Archive for April, 2009

Trooper Higbee’s Trial for Vehicular Homicide Is Set to Begin in Cape May

Monday, April 20th, 2009

All eyes in the New Jersey law enforcement community will be riveted on the upcoming trial of Trooper Robert Higbee.  On September 27, 2006, Trooper Higbee’s cruiser crashed into a mini-van, killing two young sisters, Christina and Jacqueline Becker.  Though this event was clearly a horrible tragedy, questions are always raised in the law enforcement community about the fairness of criminally prosecuting a police officer for a fatal traffic accident that occurred while the officer was on duty, and clearly acting in good faith.   While the Higbee trial is technically about the events on the night of September 26, 2006, the underlying policy question remains: should our communities seek severe criminal punishment for police officers who are involved in traffic accidents, when there is no indication that the officer purposely did anything wrong?

The facts will become more clear as the trial progresses, but The Press of Atlantic City has reported the following scenario.  Trooper Higbee claims that he was trying to catch up with a speeder aroung 10:00 pm on the night in question.  He had not yet activated his lights and siren when he passed through a stop sign at approximately 60 mph, colliding with the mini-van on the front driver’s side.  According to the defense, the New Jersey Police Vehicular Pursuit policy states, in part, that when a police officer is attempting to stop a vehicle, the officer “shall, when possible and without creating a threat to public safety, close the distance between the two vehicles prior to activating emergency lights and an audible device.” 

There can be little argument that the Becker family is due civil damages under a civil negligence standard.  Indeed, the State Police has already resolved the civil case with a $2 million settlement.  Of course, money cannot bring back the two girls, but such a settlement would not be unusual if the person who struck the mini-van was not a police officer, and alcohol was not involved.

The question is whether Trooper Higbee committed a criminal act by “recklessly” passing through the stop sign.  During this trial, there will be testimony from eye-witnesses, some of whom may have actually seen the collision, whereas others will have only seen events leading up to and subsequent to the crash.  There will also be experts who will describe the speed and direction of each vehicle and will try to re-create the circumstances of the crash.  There will also be experts discussing police pursuit policies and whether or not Trooper Higbee abided by those polices.  But at the end of the day, after all the facts of the case are in, the jury’s final decision will turn on its understanding of the term “reckless” and how it applies that understanding to the facts.  In other words, what was the officer’s state of mind when the accident occurred? 

The notion of a culpable state of mind can be an intellectual quagmire, but can be summed up as follows.  There are four states of mind: purposeful, knowing, reckless, and negligent.  “Purposeful” conduct is something done consciously and purposely, like first-degree premeditated murder.  “Knowing” conduct is similar to purposeful conduct, except that the actor need not have specifically intended a particular result.  Recklessness and negligence are close cousins.  Whereas negligence means that the actor “knew or should have known” that his conduct carried certain risks or would likely have a certain result, recklessness requires “a conscious disregard” for a particular risk and that such a disregard was a “gross deviation” from what a “reasonable” person would have done under the circumstances. 

Determining the difference between, say, “purposeful” conduct and “reckless” conduct is usually quite straightforward.  But it gets tricky when jurors attempt to differentiate “reckless” and “negligent” conduct.  With respect to vehicular homicide, a defendant must be found innocent if his conduct was negligent, and guilty if it was reckless. 

According to the model jury instruction for reckless vehicular homicide, “A person acts recklessly when he/she consciously disregards a substantial and unjustifiable risk that death will result from his/her conduct.  The risk must be of such a nature and degree that, considering the nature and purpose of the defendant’s conduct and the circumstances known to him/her, disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant’s situation.” 

There is no model negligent homicide jury instruction.  But, we can look at the jury instruction for another statute to demonstrate how fine the line is between recklessness and negligence.  The negligence component of the jury instruction for the crime of “Reckless or Negligent Infliction of Injury to Innocent Persons” reads:

    A person is negligent in injuring or creating a risk of injury to an innocent person when (he/she) should be aware of a substantial and unjustifiable risk that the injury or risk of injury will result from (his/her) conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of (his/her) conduct and the circumstances knownto (him/her), involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. In other words, if it were very likely that the defendant’s use of force against (Victim 1) would injure or create a risk of injury to an innocent person, and given the circumstances, the defendant should have known that, but (he/she) went ahead and used force anyway, where a reasonable person would not have used force, then (he\she) acted negligently.

