News: June 2010

NJ Judge Recommends Change to Police Lineups

Published June 23, 2010

Monday, June 21, 2010

TRENTON, N.J. (AP) — A New Jersey judge has found that a test used by courts in 48 states and the federal system to assess the reliability of witness identification is flawed and inadequate — a finding that could alter the way juries hear about evidence in court.

The findings were released Monday as part of a state Supreme Court-ordered inquiry to determine how well New Jersey’s standards are working given new scientific studies.

Retired state Appellate Division Judge Geoffrey Gaulkin, who was appointed to oversee the inquiry, said the state should have the burden of showing that a witness identification is reliable. Currently, a defendant has the burden of proving there was undue suggestion during the identification process.

Gualkin also recommended witness identifications be scrutinized in the same way physical evidence is and suggested that could be done through pretrial hearings.

“Such a procedure would broaden the reliability inquiry beyond police misconduct to evaluate memory as fragile, difficult to verify and subject to contamination from initial encoding to ultimate reporting,” Gaulkin wrote.

Finally, he said jurors should be instructed on the scientific reliability of witness identifications.

Gaulkin was tasked with trying to determine how valid the state’s current standards are concerning the admissibility of witness identification. Several hearings were held last fall with expert testimony, as well as oral arguments from defense attorneys, prosecutors and others.

The full New Jersey Supreme Court will consider Gaulkin’s recommendation and decide whether and how new guidelines are crafted.

Barry Scheck, co-founder of the Innocence Project, a New York legal center specializing in overturning wrongful convictions, said Gaulkin’s report and the Supreme Court’s ultimate ruling is expected to influence more than New Jersey courts because the yearlong inquiry was so comprehensive.

“Whatever they do is going to be watched by state courts across the country, if not the U.S. Supreme Court, not to mention federal judges everywhere,” he said.

Scheck, one of several attorneys for O.J. Simpson during his 1995 murder trial, presented testimony during the hearings that called for stricter standards — many of which Gaulkin said he supported.

Nationally, more than two-thirds of the 254 DNA exonerees who have been released since 1989 were sent to prison based on witness misidentification, according to the Innocence Project. It’s the most common element in a wrongful conviction, the center said.

Three of the five exoneration cases in New Jersey involved misidentification, according to the Innocence Project.

New Jersey has long been at the forefront in identification standards. In 2001, the state became the first to establish lineup protocol guidelines designed to prevent mistaken suspect identifications. Other states followed suit.

However, Gaulkin said there was no evidence that the guidelines were working adequately.

“Nothing in the record suggests that New Jersey has thereby solved, or even substantially alleviated, the problem of mistaken identifications,” the judge said.

Among the guidelines’ recommendations were that police use a sequential blind lineup, a widely praised technique designed to reduce mistakes by witnesses when trying to identify suspects.

In sequential blind lineups, mug shots are shown one at a time. Detectives displaying the photos don’t know who the suspect is, which means they can’t intentionally or accidentally tip off witnesses.

Dallas, Boston, Minneapolis and Denver, along with North Carolina, use sequential blind lineups or some variation. However, most police departments use a so-called six-pack or other traditional method where a witness views several people or photographs at one time.

Some of the new science presented during the hearings shows that witnesses are likely to stay committed to the first mug shot they pick — even if it’s wrong. It also showed how identifying someone from a different race than the witness increases the chance of misidentification and how the presence of a weapon can distract witnesses from remembering details about a perpetrator.

“Eyewitness memory is not like replaying a videotape,” Scheck said. “Human memory is malleable. Just the way physical evidence can be contaminated or collected improperly, so can eyewitness testimony be contaminated or collected in a way that changes its meaning.”

While DNA evidence is increasingly used to exonerate prisoners, defense attorneys say the way to stem wrongful convictions is to first prevent misidentifying suspects.

“Disturbing statistics from DNA exonerations have confirmed what many social science researchers have long suspected: Eyewitness misidentification is the single greatest source of wrongful convictions and responsible for more wrongful convictions than all other causes combined,” Assistant Public Defender Joseph Krakora argued last September during one hearing.

