Non-Magic Carpets To Success

Continued From The Previous Post . . .

Marian Wright Edelman
By CDC (PHIL #8416)
(Obtained from CDC Public
Health Image Library.)
[Public domain],
via Wikimedia Commons

"If you see a need, do not ask why doesn't somebody do something, ask why don't I do something. Hard work and persistence and initiative are still the non-magic carpets to success for most of us."

Marian Wright Edelman, Civil Rights Activist and Lawyer, spoke these words during the commencement address at the Washington University in St. Louis on May 15, 1992. I was present when she delivered that address.

Before departing on March 23, the Go Team advocates asked me to attend their hearing. I apologized, explaining prior professional commitments prevented this. None of the advocates persisted, but I realized the invitation was not a mere formality.

Thus, I endeavored to rearrange my schedule. Murphy's Law, however, took the upper hand. Despite several phone calls and a visit to the court house that day, too many logistics and not enough time stood in the way. Nevertheless, various people returned favorable reviews about each adult's testimony. I was honored to have contributed to this successful outcome.

My communication continued with Ronnie, the Go Team Sponsor. The honors ceremony remained on the horizon. Therefore, I met the Go Team on May 18. Before meeting, I researched themes and speaking styles.

President Lyndon B. Johnson meets with 
Civil Rights leaders Martin Luther King, Jr., 
Whitney Young, James Farmer
By Yoichi R. Okamoto [Public domain],
via Wikimedia Commons.

Knowing the Go Team advocates yearned for freedom, I studied I Have a Dream by the late Dr. Martin Luther King, Jr.

Additionally, I learned about the history and personal experiences of those who have bravely struggled for freedom and equality.

Furthermore, I researched the structure of compelling speeches.

The most effective speech structure involved describing the harsh reality of life today, proposing a remedy, and contrasting life today with dreams of a more perfect future. Accordingly, it seemed to me the Go Team advocates would make the strongest impression by describing life today in the Developmental Center, and contrasting this with descriptions of the future life each advocate dreamed about when the Developmental Centers will finally be closed.

We prepared for these speeches similarly to the way we prepared for the Task Force testimony. Speaking with the advocates heightened my awareness of various things I take for granted. For example, freedom means the ability to choose how to spend one's time. One may go to the mall, to the beach, or for a bike ride at one's leisure. The advocates, however, are not free to make these kinds of choices.

Freedom includes choosing the people with whom to associate and socialize. In the D.C., however, the advocates are not free to make these kinds of choices. Freedom also means responsibility, like the responsibility to hold a job. At the same time, freedom means having the option to choose one's occupation. Life in the D.C., however, does not include those liberties. Without completely dismissing the general reasons for these restrictions, my discussions deepened my own appreciation for the many freedoms I enjoy.

I found out the ceremony was scheduled to take place on June 21. The Go Team would be competing for the attention of legislators who would certainly be thinking about the end-of-the-month deadline for the State Budget. Even though this decreased the likelihood that the advocates would be able to deliver their complete speeches, we remained undeterred.

Asm. Louis Greenwald & the Go Team
State House, Trenton, NJ
June 21, 2012

On June 21, the road these advocates had been traveling lead to the State House in Trenton for the honor ceremony. Although I had joined them on their travels only a few months earlier, I considered it an honor simply to attend.

Positioned before the Assembly side by side with Assemblyman Greenwald, each adult glowed with pride.

As anticipated, time did not permit the adults to deliver the prepared speeches. Instead, each advocate improvised, and delivered brief, impromptu statements of gratitude. Despite the size of the audience and the stature of its members, not to mention the anxiety the men and women had expressed before the ceremony, all the advocates spoke serenely.

The Go Team sponsors thanked me many times for my service. They have told me these mentally handicapped men and women with whom I worked could not have done this without me. Personally, I wonder what I really did. I had always believed these men and women would exceed all our expectations.

The Go Team, Sponsors, & Michael Smolensky
State House, Trenton, NJ
June 21, 2012

Moving Mountains

. . . Continued From The Previous Post . . .

New Lisbon Developmental Center
New Lisbon, NJ

Having added the March 23 meeting to my calendar, I began to prepare. The Go Team and I were to meet at the New Lisbon Developmental Center. In the days immediately before the first session, however, I learned that members of the Go Team had been invited to testify before the New Jersey Task Force on the Closure of State Developmental Centers (Task Force).

