In this recent PCR appellate victory, the NJ Appellate Division held that the trial judge did not allow the NJ Criminal Defense Attorney a fair opportunity to advance his client’s arguments.
State v. Graciela Malcolm, unpublished opinion, App. Div. Docket No. A-0744-08T4 (July 19, 2010) – Denial of PCR reversed, case remanded for a new hearing. “Our review of the record … raises concerns that the judge failed to recognize the obligation imposed on PCR counsel…. The tone of the April 25, 2008 argument is troublesome. The interaction between PCR counsel and the judge was contentious and overly argumentative. At times, the judge was openly dismissive of PCR counsel’s attempt to advance legal arguments on behalf of his client…. To the extent that the State suggests that PCR counsel ‘got under the skin’ of the judge, our response is simple. Counsel frequently annoy or irritate a judge and other counsel. At all times, however, the judge must maintain control and never allow the parties to conclude that one or the other did not receive a full and fair hearing of their claims. Here, PCR counsel was assigned to advance defendant’s claims. The trial record revealed that defendant was given to emotionally volatile behavior; the PCR record suggests that such behavior persists. The record before this court clearly suggests that the judge did not approach the claims advanced by PCR counsel in the spirit expected….”