Friday, December 23, 2011

The Question of Jury Nullification Does the Jury have the Right to Engage in Jury Nullification? Making the Argument that You Must Find the Defendant Not Guilty When There is Insufficient Evidence.

In the United States unlike many other countries once a jury renders a verdict of not guilty it is final, meaning the defendant can never be tried again because of principals of double jeopardy, and second, the jury can never be punished for its verdict no matter what it is.

Historically jury nullification was used by some northern juries in refusing to convict people engaged in freeing and helping black slaves hide and escape, in violation of the U.S. Fugitive Slave Act.  On the flip side sometimes southern juries sometimes refused to convict defendants, especially police officers engaged in blatant violation of federal civil rights laws especially applied to African-Americans and other minorities.  Unfortunately this all too frequently happens even today when police officers are placed on trial and acquitted or held liable when they should be convicted of violating the law or held liable for abusing others.

Evidence of jury nullification by the jury is sometimes manifested by the jury convicting of lesser included offenses, or hung juries.

Under New Jersey law under the definition of reasonable doubt which is given to each jury at the beginning and end of each criminal trial, the jury is instructed that if “you are not firmly convinced of defendant’s guilt, you must give defendant the benefit of the doubt and find him or her not guilty.

The powerful and operative words are you must. An honest jury which is sworn to uphold the law cannot violate its sworn duty to fairly and impartially follow this jury instruction.  Accordingly, in that case the jury must enter a verdict of not guilty, if the State does not prove its case beyond a reasonable doubt.  Accordingly, any doubt, which is reasonable, must be a vote of not guilty for that jury.
Accordingly, whether that acquitting juror is in the majority or the minority is of absolutely no significance since it is that juror who has made his or her individual decision which is scared and irrevocable and based on his or her own conscience.

Harvard Law school graduate, and former federal prosecutor and now law professor at the George Washington University National Law Center (my undergraduate alma mater), Paul Butler, argues that under the Bill of Rights to the United States Constitution ever jury has the right to engage in “jury nullification.”  Professor Butler in his OP-Ed article in the New York Times is perplexed why the United States Attorney’s Office for the Southern District of in New York is prosecuting Julian P. Heicklen a retired chemistry professor for handing out leaflets in front of the United States Court House for advocating jury nullification that Professor Butler has been advocating through such forums at The Yale Law Journal, “60 Minutes” and You Tube.

Professor argues that founding fathers John Hancock and John Adams believed that in the concept of jury nullification.  Citing Adams, each juror has the duty to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition and conscience, though in direct opposition to the direction of the court.”

Professor Butler even suggests that Supreme Court Justice Antonin Scalia appeared to be open to the suggestion that jurors can engage in jury nullification when he appeared before the United States Senate, when Justice Scalia stated that jurors “can ignore the law” if the law “is producing a terrible results.”

This New Jersey criminal defense attorney respectfully submits that because New Jersey criminal law allows for a verdict which is based on all the evidence and facts of any given case it is improper for anyone to second guess the decision of jury and their decision making process.

Law Office of Vincent J. Sanzone, Jr.
Elizabeth, New Jersey
Tel. No. (908) 354-7006
Dated: December 23, 2011

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Thursday, December 22, 2011

Motion to Suppress Evidence: How to Beat the Criminal or Driving While Intoxicated Charge in New Jersey

December 22, 2011, today, the Superior Court of New Jersey, Appellate Division in State v. Thomas W. Bernokeits, Jr., affirmed well established case law regarding the right of a police officer to order a motorist out of his vehicle in order to perform a field sobriety test.

In that case Mr. Bernokeits was driving in Seaside Heights, New Jersey (his first mistake), after spending some time at the “Bamboo Bar” (his second mistake).

Mr. Bernokeits vehicle was stopped as claimed by the police officer because the vehicle and tinted windows and a loud muffler.  Once pulled over, the officer asked Mr. Bernokeits whether he had consumed any alcohol beverages.
Of course, Mr. Bernokeits had the right to remain silent and not give a response, but he didn’t, and gave the standard usual reply, “I only had one beer" (his third mistake).