New challenges accompanied this new circumstance. The Task Force, I soon found out, had been formed to evaluate and provide recommendations for closing the Developmental Centers. But I did not know what the Task Force actually hoped to gain from the testimony of these adults. Internet research, a few phone calls, and persistence provided clarity. Based on this, each advocate worked with me to prepare for the hearing during the March 23 meeting.

Naturally, the apprehensive adults wondered whether I, a complete stranger, was going to tell them how to testify. Making certain immediately to dispel this concern, I explained the Task Force needed to know their personal experiences. I proceeded to described my two-fold purpose.

First, I intended to help each adult organize their personal ideas for the Task Force. And second, I intended to assist each advocate with techniques for delivering these ideas at the forthcoming Task Force hearing. Each team member easily came to understand my goal was to help prepare the team to testify both honestly and credibly.

To prepare for the testimony, each adult engaged me in one-on-one interviews. Aware of their anxieties, I knew a formal question-and-answer session would not have yielded authentic answers. Instead, the interviews took the shape of a casual conversation.

Each advocate's comfort progressively increased. I observed each adult move from a protective and guarded posture where they wondered about what I may have expected them to say, to comfort characterized by openness and a desire to share. As we spoke, I noted the comments and thoughts each advocate expressed.

After completing each interview, I read my notes aloud. This reinforced my objective—to help each advocate testify as to their personal experiences and opinions. Similarly, it mitigated any concern whether I might dictate the content of their testimony.

As with any speech, the advocates needed structure for the purpose of effective communication. Therefore, I organized the notes into sentences, grouped the sentences into paragraphs, and formed the paragraphs into an introduction, body, and conclusion.

Additionally, when an advocate struggled to find the right word for an idea, I made recommendations. As before, each advocate reviewed the testimony with me for accuracy. Finally, each advocate had an opportunity to review the structure.

After reducing the testimony to writing, I coached each team member with speaking skills. Knowing each adult was to testify before a Task Force, I assisted the advocates with articulation, vocal projection, pace, eye contact, and the placement of pauses. Most significantly, each advocate practiced smiling. After all, this was to be a landmark occasion. To reinforce the importance of smiling, each advocate repeated exercises that involved relaxing and smiling.

At the end of the session, each advocate grinned. I later learned each advocate testified persuasively before the Task Force. This made me feel both proud and honored, as though I had helped these adults move mountains.

Concluded Here . . .

Go Team, March 23, 2012
New Lisbon Developmental Center
New Lisbon, NJ

Simply Kismet

State House
Trenton, New Jersey
By Marion Touvel [Public domain],
via Wikimedia Commons

On June 21, 2012, an honorary ceremony at the New Jersey State House brought me to Trenton. Majority Leader of the Assembly Louis Greenwald presented a group of mentally handicapped adults with a proclamation.

Known as the Go Team, which stands for "Get Out!", these adults advocate for the closure of Developmental Centers in New Jersey. Their efforts to promote public awareness, drive discussion and debate, and stimulate social change garnered this special recognition.

About four months earlier, in the middle of winter, I first learned about the Go Team. Just as I had not previously heard about this dynamic group, I was also unaware of the political issues surrounding the closure of  Developmental Centers here. All that changed, however, when a volunteer opportunity came to my attention.

One of the Go Team sponsors, Ronnie had contacted my club, the Moorestown Area Toastmasters club. Ronnie sought Toastmasters to coach the Go Team in public speaking. With discussions already underway between the Go Team and government officials about an honorary ceremony (i.e. the one that ultimately occurred on June 21), Ronnie wanted to prepare the Go Team advocates to speak publicly on the occasion.

To say weighing the different aspects of this opportunity took no time may be slightly inaccurate—but only slightly. It is absolutely fair, however, to say it took next to no time. During a previous chapter of my life, I earned a Masters of Science in Education. Although I had aspired to teach special education, other professional pursuits took a front seat. Even so, I remembered certain fundamentals of education.

From an objective perspective, for example, the ability to learn requires the ability to imitate behaviors. Additionally, learning is within every individual's ability. Thus, the educator's task in simple terms is to model behaviors, and to reinforce the imitation of those behaviors. The student demonstrates mastery by consistently and correctly performing the target behaviors. Educational theory, however, was far from the heart of my decision here.

It was the opportunity to coach these mentally handicapped adults in public speaking that resonated strongly with me. This confluence of circumstances must have been, in my personal opinion, more than serendipity. It was simply kismet.