The defense will likely focus on two key aspects of these instructions.  First, it will argue that, at worst, Trooper Higbee’s passing through the stop sign constituted a negligent act.  The defense may even request an instruction on negligence, especially if the jury asks the judge to clarify the meaning of recklessness.  In any event, under the facts as we now know them, it would seem difficult for the defense to credibly argue that Trooper Higbee bore absolutely no fault.  After all, two young girls are dead, he was traveling over 60 mph without using his emergency lights and siren and without stopping at the stop sign.   Therefore, the defense is likely to focus on portraying Trooper Higbee’s conduct as “mere” negligence.

The second key aspect of the defense will relate to the second part of the recklessness instruction which states that a person with a reckless state of mind must have CONSCIOUSLY disregarded a risk that was so obviously dangerous that “disregard of the risk involves a GROSS DEVIATION from the standard of conduct that a reasonable person would observe in the defendant’s situation.” 

The defense will correctly argue to the jury that “recklessness” is quite a high standard under these circumstances.  Even if Trooper Higbee’s passing through the stop sign at 60 mph was a deviation from standard policy, that alone is not enough for a conviction, even if it is enough for purposes of civil liability.  Instead, Trooper Higbee’s conduct must have been a “gross” deviation from such standards. 

This is the reason why the NJ Police Vehicular Pursuit Policy is so central to this case.  Trooper Higbee will argue that he had been “trained” to delay the use of emergency lights and siren until he caught up to the alleged speeder.  Therefore, not using his emergency equipment was not a gross deviation from applicable standards.  

However, the prosecution will argue that, even if this policy was in place and Trooper Higbee knew about the policy, he still was obligated to not “create a threat to public safety” by doing so.  The prosecution will argue and present expert evidence to the effect that, under ANY circumstances, a police officer should not pass through a stop sign at 60 mph, especially not at night with no lights or sirens, and that doing so is a “gross deviation” from reasonable standards.  Unfortunately for Trooper Higbee, modern police training typically requires officers to slow down at all intersections, even when lights and siren are engaged. 

In the end, the members of the jury will apply common sense and their own “gut feelings” in applying the law to the facts.  This will undoubtedly be an emotional and vigorously contested trial which we will continue to follow as it proceeds.   

A Holistic Approach to Representing Juveniles and Young Adults

Tuesday, April 14th, 2009

As a former social worker and police officer, I have alot of experience with troubled youth.  There is no single prescription for helping them turn things around, but my experience has shown me that young men and boys in trouble tend to lack the psychological self-awareness necessary to understand the roots of their behavior and learn to  control their impulses.  

My fundamental belief is that all adolescents can benefit from professional counseling, even those not in trouble.  But, for those who have behavior problems that get them in trouble at school or with police, counseling is imperative.  The main challenge, of course, is to get young men and their parents to “buy in” to therapy as an opportunity for growth, not as a symbol of personal or parental failure. 

It is my firm belief that when teenagers and young adults engage in behavior that leads to police involvement, the behavior should be viewed as a cry for help.  I also believe that police, prosecutors, and judges want to believe the same thing.  But they also know that some kids and young adults simply do not have the kind of support necessary to answer the cry.  When that is the case, the State will step in to fill the void — one way or another.  It is my job to help convince judges and prosecutors that the family and the individual know what they need to do and are taking the necessary steps to correct misbehavior so the State can turn to those truly in need of intervention.

From an attorney’s persective, simply defending the case does not answer the young person’s cry for help.  Even if I get the case dismissed, without counseling and other life-changes, the problem is likely to recur.  Therefore, I believe in taking a “holistic approach” to each case, which is designed to create a positive overall experience out of a negative incident.  While the “heavy lifting” must still be done by the young person and his family, I try to use the incident as a motivator and opportunity for real change.

