Re: State v. Laciana Tinsley, Docket # A T6. Pursuant to Rule 2:6-2(b), kindly accept this letter-brief

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1 P.O. Box Newark, NJ Tel: Fax: ALEXANDER SHALOM Senior Staff Attorney April 6, 2017 Joseph Orlando, Clerk Appellate Division Clerk s Office Hughes Justice Complex, 5 th Floor 25 Market Street PO Box 006 Trenton, NJ Re: State v. Laciana Tinsley, Docket # A T6 Honorable Judges of the Appellate Division: Pursuant to Rule 2:6-2(b), kindly accept this letter-brief on behalf of Amicus Curiae American Civil Liberties Union of New Jersey. i

2 TABLE OF CONTENTS PRELIMINARY STATEMENT...1 STATEMENT OF FACTS AND PROCEDURAL HISTORY...3 ARGUMENT...6 I. THE DETENTION ORDER IS IMPROPER IN LIGHT OF THE STATE S EGREGIOUS VIOLATIONS OF THE RULES OF DISCOVERY...6 A. The State Failed To Provide The Defendant Evidence That Was Exculpatory...7 B. The State Failed To Provide The Defendant Evidence Relating To The Facts Upon Which It Relied To Support Its Detention Application...9 II. THE COURT ABUSED ITS DISCRETION IN DETAINING DEFENDANT...12 A. The Judge Applied An Incorrect Standard Of Law, Treating a Presumption of Detention as Mandatory Detention...13 B. The Court Failed To Consider All Relevant Factors Domestic Violence History Circumstances of the Incident...17 C. The Court Considered Irrelevant Factors...18 D. The Decision To Detain Amounted To A Clear Error In Judgment...19 CONCLUSION...20 ii

3 PRELIMINARY STATEMENT To detain a person before an adjudication of guilt is exceptional and raises serious due process concerns. New Jersey s recently-adopted pretrial justice reform statutes are designed to guarantee that detention is used sparingly and only after a defendant has been provided a hearing that comports with due process. They ensure that defendants are only detained when the pose a sufficient risk of flight, to public safety or to obstruct the administration of law. In crafting the pretrial justice statutes, the Legislature created a rebuttable presumption of detention in cases where a defendant is charged with murder. This presumption was born of the recognition that many people charged with murder pose grave risks of flight and to public safety. However, the Legislature ensured the possibility that the presumption could be overcome, because not every person charged with murder presents those risks. Laciana Tinsley represents the rare murder defendant who can be safely monitored in the community. In this case the court abused its discretion by failing to meaningfully consider two critical categories of information that would have rebutted the presumption of detention and supported the release of Defendant. (Point II, B). The court believed that it was improper for it to consider: the fact that the Defendant had been a long-time victim of domestic violence 1

4 at the hands of her husband (the decedent in this case) and details surrounding Defendant s self-defense killing of her husband in direct response to violence he was perpetrating and threatening. The court s mistaken belief that it could not consider these critical facts that bear directly on the nature and circumstances of the offense charged and, correspondingly, the nature and seriousness of the danger to any other person or the community that would be posed by the her release, caused the court to treat the presumption of detention as a requirement of de facto mandatory detention. (Point II, A). The court s legal error was compounded by the failure of the prosecutor to provide required discovery that would have allowed Defendant to present evidence that compellingly explained both the history of domestic violence and the circumstances of the homicide. (Point I). Defendant (and the court) had not been provided with Defendant s statement in which she admits killing her husband but explains the circumstances. However, despite the fact that the court could not consider its actual contents, the court held that the mere existence of a statement indicated that the State had a strong case against the defendant. Consideration of the statement, without concern for its contents, constituted another abuse of discretion. (Point II, C). 2

