bag with 22 cartons of cigarettes. When he went to the front end, he intended to pay for the dog food, which cost a fraction of what the cigarettes cost. The young cahsier who rang up the “dogfood” order, noticed that something was suspicious, and confronted W.M, who fled to the parking lot. When the cashier caught up with W. M. in the parking lot, W.M. punched the young man in the face. (He was not injured). Police later apprehended W.M..
The State’s case went in smoothly, thanks to excellent witness preparation by my investigator. W.M. took the stand in his own defense. He explained to the jury that yes, he committed a shoplifting offense and a simple assault, offenses for which he was prepared to be punished. He insisted that he did not commit a robbery. The jury thought otherwise. The jury accepted the State’s explanation that by committing an assault before he reached a point of safety, that W.M. had transformed the shoplifting into a robbery.
The court sentenced W.M. to the maximum time in prison: 10 years in New Jersey State Prison, the first 5 years without the possibility of parole.
Robbery must have been W.M.’s destiny. It was the outcome that he carefully planned to avoid, but in the end, it was the one that he could not avoid.
Friday, May 14, 2010
Reflections on 25 Years in the Law (Part Two)
Howes & Howes offers families and small businesses top-notch trial practice. Our ability to try cases goes back to law school. My earliest participation in a substantial trial was in the matter of State vs. G.G. in Tangipahoa Parish Louisiana in the mid-1980s. I was one of several law students who assisted a law professor in defending G.G. against the charge that he murdered an on-duty Sheriff’s Officer. State v. G.G. matter introduced me to the nitty-gritty of trial practice. Photo: Historic Tangipahoa Parish Courthouse
I was very fortunate early in my career to be able to study the trial practice in great detail under an outstanding law professor and trial advocate. During my second year at Loyola Law School in New Orleans, I registered for the Capital Case Clinic to gain some practical experience. I was a firm believer that book learning was good, but should be enhanced by exposure to the real-life practice of law. The Capital Case Clinic had three clients, all of whom had been charged with murder, and all of whom were subject to Lousiana’s very real death penalty.
Gerard Rault was the professor who led the Capital Case Clinic. Professor Rault knows the Rules of Evidence inside-and-out. Indeed, he wrote the book on Louisiana Evidence Law. The Rules of Evidence are the very foundation of trial advocacy. The smoothest, most persuasive attorney on the planet can not succeed unless he or she understands those rules and how to apply them. As I was to learn, Professor Rault understood those rules not only on an academic level, but he also knew how to apply them in a courtroom.
During my time in the clinic, we took on the case of Louisiana vs. G.G. . We came into the case very early in the process. G.G. was a young African-American resident of Tangipahoa Parish. Tangipahoa occupies much of the ground north of Lake Ponchartrain and south of the Mississippi/Louisiana border. In the 1980s Tangipahoa Parish was still primarily rural, and still had powerful memories of a painful racial history. G.G. had been accused of the first degree murder of a sheriff’s deputy. To make matters worse, the victim came from a town in Tangipahoa that was named after his family. To make matters worse, G.G. did actually kill the deputy (in self-defense). To say the least, G.G. was behind the eight ball.
Because the stakes were so high - G.G.’s life - we researched and filed every issue imaginable - motions to suppress, motion for change in venue, motion to dismiss, motion for defense witness immunity and yes, the old motion to re-arrange the court furniture. I did some legal research and writing. The court didn’t grant a single one of our motions. But I learned that when the stakes are high, the lawyer must leave no stone unturned.
As the trial approached, I took the initiative to research the jury pool. With one of my colleagues, I obtained a copy of the jury pool once it was published. We researched the jury pool in every way we could imagine. We used court records and the local library. We interviewed local people to learn about the jurors who might hold G.G.’s fate in their hands. Professor Rault used the data we gathered when he chose the jury.
