pro bono lawyers

>> i'm a corporate attorney. i don't know anything municipal court appeals. what do i do now? >> pro bono work is vital to our court system. one of the most cherished protections citizens have is the constitutional right to be represented by counsel. we as lawyers are privileged to be able to perform that vital role in our system of justice. we also have an obligation to help those in need,

who cannot afford to retain counsel. that said, when attorneys are assigned a pro bono case in an area outside their expertise, that can present a challenge. for that reason, we've created a manual to help navigate the process. the manual and this video are meant to help you provide competent counsel to your clients. we also encourage you to speak with colleagues, friends and other attorneys who frequently deal with this type of work and to contact the pro bono coordinator in your vicinage,

to better understand the process. pro bono work is not just a critical component of our justice system, it also enables us to gain valuable experience and learn about new substantive areas of the law by representing indigent defendants who are entitled to counsel. in other words, pro bono assistance can foster professional development. at the same time, it allows us to perform a critical public service. we thank you for your service. [music]

>> the law requires all attorneys licensed in new jersey to represent indigent defendants without pay, where the legislature has made no provision for the public defender to represent those defendants. these are commonly referred to as pro bono assignments. when the vicinage pro bono coordinator gets a request to assign an attorney for a pro bono case, they check the madden v. delran computer list and assign the case to the next eligible attorney.

this list is alphabetical by last name. it is filtered by the number of pro bono cases previously assigned. the coordinator has no control over choosing an attorney. attorneys can be assigned to represent defendants for parole revocation hearings, domestic violence contempt or in this case, a municipal court appeal. an appeal of a municipal court case is to the superior court law division, not the appellate division. once an attorney has been assigned to the appeal, a pro bono letter is generated.

copies are provided to the assignment judge, prosecutors' office, appellate and municipal court with a notification to order the transcript, an original and two copies, at the state's expense. the attorney assigned to the case and the prosecutor are provided with a copy of the notice of appeal along with the pro bono letter. the original letter will be kept by the superior court appeals clerk. you should confirm the assignment with the superior court appeals clerk and review all materials.

you should also determine that the appeal has been properly filed, served and transcripts of all court appearances in the case have been ordered. once the superior court receives the transcripts of the municipal court trial, it sets the date for the filing of the defendant's brief, the state's response and the hearing. call the municipal court administrator and the superior court judge's office to ensure exhibits, which were introduced into evidence during the municipal court case have been transmitted to the superior court and you have copies.

this is particularly important when it comes to any audio or video recordings. for any charge alleging a violation of title 39, the motor vehicle code, you should obtain and be familiar with your client's driving record. if the abstract was not included in the documents forwarded you as part of the municipal court record, you may obtain the abstract from the motor vehicle commission website. you should also contact the attorney who tried the case to assist you with the issues to be presented in the appeal.

generally, that is the municipal public defender. if your client is incarcerated, you should apply to superior court for bail pending appeal. r3.23-5(a) provides a defendant who is incarcerated by a municipal court judge is entitled to bail pending appeal. you may also want to apply to superior court for a stay of the municipal court's sentence. it is important to take time to meet with your client and explain the appeal procedure.

if the defendant is in jail, you will need to make arrangements to meet with your client. >> there are mandatory minimum penalties in reference to the charge and if you're found guilty of the charge. narrator: when meeting with your client, explain not only the procedure, but impress upon him or her that their failure to appear at the hearing means the judge could dismiss the appeal. should the client fail to respond to your letter or phone call, you are obliged to make reasonable efforts to locate your client.

ensure the client understands that no testimony will be taken at the appeal hearing, but the court will reply upon oral argument, the brief, and transcripts from the original trial. after meeting with your client and ensuring you have copies of all transcripts, evidence and other materials used in the municipal court case, it is time to prepare your brief on the issues and be prepared to argue your case first. you will probably want to file a letter brief rather than a formal brief.

one of the most important steps in preparing the appeal is identifying issues you will raise in the brief and at the hearing in oral argument. you should get ideas for issues from your conversations with the attorney who tried the case, your client and most importantly, from your careful review of the transcripts. >> my client was stating that was in full working order on the day of the incident, so therefore there was,

there was basically really no proof stating that the lights had been off. in the video, there was no proof that the lights were off, judge. narrator: a municipal court appeal is a trial de novo on the record. this means the superior court will determine a case based on the record made in municipal court. in general, the superior court will not permit you to introduce any additional evidence to supplement the municipal court record. there are several common issues that arise in municipal court appeals. >> the common issues that arise can be both procedural and substantive.

an attorney analyzing a case should consider whether procedurally the guilty plea, for example, was handled properly and correctly. was the client properly questioned by the municipal court judge on the record? was the plea entered knowingly and voluntarily? counsel should also consider obviously the substantive issues that a particular case presents. was there a motion to suppress filed? was it decided correctly by the municipal court judge? was the defendant advised of the consequences of pleading guilty?

was any statement or confession taken from a defendant obtained consistent with his constitutional rights? was he properly given miranda warnings? and also, was the, if his sentence was imposed by the municipal court judge, did the judge sentence consistent with the requirements of the law in considering the aggravating and mitigating factors under title 2c. obviously, alco test is a very important issue on dwi. there, there needs to be proof that the machine is working properly. that the waiting periods required by the statute and the code

were properly followed by the local police department and that the machine was properly calibrated. narrator: in all cases, a careful review of the transcript is needed to identify issues to raise on appeal. you should present any arguments against aggravating and in favor of mitigating factors. >> basically, states that if any type of breathalyzer was given, it would not be reliable; it would not be there because of the condition that he has.

