Tuesday, October 29, 2013

The Post-Conviction Relief (PCR) Motion an Analysis of New Jersey Criminal Law, Through the Michael Skakel Case.

A service to the people as a public service from the Law Office of Vincent J. Sanzone, Jr., Esq.

Defendant Michael Skakel was indicted for the murder of Martha Moxley in Connecticut in 1975.  Twenty-seven years (2002) later Mr. Skakel was convicted of the crime and has been incarcerated ever since.  In spite of legal fees and costs paid to his defense attorney Michael Sherman in the amount of approximately, $1,200,000.00 (one-million two-hundred thousand dollars).

On October 23, 2013 the Honorable JTR Bishop ruled that Attorney Sherman’s representation was deficient and ineffective and thus, Mr. Skakel was entitled to a new trial. 

The opinion of Judge Bishop is very informative and educational not only for the experienced criminal defense attorney, but also for individuals charged with crimes because it is a text book example of a “high profile” or “marquee defense attorney”, who simply didn’t know the law, did not adequately prepare for trial, and simply didn’t do his homework, as stated by Judge Bishop.

Judge Bishop made a number of finding of facts and conclusion of law which demonstrated that Attorney Sherman’s representation was substandard and therefore denied Mr. Skakel his Sixth Amendment to effective legal representation and a fair trial.

Although the court held that Attorney Sherman had made many trial errors, the court focused on the following five major errors.

First, there was overwhelming evidence that was in possession and knowledge of Attorney Sherman regarding the third-party culpability of Mr. Skakel’s older brother, T. Skakel.  However, instead of arguing to the jury that there was evidence that T. Skakel committed the murder and not his client, Attorney Sherman decided to argue and present evidence that someone else probability committed the murder, notwithstanding, that there was no credible evidence that this person was involved.  The court held that if the jury had heard this evidence at the trial (culpability of T. Skakel) that there was a likelihood that the jury would have harbored reasonable doubt as to the defendant's guilty, and the resulting verdict would have been different.

Second, that Attorney Sherman failure to locate and present the testimony of an alibi witness for the defense was likewise ineffective.  This witness was a powerful witness and Attorney Sherman should have known the existence of this witness because his identity was testified to by another witness in the grand jury proceedings.  Again, if the jury had heard this testimony the resulting verdict would have been different.

Third, that Attorney Sherman knew or should have known with reasonable diligence of two witnesses whom would have refuted the alleged confession that Mr. Skakel had allegedly made to a key state witness Gregory Coleman.  The court held that Attorney Sherman’s “failure of judgment borne of an undeserved confidence in the impact of his cross-examination of Coleman ... This failure of judgment prejudiced the petitioner.”  Therefore, the court held that because these witnesses did not testify there is a reasonable likelihood that the outcome of the trial would have been different. 

Fourth, Attorney Sherman’s failure to provide expert testimony that any alleged admissions made by Mr. Skakel while a patient in the intensive inpatient drug rehabilitation facility (Elan Facility), should not be used for the truth.

Fifth, Attorney Sherman’s failure to attempt to rebut the prosecution’s allegation that Mr. Skakel engaged in recent fabrication of his story by asserting that he had masturbated on the victim prior to her murder because he was afraid that the recent discovery of DNA would have linked him to the crime and murder.  However, the truth was that Mr. Skakel had stated to state investigators in 1987 that he had masturbated on Ms. Moxley, four to five years before any law enforcement agency knew how to apply DNA testing to a crime scene investigation.

In summary this is a text book case of a high priced attorney who dropped the ball.  If you are faced with a serious crime you should consult a New Jersey Criminal Defense Attorney who will fight for your defense.

Wednesday, October 23, 2013

Can You Expunge Federal Crimes and Misdemeanors in New Jersey? Answer No.

This blog was written as a public service to the People by Criminal Defense Attorney, Vincent J. Sanzone, Jr., Esq.

After a federal criminal case is dismissed the question is always asked by my clients is can I now get this arrest expunged?  Unfortunately, the answer is no.  Because a federal arrest or conviction in New Jersey comes under the jurisdiction of the Third Circuit Court of Appeals, it is currently not possible to expunge a federal crime or misdemeanor in New Jersey, even if the case is ultimately dismissed.

Unfortunately, the federal third circuit has held that anyone arrest or convicted of a crime, including all persons that had their cases dismissed, either by a dismissal by the United States Attorney or acquittal by a jury are not entitled to any form of expungement.  The Third Circuit covers, New Jersey, Pennsylvania, Delaware  and the U.S. Virgin Islands.  Therefore, anyone arrested by federal authorities and charged, even if the case is dismissed cannot obtain an expungement of that arrest or dismissal. United States v. Dunegan, 251 F.3d 477, 478 (3d Cir. 2001); United States v. Rowlands, 451 F.3d 173 (3d Cir. 2006)

As usual, the United States Congress is not interested in seeking justice and allowing even people who have had there cases dismissed receive an expungement order.  Therefore, former defendants, even innocent ones, are forced to cope with the continued injury to their reputations, and difficulty in obtaining employment, even when the charges are dropped.  It is estimated that 80% percent of American employers conduct background checks for criminal records.  This statistic comes from a study by the Society for Human Resource Management.  In many cases employers will use arrests, even ones that lead to a dismissal of the charges as an excuse not to hire the applicant.