Continued Here . . .

Disproportionate Rationale

I blogged previously about the mental culpability element in criminal law here, 11/14/2009; here, 11/16/2009, here, 11/17/2009; here, 11/18/2009; here, 11/19/2009; and here, 11/20/2009. These posts traced the direction of criminal law with respect to the mental culpability element based on both precedent and legislative reform. Recently, however, a decision of the New Jersey Superior Court Appellate Division rejected all this.

In State v. Pierce Bryant, the Appellate Division construed N.J.S.A. 2C:24-4(a), Endangering the Welfare of a Child. This statute makes it a third degree crime for any person who engages in sexual conduct which would impair or debauch the morals of a child under the age of 16. Conviction carries a state prison term of between three years and five years. N.J.S.A. 2C:43-6(a)(3).

NEW JERSEY CODE OF CRIMINAL JUSTICE, modeled after the culpability and gap-filling provisions in MODEL PENAL CODE § 2.02(2)-(3)(1962) ("MPC"), requires proof of mental culpability as to each material element of a crime, and requires proof of mentally culpable knowledge for provisions that do not state the mental culpability element. N.J.S.A. 2C:2-2(c). Mentally culpable knowledge, in short, is awareness of what one is doing. N.J.S.A. 2C:2-2(b)(2). Notably, the Child Endangerment statute is silent with respect to the element of mental culpability.

The issue presented in State v. Pierce Bryant is whether the statute requires evidence of knowledge with respect to all material elements that define the crime. The defense argued the statute required proof that a defendant (1) knowingly engaged in sexual conduct, and (2) knowingly impaired or debauched the morals of a child under the age of 16. The Appellate Division held the statute only required proof that the individual knowingly engaged in sexual conduct. The statute, according to the appellate division, did not require proof that the accused knowingly impaired or debauched the child's morals.

The panel considered the legislative history of the Child Endangerment statute. Prior to N.J.S.A. 2C:24-4a, New Jersey Law made it a crime for any person to force or induce any child under the age of sixteen years to do or to submit to the doing of any act which either tends to debauch or tends to impair the morals of such child. N.J.S.A. 2A:96-3. Unlike the modern statute, its predecessor was not defined with an element of mental culpability.

Legislative evidence from approximately eight years before the enactment of 2C:24-4a suggested the modern statute was intended to incorporate 2A:96-3. The same evidence, recorded just shy of a decade before its enactment, suggested the new statute was only intended to change the penalty provisions.

Title 2A crimes were classified as either "misdemeanors" or "high misdemeanors." Misdemeanors were punishable by either a maximum fine of $1,000.00, or by imprisonment of not more than three years, or both. N.J.S.A. 2A:85-7. High misdemeanors, however, were punishable by a maximum fine of $2,000.00, or by imprisonment of not more than seven years, or both. N.J.S.A. 2A:85-6. The provision in N.J.S.A. 2A:96-3, the forerunner to the modern Child Endangerment statute, was a misdemeanor.

Today New Jersey Law classifies crimes into four degrees: crimes of the first degree, the second degree, the third degree, and the fourth degree. The sentences reflect the seriousness of each classification, with first degree crimes being the most serious and fourth degree crimes being the least serious.

State v. Pierce Bryant involved the third degree child endangerment crime. As indicated above, third degree crimes carry a New Jersey State Prison sentence ordinarily between three years and five years. N.J.S.A. 2C:43-6(a)(3). Therefore, the sentencing exposure pursuant to the modern statute is two years greater than the exposure under the predecessor statute.

This enhanced exposure resulted from 1992 legislative amendments. Prior to 1992, this was a fourth degree offense, carrying a maximum sentence of 18 months state prison. The 1992 Amendment enhanced the sentencing exposure by a multiple of about three and one-third. This was one of many legislative initiatives to increase the protection of children against sexual exploitation.

Greater sentencing exposure is not the only difference. With the enactment of the modern statute, the legislature expanded the scope of proscribed conduct by removing certain elements from the definition of the crime. This, as indicated above, was intended to protect children from sexual exploitation.

The modern Child Endangerment statute does not require proof either of forcing or inducing the child. Thus, the legislature effectively criminalized more conduct. And legislative evidence clearly demonstrates expanding the scope of the Child Endangerment statute in order to protect children was legislature's specific intent. The legislature wanted to protect children from sexual exploitation. As the branch of government that represents the will of the people, this policy is clearly understandable.