The G.G. case is worth a dozen war stories, too many for the space dedicated to this blog. Suffice it to say that Professor Rault was brilliant during the trial. He combined his knowledge of the law, his conviction in what he was doing and a vast persuasive capacity, and the result showed: The Tangiaphoa Parish jury was hung. After declaring a mistrial, the court granted our motion to change venue to another parish. That jury believed that G.G. shot at the deputy after the deputy had fired at him. The re-trial resulted in a manslaughter verdict, which meant that G.G. would have to spend a long time in prison, but would be able to enjoy middle- and old-age in freedom. The manslaughter verdict was considered a major success considering how far beyond the eight ball G.G. was when the clinic took on the case.
I would like to imagine that G.G. has now paid his debt to society, and is enjoying his freedom far away from Tangipahoa Parish.
Sunday, May 09, 2010
Howes & Howes Files Major Constitutional Litigation Against Bayonne Mayor
Bayonne Mayor Mark Smith holds two public offices in the CIty of Bayonne. He simultaneously holds the office of Mayor and the subordinate office of Deputy Police Chief. New Jersey law has long prohibited this sort of dual office holding. Despite recent public outcry for Mr. Smith to choose between these two offices, he has refused to do so. The City of Bayonne has taken no action, so 31st District Assemblyman Anthony Chiappone (pictured below) has filed suit in Hudson County Superior Court.
The case of Anthony Chiappone vs. Mark Smith has been filed and duly docketed in the Superior Court in Hudson County. The Plaintiff is 31st District Assemblyman Anthony Chiappone, a Howes & Howes client. The Defendant is Bayonne Mayor Mark Smith. The suit asks the Superior Court to prohibit Smith from holding the offices of Bayonne Mayor and Deputy Police Chief of Bayonne.
The Complaint is based on long-standing New Jersey law prohibiting a public official from holding two public offices where one is subordinate to the other. This legal principle is known as the “Doctrine of Incompatibility”. Factually, the Office of Deputy Police Chief is subordinate to the Office of Mayor. That is, the Mayor appoints the city’s department heads. One of those department heads supervises the Police Chief and Deputy Police Chief. In other words, Deputy Chief Smith answers to someone who answers to Mayor Smith. Mayor Smith is empowered to sign the police contract that determines Deputy Chief Smith’s salary and benefits.
The Doctrine of Incompatibility finds its roots in the old common law, which is one source of New Jersey law. There are two landmark cases where New Jersey courts have applied the Doctrine of Incompatibility to bar an individual from simultaneously holding an elected office and a police position in the same municipality. Those cases are the recent case of Wildwood v. DeMarzo, and the older case of Dunn v. Froelich.
Dunn v. Froelich involved two well-known and revered Union County political leaders, Elizabeth Mayor Tom Dunn and Ralph Froelich, who continues to serve Union County as its Sheriff. In that case, Mr. Froelich was an Elizabeth police lieutenant who sought the office of Elizabeth City Councilman. Mayor Dunn brought the suit to bar Mr. Froelich from holding both offices at the same time. The court applied the Doctrine of Incompatibility to bar Mr. Froelich from holding both positions. The Dunn case is significant because it involves the exact same form of city government as Bayonne - the Faulkner Act form of government.
Then there is the 2010 case of City of Wildwood v. DeMarzo. Mr. DeMarzo was both a Wildwood City Commissioner and Wildwood Police Sergeant. The City of Wildwood filed suit to prohibit the dual office holding. Again, the New Jersey Appellate Division applied the Doctrine of Incompatibility to bar the dual office holding. The DMarzo case is significant because Mr. DeMarzo was on leave from his police position, just like Mr. Smith.
The case will be decided by a Superior Court Judge based on these same principles of law. Every case is unique, and the court will consider the unique aspects of each case, We have full confidence in the ability of the court to decide the case correctly based on the Doctrine of Incompatibility.
Thursday, February 04, 2010
Read this Article Before You Drink and Drive
Most New Jersey motorists know the basics about drinking and driving. That is, most people know that if you are convicted of drunk driving or refusal, that you will pay a fine, lose your driving privilege as well as pay surcharges and greatly increased auto insurance premiums. In some instances, however, New Jersey law sanctions a drunk driver as a felon or a child abuser. Please read this article before you drink and drive.