The first step is to engage support services soon after an arrest has occurred.  Strategically, judges and prosecutors appreciate that a defendant has decided to take positive action before being ordered to do so.  But even if the young person is 100% innocent, and the case could be dismissed or won at trial, the young person needs to appreciate the gravity of the situation and learn to examine past misbehavior or unhealthy friendships in productive ways.  

In sum, I try to help families “treat the patient, not just the symptom.”  A professional counselor will provide a safe, confidential environment for the young person to discuss life with an adult who is skilled at creating a relationship of trust.  Only good can come of that.

If your child or a young person you know is in trouble, call Peter Paris at Maselli Warren, PC to discuss ways to approach the case itself as well as ways to create positive change.

News Flash – USCIS Updates Count of FY 2010 H-1B Petition Filings.

Tuesday, April 14th, 2009

News Flash – USCIS Updates Count of FY 2010 H-1B Petition Filings.

42,000 petitions have been submitted towards the 65,000 maximum cap.  See the full press release, here:  http://www.uscis.gov/files/article/h-1-cap-9april09.pdf.

Sexual Harassment Victim: How to Stand Up for Yourself

Wednesday, April 8th, 2009

Women who are victims of sexual harassment and discrimination often suffer in silence. Like rape victims, victims of sexual harassment often feel somewhat responsible for being mistreated. Make no mistake: it takes courage to stand up for yourself. But once you summon the courage to do something about it, you need a good lawyer who understands and appreciates the financial and psychological damage that sexual harassment causes.

State and federal laws are well designed to provide women with the tools to fight for their rights. But there is also bad news. First, it is very difficult to successfully sue for sexual harassment if there has not been a substantially adverse employment action, like termination or demotion. If the harassment is so severe that you cannot return to work without extreme anxiety, depression, or other serious psychological harm, it is possible to show that you have been “constructively discharged,” which means that the situation is so bad that a reasonable woman would not be able to work in the environment. The point is that you need to have suffered an adverse employment action that is related to sexual harassment before you can hope to bring a successful lawsuit.

The other bad news is that harassment can be difficult to prove without corroboration. I call this the “He said/She said” dilemma. Technically, a successful case can be proven solely on the basis of one person’s testimony, but in reality, you need to locate, collect, and/or generate evidence that corroborates your side of the story.

Here are some tips that will help your case immensely:

1. If you are currently suffering sexual harassment, start documenting the events, preferably by emailing yourself or a trusted friend. Using email will “time-stamp” the entries automatically so you can easily prove they were written on certain dates. Simply writing things down on paper does not prove when they were written.

2. It is important to document harassing events before you suffer an adverse employment action. Often, an employer will fire or demote someone because they complain about harassment, but the employer gives a different, pre-textual reason like chronic tardiness, multiple absences, dishonesty, etc. But if you have already documented the harassing conduct, you will be able to show that the employer’s reason is a mere pretext.

3. You must tell someone at the supervisory level about the harassment before any adverse employment action has been taken. Employers are required to take such complaints seriously, and they are prohibited from retaliating against you for reporting sexual harassment. If you do complain, and they fire you soon after, you may have a strong case, especially if you have documented the harassment.

4. If you do not feel comfortable reporting the harassment to a supervisor or the owner, then you should file a complaint with the Attorney General’s Office, Division of Civil Rights, or the federal Equal Employment Opportunity Commission (EEOC). You cannot sue your employer for sexual harassment if your employer did not know about it and had an opportunity to fix the problem.

5. I realize that there is often a real risk of illegally getting fired in retaliation for reporting harassment. However, there is strength in numbers. Find a trusted associate or supervisor to accompany you when you report the harassment. Or, you can hire an attorney to help you report the harassment.

6. If you are fired after you report sexual harassment, demand that your employer state in writing the reason for your termination.

7. Hire an attorney as soon as possible after being terminated or demoted. This is important because of the statute of limitations, but it is most important because taking legal action soon after termination will, in itself, corroborate your allegations of harassment.