The legislative policy of expanding the protection of children from exploitation manifested in crimes enacted against videotaping children in pornographic situations (1983), possessing or viewing child pornography (1992), and pornographic depictions of children in video games (1995).

Additionally, in 1989 the limitation period was expanded from two years to five years from one's eighteenth birthday, expanding the time to file a criminal complaint. In 1994, legislature enacted the "discovery" rule, further extending the limitations period.

The Appellate Panel correctly interpreted this to mean that the legislature had consistently acted to strengthen the statute, broaden its reach, and toughen the penalties.

But this evidence should not have lead to the conclusion that the Statute does not require proof that a person charged with this offense knew his conduct would impair or debauch the child's morals. This is because the Court is not bound only by legislative intent. Criminal law developed in the courts. The posts I linked in the first paragraph demonstrate this is its origin.

Compare State v. Pierce Bryant with B v. DPP. B v. DPP is taught to all first year law students. Therefore, it is fair to presume it is known to lawyers and judges who have gone before me in this field. B v. DPP is a hallmark in the development of criminal common law. Although it may not be mandatory authority, American Law is of Anglo-Saxon origin. Therefore, B v. DPP should not be dismissed out of hand.

The statute in B v. DPP was substantially similar to the statue in State v. Pierce Bryant. The English statute made it a crime for any person to commit an ‎act of gross indecency with or towards a child under the age of fourteen, or to incite a child ‎under that age to such an act with him or another. Originally the statute exposed an accused to a fine not exceeding one hundred pounds, imprisonment not exceeding two years, or both.

In B v. DPP, the House of Lords acknowledged the statute did not expressly state an element of mental culpability. This statutory silence in the British statute is similar to the plain language of N.J.S.A. 2A:96-3 and N.J.S.A. 2C:24-4(a). Lord Nicholls invoked the common law rule requiring an element of mental culpability unless the statute expressly stated otherwise.

Although American Law derives has Anglo-Saxon origins, and criminal law is no exception, the New Jersey Appellate Division interpreted N.J.S.A. 2C:2-2(c)(3) contrary to the common law rule cited in B v. DPP.

Lord Nicholls reasoned the government's burden of proof was not only for each material element expressly stated in ‎the statute, but also the commission of each element with the requisite mental culpability. The court in State v. Pierce Bryant, however, reasoned the government should not shoulder this burden.

Importantly, Lord Nicholls considered the seriousness of the offense in B v. DPP. The seriousness was measured by the sentencing exposure. A conviction for a serious offense required more than just proof of moral blameworthiness. Statutory amendments had expanded the sentencing exposure from two years to ten years prison. In order to be proportionate with the penalty, the law necessarily had to impose greater burdens on the Crown.

In State v. Pierce Bryant, the Appellate Panel considered all the legislative evidence of the increased seriousness of the offense. As described above, the New Jersey legislature expanded this offense in furtherance of its policy to protect children from sexual exploitation. Despite this, the Appellate Division reached an outcome that is disproportionate with the seriousness of the offense. Instead of imposing greater burdens on the State, the Court reduced the burden.

For all these reasons, the Appellate Division holding and reasoning in State v. Pierce Bryant are questionable. One may speculate whether the Supreme Court of New Jersey will grant certification. Unless and until that happens, this statute allows courts to impose penalties that are not proportionate with the evidence that the State should have to prove in court.

Lawful Permanent Residence

Resident status consists of various legal categories. These categories include U.S. Citizenship, Lawful Permanent Residence, Conditional Residence, Asylee, Refugee, Withholding of Removal, Convention Against Torture, Non-Immigrant, and Undocumented (known popularly as "illegal"). Historically speaking, a great many immigrants struggled to come to the United States of America. Some escaped oppressive regimes. Others sought better opportunities for themselves and their children. Irrespective of the background, generations of immigrants knew obtaining United States Citizenship symbolized the "brass ring." An alien who aspires to become a U.S. citizen must go through the process of naturalization.

Naturalization involves conferring nationality of a state upon a person after birth. Aliens opt to naturalize for the reasons described above as well as many other reasons. For example, U.S. citizens are not deportable or removable. Additionally, foreign family members of naturalized citizens may be able to immigrate to the U.S. sooner. Finally, only citizens enjoy the fundamental right to vote. This may be especially important to immigrants who came to American shores to be free.