The penalties for a first or second DWI in New Jersey are harsh, but most people who are convicted of a first or second offense can recover from the financial hit that they take and the drivers license suspension. There are two smaller subsets of drunk driving cases that have implications way beyond fines, surcharges and license suspensions. One is drunk driving with your child in the car. The other is causing injury or death by driving drunk.
The first case type occurs when a parent drives drunk with his or her child in the car. N.J.S.A. 39:4-50.15 provides that a “parent or guardian who is convicted of a violation of R.S. 39:4-50 and who, at the time of the violation, has a minor as a passenger in the motor vehicle is guilty of a disorderly persons offense.” In other words, the incident creates a criminal history, but not one that effects most types of employment.
Notably, the trend in New Jersey is toward charging this offense as an indictable (felony) offense. There are two different statutes in use: Endangering the Welfare of Children (N.J.S.A. 2C: 24-4), a third degree offense; and Cruelty and Neglect of Children (N.J.S.A. 9:6-1 and 9:6-3). While neither of these statutes creates a per se indictable offense for driving drunk with a minor in the car, New Jersey prosecutors routinely charge one of these indictable offenses. Indictable (felony) offenses have long lasting consequences, regardless of your legal history. Prosecutors do not allow offenders into Pre Trial Intervention; therefore, you will likely end up with an indictable conviction on your record. If you find yourself in this situation, you should contact an attorney immediately. It is a very serious situation.
Further, when a motorist is arrested and charged with driving drunk with their children in the car, the police are required to contact the Division of Youth and Family Services (DYFS). The law then requires DYFS to investigate and make a determination as to whether child neglect or abuse is present. DYFS will routinely substantiate child neglect when they can prove that a parent or guardian drove drunk with their child in the car. When DYFS substantiates abuse or neglect, you are placed in the DYFS Central Registry. Once in the Central Registry, any serious background check will determine that you are a past perpetrator of child neglect. This will prevent you from doing anything, either volunteer or for profit, with or for children if it requires a background check.
It gets even worse. DYFS now routinely seeks care and supervision of families when even one of the parents drives drunk with their child in the car. That status can lead to restrictions on the offending parent’s ability to parent their children. That is, the Family Court would probably require supervised parenting time for the offending parent, as well as a battery of tests and participation in rehabilitative services.
One event can land you with two or three serious legal problems even if no one is injured. In sum, if you are caught driving drunk with your children in the car, you can lose not only your drivers license, but also your employment, your standing in the community and your ability to enjoy unsupervised time with your children.
Where drunk driving leads to an injury, the second case type arises. This case type does not depend on a relationship between the drunk driver and the injured person. If you get behind the wheel while drunk and cause an accident resulting in a injury to another human being, you are subject to arrest for assault. N.J.S.A. 2C: 12-1c defines one type of assault by auto as recklessly causing injury to another human being while driving a motor vehicle while intoxicated. Most, if not all, prosecutors take the position that anyone who gets behind the wheel after drinking is reckless, and therefore guilty of assault by auto. Once convicted of assault by auto, you are subject to jail time, probation and loss of your employment.
If you find yourself in these legal situations, you should contact Howes & Howes immediately.
Sunday, January 03, 2010
Howes & Howes Partner Set to Serve on Peapack-Gladstone Borough Council
At Howes & Howes, we believe in giving back to the community that has supported us so well. Last year, Howes & Howes partner Kathy Howes ran in a contested election for a seat on the Peapack-Gladstone Borough Council, an election that she won. On Tuesday, January 5, 2010, Kathy will be sworn-in as the Twin Borough’s newest Borough Council member.
The Borough of Peapack and Gladstone is a small suburban town nestled in the Somerset Hills. It is home to the Pfizer Pharmaceutical Company and the Olympic-medal-winning U.S. Equestrian Team. It has approximately the same land mass as Jersey City at 5.9 square miles. The “Twin Borough”, as it is known is governed by a directly elected mayor and a six member borough council. On January 5, 2010, Kathy Howes will take a seat on the Borough Council.