5 Ultimately, had the court properly considered the domestic violence history and the circumstances of the actual event along with Defendant s 42 years of crime free living it would have been difficult to conclude that she could not be safely supervised on home detention. The court s contrary conclusion amounted to a clear error in judgment. Indeed, by basing its decision solely on the fact of a murder charge, and ignoring all other information, the court made the charge of murder carry an irrebuttable presumption of detention, in violation of due process. (Point II, D). STATEMENT OF FACTS AND PROCEDURAL HISTORY 1 On January 30, 2017, Defendant was charged with the murder of her husband. On January 31, 2017, she appeared before Hon. Christopher J. Garrenger, J.S.C., for a first appearance. At that time she asked the prosecutor for any statements she had provided. 1T 4: The State indicated that it would comply with its discovery obligations[.] Id. at 4: On February 7, 2017, Defendant appeared at a pretrial detention hearing before Hon. Thomas P. Kelly, J.S.C. Prior to that hearing, the 1 In the interest of clarity, Amicus combines the statement of facts and procedural history. 2 2T refers to the transcript dated February 7, 2017; 1T refers to the transcript dated January 31, 2017; 3T refers to the transcript dated March 7, 2017; SBr refers to the State s brief, dated March 3, 2017; Order refers to Judge Kelly s Order dated February 7, 2017; Supp. Order refers to Judge Kelly s Order dated March 7,

6 State had not turned over the statement Defendant made to investigators or the recording of the call she placed on the day of her husband s death. SBr 2. At that hearing, Judge Kelly indicated that he did not know the answers to several questions. 1T 26:13-14 ( I don t know whether there s a history of domestic violence, there may well have been ); id. at 26:22-23 ( there may be a self-defense here, who knows[?] ). He suggested that those questions were not proper for consideration at a detention hearing. Id. at 26:23-24 (regarding questions of self-defense this is not the kind of hearing to decide all of those questions ); id. at 28:10-11 ( The domestic violence issue, with all due respect, is for a trial setting. ). Knowing that Defendant provided a statement, but not knowing the precise contents of the statement, Judge Kelly determined that the likelihood of conviction is somewhat high[,] (id. at 28:22-23) and therefore ordered Defendant detained. Order 1-3. Thereafter, the State provided Defendant with both the statement and the recording. SBr 2. Defendant sought to reopen the detention hearing in light of the newly provided statements, each of which supported her theory that she had been a victim of domestic violence at the hands of her husband and that she killed him in direct response to the imminent threat of further violence. Amicus American Civil Liberties Union of New 4

7 Jersey filed a brief urging to court to reopen the detention hearing. On March 7, 2017, the court denied Defendant s application to reopen the hearing. Supp. Order. The court held that: But I just don t feel that there s anything new in here in this application that I didn t know before. I knew about the call, in a sense. I didn t you know, I didn t have the the actual but I knew about it, you know. There were things in the probable cause statement that reflected like that what happened. [3T 26:18-24.] The court relied heavily indeed, seemingly exclusively on the fact that the decedent had been killed. See, e.g., id. at 26:11-12 ( We have a dead person. That s as much as I m willing to say ); id. at 24:6-7 ( We do have a dead body. ); id. at 20:9 ( We know we have we had a dead person. ); id. at 19:1-2 ( First of all, the charge was a first degree homicide, all right. ). The court explained that as a result of that facts that the Defendant was required to be charged on a warrant and that the Prosecutor was required to seek detention in a sense it is a mandatory detention case[.] Id. at 19: This appeal followed. 5

8 LEGAL ARGUMENT I. THE DETENTION ORDER IS IMPROPER IN LIGHT OF THE STATE S EGREGIOUS VIOLATIONS OF THE RULES OF DISCOVERY. Defendant s pretrial detention hearing violated her right to due process because the prosecutor failed to turn over documents he was statutorily required to provide to her. Further, pretrial detention hearings may be reopened, before or after a determination by the court, at any time before trial, if the court finds that information exists that was not known to the prosecutor or the eligible defendant at the time of the hearing and that has a material bearing on the issue[s] the court is required to consider. N.J.S.A. 2A:162-19(f). This was one such case, but the trial court refused to reopen the hearing. As a result, the only detention hearing in this case proceeded while Defendant was denied critically important discovery to which she was entitled. The Rule governing discovery in detention hearings could not be clearer: if the prosecutor is seeking pretrial detention, the prosecutor shall provide the defendant with all statements or reports in its possession relating to the pretrial detention application. All exculpatory evidence must be disclosed. R. 3:4-2(c)(1)(B). The State failed to honor its obligations under both clauses of the Rule, yet the trial court refused to revisit the detention order. 6