If you have been subjected to severe or pervasive sexual harassment, suffered an adverse employment action, and you have corroborating evidence, call Peter B. Paris at Maselli Warren for a free consultation.  It may be time to stand up for yourself.

News Flash – USCIS Announces Continued Receipt of H-1B Visa Petitions

Wednesday, April 8th, 2009

News Flash  – USCIS Announces Continued Receipt of H-1B Visa Petitions

U.S. Citizenship and Immigration Services (USCIS) announced today that it will continue to accept H-1B applications  until the Fiscal Year 2010 (FY 2010) cap of 65,000 petitions is reached. USCIS stated it will monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master’s degree or higher educational exemption cap.  USCIS also stated that it reserves the right to randomly select petitions in a lottery to reach the cap, although USCIS previously stated that it would utilize the random lottery only in the first five days of the filing period.  See the USCIS press release issued today for the full report: www.uscis.gov.

H-1B Lottery for Fiscal Year 2010

Monday, April 6th, 2009

This year, certain employers may be receiving a boon from the economic downturn.  Each year, employers are permitted to hire temporary foreign workers in specialty occupations under the visa category of H-1B.  The H-1B category is numerically limited to 65,000 (the “cap”), which causes a great deal of anxiety to employers who are seeking to fill needed positions in their companies.  Employers must file beginning on April 1.  In the past, the U.S. Citizenship and Immigration Services (USCIS) would conduct a “lottery” to determine acceptance of applications.  This lottery is conducted by receiving petitions for temporary employees and if the cap is reached within the first five business days, then 65,000 petitions are selected at random for processing. USCIS has confirmed that it will utilize the lottery system this year.  Government regulation also provides that if the cap is not reached in the first five days, USCIS will not conduct a lottery and will process petitions on a first-come, first-serve basis.  While USCIS believes that the cap will be reached before the ultimate deadline of October 1, 2009, it has heard from various stakeholder groups that fewer petitions are expected to be filed during this H-1B season.  The potential here for employers is that the H-1B season will not be conducted by lottery this year, but by first-come, first-serve basis.  In such case, employers should be prepared to file H-1B applications as soon as possible in order to capture this opportunity.  However, it is impossible to accurately predict whether the lottery will be conducted this year because of the difficulty in determining how many applications will be filed.Contact Yan Bennett, Esq. for all your immigration questions and issues.

Employers Should Note Significant Changes to I-9 Employment Eligibility Verification Form

Monday, April 6th, 2009

After April 3, 2009, employers are required to use a newly revised Form I-9, Employment Eligibility Verification Form, to verify the employment authorization of their new employees. Only the new form, which has “Rev 02/02/09” at the bottom of the page, should be used for all employees hired on or or after April 3, 2009, or for employees whose work authorization needs to be re-verified on or after April 3, 2009.  All previous editions of Form I-9 are no longer valid for use. The government also released a new version of the Employer Handbook (M-274), which provides instructions for completing Form I-9.

The most significant change to the Form I-9 is the requirement that all documents presented during the I-9 verification process must be unexpired.  The government has also added additional documents that may be used for verification.  Human Resource and Personnel departments should carefully review the revisions and ensure that they are compliant with the new rules.  Failure to do so may result in civil fines.

Employers should not require existing employees to complete new Forms I-9 unless re-verification of work authorization is required.  The employer may be subjected to allegations of discrimination under federal law if the employer requests unnecessary documentation or unnecessary completion of new Form I-9s.  If the employer knows or suspects the employee is not authorized to work legally, the employer should seek legal advice in the proper investigation or termination of the employee. 

Employers and employees should feel free to contact Yan Bennett at Maselli Warren, P.C. with any immigration questions.  

