Judge jails lawyer and client over tardy arrival for jury selection
When a Philadelphia lawyer and his client arrived 50 minutes late for jury selection in a drug case on Monday, a Pennsylvania judge jailed them both.
Holding lawyer B. David Marcial in contempt and upping the bond for his client, Jesus O. Ortiz, from $120,000 to $3 million, Judge Stephen B. Lieberman of Berks County ordered both held in the courthouse cellblock, reports the Reading Eagle.
"We were all here at 9 a.m. for a jury trial and the defense table was empty," said the judge, who had dismissed the prospects not long before the two arrived. "We wasted a jury panel."
Four hours later, Lieberman had both brought before him for a hearing. Marcial, who must also pay a $1,000 fine within 60 days or serve 10 days in prison, explained that personal problems kept him up late and then a receptionist at a local hotel failed to give him a wake-up call, the newspaper recounts. He left the courthouse after the hearing but Ortiz was transported to the county jail.
New Jersey Law Journal May 7, 2013
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Peremptory Challenge to Juror of Defendant's Race Requires Reasons
It's well-established in New Jersey that discriminatory uses of peremptory challenges are illegal, but a published opinion on Tuesday addresses a wrinkle not found in earlier precedents.
In the usual scenario, where the state removes multiple jurors who share a trait such as race with the accused, the defense can show a pattern of removal to establish a prima facie case of discriminatory purpose, forcing the prosecution to provide a nondiscriminatory one.
In contrast, State v. Pruitt, A-1343-11, holds that the state's removal of a single African-American juror, the only one in a case against a black defendant, can be enough.
The result was the reversal of a Cape May County drug conviction and a remand for a hearing on the prosecutor's reason for striking the juror.
Markees Pruitt was convicted on multiple counts of selling crack cocaine to an undercover detective within 1,000 or 500 feet of school property. He is serving a 14-year sentence and is not eligible for parole until 2018.
Juror 13 was one of two African-Americans on the jury panel and was one of five jurors against whom Assistant Cape May Prosecutor Saverio Carroccia exercised peremptories. The other black juror was dismissed for cause.
The defense lawyer, Michael Schreiber, a Linwood solo, immediately asked for a side bar, at which he objected that striking Juror 13 left the panel with no African-Americans.
Schreiber asked Superior Court Judge Raymond Batten to require Carroccia to explain why Juror 13 was excused, in order to determine if the peremptory challenge was exercised for a valid reason or because of her race.
Carroccia argued that the "threshold showing" for requiring him to explain had not been made.
Batten called the circumstances "worthy of concern" and said the fact that "the only juror of color" was excused by the state was "certainly interesting," but "statistical reality cannot be denied."
He said he was unable to find that a prima facie case had been made that there was a "substantial likelihood" of a discriminatory purpose.
Batten also said he was "uncomfortable" with his ruling and suggested it would be better if there existed a legal basis to require the state to divulge why it asserted the peremptory challenge.
Reversing, the Appellate Division found Batten applied too stringent a standard, since State v. Osorio, 199 N.J. 486 (2009), relaxed the "substantial likelihood" test.
The panel held that removing a single member of a "cognizable group" — one based on race, religion, color, ancestry, national origin or sex — to which the defendant also belongs, can suffice to raise the inference needed to require the prosecutor to provide a nondiscriminatory reason.
"We ... conclude that whenever a prosecutor uses a peremptory challenge to excuse the only qualified member of a cognizable group in the jury panel, where the defendant or the victim is also a member of that same group, and where the other Osorio factors are met, the trial judge should, upon timely objection by the defense, require the prosecutor to explain his or her nondiscriminatory reason for the challenge," wrote Michael Haas, a Superior Court judge temporarily assigned to the Appellate Division.
"Requiring the prosecutor to provide such an explanation imposes no unreasonable burden upon the State and serves the interests of justice by ensuring that no juror is excused from service for unconstitutional reasons," he wrote. "Were we to hold otherwise, discriminatory challenges could escape judicial review whenever the representation of cognizable groups in a jury panel was particularly low."