9 A. The State Failed To Provide The Defendant Evidence Relating To The Facts Upon Which It Relied To Support Its Detention Application. At the detention hearing on February 7, 2017, Defendant made clear that she had not been provided with required discovery. She explained: one of the bases [for detention] that was listed were [sic] the statements that were allegedly made by Ms. Tinsley. [Defense counsel] had requested those statements at the initial hearing. And since they were relied upon, the prosecutor must provide those statements for this hearing. And the prosecution did not do so. [2T5:17-23.] The court explained that notwithstanding the failure to provide the statement, it would find probable cause based on the sworn affidavit[,] as we do with most cases of a criminal nature. Id. at 6:2-4. But the court was not tasked with simply finding probable cause, N.J.S.A. 2A:162-19(e)(2), it had to determine whether no condition or series of conditions would achieve the three purposes of the statute. N.J.S.A. 2A:162-19e(3). To make the latter determination, courts may consider: [t]he nature and circumstances of the offense charged; N.J.S.A. 2A:162-20(a); [t]he weight of the evidence against the eligible defendant, except that the court may consider the admissibility of any evidence sought to be excluded; N.J.S.A. 2A:162-20(b); The history and characteristics of the... 7

10 defendant, including a wide range of factors; N.J.S.A. 2A:162-20(c); the nature and seriousness of the danger to any other person or the community and the risk of obstructing or attempting to obstruct the criminal justice process that would be posed by the eligible defendant s release N.J.S.A. 2A:162-20(d)-(e); and [t]he release recommendation of the pretrial services program[.] N.J.S.A. 2A:162-20(f). Without the information contained in the statement made by Defendant, the court was deprived of critical information bearing directly on the questions the court was tasked with answering. Put differently, the Defendant was denied an opportunity to meaningfully test the information upon which the State relied to support the deprivation of her liberty. The Rules of Court make clear that the State must turn over all statements or reports in its possession relating to the pretrial detention application. R. 3:4-2(c)(1)(B). Here, it is beyond dispute that the State s application for pretrial detention relied upon a statement made by Defendant. The affidavit of probable cause, upon which the State relied, referred directly to the statement (Affidavit of Probable Cause) and the court s order indicated that the statement of the Defendant was one reason upon which it relied to justify detention. Order at 2. Because the State relied on Defendant s statement it cannot plausibly argue that the statement itself 8

11 did not relat[e] to the pretrial detention application. R. 3:4-2(c)(1)(B). Were there any doubt that the State needed to provide the statement to Defendant prior to the detention hearing, the Appellate Division cleared in up in State v. Robinson, 2017 N.J. Super. LEXIS 15 (App. Div. Feb. 8, 2017). In that case, which is currently being reviewed by the New Jersey Supreme Court, the Appellate Division made clear that a narrow reading of R. 3:4-2(c)(1)(B) was erroneous. Indeed, even the position advanced by the State in that case would require the disclosure of Defendant s statement. Id. Slip Op. at 4. ( We reject the State s contention that it need only produce the materials described in the affidavit if it says it relies on them. ). Because the State failed to provide Defendant with critical information prior to the hearing, the initial hearing was deficient and the trial court should have reopened the hearing. The contents of the statement, consistent with a theory of selfdefense, have a material bearing on the issue[s] the court was required to consider, and therefore the court should have reopened the hearing. N.J.S.A. 2A:162-19(f). B. The State Failed To Provide The Defendant Evidence That Was Exculpatory. It is even more troubling that the State failed to provide the statement because it is exculpatory. Here, the Rule is 9