The inquiry was ordered following an appeal by Larry Henderson, a Camden man who claims police influenced a witness to identify him.

He was convicted in 2004 of reckless manslaughter, aggravated assault and weapons charges in connection to the death of a Camden man.

Although the inquiry came too late for him — Henderson has already been released on parole — defense attorneys said the case is crucial to how future suspects are identified.

Krakora argued that unless proven reliable, witness identifications should be thrown out. Prosecutors said that while guidelines should be adhered to, a deviation from them should not automatically mean that a witness identification can’t be used in court.

Gaulkin suggested that juries be told of the reasons for the potential unreliability of the IDs.

By BETH DeFALCO
Associated Press Writer

Sen. Robert Menendez needlessly delays U.S. marshal appointment

Published June 10, 2010

By Star-Ledger Editorial Board

Sen. Robert Menendez refuses to approve Lourdes Timberman Correa for U.S. Marshal, and he won’t say why.

The simple process of filling the post has been dragging on for nearly a year. Correa was nominated by Sen. Frank Lautenberg, but the White House won’t nominate Correa as long as one of the Democratic senators is blocking the way. It reflects poorly on Menendez, who should know better.

Correa is no political appointee — she came to Sen. Frank Lautenberg’s office on her own with resume in hand because she thought she could do the job, and after lengthy interviews, the senator agreed.

Correa, who is from Monroe Township in Middlesex County, has been a deputy marshal for 20 years and has already been vetted by the White House. She also has an array of law enforcement groups backing her selection.

She’d be the first woman and the first Latina to hold the post. But that’s just icing on the cake. Correa is a worthy selection on the merits alone.

This is no minor job for a political hack: U.S. marshals capture fugitives and oversee federal courthouse security. Other political considerations should fall by the wayside.

Menendez seems reluctant to let go of making it his choice, no matter who it is. His first pick was Hackensack police chief Tomas Padilla, a former Bergen County freeholder. Padilla withdrew from contention when his name appeared in federal and state civil lawsuits alleging police officials pressured subordinates to make political contributions.

Now Menendez is touting the abilities of a new candidate, Richard Cañas, who was director of homeland security under former governor Jon Corzine. Cañas has a solid background in law enforcement as well, but why Menendez would proffer a new name and drag out the process even more is mystifying. Lautenberg’s staff says they reached out to Menendez early on, which is good. Both should have a chance to share in the glory of Correa’s historic appointment.

Menendez is having none of it. He’s mum on the reasons he won’t support Correa’s appointment, saying only that he thinks he has the better candidate. And so the process drags on. It’s unfair to Correa and, whether he realizes it or not, makes Menendez look bad, too.

In a rare break, Lautenberg and Menendez feud over U.S. marshal

Published June 8, 2010

Usually the fights that break out over federal nominations concern judges or U.S. attorneys.

Yet for months, New Jersey’s two U.S. senators have been at odds over whom to recommend to President Obama for the state’s next U.S. marshal, whose duties include capturing fugitives and overseeing security in federal courthouses.

The impasse marks a rare public disagreement between Sens. Frank Lautenberg and Robert Menendez, two Democrats who work closely on most issues. It is also a reminder of the often fragile process behind nearly every political appointment in Washington.

“Sometimes it’s easier when the two senators are of different parties. Then there is an understanding that the guy aligned with the president gets to make the pick,” said Ross K. Baker, a Rutgers University professor who studies the Senate.

More Sen. Lautenberg news:
Ultimately, the White House will decide whom to nominate as marshal. But presidents typically do so in consultation with the state’s two senators. In two previous instances — for U.S. attorney and a federal appellate judge — Lautenberg and Menendez ultimately agreed on the candidate.

So far, this time has been different.

Lautenberg wrote to Obama 11 months ago to recommend Lourdes Timberman Correa, a deputy U.S. marshal for 20 years. Correa passed an initial round of White House vetting, has the backing of several law enforcement groups and, if confirmed, would be the first woman and first Hispanic to hold the post.

But Menendez has refused to support her, even after his own choice withdrew from consideration last year. That candidate, Hackensack Police Capt. and former Bergen County freeholder Tomas Padilla, withdrew after being named in federal and state civil lawsuits that accused Hackensack police officials of pressuring rank-and-file officers into making political contributions.

