Right to a Fair Trial | State of New Jersey v. R.W.H. and Cyber Harassment

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

State v. R.W.H. was decided by the Superior Court of New Jersey, Appellate Division on December 13, 2013 and considered some of the factors that could deny a defendant a fair trial.

The case concerned the Defendant, the estranged mother of their children, T.J., and her new husband Z.B. The Defendant had been convicted by a trial court of disorderly persons contempt (N.J.S.A. 2C:29-9(b)) and the petty disorderly persons offense of harassment (N.J.S.A. 2C:33-4.1).  Both Defendant and T.J. had a final restraining order against each other. The event that led to this appeal was a phone call in 2009 that Z.B. answered on behalf of T.J. where he alleged that the Defendant said “b-tch you’re going to lose your Section 8” after he had won custody of three of their five children together. However the tape was never verified and it was even found that the call came from the home of one of Z.B.’s relatives. But the trial judge did not allow the Defendant to call an alibi witness that he was not at the location the call came from because his attorney had not submitted the request in a timely manner.

Furthermore, because the Defendant was late to court and because the Judge personally knew this lateness was habitual from previous experience with the Defendant (though he had no convictions), the judge allowed the trial to begin without him. On appeal the convictions were vacated and the case was remanded for a new trial because the Defendant did not receive a fair trial. The following are reasons that the trial was unfair and lessons that can be learned from this case:

1. In a criminal trial a Defendant has a right to testify. Period. This is rooted in the 5th, 6th and 14th Amendments of the U.S. Constitution.
2. A conviction may be reversed and remanded for a new trial if a Defendant can show he received ineffective assistance from his attorney.
3. Audio recordings submitted for evidence should be authenticated especially when they are produced by someone who has an interest in a particular outcome (there was clear animosity between the Defendant and Z.B.).
4. Just as a jury is not supposed to consider unrelated outside knowledge about a Defendant, the judge in this bench trial should have considered the Defendant’s particular circumstances in regards to his tardiness that day and not considered past tardiness. The Defendant had just received custody of three children. Furthermore judges can be more flexible during a bench trial than a jury trial when it comes to time adjustments.
5. If you have an alibi witness ensure that your attorney has notified the State.

ANOTHER KEY ISSUE IN THIS CASE IS THE USE OF THE RECENTLY AMENDED STATUTE NJSA 2C:33-4.1 CYBER HARASSMENT!   This is a very wide and broad use of the harassment statute and the interplay with the use of computers, social media, cell phones, texting, sexting, and other modern uses of the internet and smart phones to communicate with others!!  LOOK OUT!! THESE ARE 1^ST AMENDMENT ISSUES TOO.