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Ineffective Assistance of Counsel (NJ Criminal Appeal Update)


by in Criminal Defense

It is generally bad form to play Monday morning quarterback after another criminal defense attorney. However, this recent case decided on appeal is a real head-scratcher. In this case, the defense attorney insisted that a detective, from the same prosecutor’s office that was prosecuting his client, remain on the client’s jury. This was despite the detective-juror having known personally the State’s key witness in the case – his fellow officer.

State v. Fuquan Morgan, unpublished opinion, App. Div. Docket No. A-0858-07T4 (November 2, 2009) – Denial of PCR reversed, case remanded for evidentiary hearing.

“In this appeal, we examine whether defendant was deprived of the effective assistance of counsel when his attorney insisted that a detective employed by the prosecutor’s office remain in the jury venire. The detective eventually served on the jury, which convicted defendant. Because the record does not suggest a reasonable tactical basis for defense counsel’s unorthodox position, we vacate the order denying post-conviction relief and remand for an evidentiary hearing….

The detective was employed by the office that was prosecuting this defendant and the detective knew the arresting officer, whose credibility was a key issue. The judge, as he indicated … would undoubtedly have sustained any defense objection to the detective being in the venire. Although the record on appeal is not complete, a defense objection or application at any stage during jury selection would have undoubtedly required the detective’s exclusion from the jury….

However, the limited record on appeal, as we have indicated, reveals that defense counsel was insistent on the detective remaining in the venire and was quite willing to allow the detective to take a seat on the jury and deliberate on defendant’s guilt….

In the only clear statement in the record on appeal as to defense counsel’s tactic regarding the detective, which was quoted earlier, she only indicated that she ‘couldn’t make that determination now’ but insisted that he remain in the venire.

Thus, there is nothing in the record on appeal that would reveal whether defense counsel had made a sound strategic decision in insisting that the detective remain in the venire and in allowing him to ultimately sit on the jury.” (Philip Lago, Designated Counsel)

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