But Menendez has refused to support her, even after his own choice withdrew from consideration last year. That candidate, Hackensack Police Capt. and former Bergen County freeholder Tomas Padilla, withdrew after being named in federal and state civil lawsuits that accused Hackensack police officials of pressuring rank-and-file officers into making political contributions. Padilla has denied wrongdoing in court filings.

On Friday, after a reporter inquired about Menendez’s plans for the marshal nomination, the senator sent a second recommendation to the White House: Richard L. Cañas, who was director of New Jersey’s Office of Homeland Security Preparedness under Gov. Jon Corzine. The senator’s spokesman said the timing was a coincidence.

U.S. senators in New Jersey have a history of butting heads over federal appointments. Lautenberg and fellow Democrat Robert Torricelli were at odds for months over naming a U.S. attorney. But they fought over nearly everything. Lautenberg and Menendez, on the other hand, work together regularly on issues including mass transit funding, airport security and studying the economic and environmental implications of the oil spill in the Gulf of Mexico.

As Lautenberg and Menendez face off over the marshal’s post, two federal judge vacancies loom in Newark. In an interview last week, the chief judge of New Jersey’s federal courts, Garrett E. Brown Jr., said it was crucial for those vacancies to be filled as quickly as possible to prevent a caseload backup. Spokesmen for both senators said they hoped to move soon on the judicial openings.

The U.S. marshal for the district of New Jersey oversees a staff of about 40 law enforcement officers who provide security for federal courts and judges, transport prisoners, apprehend fugitives and protect witnesses. New Jersey’s current U.S. marshal, James Plousis, was appointed by President George W. Bush.

More Sen. Menendez news:
On Friday, the offices of both senators released statements promoting their candidates to replace Plousis. Lautenberg’s spokesman pointed to Correa’s position as a supervisor within the U.S. Marshals Service and her experience overseeing fugitive roundups.
“This is a critical federal law enforcement position in our state, and Supervisor Correa has exactly the right experience, knowledge and skill for the job,” said the spokesman, Caley Gray.

Menendez touted Cañas’ “unique experience and expertise” as head of the state’s Homeland Security department. He, too, would be New Jersey’s first Hispanic marshal. “His experience and ability to protect our judiciary and hunt down federal fugitives are stellar,” Menendez said.

Attempts to reach Correa and Cañas were unsuccessful.

LOOKING FOR RECONCILIATION

Several law enforcement groups, including the Federal Law Enforcement Officers Association, have written to Obama, urging him to nominate Correa.

Sarah A. Thoma, a spokeswoman for the Latino Peace Officers Association’s New Jersey chapter, said Menendez’s recent recommendation will only cause further delay. “Ms. Correa has already been vetted by the FBI. ... Submitting a candidate at the eleventh hour serves to further obstruct the process of finding a permanent resolution to an already protracted selection process,” Thoma said.

There is no set process dictating how senators choose nominees. Last year, it was Lautenberg, the senior senator, who initially suggested Paul J. Fishman to become U.S, attorney; Menendez joined him. When the senators recommended Joseph A. Greenaway Jr. to become a federal appeals judge, they did it in tandem. Menendez’s spokesman declined to cite any specific objection to Correa and would not say why the junior senator refuses to sign onto his senior colleague’s pick this time around.

Unless Lautenberg and Menendez reach a compromise on their own, it will be up to the White House to choose from between the two candidates. Obama’s nomination then will be subject to Senate confirmation.

“The White House is pretty savvy, and what it might try to do is see if it can reconcile the senators,” said Carl Tobias, a professor at the University of Richmond School of Law who studies federal appointments.

Baker, the Rutgers University professor, said it is important for the two senators from New Jersey to resolve their differences over the marshal appointment to prevent the issue from contaminating other joint efforts.

“When they can’t work these things out, I think it is a danger symbol,” Baker said.

© 2010 NJ.com. All rights reserved.