NJ Courts’ Application of Progressive Discipline: Neither Progressive, Nor Disciplined

Monday, April 6th, 2009

The concept of progressive discipline is easy to understand:  when facing discipline for misconduct, a police officer’s past performance record should be considered in determining a fair and appropriate punishment.  Such discipline is “progressive” because the penalties for misconduct should “progressively” increase each time the officer is convicted of misconduct.  On the other hand, progressive discipline in its purest form would preclude severe punishment for a first offense, if that officer’s prior record was spotless. 

 In practice, the notion of progressive discipline is usually discussed when a police officer is fired or severely punished for a single instance of misconduct despite an exemplary prior record of performance.  Courts are more likely to discuss progressive discipline principles when justifying a reduction of punishmnet due to a stellar performance record.  Although courts are not required to adhere strictly to principles of progressive discipline when examining disciplinary actions, it is critical for police officers with good prior disciplinary records to vigorously and persuasively argue for leniency under progressive discipline principles.  It is equally important for officers to fight any disciplinary charge, even for “minor” infractions, because a spotless record will be extremely valuable if something serious happens in the future. 

In a recent unpublished case, Ackermann v. Borough of Glen Rock and Glen Rock Police Department, a sergeant-detective was charged by his Chief with sexually harassing a female colleague.  The Chief recommended a 3-day suspension.  The officer challenged this suspension, and a hearing was held.  The hearing officer concluded that the officer had violated numerous rules and recommended a 10-day suspension without pay, as well as attendance at sensitivity training.  The hearing officer’s conclusions were accepted by the Mayor and Council, except for the degree of discipline.  Substantially increasing the officer’s punishment, the Council suspended the officer for 60 days, demoted him from detective-sergeant to police officer, and required him to attend sensitivity training. 

In response, the officer filed a complaint in lieu of prerogative writs in Superior Court, resulting in a trial de novo.  After hearing the evidence, the trial court found that the demotion was excessive, noting that the officer had not been the subject of any prior disciplinary procedures.  Thus, the trial court found, “to order [the officer] demoted would not be in accordance with the principles of progressive discipline.” 

The appellate court upheld the trial court’s rejection of the demotion on the basis of progressive discipline, stating, “[i]t is entirely appropriate to discipline an employee with an otherwise blameless record in a manner different than an employee whose record is studded with disciplinary charges.”  In this case, the officer benefitted from the court’s application of progressive discipline principles.

However, in a 2007 case called In Re Carter, the New Jersey Supreme Court upheld the removal of an officer for sleeping on duty, even though the Appellate Division had previously held that removal was too severe under progressive discipline principles.  The New Jersey Supreme Court noted that “we have not regarded the theory of progressive discipline as a fixed and immutable rule to be followed without question.”  According to the Court, “some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished record.” 

 Sleeping on duty, according to the Court, was “so serious” that termination was appropriate.  Unfortunately, the Court left for another day the answer to the most critical question: what other kinds of infractions are so serious to cause an otherwise perfectly behaved police officer to lose his job?  The answer to that question presumably lies somewhere in the thousands of pages of case law on the subject; but, I can tell you, there are no definite answers.

The Supreme Court’s analysis in In Re Carter, as in many other progressive discipline cases, is unsatisfying because it says, essentially, that while certain infractions can result in extreme punishment, only the Court knows those infractions when it sees them.  Because progressive discipline is not a “fixed and immutable rule,” and the jurisprudence surrounding the concept is typically limited to the facts of a particular case, Court precedent offers precious little guidance to police officers in the field who are left to wonder what conduct could get them fired, even if they have a perfect record. 

There are lessons to be learned, however.  First, do not accept any adverse employment actions, like suspensions or reprimands, lying down.  You should fight all such blemishes on your record because you never know if you will be accused of something more serious later.  The cleaner your file, the better your argument for leniency under progressive discipline principles will be.  Second, if you face disciplinary charges, and your prior record is relatively clean, make sure your attorney has carefully analyzed the applicable case law on progressive discipline so that the most potent arguments can be made on your behalf. 

Contact me by telephone or email if you have any questions about progressive discipline or any other issue relating to police-defense.  

Peter B. Paris, Esq. 609-452-8411, ext. 117 or pparis@maselliwarren.com.