The first paragraph provides many categories besides U.S. Citizen. Notably, the second category on the list is "Lawful Permanent Resident" (LPR). Immigrants who have been lawfully admitted to the United States have LPR status. To obtain LPR status one must comply with procedural rules and satisfy legal requirements. Even so, immigrants who do not become naturalized may find their LPR status threatened. These individuals may be deported.

Deportation applies only to non-citizens lawfully admitted to the United States. A non-citizen may face deportation on various grounds. These grounds may include a criminal conviction for an aggravated felony (AF), a controlled dangerous substance offense, crimes involving moral turpitude (CIMT), firearm offenses, and crimes of domestic violence, stalking, crimes against children, or violations of protection orders.

Administrative Soup

Many federal agencies have a hand in immigration administration. These roles include legislative functions, enforcement, and adjudication. This post will describe the structure and explain some of the entities.

Note: This post may become overwhelming. The diagram at the bottom can be deceiving because of its simplicity. Its simplicity is the reason that reason it is helpful.

Two entities sit at the top of the structure. These two bodies are the Department of Homeland Security (DHS) and the U.S. Department of Justice, Executive Office for Immigration Review (EOIR).

Formed in 2003, DHS replaced the Immigration and Naturalization Service (INS). INS was an entity within the Department of Justice (DOJ). In this respect DHS differs from INS because DHS is separate from DOJ.

DHS consists of entities that are directly involved in immigration administration. These entities are the U.S. Citizenship and Immigration Review Service (USCIS), the U.S. Immigration and Customs Enforcement (ICE), and the Administrative Appeals Office (AAO).

Yesterday I explained DHS enforces the nation's immigration laws. In this respect, ICE fulfills a role like the local police. Similar to the enforcement of local and state law by the police, ICE enforces immigration law.

DHS also administers immigration and naturalization benefits. In this respect, DHS is primarily responsible for promulgating regulations, a role similar to the legislative branch of government.

The Administrative Appeals Office (AAO) was carried over from the INS. As noted above, DHS is separate and distinct from DOJ. Consequently AAO, a DHS entity, is not a DOJ entity. AAO is an exception to the general intent to allocate adjudicative duties to DOJ. AAO hears appeals from certain kinds of DHS denials of applications and petitions. These DHS denials may relate to employment-based petitions and non-immigrant visa petitions.

Likewise, many entities within EOIR are directly involved in immigration administration. These entities are the Office of the Chief Immigration Judge (OCIJ), the Board of Immigration Appeals (BIA), the Office of the Chief Administrative Hearing Officer (OCAHO).

EOIR is responsible for administering Immigration Courts across the country. In furtherance of this duty, the EOIR Director oversees OCIJ, which in turn oversees Immigration Judges (IJ) that hear charges by the government against individual immigrants.

IJs are akin to the trial court judges because both conduct court proceedings and act independently in deciding controversies. IJs resolve controversies by applying INA, federal regulations, and precedent from BIA and federal courts to the facts of each case. BIA is an administrative appellate court that reviews IJ determinations with respect to immigrant residency.

Within EOIR, BIA is the highest appellate court with respect to issues of immigration and nationality. Therefore, BIA jurisdiction extends to all IJs across the country as well as certain DHS decisions. Additionally, BIA establishes the rules of court for the IJs to follow.

Another EOIR branch is the Office of the Chief Administrative Officer (OCAHO). OCAHO differs from OCIJ and BIA with respect to its form and function. The previous paragraphs about OCIJ and BIA illustrate a horizontal relationship with respect to their position in EOIR, and a vertical relationship as to adjudication and authority. One factor that makes OCAHO different is its independence. As to form, OCAHO consists of Administrative Law Judges (ALJ). OCAHO ALJs have nothing to do with OCIJ. They hear disputes involving employer sanctions, anti-discrimination, and document fraud under the Immigration and Nationality Act (INA).

A separate DOJ body is the Office of Immigration Litigation (OIL). OIL represents the United State of America in federal court when the subject matter is immigration-related civil trial litigation and appellate matters. Unlike the entities described above, which fall within the Department of Justice, Executive Office for Immigration Review (EOIR), AAO falls under the DOJ Civil Division.

This diagram illustrates the foregoing explanation as to structure:

DHS
|-- USCIS
|-- ICE
|-- AAO

DOJ
|-- EOIR
| |-- OCIJ -- IJs
| |-- BIA
| |-- OCAHO
|
|-- OIL

Of course this structure falls under the Executive branch of the federal government whose head is the President. Nevertheless, this structure and allocation of roles demonstrates an intent to separate the powers (with the exception of AAO) similar to the separation of powers between the judicial, legislative, and executive branches of the federal government.

