UNEQUAL JUSTICE: The Search for Truth to Balance the Scales

Copyright © 2024 by James M. Porfido.

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

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Rev. date: 08/23/2024

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Contents

Prologue

Introduction

PART ONE

The Start of the Journey

for the Search for Justice

1. Friday Admission and Law 101

2. The Babysitters from Hell

3. The Killing of MM & Death by Prison

4. Too Drunk to Shoot

5. The Crime Without a Victim

6. Burning Love

7. The Walking, Breathing, and Living Homicide Victim

8. Too Drunk to Drive: Vehicular

Homicides or Death by Auto

9. The Halloween Mask

10. Murder for Hire

11. The Final Case and Chapter as Prosecutor

12. From Good to Bad Overnight

PART TWO

The World of Criminal Defense and

the Cases Defining Criminal Law

13. The Whizzinator: The What?

14. A French Lesson

15. Representation of Crime Victims

16. The Cases Defining Unequal Justice

17. The New World and the Covid Cases

18. The Final Chapter of Lawyering

19. The Last Jury Trial

20. The Last Chapter, or Riding into the Sunset

21. The Summation and Final Verdict

22. I Can’t Get Out, or, The Coach, Round Two

23. The Hardest Goodbye

Epilogue

About the Author

To the many who made this book a reality.

All the victims in the cases outlined and to the police and detectives

that helped me do my job as a prosecutor.

To the accused and those who were wrongfully accused,

who placed their trust in me to guide them through their cases:

I want to express my deepest gratitude.

Your confidence in my advice and direction was a

responsibility that I didn’t take lightly.

We worked hard together to achieve the results we sought.

Thank you for allowing me to be a part of your journey.

Lastly, to my family and friends who heard my stories

and endured with me 35 years of criminal law on both sides of Counsel Table.

To my wife Lynne and son Cole

who put up with the stress and angst that

the practice of criminal law brings.

Without their love and support, this book would not have been possible.

Prologue

THIS BOOK WILL EXPLORE A career in law from the start of this journey and an unlikely yet timely enrollment in law school, to a career as a prosecutor and criminal defense lawyer and the cases that started and developed that career. It will cover the impact of the criminal justice system in our society and highlight the issues facing the legal profession today. Exploring the role of the defense attorney and the importance of justice and fairness in the criminal justice system. Challenging the notion that justice is blind and explore the barriers that exist for those facing charges in the criminal justice system.

This book will provide eye-opening revelations about particular cases from both sides of counsel table, as defense counsel representing the accused, and as the prosecutor, representing the interests of the state. Is it really a process to get to justice or is it motivated by personal drive, ambition, or the political whims of the administration?

It will explore real cases with real people and the search for justice. Providing surprising revelations as to the outcome of cases as a prosecutor and defense attorney and the impact upon those affected. The book will describe in detail the situations encountered on both sides of the table in the criminal justice system. Offering strategies for getting justice for the accused and the victims. It will illustrate how the process of law can be an arduous task that often results in a compromise between justice and political agendas. In short, the book will provide insight into the nuances of the criminal justice system, with a focus on highlighting what justice truly means and point out the pitfalls involved in navigating a path to justice. See how personal ambition and politics sometimes trump the search for true justice.

Real life and real events and people that the criminal justice system and the outcome of a case will impact far beyond the case itself will be discussed.

This includes taking on the challenge of the first jury trial and the development of a career in criminal law; the prospective appointments to the top job as a county law enforcement officer, and the governmental and political process in the appointment; the emotional highs and lows of the process; and ultimately the running of a business of law that developed and continued for over twenty-five years and the final chapters that led to the last trial and the end of a career in law.

Introduction

THIS BOOK IS THE CULMINATION of thirty-five years of a career of in law, from the beginning in law school to the serving of a judicial clerkship to a rise in a county prosecutor’s office from the first trial to the prosecution of high-profile crimes. The rise in that career is chronicled and the monetary gains and promotions along the way to section chief of Vehicular Homicides and the Sex Crimes and the child abuse unit. A career as a prosecutor that extended from 1989 to 1997. The case that personally impacted the writer and the life lost that changed that career direction and resulted in going to the dark side as a criminal defense lawyer.

