Tuesday, May 10, 2011

Lawyer And Client Meet On The Day Of Trial, Conviction Affirmed

The New Jersey Appellate Division affirmed a drug possession and distribution conviction despite the fact that the defendant and his substitute attorney met for the first time on the morning of the suppression hearing and trial. The court majority concluded that the defendant failed to demonstrate ineffective assistance of counsel or other prejudice.

To his credit, the substitute attorney sought time to meet with his client. The trial judge scoffed at the need for any preparation, likening a drug case to an intersection collision civil trial.

The trial started the day after the supression hearing.

Justice Fuentes dissented

I deem it self-evident that a rational and just criminal justice system cannot accept as valid a conviction predicated on a scenario in which a defendant, through no fault of his or her own, meets his or her lawyer for the first time on the day the case is scheduled for trial. I emphasize that this defendant played no role in the decision made by the Office of the Public Defender to replace his previously assigned counsel. This is not a case in which a defendant is trying to "play the system" by attempting to discharge his lawyer in a manner intended to frustrate the administration of justice...

I am...compelled to note that "trying a drug case" bears no comparison to "trying an intersection accident case." Although both kinds of cases are undisputably deserving of the utmost professional care, the latter risks only monetary compensation to a civil litigant, with the prospect of alternative recovery from a negligent lawyer, while the former imperils a person's freedom, the loss of which can never be restored or adequately compensated.

No matter how seemingly routine certain criminal trials may seen to those of us who labor in the judiciary, the prospect of losing one's freedom is never routine, nor can the awesome power of depriving a person of libery ever be yielded without care and respect.

He concludes his dissent with passion

Every once and awhile a case comes before this court that tests our resolve as judges to remain true to the fundamental principles that set this great country apart from the rest of the world - our commitment to the fundamental concept of fairness, a sense that justice was done, both in fact and in the manner it is perceived by those most affected by it. A system of criminal justice that permits a conviction to stand in a case where an indigent man, through no fault of his own, meets his attorney for the first time on the day the case is scheduled for trial, carries with it the indicia of a "show trial," a sham proceeding in which the outcome is perceived as predetermined. Because we are better than that, I respectfully dissent.

That sounds right to me. (Mike Frisch)


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