Furlong and Krasny

05/22/2025

A note to all about jail conditions in New Jersey: no two counties are the same. Whatever you think about the Mercer County Correction Center, it pales by comparison to what is going in Essex and Atlantic counties to name two. We will post more information later, but we are getting many, many calls about medical treatment (or lack thereof), disciplinary action, and receipt of discovery. The situation is deplorable, but compared to Atlantic County, it’s a model environment. The warden is responsive to our requests for assistance and we can actually see our clients almost at will (which is how it’s supposed to work). Stay tuned for more details…

01/31/2023

Several clients have asked about the status of motions we've filed that for whatever reason have not been listed for argument. Until they are argued, we cannot get a result, win or lose. Many other lawyers have confronted the same situation. Here's the editorial from this week's Law Journal on the status quo:

Don't Let Oral Argument Fade Away

If the court systems believe it is a waste of time, someone should articulate that. If it’s a flaw in the process, say so. But please don’t let this practice disappear without an argument, an oral argument.

January 29, 2023

The companion editorial on this page reflects on a Third Circuit initiative to make oral argument meaningful. In the District of New Jersey and in many New Jersey trial courts, oral argument for substantive motions remains elusive and in many cases a mystery.
We don’t know exactly how or why it broke down—and it certainly has been exacerbated by judge shortages and the pandemic—but oral argument, once the heart of any serious litigation, is slowly fading away into oblivion.

Return dates, in many cases, mean nothing for motions to dismiss and summary judgment. There is little or no transparency as to why. We are left to guess that a judge is too busy, that the issue is too complicated for a quick resolution, or that perhaps if we put it off long enough it will settle. Only chambers knows for sure.

While the Circuit and New Jersey appellate courts make tremendous efforts to actually hear cases, the trial courts often leave us in stoned silence. What do we tell our clients about the delays or how we have to bill again to reacquaint ourselves with the case when arguments pop up after months if at all and we have to re-prepare? We lament this course of events. Oral arguments provide a chance for real advocacy and the exchange often exposes issues and flaws in arguments not so apparent from the papers. It is a skill being increasingly lost on young litigators (except in minor matters or criminal matters ).

If the court systems believe it is a waste of time, someone should articulate that. If it’s a flaw in the process, say so. But please don’t let this practice disappear without an argument, an oral argument.

10/28/2022

We just want to give a shout out to Stephan Green, acquitted this week on all counts in the indictment charging him with murder dating all the way back to September 14, 2018. Stephan spent over four years in custody for a crime he did not commit, but could not secure his release from pretrial detention pending a "speedy" trial he could not get. Thanks to all the jurors who worked so hard to understand the evidence that pointed to a finding of not guilty.

09/22/2021

The Myth of a Speedy Trial.

Here’s the text of the Sixth Amendment to the U.S. Constitution:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."

Here's the text of Article I, ¶ 10 of the New Jersey Constitution:

"In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel in his defense."

The federal and state rights appear to carry the same weight and certainly have the same text. In 1987, Congress passed a comprehensive bail reform law to permit pretrial detention without bail for certain defendants, with the understanding they could not be detained for any lengthy period of time if they wanted a trial. Without pretrial motions or consent of defense counsel, federal prosecutors need to be ready to go within 90 days of arraignment on indictment.

So it was a few years back, when I tried a defendant in a gun case the feds grabbed from the Mercer County Prosecutor, and we already had real discovery. My client was arraigned on a federal indictment in late July. I told the judge we had no pretrial motions and wanted a speedy trial. We would not sign off on a delay of the speedy trial clock. We picked a jury in mid-September, less than 60 days from arraignment.

New Jersey’s comprehensive bail reform law gives prosecutors 180 days from arraignment to move a case to trial, and the only thing moving that clock would be defense motions or a “complex case” designation (there are some other obscure exceptions, but those don’t apply to most of the cases pending in our system right now). The speedy trial clock, and the statute of limitations clock, and every other clock was stopped by order of the Chief Justice of the New Jersey Supreme Court in the face of the pandemic. He lifted that order June 15, 2021, roughly 15 months after it first went into effect.