again, it's just with the breath being contaminated by whatever's in his stomach. >> i have listened to your legal argument... narrator: the superior court cannot increase any legal sentence imposed by the municipal court, but it can correct an illegal sentence. >> and no roll if you will, based on the procedure that's been well established... >> an attorney getting assigned a case like this should do a number of things,

even before being contacted with a court date. he should speak to other attorneys to see if he can get any intelligence on the judge who's going to be hearing the matter and the prosecutor who's going to be prosecuting it. he should contact the prosecutor to see if the issues can be narrowed. plea bargaining is generally not permitted in dui cases, but if it's another kind of case, perhaps an accommodation can be reached

without prosecuting the municipal appeal and he should also speak to the judge's law clerk to, to arrange or expect to be arranged a date, either a telephone conference or an in-person conference for the judge to establish the briefing and oral argument schedule for the municipal appeal. generally, municipal appeals, attorneys will be handling a matter that does involve a criminal conviction and the standard of proof will most likely be beyond a reasonable doubt.

there are some unusual cases where it may involve a violation of a local municipal ordinance, where the standard would not be beyond a reasonable doubt, but that is certainly something an attorney picking up a file should ascertain at the outset. narrator: many errors, however, are harmless, so it is better to focus the appeal on those errors that have the capacity to cause an unjust result. make sure the transcript supports all of your arguments.

it is very rare when the superior court allows the record to be supplemented. >> if the record is incomplete, unintelligible or if in some cases the record can be lost, the counsel can seek to supplement the record before a superior court judge. however, the superior court judge retains the discretion to remand the matter back to the municipal court for the development or supplementation of an incomplete record. narrator: sometimes the only issue on appeal is whether the evidence presented supports a guilty verdict beyond a reasonable doubt.

you may find no legal error was committed. your client may simply insist that he did not commit the offense alleged. >> your honor, the state did not establish the standard of beyond a reasonable doubt in reference to charging my client with driving under the influence. your honor, the state did not do this in two prongs; they did not do this in reference to, there was no reasonable cause for the stop. also, judge, there was no proof shown by the state of intoxication by mr. roberts.

narrator: you may simply argue the evidence did not establish defendant's guilt beyond a reasonable doubt. two fact finders reviewing the same evidence may come to different conclusions. after you and the state submit your briefs, there will be a hearing. both you and the prosecutor will present oral argument. your client needs to be present at this hearing. >> for the record, this a municipal appeal. counsel may enter their appearances. >> your honor, heshim thomas appearing on behalf of jake roberts.

>> good morning, your honor. rima scarmella on behalf of the state. >> i'll assume both of you are ready to proceed and if that is the case, since this is your appeal on behalf of mr. roberts, mr. thomas you may begin. narrator: because this is a trial de novo, some superior court judges require the state to make its argument first. on the other hand, some judges will require the defendant to argue first. >> your honor, there was no proof in the video that the vehicle did cross over the line.

narrator: in preparing your oral argument, remember the judge has reviewed the briefs, so hit the high points of your argument. be prepared to answer the court's questions. >> i, therefore, after giving full consideration, find this defendant, jake roberts, guilty of the charge of driving a vehicle under the influence of alcohol at the date and time in question. narrator: if the superior court judge finds the defendant guilty again,

the judge will resentence the defendant. the original sentence is usually imposed, but you can argue for a lesser sentence. >> your honor, yes, as to sentencing, we would ask that the... narrator: the sentence imposed on appeal may not exceed the sanctions imposed in municipal court, but if the sentence imposed in municipal court was illegal, the superior court judge may correct it, even if it results in an increased penalty.

>> well, i'm convinced that this is a first offense and that minimum mandatory penalties will do what is the purpose of sentencing, not only to punish... narrator: in a traffic matter, you should review your client's driver's record before sentencing. this determines if your client is a first or a repeat offender. the sentences for traffic offenses are found in title 39. in addition to the fine, the judge may impose court costs of up to $33 and there is $6 in mandatory assessments.

for certain offenses such as driving while intoxicated, and driving with a suspended license, a driver's license suspension is mandatory. a handy traffic sentencing manual entitled "fines and penalties of common motor vehicle offenses" is found under legal references on the municipal court page at njcourts.com. sentencing for disorderly persons and petty disorderly persons offenses is controlled by the code of criminal justice, title 2c. normal range of punishment for a disorderly person's offense

is up to 6 months in jail or a fine of up to $1,000. a petty disorderly person's offense carries a jail term of up to 30 days and a fine of up to $500. there are also mandatory fees for both types of offenses, including the $50 victims of crime compensation organization assessment and the $75 safe neighborhoods services assessment. court costs of up to $33 can also be added. the court may suspend the sentence, sentence the defendant to a term of probation and add fines and restitution to the sentence.

you and your client must be prepared for sentencing. your client may face the immediate execution of the sentence. in that case they must be prepared to pay fines, costs, restitution and other penalties or make arrangements for a payment schedule. for offenses that carry a mandatory license suspension, defendant will be required to surrender his or her driver's license to the court. defendant should make arrangements for a ride home. appeals from the final judgments of the superior court following a trial de novo may be taken to the appellate division within 45 days.

if the defendant wants to appeal, assigned counsel is required to file the notice of appeal in the appellate division. unless an application for assignment of new counsel on the appeal is made when the notice is filed, the attorney filing the notice of appeal will be deemed the appellate counsel. you can find more detail on the printed training materials available on the judiciary website.