Hey, fellow defense attorneys! Here's a quick question. Have you ever walked into a municipal prosecutor's office and found yourself surrounded by a dozen or more police officers? Do you recall how you felt? If you were intimidated or felt that any plea negotiations would be futile, you're not alone. Throughout every county in New Jersey, there are municipalities where the prosecutor allows every police officer summoned to court on that day to hang around and sit in on plea negotiations. The practice of allowing so many officers to attend plea negotiations creates an appearance of police-dominated justice and has a chilling effect on good-faith plea negotiations. If you, as a professional defense attorney, feel uncomfortable, how do you think apro se litigant feels? Inevitably, pro se litigants walk in to a room full of police officers and feel that the system is stacked against them. The New Jersey Supreme Court has written time and time again that municipal court is the only contact with the judiciary that most New Jersey residents will ever have. Given this fact, the need for prosecutors to present a fair and unthreatening environment becomes mission critical. People in a free society must feel at liberty to express their feelings to the prosecutor during plea discussions, especially if those feelings involve complaints or a misunderstanding about the police and their practices. A crowd of police officers in the prosecutor's office, who perform no function other
than hanging out and waiting around, tends to stifle this type of communication. Let's be clear. This is a problem of perception. There is no master plan or agreement between the prosecutors and the police to intimidate anyone who comes to municipal court. The practice of local and state police loitering in some particular office, while the prosecutor attempts to negotiate case dispositions a few inches away, is simply a matter of tradition. In some municipalities, it's the way they've always done things without giving the situation much thought. In others, it's a matter of convenience and part of the social dynamic of municipal courts in New Jersey. The benefits of this collegial atmosphere among the police is often lost on nervous, pro se defendants who seek to negotiate a deal for themselves while surrounded by an intimidating cadre of police. The lack of privacy and the presence of so many officers send the message that the prosecutor and the police, working in tandem, will control the outcome of the case, as opposed to facts, law and fairness. It is important to remember that the municipal court prosecutor is not a police officer. It is the prosecutor who must independently evaluate probable cause, determine the appropriate charges, offer plea agreements and decide which cases do not merit prosecution. When the police are wrong, it is the duty of the prosecutor to let them know. It is the prosecutor, not the police, who must always comply with RPC 3.8. It is the prosecutor, not the police, who is duty-bound to work individual justice in individual cases. More than a quarter century ago, the Supreme Court promulgated a series of guidelines for municipal court plea-bargaining. Guideline 3 discusses the prosecutor's responsibilities. It states: Nothing in these guidelines should be construed to affect in any way the prosecutor's discretion in any case to move unilaterally for an amendment to the original charge or a dismissal of the charges pending against a defendant if the prosecutor determines and personally represents on the record the reasons in support of the motion. The New Jersey Supreme Court added a comment to these guidelines, in 1990, to further clarify the role of a municipal prosecutor. The justices wrote: It is recognized that it is not the municipal prosecutor's function merely to seek convictions in all cases. The prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to defendants, the state and the public to see that justice is done and truth is revealed in each individual case. The goal should be to achieve individual justice in individual cases. In discharging the diverse responsibilities of that office, a prosecutor must have some latitude to exercise the prosecutorial discretion demanded of that position. It is well established, for example, that a prosecutor should not prosecute when the evidence does not support the state's charges. Further, the prosecutor should have the ability to amend the charges to conform to the proofs. In 2004, the Supreme Court amended both Rule 7:6-2(d) and Guideline 3 to eliminate the need for police officers to consult with prosecutors about every plea disposition. The idea behind the changes was to keep police officers on the street and prosecutors meeting with the public so that the municipal court could run efficiently. This is the reason why prosecutors are permitted to use plea forms in municipal court to this day. Apart from socializing, there is no longer any legitimate need to have police officers waiting around, en masse, in the prosecutor's officer. Once we recognize this problem and its great potential for harm, the solution becomes obvious. The congregating of police officers in the municipal prosecutor's office is a law enforcement issue that should be addressed by the executive branch of government. One simple fix comes in the form of a directive from the county prosecutor's office, directing all municipal prosecutors to only allowthe officer involved in a given case to be present for that case, if and when he is needed for disposition. A quiet, thoughtful environment where prosecutors, defense attorneys and pro se litigants can conduct their private discussions in an atmosphere of austerity and professionalism will likely enhance the unique municipal court experience for everyone involved. It is time to break with tradition and give our plea negotiations more privacy. ■
Peyrouton is a criminal-defense and immigration attorney in Union City.
MARCH 26, 2015 NJLJ.COM statewide legal authority since 1878 Privacy Plea(se)
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