12 perfectly clear: All exculpatory evidence must be disclosed. R. 3:4-2(c)(1)(B) (emphasis added). The Rule, in other words, requires more than that which is required by Brady v. Maryland, 373 U.S. 83 (1963). Brady requires only that exculpatory evidence that is material either to guilt or to punishment be disclosed. Brady, 373 U.S. at 87. The discovery Rule contains no materiality requirement. Defendant s statement to police is not the only statement in the State s possession that contained exculpatory information. After Defendant struck the victim, she called The Burlington County Prosecutor s Office provided copies of those recordings to members of the public who requested them through the Open Public Records Act, N.J.S.A. 47:1A-1, et. seq. But the Prosecutor failed to provide them to Defendant prior to the hearing. Those tapes are exculpatory. Among the statements contained in them are the following: My husband, he was smothering me with the pillow. And when I got free, I grabbed the fire... um disposal... and I just kept beating him the head because he kept trying to get up and come after me. He wouldn t stop trying to come after me. My husband and he just went off. He went off he was... trying to rape me and I don t know it was... it was crazy. It was just crazy. He was trying to throw the... hit me with the chair 3 3 These statements have been transcribed by Amicus. Given the emergent nature of this application they have not been 10

13 These statements are plainly exculpatory and should have been provided to Defendant in advance of the detention hearing. The State contends that it was not obligated to turn over the statement and recording because they arguably fail to satisfy the standard governing the presentation of exculpatory evidence to a grand jury. SBr 2. The State explains that State v. Hogan held that [a]n accused s self-serving statement... ordinarily would not be sufficiently credible to be clearly exculpatory[.] Id. (quoting 144 N.J. 216, 238 (1996)). Such analysis is critically flawed. 4 The standard that governs grand jury presentations is tied to evidence that is clearly exculpatory, (Hogan, 144 N.J. at 238 (emphasis added)) whereas the Rule requires the provision of all exculpatory evidence. R. 3:4-2(c)(1)(B). There is no basis for reading in the clearly qualifier into a Rule that omitted it. It is useful to consider the words of the Director of the Division of Criminal Justice interpreting the obligation to provide all exculpatory evidence. Appearing before the New Jersey Supreme Court in State v. Robinson, A (078900), professionally transcribed. The audio files can be provided upon request, as can a transcript. The trial judge relied on the transcription at 3T 22:18-23:1. 4 Even ignoring the flaw discussed below, the Hogan rule does not suggest that self-serving statement are never sufficiently reliable to be clearly exculpatory. Indeed, there is some irony in the State s suggestion that the Defendant s statements lack indicia of reliability, as they form the exclusive basis for the State s affidavit of probable cause. 11

14 Director Elie Honig explained: The second category of discovery at the pretrial detention phase is simply all exculpatory evidence. Period. No limitations, no qualifications. We embrace that obligation at pretrial detention hearings and always. 5 Because the State failed to provide information to defendant that could have been presented to better explain the circumstances surrounding the homicide and the risk posed by Defendant, the court should have reopened the detention hearing to give the Defendant the opportunity to litigate the issue with the benefit of the information she should have had at the initial detention hearing. II. THE COURT ABUSED ITS DISCRETION IN DETAINING DEFENDANT. Ordinarily, a reviewing court will find an abuse of discretion if a defendant can show that the challenged action: (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment. State v. Bender, 80 N.J. 84, 93 (1979). New Jersey courts have adopted this standard in the context of pretrial justice reform. State v. C.W., 2017 N.J. Super. LEXIS 36, *30 (App. Div. Mar. 21, 2017). Under that standard, when the trial 5 The video of the oral argument is available at: The case was argued on March 29, 2017 and the relevant portion runs from 2:54-3:08. 12