Law Office of Vincent J. Sanzone, Jr.

Friday, October 11, 2013

New Jersey State Prison Inmates Have no State Remedy in New Jersey For State Tort Claims For Personal Injuries Caused by Other Inmate Assaults.

Prepared by the Law Office of Vincent J. Sanzone, Jr. as a Public Service

N.J.S. 59:5-2(b)(4) states that the State of New Jersey and its employees (correctional officers) are absolutely  immunity and are not liable for any injury caused by a prisoner to any other prisoner. 

Inmate-on-inmate assaults, which include sexual assaults, violent physical assaults, threats, intimidation, harassment, and to a lesser extent rape, are not uncommon in the New Jersey prison system? 

In addition, even more common is the psychological depravity administered to inmates by both other prisoners and some corrections officers, whom seem to enjoy bestowing psychological torture on inmates under their control and custody. 

However, the immunity enjoyed under state law does not apply to federal law which is found at 18 U.S.C. §1983 which allows an inmate to bring a lawsuit against correction officials and officers who act with deliberate indifference in protecting the rights of inmates incarcerated.  Therefore, allowing a weaker inmate to be housed in the vicinity of a violent inmate without adequate controls would show that the correctional officer acted with deliberate indifference.

If you have been subjected to such treatment you should have a private consultation with the law office of Vincent J. Sanzone, Jr.

October 11, 2013

New Jersey Best Criminal Defense Attorney, Best NJ Trial Criminal Attorney.

New Jersey Supreme Court Takes Step Backwards In Protection of the Accused Right to Effective Assistance of Counsel.

In State v. Miller, the New Jersey Supreme Court took a step backwards in defense of the accused right to effective assistance of counsel by affirming a conviction in which the public defender, on the day of trial, met the defendant-client.

The Supreme Court in a tortuous ruling held that because this was “a simple case”, for whatever that means, because no case in which the defendant is facing state prison sentence is simple, that it was not ineffective for the public defender not to have discussed the case prior to the trial date.  This decision is amazingly naive to the realities of a criminal trial.  How could a criminal defense attorney competently defend a defendant without knowing the facts of the case, as told by the defendant?  How would the attorney know which witnesses needed to be subpoaned?  How would the attorney know what strategy to use?  How would the attorney know what motions needed to be filed?  How would the attorney know anything about the client’s personal history, for example, possible affirmative defense, insanity, intoxication, self-defense, etc? 

In fact, this was not a simple case for the defendant because he was sentenced to 5-years in state prison after h is conviction.  In this decision, the Supreme Court affirmed the trial court’s decision to move the trial calendar at the expense of the defendant’s constitutional rights guaranteed under the Sixth Amendment of the United States Constitution.  Every defendant, rich or poor, is entitled to vigorous and competent legal representation.  This is a sad day for the rights of the accused in New Jersey.

Law Office of Vincent J. Sanzone, Jr.www.criminaldefensenj.com
Elizabeth, New Jersey
(908) 354-7006

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Thursday, October 10, 2013

Defending the Possession with Intent to Distribute Case In Superior Court-Hudson County, Jersey City, by Criminal Defense Attorney Vincent J. Sanzone, Jr.

It is without argument that the majority of criminal cases on the docket in Superior Court, Hudson County are the controlled dangerous substance (CDS) offenses.  Even drug users who have quantities of over 10 to 20 dime bags are often charged with possession with intent to distribute, notwithstanding that they do not possess the narcotics for sale, but only for their own personal use.  Often these users face the draconian penalties as sellers when in fact they only possess the CDS for their own personal consumption.

Remember if you are convicted twice for such an offense, the second conviction will result in a mandatory extended term, increasing the offense level automatically from a third-degree to a second-degree, or a second-degree crime to a first-degree crime depending on the amount of CDS and whether it was recovered within 1000-feet of a school, or 500-feet of a public park or public building such as a library.

There are many ways to defend these types of case and often an expert is needed to refute the prosecutor’s police expert who will testify that based on his knowledge and the hypothetical question posed to him, that the defendant possessed the quantity of CDS not for possession but rather with intent to distribute. 

The police expert will use factors such as other packaging material, such as baggies found near the CDS, scales, cutting agents, large sums of money, as well as other facts which he will claim shows that the defendant possessed these drugs not for his personal use but with intent to distribute.  In most cases the defendant will need to refute this testimony with his own drug intent expert.  Accordingly, the defendant must retain his own intent expert to explain to the jury that possession of 15-bags of heroin for example is typical and highly standard for a person who has a drug habit of 5-10 bags per day, and that the sum of 15 or 20 bags, based on the defendant’s drug usage, will last him or her maybe two days.  The law office of Vincent Sanzone has handled hundreds of these types of charges, and has successfully worked with defense drug experts at trial in defending these cases.  If you are charged with such an offense in Superior Court, Hudson County you are urged to consult the Law Office of Vincent J. Sanzone, Jr.

Vincent J. Sanzone, Jr., Esq.
(908) 354-7006
Elizabeth, N.J. 07207
Dated: October 10, 2013