The officer then decided to order Mr. Bernokeits out of the vehicle to perform a field sobriety test.  The officer’s reason for that, according to his testimony, was that first, he smelled hard liquor on his breath and not beer, and second, he admitted that he had just left the “Bamboo Bar”, and third, it was late at night.

Mr. Bernokeits argued before the Appellate Division that the officer needed probable cause to ask him to perform the field sobriety test relying on the seminal case State v. Jones, 326 N.J. Super. 234 (App. Div. 1999).  In that case the appellate division held that the mere smell of alcohol emanating from the motorists breath or vehicle, and the admitting that alcohol was consumed, without more facts (for example the plain view sight of an open container), was insufficient to sustain probable cause to search the motor vehicle.  Therefore, Mr. Bernokeits argued that the police officer erred in requesting him to take the test because of the officer’s smell of alcohol on his breath.

The court rejected this argument, citing the State v. Adubato, 420 N.J. Super. 167, 181 (App. Div. 2011), which held that the officer requesting a motorist to submit to a field sobriety test, although a de facto arrest, does not need probable cause but only a factual basis for articulable reasonable suspicion that the motorist is driving while intoxicated or impaired.

The lesson of this case is that any motorist who admits to having any alcoholic beverages prior to operating a motor vehicle, and has consumed enough to leave traces of it on his breath can be required to perform a roadside field sobriety test to determine whether there is probable cause to arrest the motorist for driving while intoxicated.

Law Office of Vincent J. Sanzone, Jr.
December 22, 2011
Elizabeth, New Jersey
Tel. No. (908) 354-7006

Tuesday, December 20, 2011

Charged with a Drug or Narcotics Offense In New Jersey; Best Criminal Defense.

Being charged with a narcotic drug offense in New Jersey requires the experience of a criminal defense drug attorney who has the legal knowledge and skill acquired over many years of preparing, counseling and trying hundreds of these types of cases.  No two cases are alike, and every case poses its own set of unique facts which poses its own set of problems.

In every drug case the attorney must first make an analysis of the strength of the State’s case to determine best how to succeed.  Is this a case best left for a quick resolution or a plea?  Is this a case in which the evidence should be thrown out because there was a violation of the defendant’s Fourth Amendment right in the method in which evidence was obtained?  This type of analysis takes the skill of an attorney who understands the probability and likelihood that such a motion will succeed based on the law and facts of the individual case.

For purposes of example, on December 6, 2011, in Hudson County Superior Court, I was able to obtain a complete dismissal of a narcotics drug case in which the defendant was charged with possession and intent to distribute Phencyclidine or commonly known on the street as PCP, within 500 feet of a public park.  In this case the credible evidence lead to the conclusion that the strike force detectives that had made the automobile stop lied about making a cell phone call to the defendant’s cell phone in connection with a prearranged sell to the undercover agent. 

After further investigation by subpoenaing the phone records of the defendant and comparing them to the CAD and dispatcher reports it was ascertained that the strike force officers had lied about the time of the call. In that case the phone call to the defendant at a certain time was critical the credibility of the officers testimony.  The results, before the motion was to be heard by the Court, the Hudson County Prosecutor’s Office dismissed all charges.

In that case the undercover police officer stated in the police report that he had made a cell phone call to the defendant’s phone while the defendant was still in the automobile to determine whether the phone number in which he had the previous phone conversation with the alleged potential seller, rang while the officers stood over the vehicle to listen to the ring. This was done according to them to establish and identify the potential seller.  However, in truth the call by the police was never made because the phone of the defendant was turned over prior to the officers approaching the vehicle.  Therefore, it was established that the phone call was never made by the police officer and that information contained in the police report was a bold face lie. 

Nonetheless, the officers not being able to consummate the deal decided to follow the defendant’s vehicle several miles and pulling the defendant over next to a public park.  Continuing to lie the officers than claimed that after stopping the vehicle the defendant just so happened to admit to the crime and pull from his pocket a quantity of narcotics which was a complete lie.  In truth the officers after the stop immediately pulled the defendant out of his vehicle with guns drawn and immediately search the defendant and vehicle without probable cause. 