Now prosecutors are faced with a daunting backlog of trial-ready cases, but no place to try them. The Chief Justice is permitting one trial per courthouse at a time, meaning one judge, one courtroom, one jury, and most of the time, one defendant, with lawyers on both sides. Jury selection is moving slowly in these cases, as the questioning of individual jurors is done first remotely and later in person, all to minimize the time jurors spend in the courthouse. Likewise, moving witnesses in and out of the buildings takes longer in order to comply with COVID safety protocols. A typical two-week trial now takes four.

Bottom line: defendants are now stacking up in county jails beyond their 180-day speedy trial deadlines with no immediate prospect for a trial date. Defendants and their families are understandably upset, wondering why the language of the statute has had no effect on release of these defendants while they wait for a trial date.

A separate section of the same bail reform law gives the judicial system two years from date of arrest to date of trial after subtracting all delays caused by defendant’s conduct, including filing motions, refusing to come to court, or defense attorney unavailability. The court rule interpreting these two sections from the same law (180 days from arraignment to trial; and, two years from detention to trial) appears to allow courts to continue to hold defendants in jail indefinitely, so long as the prosecutor represents he or she is ready for trial.

There are different wrinkles to the two clocks (180 days and two years). The 180-day clock should result in defendant’s release unless the prosecutor makes a motion to extend the clock, then demonstrates to the court that defendant is too dangerous to be released and delay is not the prosecutor’s fault. Recent experience has shown that defendants are not being released even as the 180-clock expires, with prosecutors routinely not filing motions to extend time and even when ordered to do so, filing motions without supporting paperwork to prove the two factors warranting extension of time.

By contrast, the two-year-clock results in release unless the prosecutor files a statement or represents in open court that he or she is ready for trial. Upon that filing, the two-year-clock stops. But there is no check on the prosecutor’s ‘trial-ready’ statement. They can say they are ready, secure in the knowledge that there is no courtroom available to accommodate the trial. There is no way to call the sometimes obvious bluff.

End result: judges have shown no taste for releasing defendants. Speedy trial clocks are simply worthless under present circumstances. Sorry for being the bearer of bad news.

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05/25/2021

Pandemic Practice, Part III.

NJ Law Journal headline:

Slow Court Proceedings Are Putting Strain on Some Lawyer-Client Relationships ("When a case is moving slowly, 'it exacerbates anything bad about the case. The delay exacerbates all the problems in the case when you don't know when this is going to end and how much it's going to cost,' a divorce and family law attorney said.")

People: the least likely to be able to pressure judges to do anything would be the criminal defense bar. We can beg, plead, yell and scream, but we might as well be talking to a brick wall. Judges are not interested in releasing defendants detained pending trials that will not take place this year, despite their sitting in petri-dish-like jails for years without meaningful access to lawyers or courtrooms. Several county jails have no video or telephone access for lawyers. At all. Others use an outside video vendor to almost guarantee our collective frustration at the worthlessness of spending county tax dollars on systems that do not perform.

We have yet to see any judge in any county in NJ grant a motion for reconsideration of detention based on the pandemic and a defendant's health risk. And as soon as a motion is filed, it stops the speedy trial clock in its tracks, meaning the approaching two-year deadline for trial gets pushed back further.

It is now apparent the judicial system has absolutely no intention of honoring the spirit of the speedy trial mandate, instead entering a dizzying spate of orders designed to preserve the status quo, which means continued detention for the detained.

Which brings us back to the headline: if we cannot get detained people out, and we cannot get them tried, and we cannot improve their plea offers, all because the pandemic has given safe harbor to those in a position to keep them detained, then we become the focus of our clients' anger.

We have tried to convey this information to our clients and their families. Sometimes we are successful; other times not.

11/28/2020

Pandemic Update, Part II

If defendants can’t obtain their release from custody while awaiting trial, what is the best way to evaluate their options for resolution of their cases? The legislature is moving towards reducing mandatory minimums, so eating a plea for anything more than time served might well be a bad bet. Here’s the background.

Speedy trial considerations: without jury trials, defendants are starting to stack up in county jails for approaching or exceeding two years. The speedy trial component of the bail reform law requires the State to put you on trial within two years, minus any deduction for excludable time attributable to the defendant. If you ask your lawyer for a printout of your current docket sheet, you will see a speedy trial calculation in a grid format. Whenever possible, you should consider advising the court you are ready for trial, recognizing “there will be no further plea bargaining after you sign the pretrial memo.” (Of course, there will be further plea bargaining, but courts are required to emphasize this BS for reasons too illogical to describe here.) This removes any impediment to the running of the clock. The sooner you get to your two-year limit, the more likely it is your plea offer will improve, or else you will be released.