Immigration Law Basic Background

Immigration Law is highly complex. It certainly appears that way to me. That said, I can offer a few insights based on my training and experience. This background will be important because future posts may refer to this information without explanation. The following framework seems consistent with general principles of administrative law.

Successful immigration practice requires knowledge and mastery of various legal sources. These sources include statutes, regulations, decisions by the Board of Immigration Appeals (BIA), federal cases, and policy guidance from U.S. Citizenship and Immigration Services (USCIS).

Congress enacted The Immigration and Nationality Act (INA) in 1952, and it is the basic body of immigration law. This statute stands alone, and it also may be found in Title 8 of the United States Code (USC).

The Code of Federal Regulations (CFR) contains rules developed by regulatory agencies. The Department of Homeland Security (DHS) is primarily, though not exclusively, charged with enforcing the nation's immigration laws. Therefore, DHS is primarily, if not exclusively, responsible for promulgating these regulations. Immigration regulations are in Title 8 of the CFR.

BIA is part of the Executive Office for Immigration Review (EOIR), a federal agency within the Department of Justice. BIA is an appellate review panel within EOIR. Thus, BIA decides appellate administrative issues. These decisions apply on a national scale to DHS Bureaus responsible for enforcing immigration laws. In general, these decisions are binding on all DHS officers and Immigration Judges. They are not binding, however, if the decision has been modified or overruled by the Attorney General or a Federal Court.

Federal case law provides a source of law for immigration practice.

Finally, USCIS provides policy guidance for immigration issues.

For more information, please feel free to visit www.uscis.gov

Cancellation of Removal

On August 2, 2010 a Legal Permanent Resident who had been in ICE detention for eleven months finally had his day in court. The Department of Homeland Security wanted to deport this man, and I was his attorney. This was not only my first pro bono client, but also my first official file. The most significant first to me, however, was this first experience with immigration law.

(It bears mentioning, therefore, that immigration law is beyond the scope of my general practice. This means at this point in my career I will refuse to represent a private immigration client.)

Last February I agreed to represent this individual. As an attorney, the private details of his circumstances are strictly confidential. The court record, however, reflects the most impotant result of this ordeal. The Immigration Judge granted our application to cancel his removal. This means the Department of Homeland Security may not exercise any authority to deport him now.

I learned many things during this experience. In a previous post I blogged about the importance of pro bono service as a means to learning. Similarly, I blogged about the relationship between a criminal conviction and immigration consequences under federal and state law. My upcoming posts are intended briefly to describe the factors an immigration court considers in determining whether to prevent DHS from deporting a Legal Permanent Resident.

Scales of Justice

This Memorial Day Weekend post is dedicated to the men and women serving in our nation's military, both past and present. Without their brave defense of liberty, it is indisputable that the topics I blog about would not exist.

I wrote recently, here and here, about pro bono service. Those posts addressed volunteer representation in general, and a particular immigration matter of mine. In New Jersey, there is an unbroken history, dating to colonial times, of each lawyer's ethical and enforceable obligation to accept pro bono assignments for indigent clients. Madden v. Delran Twp., 126 N.J. 591, 603 (1992).

Indeed, New Jersey may have been the first State to enact a compulsory representation statute for indigent criminal defendants. This statute, enacted by New Jersey legislature on March 6, 1795, stated "[t]he court before whom any person shall be tried upon indictment, is hereby authorized and required to assign to such person, if not of ability to procure counsel, such counsel, not exceeding two, as he or she shall desire." Id.

The United States Supreme Court waited 168 years to impose a similar obligation on state courts with respect to the representation of indigents in felony matters. That case, of course, is Gideon v. Wainright, 372 U.S. 335, 344 (1963).

The obligation to appoint counsel for indigent defendants applied in full force in federal courts before Gideon. The Gideon Court selectively incorporated this Sixth Amendment obligation into the Fourteenth Amendment, and made it applicable to state courts. To paraphrase the Gideon court, "This is America." Id. at 344 ("The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.")

