November, 2016

Third Circuit: Bail Policies Affecting Low-Risk Defendants and Threaten Equal Justice

Before reaching the merits of the case, the Third Circuit cited to statistics that show that 54 percent of those jailed awaiting trial in New York City were there because they could not afford bail of $2,500 or less.  This flaw in the judicial system was highlighted in this case where the defendant missed the birth of his first child, lost his job and pled no contest instead of going to trial so he would not lose his home and his vehicle. His plea resulted in a procedural bar from his constitutional claims alleging malicious prosecution.  While the court did not blame state authorities, it hoped that planned bail reform efforts would ensure equal justice stating, “[i]t seems anomalous that in our system of justice, the access to wealth is what often determines whether a defendant is freed or must stay in jail.”  Curry v. Yachera, 2016 BL 286194 (3d Cir., No. 15-1692, 9/1/16; full text at

New Jersey: Prosecutor’s Efforts to Provoke Mistrial Triggered Double-Jeopardy Bar to Retrial

A prosecutor’s flagrant and persistent efforts to provoke a mistrial by engaging in “woefully unprofessional” conduct including making inadmissible, improper and prejudicial statements about the evidence created a double-jeopardy bar against retrying a man whose conviction was reversed due to that misconduct under a rarely invoked rule blocking retrials when a prosecutor successfully and deliberately goads the defense into moving for a mistrial as held in Oregon v. Kennedy, 456 U.S. 667 (1982).  State v. Zisa, N.J. Super. Ct. Law Div., No. 10-10-01812-I, 8/23/16; full text at

Third Circuit: Woman Out on Bond Was Still “Seized” For Purposes of Malicious Prosecution Suit

A woman was “seized” for purposes of asserting a Fourth Amendment Malicious-prosecution claim even though she was out on bond and was not subject to any travel restrictions where she was required to fly from her home in California to Pennsylvania for twelve pretrial conferences in one year, she was under the cloud of very serious charges, she was required to post unsecured bail of $50,000 and she was told she would forfeit the bond if she did not attend all court proceedings.  The Third Circuit found these to be “constitutionally significant restraints” and a “continuing seizure.”  Black v. Montgomery County, 2016 BL 282138, 3d Cir., No. 15-3399, 8/30/16; full text at

D.C. Circuit: Prosecutor’s Misstatement of Law in Closing Required Murder Conviction Reversal

The Third Circuit held that the prosecutor’s statement during closing argument that the jury could not consider the decedent’s “intent or anything else,” misstated the law in this case where defendant was part of an unofficial military hazing gang that subjected the decedent to an initiating beating and during the beating asked the decedent if he wanted to participate and he responded in the affirmative. The decedent had sickle cell anemia and died from complications resulting from injuries to his head and heart. Defendant’s second degree murder conviction was reversed on the ground that in spite of the court’s accurate instructions on the law it did not cure the “very real chance” that the prosecutor’s statement led some jurors to believe they could not consider the decedent’s “consenting behavior at all,” when that behavior was relevant to the malice element of second-degree murder.  United States v. Williams, 2016 BL 287661, D.C. Cir., No. 12-3029, 9/2/16; full text at public/document/United_States_v_Williams_No_123029_Consolidated_with_133058_2016_.