Plea negotiations: It appears lost on most (but not all) prosecutors and judges that the speedy trial clock is running, and the jails are filling up with more potential patients from Covid infection. A vaccine is months away, and when they start handing out vaccinations, detained defendants will be at the back of the line. Sooner than we think, prosecutors will have to reconsider their stance on plea offers, if only to avoid drowning in their own backlog of cases. We are counseling patience. Those improved offers are already trickling in. If you are trading a few more months in detention in exchange for a few less years in prison, you might want to consider waiting for a better offer.

Resumption of trials: Because the very nature of jury trials requires large groups of people in enclosed spaces, a realistic resumption of trials is months away. If you are waiting for your date in court, regrettably, that day will not arrive before next summer.

We will try to update this information as soon as we get some clarification from the courts and Attorney General about how they intend to address the speedy trial backlog. Until then, the only advice we can offer is to keep calm and carry on.

11/28/2020

Pandemic Update, Part I

Nearly nine months into the shutdown of courts and jury trials, we continue to field questions on whether and how to get clients home. Here’s an oversimplified primer on how the courts and corrections systems are dealing with release of prisoners and inmates in the face of a pandemic. At the risk of sounding melodramatic, everyone in jail or prison currently faces at least a potential death sentence, depending on conditions in the institution and the condition of the prisoner/patient.

Federal inmates serving a sentence: Infections are exploding in certain facilities, Ft. Dix among the most prominent. If your family member or loved one is serving a sentence, he (or she) should immediately write to the warden of his institution seeking “compassionate release.” The law has changed to permit the inmate to bypass the warden who does not respond to the application, but the law still requires you to try. Inmate paralegals know how to draft these letter requests. Keep a copy of your letter, recording the time and date it was sent.

Don’t wait for 30 days from the date of delivery of your letter to the warden. Contact your private lawyer or federal defender and ask for assistance with a compassionate-release motion. Give them a copy of your letter. The two most important things that seem to come into play here are your degree of risk (do you have co-morbidities, like asthma, diabetes, etc.), and your institutional record (how much time you have served; whether you have avoided disciplinary charges, etc.). The motions take time, but they have had an unusually high success rate, as judges grapple with the best way to balance the equities.

State inmates serving a sentence: The governor has ordered DOC and Parole to re-evaluate entire sections of the state inmate population to screen them for release. If your family member is over 60, or within a year of his parole date, or has recently been denied parole, he (or she) might be eligible for release. Likewise, people with high medical risk factors might qualify for consideration. If you read about 2,000 inmates being released a couple of weeks ago, these were the groups they came from: older, sicker, or close to parole.

Federal detainees awaiting trial: Conditions got so bad in the Monmouth County jail that they shipped all of the federal prisoners to Essex County. Others went to FDC Philadelphia, where current conditions are approaching Ft. Dix numbers. Federal judges will entertain motions for release without requiring a defendant to show a “material change of circumstances,” so if you have a place to go, a plan to remain under house arrest with someone who will watch over you, ask your lawyer to take a shot.

State detainees awaiting trial: Unlike federal defendants, state defendants cannot simply ask for review of detention. They have to demonstrate a “material change of circumstances,” legal gobbledygook for “something other than the presence of Covid-19 in your jail.” Lawyers have filed dozens of these motions without success, typically because judges have found that the presence of a deadly virus in jail doesn’t qualify to move the needle. We have tried “temporary release” motions to circumvent the “material change” factor, but we’ve had no better luck.

Next, we will take a look at speedy trial considerations...

07/05/2020

https://www.youtube.com/watch?v=Wf4cea5oObY

John Oliver's take on police, policing, and qualified immunity. Runs over 20 minutes.

As nationwide protests over the deaths of George Floyd and Breonna Taylor are met with police brutality, John Oliver discusses how the histories of policing ...

06/18/2020

https://www.youtube.com/watch?v=oIsovWTejRc&feature=youtu.be&fbclid=IwAR2VhKFRn_8ElVnRG0iRypXhUbHsF30MLBBi8wRVqFAnuL35qFmqQ_7oPyM

This Black life didn't matter. It's what Black Lives Matter is trying to change.

