Innocent Until Proven Guilty: A Fairytale of American Criminal Justice

Innocent Until Proven Guilty: A Fairytale of American Criminal Justice

 

            We have all heard that those accused of a crime in this country are innocent until proven guilty.  While this is appealing rhetoric it is neither conceptually accurate nor practically applied.  

Conceptually, it must be stressed that there is a legal difference between innocence and being found not guilty as determined by a jury of our peers. Innocence is an empirical fact considering whether certain events did or did not occur. Did Defendant intentionally kill another person? Did Defendant take another’s property with force or threat of force with the intent to permanently deprive that person of the property?  These questions deal with events in the universe that either did or did not occur. 

Contrast guilt.  Guilty and not guilty is a verdict rendered by juries in the United States.  Juries do not find defendants innocent. Instead, they make a determination as to whether or not the prosecutor has proven each and every element of each offense beyond a reasonable doubt. This turns on a myriad of factors, some of which have very little to do with whether the Defendant actually did it.  These include the amount of evidence available, the amount of evidence put forward, the fairness of the judge, the credibility of the witnesses, the talents of the prosecutor in trying his or her case, the talents of the defending counsel to raise reasonable doubt, the appearance of the defendant, and any prejudices of the jury.

While the State has the burden to prove guilt beyond a reasonable doubt, in practice, defendants are rarely afforded a presumption of innocence.  For example, once a defendant is arrested, they are processed, incarcerated and brought before a judge who will set a bail.  If the accusation is serious enough, the defendant’s bail may be set so high that the defendant can never afford to post it.  Even though the defendant is said to be presumed innocent he will be confined in a county jail until his trial.  In many instances that could take years.  Finally, once the defendant does have his day in court, even if he prevails, he will not be said to be innocent but only not guilty.  To the truly innocent defendant this is not sufficient because the public believes that plenty of people who in fact did the crime are found not guilty.  The innocent defendant found not guilty, never gets compensated for the wrongful arrest or the time spent in jail.  He or she never truly clears their name nor redeems their reputation.  This is because we have developed a system not interested in guilt and innocence, but instead a system determined to find guilt and not guilt.  For the truly innocent defendant this distinction makes a world of difference.

November 5, 2014 update: Yesterday the citizens of New Jersey overwhelmingly passed a bail initiative to amend the New Jersey Constitution to allow defendants accused of serious violent crimes to be held WITHOUT bail until trial.  These are people who have been accused not convicted.  This amendment is even stronger evidence of the fairytale that criminal defendants are innocent until proven guilty.    

Mischief Night in New Jersey: A Lawyer’s Guide to Criminal Mischief

Mischief Night in New Jersey: A Lawyer’s Guide to Criminal Mischief 

In New Jersey, the night before Halloween has come to be known as Mischief Night.  Traditionally, this evening has seen a rise of vandalism by eggs, shaving cream, toilet paper, rocks, and paintballs.  In some towns, matters have become so severe that the police have instituted “No Tolerance Policies” wherein they have increased police patrols, stopped groups of teens and preteens wandering the streets at night, and confiscated any item that they believe can be used to damage property.  Before engaging in any of these activities, remember there are serious consequences that can occur if you are found to be damaging or defacing another’s property.

Criminal mischief is defined under N.J.S.A. 2C:17-3 as purposely or knowingly damaging tangible property of another or damaging tangible property of another recklessly or negligently in the employment of fire, explosive or other dangerous means. Or purposely, knowingly or recklessly tampering with tangible property of another so as to endanger person or property…

The grading of criminal mischief depends on the amount of damage and the method of causing the damage.  For example, if $2,000 of damage or more occurs, criminal mischief is a crime of the 3^rd degree, between $500 and $2,000 is a 4^th degree crime, and less than $500 is a disorderly persons offense.  However, irrespective of the value, if the damage is done to a research facility, it is automatically a 3^rd degree crime. If the damage is done to  any sign (including street signs), signal, light, or airport it is a 4^th degree crime. If the damage is done to any grave, crypt, mausoleum or other site where human remains are stored it’s a crime of the 3^rd degree.

Under 2C:17-3c a person convicted of an offense of criminal mischief that involves an act of graffiti may, in addition to any other penalty imposed by the court, be required to perform community service, which shall include removing the graffiti from the property, if appropriate.

Consider the following common scenario. Johnny is a 17 year old male who has never before been any kind of trouble.  He goes to school, likes music, and has a group of close friends.  This year there are no good parties worth going to, so Johnny and his friends decide it would be fun to toilet paper some schoolmates’ houses and cover their cars in shaving cream.  Armed with cans of Barbasol and Charmin Ultra, because it’s the softest, they take off on foot for the nearest cheerleader’s house.  While Johnny is halfway through slinging his third roll into the family oak, Kimberly’s parents see the ruckus and call the police.  Just as the group is finishing up and about the head out, the red and blue lights arrive at the scene.  Three of Johnny’s friends take off, and Johnny is left next to 6 empty cans of shaving cream and a dozen empty rolls of toilet paper.

Stage 1 Arrest:  Johnny is placed under arrest, searched, handcuffed, forced into the back of a police car, and taken to the police station.

Stage 2 Processed: Johnny is fingerprinted, photographed and forced to sit handcuffed to a bench for hours while the police process their paper work.  Because he is a juvenile (under 18) his parents are called to pick him up.  He is given a complaint and summons to appear in Superior Court Family Division.

Stage 3 First Appearance:  Johnny will have to check in with a Family Judge of the Superior Court. He will be required to apply for a public defender or hire a private attorney.  Because Johnny is underage he cannot represent himself.