I will describe my involvement in a foundation and speaking to over seventy thousand New Jersey high school students about the dangers and consequences of drug and alcohol abuse.

There is a small sample of the specific cases by chapter and stories of the cases from the arrest, investigation, prosecution, and defense and the court’s role and involvement of the process in the search for justice, as well as the process of overcoming personal challenges in the author’s personal life: how he was able to make the transition from prosecutor to defender. How that transition impacted upon lives and the process and outcomes of those cases.

The case and the retainer and the disappointment of a potential political appointment (Round One) that did not happen to the start of a law practice. The personal challenge of facing fear and making the transition to a profession with daily challenges and obstacles to navigate and a daily pursuit of justice for clients.

Building relationships and employing knowledge, skill, and expertise to the process of representing and helping clients. The foundation in criminal defense that resulted in zealous and meaningful representation of those clients.

The importance of understanding that every human being matters and deserves the best legal representation that is available. This would become the answer to those that frequently asked questioned, How could you represent someone that committed such a horrible crime? The response: We don’t judge people by the crimes they are accused of but by their rights which are guaranteed in our Constitution.

PART ONE

The Start of the Journey

for the Search for Justice

CHAPTER 1

Friday Admission and Law 101

THE CAREER IN LAW LOGICALLY starts after law school but the journey to that point took a few detours.

It started with the application process after a stellar college career with very good grades. The academia of college was combined with a standardized test for law school known as the LSATs. This test combined with four years of college and grades achieved would help to determine what law school and where the journey and process would continue to become a lawyer and reach the chosen career path.

The LSAT provided to being challenging in many ways. The preparatory courses and the taking of this standardized test proved to be a major undertaking filled with disappointment, so much so that I decided to take the standardized test not just once or twice but three times and each time barely attained a respectable grade.

The simple fact that I took that exam three times and did horrible each time showed that on average I just could not achieve a high test result and that I should not be judged simply by a standardized test. Thankfully, I had four years of academic success to factor in to the admission process. Despite all of this, I was accepted at a law school in Ohio and wait-listed at my alma mater of Seton Hall University in South Orange, New Jersey, and deferred at the University of Bridgeport School of Law in Connecticut until the spring semester in January 1986. I contacted Bridgeport several times and asked what the chances were that I could meet with someone to show my conviction and determination to be admitted as a law student. To my amazement, I set up a Friday meeting to meet with the dean of admissions, and after a two-hour drive and having a half-hour conversation about my thesis in college that was related to the United States Catholic Conference as a political entity, I was advised I could start Monday, when the fall semester began. This was in August 1985. I was told as I was leaving the office, By the way, you will need a dorm room and will have to get your books for Monday.

That’s how it all started, including the three-year plan to complete law school. I welcomed the opportunity to be a student in a profession I had chosen to be my career path. The law school experience was filled with many highs and lows, which could easily be another book, let alone a chapter.

In my first year as a 1L, as we were referred to, I achieved a whooping grade of a D+ in criminal law taught by a former Manhattan district attorney in that fall semester. This was clearly a reality check and certainly humbled my desire to be a criminal lawyer. The redemption came two years later as a 3L taking a criminal process class and receiving an American Jurisprudence Award for the highest grade in the class with the very same professor.

The only thing that now stood in the way of my law career was the bar exam, which would determine whether you would be officially recognized by the state as an attorney and allowed the distinction of the suffix Esq. after your name as a testament to our English common law roots.

Sadly, more bar prep courses led to stress, anxiety, and fear of failure, knowing that without passing the multiple-choice multistate exam on day one and the state-specific exam filled with essays on day two, I could not go into the profession as a full-fledged attorney.

Thankfully, I had been hired for a one-year period as a judicial clerk for a Superior Court judge in the Family Part even without those test results which I would be waiting for. The disappointing news of not passing led to a second attempt where I would not only prepare like hell but I would go through hypnosis to take away the feelings of fear and anxiety that the bar exam brought.