Haas noted that Carroccia failed to ask Juror 13 any follow-up questions and he said the reason for dismissing her was far from evident in contrast to the other four people subjected to peremptory challenges. One of the four had a son-in-law in drug treatment, one had a cousin serving a life sentence for a double murder and two had acquitted defendants when serving as jurors in prior cases.
Haas was joined by Judges Paulette Sapp-Peterson and Jamie Happas.
Assistant Deputy Public Defender Jason Coe, who represented Pruitt on appeal, says, "I'm pleased with the court's sensitivity to issues affecting jury selection," but declines further comment.
Schreiber terms the ruling "encouraging," saying "time and time again, I struggle with getting a fair cross-representation of minorities on juries where my client's a minority." In his view, minorities are underrepresented among jurors because they tend to be poorer and jury pools are drawn from the ranks of taxpayers, licensed drivers, registered voters and applicants for homestead rebates and are thus more likely to own cars and homes and to have jobs.
U.S. Census figures for 2011 show Cape May County with a population of 96,304, which is 86.6 percent non-Hispanic white, 6.4 per cent Hispanic, 5.1 percent black and one percent Asian.
The Cape May County Prosecutor's office did not return a call. Assistant Prosecutor John Molitor handled the appeal.
The Supreme Court is scheduled to hear oral argument on April 30 in another case involving race bias in jury selection, State v. Andrews, A-105-11.
The trial judge there found a prima facie case that the defense used peremptory challenges to exclude white jurors in a murder case against a black defendant, who was subsequently convicted and sentenced to life in prison. Once the judge made the finding, he required the defense to provide a "rational, articulable reason" not related to race whenever it employed a peremptory against a white juror.
The Supreme Court granted an appeal on whether the judge should have scrapped the voir dire process and started over.
New Jersey Law Journal 4/23/13
SAN FRANCISCO — Calling it an improper effort by private citizens to enforce drug laws, a federal magistrate on Monday rejected preliminary efforts by landlords to shut down the medical marijuana dispensary at the center of a battle with federal authorities.
In a 17-page order, San Francisco U.S. Magistrate Maria-Elena James rebuffed requests from the landlords of Harborside Health Center to force the state's largest marijuana dispensary to halt operations in Oakland and San Jose.
The decision sets the stage for a direct clash between the dispensary and the U.S. attorney's office, which filed forfeiture actions targeting Harborside as part of a crackdown on large-scale dispensaries in California.
Harborside, which claims to be operating in accordance with state law, is backed by the city of Oakland and a team of lawyers from Morrison & Foerster. Oakland filed a separate suit last year challenging the federal action.
In her order, James denied a motion from Oakland to stay the feds' forfeiture proceedings, saying the cases are likely to raise similar arguments and should proceed simultaneously.
Harborside's landlords, which intend to defend their properties from federal seizure, have so far been cooperating with the federal government. Their lawyers asked James at a hearing last month to invoke a procedural rule permitting judicial action to protect property subject to forfeiture proceedings or prevent its criminal use.
Calling the issue one of first impression, James determined only the government could properly make such a request.
"Claimants are attempting to use a procedural rule in a civil forfeiture proceeding to bring what amounts to an enforcement action under the [Controlled Substances Act] against Harborside," James wrote. "This is a measure which the government — the entity charged with enforcing the statute — has elected not to pursue."
Additionally, James concluded the landlords would not suffer irreparable harm from Harborside continuing operations. Both leases acknowledged Harborside's intended use for the property, James noted.
"While the court understands claimants' concern over the potential forfeiture of their properties," James wrote, the landlords are not entitled to invoke federal drug laws to "sever business relationships when they suddenly prove risky or to demonstrate cooperation with the government."
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OLD WARRANT NO RETROACTIVE FIX FOR GROUNDLESS ARREST OF DRUG SUSPECT
Discovery of an outstanding parole warrant against a man after he was subject to an unlawful investigatory stop does not purge the taint of the wrongful detention, and suppression of drug evidence found in the defendant's possession is the proper remedy, the Supreme Court ruled Thursday. The defendant, Don Shaw, was leaving an Atlantic City apartment building just as a multiagency task force was approaching the building to execute an arrest warrant on a fugitive. The only features Shaw shared with the person sought by the task force were that both were black men. "A random stop based on nothing more than a non-particularized racial description of the person sought is especially subject to abuse," the court said in State v. Shaw, A-38-11.