Stage 4 Status Conference/Plea: With little in the way of defenses, Johnny will likely be taking a plea to criminal mischief.  At best, he can hope for a deferred disposition, meaning he will go on a period of probation and if he stays out of trouble his charges will be dismissed.  He likely will be sentenced to community service and have to pay for any damage done to the property.

So what’s the big picture?  Johnny and his friends wanted to celebrate Mischief Night and engage in what seemed like harmless fun with shaving cream and toilet paper at the house of someone they knew.  His friends split, leaving him to take the wrap the everyone’s activity.  Now he is part of the system and the courts have a file with his name on it.  He has exhausted his deferred disposition and probably will never been given another opportunity to avoid a conviction if he is arrested again.  He had to pay hundreds back to the property owner, thousands to his attorney, and 30 hours community service picking up garbage on the side of the road. 

Please keep Johnny in mind when you enjoy this Halloween.  Be safe and remember to respect others.

Roberts & Teeter, LLC

www.centralnjlawyers.com

License to Carry: Drake v. Filko - NJ’s Handgun Permit Law Upheld

License to Carry: Drake v. Filko - NJ’s Handgun Permit Law Upheld

Some U.S. citizens will tell you they walk around with a firearm on them at all times. In-fact, in states like Colorado, it is not uncommon to see people walking around grocery stores with a pistol on their hip. That’s not the case in New Jersey, a state with arguably the toughest gun laws in America. To some, the idea of people being armed at all times is scary. For others, the idea of carrying firearms on their person in public places means freedom. Either way, New Jersey’s gun laws have been both criticized by those who believe their Second Amendment rights are being violated and praised by others as a safeguard against gun violence. In February 2013, the Third Circuit upheld New Jersey’s Handgun Permit law in Drake v. Filko. This blog post examines the decision and how the court interprets “justifiable need.”

The issue presented before the Third Circuit was whether requiring a New Jersey citizen to show “justifiable need”, in order to obtain a license to carry a firearm, is constitutional. The Third Circuit ruled that NJ’s law requiring “justifiable need” is constitutional. Four NJ residents and two organizations known as the “Plaintiffs” argued that the Second Amendment secures a right to U.S. citizens to carry arms in public for the purposes of self-defense. In addition, they argued that the “justifiable need” standard of the Handgun Permit Law was an unconstitutional prior restraint.

According to NJ law, “justifiable need” is defined as “the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” In addition to applying to the local chief of police for a license to carry, the application must also be presented to a Superior Court judge who must certify that the requirements have been met. In other words, it is extremely difficult to obtain a license to carry a firearm in the State of New Jersey.

The Third Circuit noted that the State of New Jersey had a significant, substantial, and important interest in protecting its citizens’ safety. They ruled that the the “justifiable need” requirement was reasonably fit to carry out the State’s goal.

This ruling does not mean that citizens’ are without help. NJ attorneys who are familiar with the process can argue on your behalf that you do in-fact have a “justifiable need” to carry a firearm on your person. For additional information, click here. If an application is denied, an NJ attorney can appeal the decision and fight for you in court. If you are interested in finding out how an attorney can help you obtain a license to purchase a firearm or obtain a license to carry, contact Roberts & Teeter, Attorneys at Law today. 732-325-0814. www.centralnjlawyers.com 

New Jersey Attorneys Can Help: The Gun Permit Process in NJ

New Jersey Attorneys Can Help: The Gun Permit Process in NJ

At times throughout the year, specifically in summer months, New Jersey citizens inquire about purchasing firearms. Whether it be sport shooting on the weekends, hunting throughout the season, or even protection for their home, New Jersey citizens have a true interest in gun ownership. When we discuss the process of applying for a firearm purchase permit with potential clients, the first thing we tell them is that it is truly not easy to obtain a Firearm Purchaser Identification card (FPID) or Handgun Purchase Permit (HPP) in New Jersey. We follow that statement by informing them that it is even harder to obtain a License to Carry a firearm on your person. Simply put, New Jersey has strict gun laws compared to other states around the country. 

Any New Jersey citizen wishing to purchase a pistol will need to apply for a Handgun Purchase Permit (HPP). You must be at least 21 years of age to apply for a HPP. Any New Jersey citizen wishing to purchase a long gun, rifle, or shotgun must apply for a Firearm Purchaser Identification card (FPID). You must be at least 18 years of age to apply for a FPID. It is important to note that the application must be filled out accurately and truthfully and multiple copies may need to be submitted. References are required and will be contacted. In addition, a medical health records search form will need to be submitted, which allows for a mental health background check to be conducted. The applicant will also need to photocopy their driver’s license and social security card, and will need to be fingerprinted, typically at outside location. It should be noted that any gun safety course documentation, gun training, or proof of experience can be considered in the application process. There is an application fee, fingerprinting fee, and $5 fee that applies for ever permit you are requesting. 

Once the application and documentation is submitted to the local police department, by law, the department is to notify the applicant within 30 days as to whether or not their application was approved. Although the law requires a response within 30 days, the time requirement is often ignored and the process can take months to complete. At times, citizens are denied permits to purchase by their local police departments because of an inaccurate application or because there was an issue of concern that surfaced in the mental health background check. That is why it is common for individuals to retain the assistance of an attorney to review the gun purchase application, medical health records, and issue a letter to accompany the application to the local police chief. Hiring an attorney before an application is submitted can be beneficial to those who are unsure of whether their application will be approved. Hiring an attorney is also beneficial because a New Jersey attorney will also be persistent in assuring the police department review the application and respond within the 30 days required by New Jersey law.

If you are a New Jersey resident and are interested in retaining an attorney to assist in obtaining a permit to purchase a firearm, contact Roberts & Teeter, LLC today. 732-325-0814