15 court renders a decision based upon a misconception of the law, that decision is not entitled to any particular deference and consequently will be reviewed de novo. Id. citing State v. Stein, 225 N.J. 582, 593 (2016); State v. Williams, 441 N.J. Super. 266, 272 (App. Div. 2015). A. The Judge Applied An Incorrect Standard Of Law, Treating a Presumption of Detention as Mandatory Detention. In considering whether to reopen the detention hearing, the court set forth what it believed to be the governing standard: First of all, the charge was a first degree homicide, all right. In fact, there were two versions of it in there, I believe, if I remember correctly. It required a mandatory warrant be issued for the arrest of the defendant. And also because of the nature of the charge, the Prosecutor shall seek detention. He didn t have a choice. He had to seek it unless there was these compelling extraordinary reasons that they could justify not making the, I assume, the application for detention. So in a sense it is a mandatory detention case.... [3T 19:1-13.] The court applied an incorrect standard, focusing on law enforcement s obligation to arrest defendant and the Attorney General Guidelines, which call for the State to seek detention, rather than on the court s role in determining whether detention is appropriate. Attorney General Guidelines compel law 13

16 enforcement to charge defendants on Complaint-Warrants in every case where the defendant has been charged with murder. Attorney General Law Enforcement Directive, , Sec , p. 34, available at: In situations where a defendant has been charged with murder, the prosecutor shall apply for pretrial detention unless the County Prosecutor or First Assistant Prosecutor... finds that there are compelling and extraordinary reasons not to seek pretrial detention. Id. at Sec. 7.3, p. 61. But neither of those standards govern the court s decisionmaking process. The pretrial justice reform statutes make clear how judges should evaluate detention applications for defendants charged with murder: A presumption of pretrial detention... may be rebutted by proof provided by the eligible defendant, the prosecutor, or from other materials submitted to the court. The standard of proof for a rebuttal of the presumption of pretrial detention shall be a preponderance of the evidence. If proof cannot be established to rebut the presumption, the court may order the eligible defendant s pretrial detention. If the presumption is rebutted by sufficient proof, the prosecutor shall have the opportunity to establish that the grounds for pretrial detention exist pursuant to this section. [N.J.S.A. 2A: ] 14

17 Here, the court ignored this statutory requirement and mistakenly treated the presumption of detention as tantamount to mandatory detention, i.e. an irrebuttable presumption of detention. B. The Court Failed To Consider All Relevant Factors. The court s legal error regarding the standard was magnified by its misunderstanding of the scope of relevant information to be considered at a detention hearing. The court refused to provide meaningful consideration of two critical issues: the domestic violence history between Defendant and her husband and the circumstances of the incident that lead to the victim s death. 1. Domestic Violence History. At the initial detention hearing before Defendant had received the discovery to which she was entitled she presented limited evidence indicating that she had been the victim of domestic violence at the hands of her husband. Specifically, Theresa Caver was asked whether she knew of the dynamic that existed in terms of domestic violence between Mr. and Mrs. Tinsley? 2T 19:7-9. She responded that she was somewhat aware. Id. at 19:10. Defense counsel also proffered that it was not in dispute that there was a long-standing history of 15

18 domestic violence where Mrs. Tinsley was the victim. She left the home several times going into shelters. Id. at 20:3-8. The judge specifically did not hear: from any witnesses at Providence House, where Defendant had previously fled from her husband s abuse; from Defendant s daughter, Victoria, who had been a firsthand witness to abuse; from Defendant s neighbor, Sam, who also witnessed abuse. Had the statement been provided to Defendant she could have produced each of these witnesses. Indeed, Victoria could have testified that on the day of the interview, she had been interviewed by law enforcement at which time she recounted the years of abuse her mother suffered at the hands of Douglas Tinsley. 3T 11:2-7. Evidence of domestic violence was relevant to the court s inquiry because it bears directly on the Defendant s character, physical and mental condition, which are qualities the court is statutorily entitled to consider. N.J.S.A. 2A:162-20c(1). That Defendant s act of violence was directed at her abuser is also, of course, relevant to [t]he nature and seriousness of the danger to any other person or the community that would be posed by [her] release[.] N.J.S.A. 2A:162-20d. The court indicated that it did not know whether there was a history of domestic violence. 2T 26: The question before this Court is not whether the trial court did know about such a history, but whether it could have known had the State provided 16