New Jersey's 1795 compulsory representation statute was repealed around 1952. Furthermore, in 1966 the Supreme Court discontinued the practice of appointing members of the bar to provide pro bono representation for indigents in criminal matters. State v. Rush, 46 N.J. 399 (1966). Even so, the spirit of these laws did not disappear. Indeed,New Jersey Law as to compulsory representation and the effective assistance of counsel continues to apply to indigent Municipal Court defendants. N.J.S.A. 2A:158A-5.2. This system of appointment is administered as follows:

The Assignment Judge of each vicinage prepares a list of every attorney licensed to practice in New Jersey whose primary office is in that vicinage. Put differently, each lawyer licensed to practice in New Jersey falls under the jurisdiction of the Assignment Judge of the vicinage where the lawyer has his primary office. Using this list, any Municipal Court Judge in the vicinage may assign a pro bono client each year to each lawyer on the list. Defendants qualify for pro bono representation only if they qualify as indigent. Indigency shall be determined by the court uniformly and in accordance with standards provided by the AOC. Madden, supra, 126 N.J. at 606.

By stipulation of the New Jersey Supreme Court, each attorney who voluntarily gives free legal assistance through a Legal Services program, and performs a minimum of 25 hours of pro bono service, will be exempt from court appointed pro bono assignments for the following year. Notably, the stipulation applies to any indigent client in any litigated matter.

In my situation, I volunteered to represent an indigent immigration client. Among the other considerations I blogged about previously, I undertook this responsibility as a way to discharge my pro bono duties. This duty may be discharged with 25 volunteer hours. Without disclosing the number of hours I have committed so far for my client, I am inclined to say I have exceeded 25 hours. This does not include travel time for client visits, witness interviews, and court appearances. With the outcome of this matter yet to be decided, I anticipate spending more time on this matter before it comes to a close. Irrespective of the court's final determination, my representation of this client has enabled me to serve the public.

This post began with a dedication to our men and women in uniform, and they remain on my mind at its close. Just as it would not be possible for me to write about these topics without their brave defense of liberty, similarly I would not be able to serve the public in this capacity were it not for their sacrifices. The criminal justice system encompasses many values. These values often appear to conflict. Nevertheless, these are deeply rooted American values. One can begin to appreciate this more fully when one realizes that many people died to protect these values. This is one reason I am grateful to our soldiers, both past and present, this Memorial Day Weekend.

Pro Bono - A Practical Approach to an Ethical Obligation

On Friday I blogged about a few practical reasons for solo practitioners to provide a portion of their services pro bono. Notwithstanding the "return on investment," every lawyer in this state has an ethical obligation under the New Jersey Rules of Professional Conduct (RPC) to provide legal service to those of modest means. New Jersey RPC 6.1 provides,

Every lawyer has a professional responsibility to render public interest legal service. A lawyer ‎may discharge this responsibility by providing professional services at no fee or a reduced fee to ‎persons of limited means or to public service or charitable groups or organizations, by service in ‎activities for improving the law, the legal system or the legal profession, and by financial support ‎for organizations that provide legal services to persons of limited means.

Accordingly, based on both RPC 6.1 and the reasons I reviewed yesterday, my business plan allots for public interest legal aid. Legal Services of New Jersey has opportunities to volunteer in various practice areas, including Immigration, Bankruptcy, and many others. I volunteered to assist in Immigration Law. To be candid, I am not an immigration lawyer, and I do not hold myself out to the public as one. I made this perfectly clear when I applied. Legal Services, nevertheless, was delighted and assigned a mentor to help me. In addition to the ethical obligation, I had additional reasons for choosing this category.

In my previous post I explained staying on top of legal developments is one reason to volunteer. In July 2009 the Supreme Court of New Jersey determined it is ineffective assistance of counsel under state law for a criminal defense lawyer to fail to advise a client of the immigration consequences of a guilty plea. State v. Jose Nunez-Valdez. Similarly, the Supreme Court of the United States determined more recently in Padilla v. Kentucky that this violates the right to effective assistance of counsel under the Sixth Amendment. As I mentioned above, I had my own reasons for choosing to volunteer in the Immigration section. Based on these recent developments, I decided I needed to learn and gain experience with immigration law - not necessarily with a goal to practice but certainly in order to provide the representation the law now requires.

Selfless Taking - A Reasoned Approach to Pro Bono

As a new lawyer, and an even newer solo practitioner, I have sought out the advice of more experienced attorneys. Needless to say, starting a private practice requires confidence, and succeeding in private practice requires both patience and tenacity. In addition to these and other character traits, a solid business plan is very important.