"Calling it a “great and fundamental injustice,” a South Carolina judge on Wednesday vacated the 1944 murder conviction of 14-year-old George J. Stinney Jr.,...

06/02/2020

On the president’s decision to walk to a church across Lafayette Square for a photo op with a bible: “We long ago lost sight of normal, but this was a singularly immoral act,” said Brendan Buck, a longtime former Hill aide who is now a Republican operative. “The president used force against American citizens, not to protect property, but to soothe his own insecurities. We will all move on to the next outrage, but this was a true abuse of power and should not be forgotten.”

04/26/2020

Here's the latest Covid-19 update for court operations. The Chief Justice has issued another order promoting virtual court appearances. This has led to a sudden increase in case managers sending out court notices to prosecutors and defense lawyers to schedule various events that will be largely meaningless. Because defense lawyers have limited opportunities to speak to their clients, there's little chance any substantive work can get done. Still, there is the occasional case that can get worked out, so stay tuned for the off-chance yours might be one of those.

On the issue of release of people in jail and prison, the results vary widely by institution and agency. Federal judges have been pretty responsive to motions for release of ICE detainees, because they are civilly detained. Their only offense is not having authorization to be in the country, which normally comes with a deportation order, not a death sentence.

Inmates in state prisons are now being reviewed at glacial pace by administrators in the Department of Corrections. Simply put, doctors and corrections staff have to review thousands of files on inmates' age, medical conditions, reasons for denial of parole, and nature of underlying offense before they get to the questions of whether the inmate has someplace suitable to go to ride out the pandemic. NB: this process is taking place to comply with an executive order signed by Governor Murphy. You don't need to hire a lawyer to get on this list.

Defendants sitting in county jails under detention orders are mostly being left to get sick or die. Courts have refused to consider the pandemic a "changed circumstance," justifying reconsideration of detention, and prosecutors have uniformly opposed every motion for even temporary release. We surveyed many lawyers across the state, and the response has been fairly consistent: no release.

What the public health emergency has revealed in starkest terms is that the promise of speedy trials for those detained pending trial is not far from a cruel joke. The pandemic has only highlighted the shortage of resources to move cases in a timely fashion. Judges are doing what they can, but the burdens imposed present a daunting picture: when you look closely at county jails, what you see is a modern gulag. Regrettably, absent a spate of covid-related deaths involving those in custody, there's little public appetite for relief from those conditions.

03/24/2020

While we are sure everyone is bone tired of reading corona virus updates from every web site under the sun, we thought clients and their families might want at least some information about what's happening in our state courts. (Federal courts are currently running in a different universe, untethered to state government controls, so there's little consistency to their approach.) Courts are trying different things in different counties, but this much is consistent in all 21 county courthouses:

1. Courts are almost completely closed to routine business. Emergent matters and detention hearings are going on, mostly via video hookup, but otherwise, cases are being adjourned left and right. We don't have a crystal ball, but expect this near total shutdown to last another six weeks.

2. The Supreme Court has entered an order freezing all speedy trial guidelines, meaning those 90- and 180-day deadlines for indicting and trying cases, which were a cruel joke before are now at a dead stop.

3. The judiciary has some insight into the grave threat every detainee faces if so much as a single corrections officer (who is regularly leaving and re-entering the building) introduces the virus to the population. With that in mind, judges are responding to some motions for release from detention. Right now, defendants serving county jail sentences are being released. Next we expect we will see a push to release low-level, non-violent offenders.

3. We are reviewing every detained client we represent, looking for a basis to ask judges to reconsider detention. If your friend or family member currently detained has a history of pneumonia, diabetes, sickle cell, TB, etc., get that medical information to your lawyer promptly. You'll need a signed medical records release (a HIPAA form), but those forms are easy to get. Getting them signed by the detainee is critical.

4. Finally, the governor's emergency order is very close to a suspension of civil liberties. It was signed with the noblest of intentions. In practice, police will be under increasing pressure to stop anyone on the streets at any time, for virtually no reason at all beyond figuring out if the driver or pedestrian has a valid reason for being out of the house. You might want to keep that in mind before strolling down the Boulevard with a blunt in your hand. Just sayin.'

We will try to update the court situation as it becomes available. Feel free to post questions through the comment section. Keep it clean; like your hands.