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A bill that would decriminalize possession of marijuana in small amounts is advancing in the New Jersey Legislature with bipartisan support. The Assembly Judiciary Committee on Monday approved the measure, A-1465, by a 7-0 vote. At present, possession 50 grams or less of marijuana is a disorderly persons offense, punishable by up to six months in jail and a fine of up to $1,000. The bill would make possession of 15 grams or less of marijuana a civil infraction, with fines of $150 fine for the first offense, $200 for a second and $500 for the third or subsequent one.
POT DECRIMINALIZATION MEASURE GAINS GROUND IN N.J. ASSEMBLY
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The Assembly Judiciary Committee on Monday approved bills that would allow automatic expungements for drug court graduates and others. The committee voted 6-0 in favor of A-2829, which would make expungement automatic for graduates who have no prior convictions or expungements, and have not been convicted of an expungement-ineligible offense. The committee also approved A-355, which provides for automatic expungements for defendants convicted of an indictable offense who have no prior or subsequent convictions, convicted of a disorderly persons or petty disorderly persons offense, or adjudicated delinquent of acts for which automatic expungements would be allowed.
BILLS CALLING FOR AUTOMATIC EXPUNGEMENT IN CERTAIN CASES ADVANCE
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The Senate Budget and Appropriations Committee on Tuesday approved a bill to create a mandatory, two-county pilot drug court program. The measure, S-881, falls far short of what Gov. Chris Christie proposed last month when he asked the Legislature to expand the mandatory treatment statewide within a year. One of the bill's sponsors, Sen. Raymond Lesniak, D-Union, testifying at Tuesday's hearing, said it would be wiser to move more slowly than the governor wants. Lesniak estimated it would cost at least $8 million to fund the pilot program, and at least $25 million to $35 million to expand it statewide.
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Gov. Chris Christie on Thursday called for legislation to expand the state's successful statewide drug court program by authorizing judges to make participation mandatory. He asked for a measure that would require program officials to more vigorously screen offenders for eligibility, and mandate that program information be provided to anyone charged with a second- or third-degree nonviolent offense. The measure would allow courts to order clinical assessments of offenders to determine their suitability for drug court and require that pre-sentencing reports include drug-addiction information and recommendations. Addicts slated for incarceration and eligible for participation would be sentenced to the program regardless of whether they want to enter it or not.
CHRISTIE PROPOSES MAKING DRUG COURT MANDATORY FOR SELECTED OFFENDERS
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A brand-name drug company can't sue generic drug companies for patent infringement if the generics ask the government to approve only nonpatented uses for the drug, the U.S. Court of Appeals for the Federal Circuit has ruled. On Feb. 9, a unanimous panel affirmed a December 2010 ruling by Judge Robert Kugler of the District of Delaware dismissing AstraZeneca Pharmaceuticals L.P.'s case against Apotex Corp. and several other generic drug companies. The case, AstraZeneca v. Apotex, involves AstraZeneca's patented technology for the cholesterol-lowering drug Crestor. AstraZeneca holds three patents related to the drug.
GENERIC DRUG MAKERS NOTCH BIG WIN AT THE FEDERAL CIRCUIT
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PROPOSAL WOULD MAKE POSSESSION OF SMALL AMOUNT OF POT A CIVIL OFFENSE
A bill introduced Nov. 10 in Trenton would decriminalize and ease the penalties for simple possession of marijuana. Current New Jersey law makes possession of 50 grams or less of the drug a disorderly persons offense. The bill, A-4252, would subject possessors of 15 grams or less of marijuana to civil penalties only, collected by the municipality where the offense takes place. The proposed penalties are $150 for a first violation, $200 for a second and $500 for a third or subsequent one. The measure also would amend N.J.S.A. 2B:12-17 to establish the new offenses as subject to municipal court jurisdiction.
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This bill was referred to the Judiciary Assembly Committee on November 10th.
If you have been charged with possession (pot, hash, marijuana, cocaine, heroin) and are looking for legal representation so you don't have a criminal history, contact our offices today 800-709-1131 or you can submit your information online at www.simonattorneys.com