The Jersey Lawyer

On April 7, 2009, in the case of State v. Lenin, the Appellate Division of the Superior Court of New Jersey held that a criminal defendant’s Sixth Amendment right to counsel does not survive dismissal of formal criminal charges against the accused, absent collusion or chicanery on the part of the prosecution.  In order to protect your rights, if you have been charged with a crime in New Jersey, contact a New Jersey criminal defense lawyer immediately for assistance.

Defendant Issac Lenin was charged with the murder of Deborah Fowler, which occurred in New Brunswick, New Jersey in 1995.  Defendant was tried twice for the murder; however, after both trials, the jury could not reach a verdict.  Therefore, the criminal charges against the defendant were dismissed both times without prejudice.  When a jury is unable to reach a verdict, the criminal charges against the defendant are dismissed; however, the prosecution is permitted to re-try the defendant until a jury is able to reach a verdict.

Four years after the defendant was tried for murder, Pedro Dominguez, a Cuban national who was being held in custody in Florida awaiting deportation proceedings, advised police that he had information about the Fowler murder.  Dominguez told police that while he and defendant were both in county jail, defendant had told him that he murdered Fowler.  Arrangements were made by police to transfer Dominguez to the state prison where defendant was incarcerated.  Dominguez was fitted with an electronic transmitter, in the hope of recording another confession by defendant that he had committed the Fowler murder.  Eventually, defendant was recorded describing the Fowler murder to Dominguez.  After a third trial where the new evidence was introduced, defendant was convicted of murder.  On appeal, defendant argued that this surreptitious recording by the State’s undercover informant violated his Sixth Amendment right to counsel.

The Sixth Amendment to the United States Constitution gives anyone accused of a crime the right to counsel so that they may confront the prosecution.  Our courts have universally held that the right to counsel is triggered as soon as adversary proceedings commence against the defendant.  Once the defendant has been charged, if the defendant requests to speak to counsel, prosecuting authorities and their investigators are no longer permitted to interview the accused for purposes of obtaining information regarding the case outside of the presence of counsel. 

The Appellate Division recognized that this was a case of first impression in the State of New Jersey.  Therefore, the Appellate Division looked at how other jurisdictions have dealt with this issue.  The Appellate Division found persuasive the reasoning of several federal courts that extending constitutional protection after a case has been dismissed would provide the defendant with a permanent constitutional shield once the defendant is indicted that was not intended by the Sixth Amendment.  Essentially, the Appellate Division reasoned that once an indictment is dismissed, the relationship between the defendant and the prosecution is no longer adversarial, and therefore the defendant no longer has a right to counsel.   After finding that there was no evidence that law enforcement authorities engaged in any kind of chicanery to circumvent the defendant’s constitutional rights, the Court held that the prosecution’s tactics were permissible and did not violate the Sixth Amendment.  Accordingly, the Appellate Division affirmed defendant’s conviction.

All persons accused of a crime in New Jersey are afforded protection by both the United States Constitution and the Constitution of the State of New Jersey.  In order to protect and secure those rights, a suspect should contact a New Jersey criminal defense lawyer as soon as possible.