By Joe Ryan/The Star-Ledger
June 06, 2010, 6:03AM

Lautenberg Endorses Lourdes Correa Timberman; Menendez Hesitates

Published June 6, 2010

THE Bergen County freeholder that Sen. Bob Menendez backed to be the next U.S. Marshal in New Jersey is out of the running, but there’s no sign he and Sen. Frank Lautenberg will agree on someone else soon.

“We just don’t have an agreement,” Menendez said Wednesday. He noted, however, that a looming vacancy in the office could increase the pressure to reach one.

Former Cape May County Sheriff James Plousis has run the marshal’s service, which provides courthouse security and pursues federal fugitives, as a Republican holdover appointee from President George W. Bush’s administration.

But Plousis was nominated last month to chair the state Parole Board. No confirmation hearing has been set in Trenton, but if he’s confirmed there would be a vacancy in a post that pays at least $155,000, according to a document posted on usmarshals.gov.

The U.S. Marshal is nominated by the president and confirmed by the Senate, but informally the White House considers recommendations from home state senators before making a nomination.

Lautenberg supports Lourdes Timberman Correa, a 21-year agency veteran currently serving as deputy marshal. She would be the first woman to hold the post in New Jersey, and is backed by the state chapter of the Latino Peace Officers Association and the Latino Leadership Alliance.

“I thought she was so qualified I wasn’t expecting any opposition,” said Martin Perez, president of the alliance.

Sarah Thoma, spokeswoman for the peace officers group, said the uncertainty about the next leader “affects the morale of the U.S. Marshal’s Office.”

Menendez had backed Bergen freeholder and Hackensack Police Capt. Tomas Padilla.

“He’s withdrawn his name and we are looking at other candidates,” Menendez said.

He didn’t say why, but Padilla was among several codefendants named in a lawsuit filed in June against Hackensack Police Chief Ken Zisa that could have been a black mark on Padilla’s file if the New Jersey senators had sent his name over to the White House.

The suit, filed by six current and one recently retired officer, alleges Zisa, a former state assemblyman, used the police department for political gain and pressured officers into making campaign contributions. Zisa called the plaintiffs “disgruntled employees who are unhappy with their assignments.”

The Federal Law Enforcement Officers Association also objected last year when Padilla’s name and Bergen County Sheriff Leo McGuire’s name surfaced as potential candidates, because they had no experience in the marshal’s service.

Menendez would not say if he had a problem with Lautenberg’s candidate.

“I don’t want to talk about any individual. I would just simply say I don’t have an agreement with Sen. Lautenberg, and advise and consent is the responsibility of both senators,” he said.

He noted that he and Lautenberg had been able to reach an agreement to support candidates for United States Attorney and circuit court of appeals.

“At the end of the day, I’m sure we’ll find a way to work it out and find somebody we can agree on,” Menendez said.

THE provision of the recently enacted health insurance overhaul that’s drawing the most heat from critics would be repealed under the Reclaiming Individual Liberty Act, a bill introduced by Rep. Scott Garrett, R-Wantage.

The law says that starting in a few years, people who can afford it but have not bought health insurance have to pay a penalty to cover the cost of medical care they presumably – news releases by supporters of the bill say “inevitably” — would need.

Right now, since hospitals do not turn people away who need treatment, the costs of the uninsured are shifted onto the bills of people with insurance and the government. The idea is if more people are insured, those costs would go down and insurance overall would get cheaper.

The penalty starts at $95 in 2014. By 2016, it’s $695 or 2.5 percent of income, but there would be hardship exemptions and the penalty would be no higher than the cost of a bare-bones insurance plan carrying a steep deductible that would be sold through the new exchange created by the law.

Garrett, and several state attorneys general suing to block the law, say that while the Constitution gives Congress broad powers to regulate interstate commerce, Congress cannot order someone to buy health insurance.

“This moves far beyond regulating economic activity, and into the realm of regulating inactivity,” Garrett said. “If we allow that Congress has this authority under the Constitution, then there is virtually no limit to Washington’s power to micromanage the lives of our citizens.”

His bill, HR 4999, would repeal the mandate.