The next time I sat for the bar exam was a different experience. I felt a calmness about myself and focus that I hadn’t had before, and while I was still nervous I felt strong and confident. The exam of February 1989 was completed and the news of my passing several months later was a tremendous relief. The weight of the world had been lifted from my shoulders.

Now I had to find a job after my judicial clerkship ended in August. I interviewed at a firm with approximately twelve attorneys as a young associate attorney. I will come back to and discuss this opportunity that I passed on at the end of this book. I also interviewed and was offered a job as an assistant prosecutor handling Family Part cases consisting of juvenile delinquency cases and domestic violence cases. This job sounded like a dream come true and I jumped at the opportunity and began my official career as a lawyer and assistant prosecutor in September 1989. At first I was so eager to learn the ropes and I felt like I was going to single-handily change the world by prosecuting these cases. What I didn’t know then was that I was walking right into a system of unequal justice. It would take many years of law to come to this conclusion.

At this point in my young career I was anxious to do justice and prosecute the bad guys. I had much to learn and a career of cases in front of me that would develop me as an attorney and a prosecutor. Cases would shape my thinking and develop my ability to read cases and to evaluate evidence. What would be the proofs necessary to sustain the state’s burden of proof beyond a reasonable doubt?

This was the question in every case. Is there enough evidence to tip the scales of justice to the state? I often asked, is the prosecution of this case justified or warranted? Should I, as a representative of the state, the people, the taxpayers, prosecute this case to the fullest extent? At what costs, and can I look myself in the mirror and say yes, the accused in this case is guilty, and yes, I can prove it and the evidence is there to support the charge or charges and that passion or conviction to fight? A word I will come back to.

Being a young assistant prosecutor I realized quickly that I could shine if I took the time and made the effort to step up. I wanted very much to get in front of a jury and show that I was comfortable in that setting. I wanted to show that I could overcome any fear of getting in front of a jury and perform and do my job as a representative of the people of the state of New Jersey.

I wanted very much to show the higher-ups in the administration that I was going to be a rising star in the office. I wanted to demonstrate that I was motivated to move from juveniles and domestic violence cases that were bench trials to real-life jury trials.

Before I moved up to the trial section, I handled a very unique case involving a Newark police sergeant. He was involved in a tumultuous relationship with his wife, which led to domestic violence. He had been stalking her and pursuing her for a number of months. This resulted in a number of violations of a restraining order that were issued against him. I had many concerns about the mental well-being of this police officer, and reported this to my superiors out of concern for his behavior and his continued actions in violating the restraining order, and for the safety and protection of the victim. On one particular occasion he had followed her to a party and was on top of a roof of an adjoining property, watching her and checking her whereabouts and who she was with. This resulted in a violation of restraining order, or a contempt charge.

As this police officer was not represented by counsel I spoke to him face-to-face and explained to him the dangers of his conduct, and how it could affect his employment status, and also his liberty. Shortly thereafter, he entered into his family home, where he was prohibited from returning to, and went into the bedroom to find that his wife was engaged in sexual intercourse with another man. He promptly shot this individual and killed him. I truly believed I would be called as a witness in this case, because I had such familiarity with this individual and his background and spoke to him just months prior and had raised concerns about his behavior and his conduct. I was not called as a witness in the case and ultimately, he was acquitted by a jury, and found not guilty of killing a defenseless, naked man. I truly was shocked by this verdict, but his attorney had done a skillful job of demonstrating that, as he believed, this person, the victim, was an intruder in the sergeant’s home, as bizarre as it sounds. The prosecutor in this case clearly had not thought this case through as his continued violations of the restraining order demonstrated his brazen and empowered attitude about his position as a law enforcement officer who was above the law. As a result of his not guilty and acquittal, he was promptly promoted to a captain by this police department and now collects a handsome pension thanks to taxpaying citizens. Clearly a case of unequal justice. This case serves as a glaring example of the injustices that exist within the criminal justice system. In a system that is meant to uphold fairness and justice, it is disheartening to witness such blatant favoritism and disregard for the rights of this defenseless victim, who was from a Hispanic community.

The jury, quite simply, did not feel that justice would be served if this officer was convicted and