One particular piece of advice has made a very big difference. In pursuit of this advice, I have devoted a significant portion of my time during my initial start-up months to pro bono representation. For those who do not know, bar associations encourage lawyers to volunteer a portion of their services to the indigent for free. The Sixth Amendment guarantees effective assistance of counsel to criminal defendants, and the Office of the Public Defender in New Jersey assures this right is provided to indigent defendants. But there is no analogous right to counsel for individuals in any other litigation. Nevertheless, many states have organizations to fill the gap. Legal Services of New Jersey plays that role in this state.

Helping the poor, like any idealistic aspiration, can provide personal fulfillment. In addition to this and other idealistic reasons, many practical motivations exist for solo practitioners to devote a portion of their time to pro bono clients.

First, general practitioners are certainly encouraged to refine and expand their skill set. This endeavor results, of course, in a broader scope of expertise. As a new lawyer, this is imperative. Similar to employers who narrow the scope of employment opportunities to experienced applicants, prospective clients demand the same, especially in exchange for the legal fees they will be expected to pay. Pro bono representation provides an excellent opportunity for a lawyer to gain practical, hands-on experience. Although the representation will be free, in the future the lawyer can do the same work based on his pro bono experience and earn a fee.

Second, lawyers must stay on top of legal developments that relate to their field of practice. Perhaps the most common way lawyers fulfill this obligation is to attend Continuing Legal Education courses. An alternative is to gain practical experience handling files on a volunteer basis.

Finally, pro bono volunteerism goes hand-in-hand with professional networking. In addition to establishing oneself among other lawyers, a volunteer lawyer may receive a referral for an individual who does not qualify for pro bono services but cannot pay the full fee lawyers typically charge. The attorney benefits because he adds a new client to his base, and the individual benefits from an attorney willing to charge a discounted fee and perhaps even arrange a payment plan.

In conclusion, an apropos aphorism comes to mind. "If I am not for myself, who will be for me? But if I am only for myself, who am I? If not now, when?" The reasons explained above illustrate only a few of the practical considerations for solo practitioners to participate in pro bono volunteerism.

The Case to Recall Senator Robert Menendez

NJ court agrees to hear US senator recall case.

On November 7, 2006, Robert Menendez was elected to represent New Jersey in the United States Senate, and on January 4, 2007, Menendez was officially seated after taking the "oath prescribed by law." On September 25, 2009, the Committee To Recall Robert Menendez From The Office of U.S. Senator initiated the recall process by filing a notice of intention to recall him. On January 11, 2008, the New Jersey Secretary of State rejected the notice and petition for filing and review.

As any spin doctor worth his salt knows, facts speak for themselves. And any astute citizen knows government officials wrangle for power through political maneuvering. Much less frequently, however, the legal landscape provides context for these observers. Therefore, the case to recall the election of Robert Menendez will undoubtedly provide political pundits with fodder for the public. Furthermore, for those who are keen about the law that governs politics, this case involves the Constitution of New Jersey, the Uniform Recall Election Law, N.J.S.A. 19:27A-1 to -18, and the Constitution of the United States.

As to state constitutions generally, voter understanding is one tool to interpret a provision's meaning. In addition, some state constitutional provisions are self-executing while others are not. The distinguishing feature is that a non-self-executing provision requires legislative action in order for the constitutional provision to be implemented.

In respect of both the New Jersey Constitution and the case of Robert Menendez, in 1993 the people of New Jersey amended the state constitution by a three-to-one vote to provide for the recall of elected officials. As with other referenda, an interpretive statement appeared on the ballot to provide voters in the booth with information about the question at issue. It explained not only the core purpose of the amendment, to recall elected officials, but also the scope. More particularly, the recall law would apply "to any elected official in this State and to the United States Senators and Congressmen elected from New Jersey." It also explained voter approval on this amendment would authorize the legislature to enact relevant election laws.

Consistent with all of this evidence about voter understanding, the New Jersey Constitution, art. I, ¶ 2 was amended to provide, "The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress." In addition, this provision commands the legislature to enact the relevant enabling statutes. Notably, this amendment appears immediately after the provision declaring "All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it." N.J. Const. art. I, ¶ 2.

The clash between the Federal and New Jersey Constitutions provide only one of many interesting legal issues in this matter. As this article indicates, the New Jersey Supreme Court granted certification to the parties as to all the issues in this controversy. Until then, the decision of the Superior Court of New Jersey, Appellate Division is available here.