The Borough Council is the governing body of the Twin Borough. It makes the rules and oversees the budget process. Each council member serves on at least two or three sub-committees of the borough council. Each subcommittee oversees one department or one aspect of the borough government. (Roads, Sewer, Property, Police, Fire, Open Space, Recreation, Land Use etc.) The borough form of government is a hands-on form of government. It works for small towns. It works for small towns especially when the borough residents volunteer to serve.
Kathy Howes has served in the past as the Twin Borough’s public defender and most recently as a member of the Land Use Board. And now she will serve a three year term on the Borough Council. The meetings are night meetings. We do not expect that Kathy’s new role will interrupt service to our clients. Indeed, Kathy’s service will enhance her insight and experience, and therefore her ability to serve our clients.
Wednesday, November 25, 2009
Reflections on 25 Years in the Law (Part One)
I have been preparing to handle your legal matter for twenty-five years. Knowing the law and knowing how to find the law is only one part of the lawyer’s stock in trade. The law must be tempered by experience. From my work in a law firm while still in college to my time as a prosecutor to my years in private practice, I have accumulated different experiences and insights that help my clients. At decade’s end, we are taking stock of the successes - and disappointments - that have brought our firm to the new decade. (The photo depicts the Point-a-la-Hache ferry across the Mississippi River in Louisiana’s Plaquemines Parish.)
In 1984, I was a senior at Tulane University in New Orleans. For a variety of reasons, I had become interested in the law, and had been fortunate enough to land a job as a “court runner” at a very well-regarded New Orleans law firm. As a court runner, it was my job to make sure that the firm’s legal papers were filed in the right place, and that the firm had filed copies to prove it. Most of the time, that meant a quick run to the New Orleans Central Business District. Sometimes, however, that meant a drive to one of Louisiana’s more remote outposts of justice.
One day that sent me to Point-al-la-Hache, the seat of the parish government in Plaquemines Parish, and home to the Twenty-Fifth Judicial District Court. Plaquemines Parish sits at the mouth of the Mississippi River. It is where the roads end and where the land gradually disappears. To get to the courthouse, I had to go to road’s end and take a ferry across the river to Point-a-la-Hache.
My task that day was to get a particular court order signed. I don’t remember the details, but I do remember that there was some sort of important deadline to make. So there I was, a young, skinny college student from Northern New Jersey, who was quite clearly from the city. I had never been to Point-a-la-Hache, so I had to figure out how to get a judge’s signature on the proposed order. I had to go to every room in the courthouse - Civil Case Management, the cashier, the Sheriff, jury management - before someone explained to me that I needed to go see the judge directly.
Usually, that means going to the judge’s chambers, which I did. Once there, the judge’s secretary told me that I needed to go into the courtroom and see the judge himself. The courtroom was one of those large courtrooms, sort of like the one in the movie “My Cousin Vinny”. From his elevated bench, the judge was presiding over a trial. I had no idea what to do. The secretary had told me to approach the bench and hand the papers to the judge, but to say the least, I was not comfortable doing that. More to the point: I was mortified.
However, I could not drive an hour each way, take a ferry, and come back empty handed and have my firm miss a deadline.
I asked the Sheriff’s officer what to do. He got the judge’s attention. The judge took a short break, and motioned for me to approach. I felt like I was approaching the fifty yard line in the New Orleans Superdome. That is, I felt very small and very out of place and like everyone in the room was looking at me. The judge looked at the papers, signed the order and sent me on my way. Once I obtained a true copy of the order, I got back on the ferry and made my way back to New Orleans.
I was not a lawyer, and I did not say a word on the record, but I guess you could say that on that day in 1984, I made my first court appearance on the banks of the river that inspired Mark Twain.
As a court runner, I learned about the practical side of the law. A lawyer has to be able to know the law and be able to find out what the law is so that he or she can advise his or her client as to their legal rights. But it is not enough to have a legal right. It is not enough to identify it. A lawyer has to be able to know where to go, especially in a pinch, to protect those rights. By learning the basements and the administrative offices that stand in the background of the courts, I learned how to do just that.