In the end the lies of the police officers were completely exposed and all charges were completely dismissed.  Of course, the Hudson County Prosecutor’s Office never brought charges against the police officers for official misconduct and preparing a false police report.

Law Office of Vincent J. Sanzone, Jr.
Elizabeth, N.J.
Tel. No. (908) 354-7006
Dated: December 20, 2011

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Obtaining a United States Visa through the EB-5 Immigration Visa Program.

Few people are aware of the EB-5 United States visa program which was created by the Immigration Act of 1990.  That program allows the granting of permanency residence status (green cards), to any individual who invests at lease $500.000.00 in a targeted employment area which creates or preserves at least 10 jobs for United States workers.  If the investment is not within a specific targeted employment area the investment is $1,000,000.00.  Under the law the targeted area are designated areas in which the unemployment rate is at least 50% above the national rate.

In New Jersey there are numerous areas which have designated as specific targeted employment areas, such areas are included in Union, Essex, Passaic and Middlesex Counties.  Under this program there are many types of investments which qualify for program such as hotel development, restaurants, retail stores, office buildings, light and heavy industry, warehouses, civic buildings, apartment/condominium development and other mixed use I (hotel/retail apartments) and II types of construction (office buildings/retail/condominiums).

Although the program as been questioned as elitist and catering only to wealthy, the program nonetheless allows wealthy investors to contribute to the United States economy through much needed investments in plighted urban and rural areas.

Lastly, it is important to note that anyone interested in obtaining the EB-5 visa should be aware of the many bogus and fraudulent EB-5 agents which promise to match a qualified applicant to a qualified project investor for a substantial fee.  For more information regarding this program who are invited to contact the Law Office of Vincent J. Sanzone, Jr.

Note, this information regarding obtaining a EB-5 is for informational purposes only and is not offered, or can be construded to give individual legal advice to any person.

Law Office of Vincent J. Sanzone, Jr.
Elizabeth, New Jersey
Tel. No. (908) 354-7006
Dated: December 20, 2011

Friday, December 16, 2011

Arrested for Shoplifting in New Jersey; How To Hire the Best N.J. Criminal Defense Attorney and Beat the Case.

In New Jersey being charged with shoplifting in municipal court can have serious consequences.  Not only can a conviction lead to a disorderly person’s conviction in municipal court in which a jail sentence could be imposed, but also have serious employment consequences and lead to the immediate loss of employment.

Under N.J.S.A. 2C:20-11 if the merchandise stolen, or attempted to be stolen, is valued at more than $500.00, but less than $75,000.00, it is a felony (3rd degree crime) and jurisdiction rests with the Superior Court. Any merchandise valued over $75,000.00 is a second degree crime.

In New Jersey anyone convicted of a shoplifting offense is automatically disqualified to be employed in the health care industry. 

Therefore, anyone employed in the health care industry such as a doctor, nurse, nurse’s assistant, home health aid; nursing home assistant, physical therapist, chiropractor, and nurse practitioner are automatically prohibited from working in the health field.  As soon as an arrest is made, the name of the person arrested is automatically scanned into the New Jersey Department of Health and Human Services Data base to determine whether that individual has a health care license in the State.  If they do, they are automatically flag and a letter goes out to the individual for a temporary suspension hearing, pending the resolution of the criminal charge. If a conviction results, automatic suspension follows.  This is referred to as being placed on the health care "black list".  In fact the health care black list is nationwide, and every State gives reciprocity
to every other State.  Therefore, if you are on the black list in New Jersey you are automatically on the black list in California and Florida and every other State in the Union.

If charged with the crime of shop-lifting there might be a number of defenses available to the defendant, including pleading to less serious charges of a non-criminal nature which would allow the defendant not to be placed on the health care black list.  

For example in all shop lifting cases the State must prove beyond a reasonable doubt that the person accused of shop-lifting did “purposely take possession of” the merchandise.  Therefore, if someone negligently, mistakenly or carelessly left the store without knowing that they had not paid for an item, and the trier of fact believed their testimony to be credible, there would be no crime.  Therefore, the defendant’s mental state at the time of the alleged crime would be of great significance, to wit, was there a serious illness or death in the family at the time of the incident.  Was the defendant thinking about something serious and just plain forgot about the item in their cart, etc.  Was the defendant on medication or sick at the time?  Was the defendant in a rush?