BOTH Lautenberg and Rep. Steve Rothman, D-Fair Lawn, spoke out last week against proposed budget cuts to the Coast Guard that would eliminate the Marine Safety and Security Team stationed in the New Jersey/New York region.

The two serve on their respective houses’ appropriations committee, and could be able to restore the funds.

“These teams are vital,” Lautenberg told the Coast Guard commandant at a hearing Tuesday.

“If this [team] is decommissioned, the only teams protecting the East Coast will be located in Boston and Miami,” Rothman wrote in a letter Wednesday to the chairman of the homeland security appropriations subcommittee.

Herb Jackson is The Record’s Washington correspondent. Contact him at .(JavaScript must be enabled to view this e-mail address). Read Jackson’s blog at tinyurl.com/capgames.

Trooper Castellano succumbed to injuries sustained while on duty

Published June 1, 2010

West Trenton, New Jersey - New Jersey State Police Superintendent Colonel Joseph R. Fuentes announced the passing of New Jersey State Trooper Marc K. Castellano, 29. Trooper Castellano succumbed to injuries sustained while in the performance of his duties at Jersey Shore Medical Center. 

Trooper Castellano was struck by a motor vehicle while assisting in a search for the occupants of an abandoned car that was the subject of a BOLO.  The vehicle was found abandoned on Interstate 195 westbound on the ramp at exit 31 in Howell Township.  Arrested at the scene was the driver of the abandoned vehicle, 30 year-old Blackwood, New Jersey resident Diana Hoffman.  Hoffman was placed under arrest and charges are pending.  Hoffman’s vehicle is not the vehicle that struck Trooper Castellano. Authorities are also investigating the validity of Hoffman’s claim that an unidentified black male was a passenger in the vehicle. A search of the area for a suspect has been suspended.

Trooper Castellano served honorably with the New Jersey State Police for over five years, graduating as a member of the 136th New Jersey State Police Academy Training Class in September of 2004. Trooper Castellano was a member of the Troop “C” Tactical Patrol Unit. He was married with two children. State Police Superintendent Colonel Rick Fuentes was at the hospital with Trooper Castellano and his family.

“The loss of Trooper Castellano is a difficult blow to absorb,” said Colonel Fuentes. “The New Jersey State Police prides itself on being a family and the loss of our brother will be felt throughout the entire Division of State Police,” Fuentes said. “Trooper Castellano was the embodiment of the finest ideals of the New Jersey State Police.”  “We will keep he and his family foremost in our thoughts and prayers.”

He is survived by his wife Stephanie, his daughter Julianna, 4 years old, and his son Vincent, 1 year old.
The viewing will be Friday, June 11, 2010 from 2 PM to 8 PM at the Lakewood Funeral Home, 6250 Rt. 9 South, Howell, NJ 07731.  Funeral Mass will take place on Saturday, June 12, 2010 at 9:30 AM at Saint Veronica’s Catholic Church, 4215 Rt. 9 North, Howell, NJ 07731.  Burial will take place immediately following the church service at Saint Rose of Lima Cemetery, 299 Freehold-Englishtown Road, Freehold, NJ 07728.
All State Police Personnel and other Police Department Representatives shall assemble and report to Lt. Stephen Morenski #4318, at Saint Veronica’s Catholic Church, 4215 Rt. 9 North, Howell NJ, 07731 on June 12, 2010 at 8:00 AM.
All Police Agencies intending to send representatives to the funeral are requested to contact Troop “C” Headquarters at (609) 584-5000 Ext. 5248 and advise the number of personnel attending.
Directions to Saint Veronica’s Catholic Church are as follow:
FROM NORTH: New Jersey Turnpike, Southbound to Exit 7A, I-195 East (Shore Points) to Exit 28 A, US 9 South, Make the U-Turn at Salem Hill Road for US 9 North and the Church will be on the right hand side.
FROM SOUTH: New Jersey Turnpike North to Exit 7A, then follow from the above directions.

New Police Sergeants Exam to be announced September 1st, 2010

Published June 1, 2010

Today NJ Civil Service announced the 2010 Police Sergeant applications will come out September 1st instead of July 1st.  Further, they expect the new sergeant’s exam to be given in January 2011.