19 meaningful discovery and whether such knowledge might have impacted the detention decision. 2. Circumstances of the Incident. The trial court was also denied critical information about what happened on the day Defendant killed her husband. The court contended that prior to the motion to reopen the hearing it had sufficient information about what happened: I knew about the call, in a sense. I didn t you know, I didn t have the the actual but I knew about it, you know. There was things in the probable cause statement that reflected things like that what happened. So I was aware of it. [3T 26:20-24.] But, all the court knew about was that which was contained in the probable cause affidavit. Thus, the court knew that Douglas Tinsley attempted to smother Defendant was a pillow and she, in turn, grabbed a nearby fire extinguisher and struck him. On its face that raises questions regarding self-defense. But, it fails to explain why Defendant stuck her husband multiple time. Of course, even if the initial blow was justified, if the subsequent blows were not, the defense of self-defense would be unavailable to Defendant. N.J.S.A. 2C:3-4b(2). While the affidavit of probable cause failed to answer those questions, the call and the statement provided critical insight into why she continued to hit him: he continued to attack her. 17

20 As with the domestic violence evidence, this evidence bears directly on the Defendant s character, physical and mental condition, N.J.S.A. 2A:162-20c(1) and [t]he nature and seriousness of the danger to any other person or the community that would be posed by [her] release[.] N.J.S.A. 2A:162-20d. The evidence also impacts the nature and circumstances of the offense charged, N.J.S.A. 2A:162-20a, and the weight of the evidence against the eligible defendant, N.J.S.A. 2A:162-20b. The court seemed to believe that once the State proved probable cause, the court was forbidden from considering the weight of the evidence or the nature of the case. The statutes do not limit courts considerations in that way. While courts are appropriately counseled to avoid mini-trials, they are not prohibited from exploring issues beyond probable cause; indeed, courts are explicit authorized to do so. N.J.S.A. 2A: The court erred as a matter of law. C. The Court Considered Irrelevant Factors. The court further abused its discretion by considering Defendant s statement despite the fact that neither Defendant nor the court had actually seen the statement. Order at 2. That is, the court considered the existence of the statement without considering the contents of it. The court made clear that it gave great weight to the existence of a statement. 2T 28:21-23 ( there is, of course, the admission of it. So that the 18

21 likelihood of conviction is somewhat high ); 3T 20:6-8 ( I have to look at... the weight of the evidence, an admission. ); id. at 23:5-8 ( the strength of the State s case? Well, the defendant admitted striking the defendant (sic) in the head multiple times, beating him in the head. ). Such a consideration assumes that admitting to striking a fatal blow is tantamount to a confession to murder. It is not. Suspects can provide statements even ones that include inculpatory information without confessing to the most serious crime that can be charged. That is exactly what happened in this case. The court s failure to learn the contents of the statement made its consideration of the existence of the statement an abuse of discretion. D. The Decision To Detain Amounted To A Clear Error In Judgment. Certain facts about this case cannot be ignored: Defendant has led a law-abiding life for 42 years; she was subjected to years of abuse at the hands of her husband; even according to the State s proofs, just before she killed him, he sought to suffocate her with a pillow; there is no allegation that Defendant has ever threatened or perpetrated violence against any other person. When those facts are all considered, no court could reasonably conclude that no combination of... conditions would reasonably assure the eligible... the 19

22 protection of the safety of any other person or the community.... N.J.S.A. 2A: To hold otherwise is to convert the rebuttable presumption of detention into an irrebuttable presumption, contrary to the explicit instructions of the Legislature. CONCLUSION For the foregoing reasons, this Court should reverse the Order granting the preventative detention of Defendant. The Court should order defendant released on electronic monitoring and home detention. In the alternative, the Court should Order a remand for a new detention hearing, at which time Defendant can utilize the discovery that was provided after the initial hearing. Alexander Shalom ( ) Edward L. Barocas Jeanne LoCicero American Civil Liberties Union of New Jersey Foundation 89 Market Street, 7 th Floor P.O. Box Newark, New Jersey (973) DATED: April 6, The court conceded that the Defendant posed no threat of nonappearance (3T 24:20-21) or witness tampering. Id. at 24:25-25:1. As a result, the only plausible basis for detention is the extent to which Defendant is a risk to the safety of other people or the community. 20