There are many other defenses and strategies to successfully fight the shoplifting charge and if charged with such a disorderly person’s offense in Municipal Court, or crime in Superior Court it is absolutely essential that you consult an experienced attorney who has been handling such cases for the last 21 years.  Attorney Vincent J. Sanzone, Jr., has handled successfully many of these cases, in which many of these shoplifting cases were disposed of by outright acquittals, pleas to less serious charges, which resulted in no criminal record, or adverse job consequences.

Sanzone Firm
Law Office of Vincent J. Sanzone, Jr.
P.O. Box 261
277 North Broad Street
Elizabeth, N.J. 07207
(908) 354-7006
Dated: December 16, 2011

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Thursday, December 1, 2011

Obtaining a Not Guilty Verdict-How To Win Your Criminal Case: The Lying Witness

A jury in essence is a twelve man and woman human lie detector machine.

Very few criminal cases tried in New Jersey courts have anything to do with real evidence or other types of science or forensic evidence as seen on crime drama television like popular television series such as CSI.  The overwhelming majority of criminal cases have little or no crime scene investigation. 

In reality most case are decided on the credibility of witnesses whom simply tell their side of the story.  From an undercover detective who tells the jury that from 100 yards away, at night, and without any enhanced eye vision he was able to say with 100% certainty that it was the defendant who exchanged a small vial of cocaine in a drug sale, to the lay witness that says that it was the defendant who robbed her at night, a jury of twelve men and women must decide if the witness is telling the truth, lying or simply mistaken.

Unfortunately with most jurors the perception is that with police witnesses they have no motive to lie, and consequently are telling the truth.  In reality, police witnesses even more so than with lay witnesses, will be dishonest with a jury when testifying.  In fact, surprisingly, they often have more of a motive in testifying falsely.  Why this is case is hard to understand and after engaging in the cross-examination of hundreds of police officers I have come to a few conclusions.  First, all police officers engaged in an arrest or engaged in a larger investigation have a vested interest for their “team to win”; that is, that law enforcement get their man, and that as they perceive it, “good guys win.  Second, like most people in general cops what to feel vindicated in their job.  Accordingly, most cops when testify will never admit they made a mistake in their investigation or made something up or fabricate a fact to make the defendant look guilty.  When the defense attorney smells a lie or fabrication or lie by the police officer, it is the job of defense counsel to capitalize on such testimony since it often becomes a treasure chest, bigger lies and inconsistent testimony which should make the officers testimony as incredible in the eyes of fair and impartial jurors.

Over the years I have learned that witnesses whom engage in such false testimony will begin to testify in a certain pattern.

First, for example for every lie someone tells they have to create two or more lies to support the first lie, to protect them from the first one.  Therefore, in this first scenario who will notice how the lies start to become bigger and bigger, and sometimes more and more bizarre.  It is the natural progression of a liar (or lies) in progress.

Second, people who lie have to have a great memory; people cannot remember what they said before if they are lying.  Therefore, in this second scenario you will see that the person lying forgets what they just said a few minutes ago on the stand, or what they had previously testified to on another occasion.  Therefore, when you cross-examine this witness and go back to the same question, asked slightly differently, you will also hear a completely different, or slightly different answer.  In other words if they continually change there story it is because they are making it up.

Even people well rehearsed and professional witnesses like police officers who testify in hundred of cases will fall victim to the experienced defense attorney who uses effective cross-examination techniques.

Third scenario is when someone is lying they will qualify there statement before they give their answer.  For example they will say things like, “we picked up the drugs”, instead of the simply “I picked up the drugs.”  Or, when the person is caught in an obvious lie and then says, “I don’t remember”, or “I don’t recall.” 

Therefore, in closing the jury is the ones who determine whether anyone is telling the truth.  They are in essence, the collective human lie detector test, and if the witnesses for the State, no matter who they are fail, the jury must return a verdict of not guilty as the law and their oath demand. 

Law Office of Vincent J. Sanzone, Jr.
December 1, 2011
Elizabeth, New Jersey
Tel. No. (908) 354-7006

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