Recently two cases involving juveniles charged with sexual assault respectively in Middlesex and Monmouth Counties, have come to the attention of New Jersey and national news media. The two Judges involved have been mercilessly criticized with calls for their resignations.
In both cases, the prosecutors asked that these juveniles be referred or waived to adult Court, pursuant to N.J.S.A 2A:4A-26.1.
Cases in which a Juvenile is charges with a crime normally are resolved in the Family Court. However, the State may seek waiver of the juvenile to adult court, without consent, by filing a motion for referral and a written statement of reasons. In adult court, the Juvenile will be treated the same as any adult and if incarcerated would serve terms in one of the New Jersey State prisons with men of all ages. A juvenile cannot be waived into the Law Division adult court unless the State can establish: 1) the juvenile was at least fifteen years of age at the time of the incident; and 2) probable cause exists that a certain enumerated crime was committed, including aggravated sexual assault and sexual assault. State in Interest of N.H., 226 N.J. 242, 251 (2016).
The court may still deny a referral motion, however, “if it is clearly convinced that the prosecutor abused [its] discretion” in considering the eleven factors enumerated in the statute. The prosecutor will be found to have abused his or her discretion if the decision: 1) fails to consider all relevant factors; 2) considered irrelevant or inappropriate factors: or 3) “amounted to a clear error in judgment.” State in the interest of V.A., 212 N.J. 1, 22 (2012).
Both trial judges denied the State’s motion for waiver. The cases were appealed and the New Jersey Appellate Division reversed, and held that the trial court mistakenly used it’s discretion. The cases were ordered to be tried in adult Court and the Juveniles subjected to all adult penalties.
The point of this blog is not to agree or disagree with the decision of the trial court. In New Jersey the function of the Appellate Division is to review decisions by trial courts. This was done herein. Trial Court’s are regularly reversed by the Appellate Court.
What is disturbing is the growing criticism by lawmakers, women’s groups and even presidential candidates, of the trial judges and calls for their resignation.
In New Jersey, Judges are appointed and not elected. This preserves their independence and hopefully makes them immune to politically based pressure and criticism.
The Separation of Powers doctrine protects the independence of the judiciary: The Separation of Powers doctrine devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances.
Three branches are created in the Constitution. The Legislative, composed of the House and Senate, is set up in Article 1. The Executive, composed of the President, Vice-President, and the Departments, is set up in Article 2. The Judicial, composed of the courts and the Supreme Court, is set up in Article 3.
Each of these branches has certain powers, and each of these powers is limited, or checked, by another branch.
The following are the powers of the Judiciary: the power to try cases and interpret the laws of the nation in cases and the power to declare any law or executive act unconstitutional.
I understand that politicians have an agenda of their own. However, it is very dangerous to suggest that a judge resign because his ruling was not popular, even if an Appellate Court agreed that it was erroneous. A Judge has tenure after serving 7 years to protect them from threats to force them to rule one way or the other.
I have not appeared before Judge Marcia Silva or Judge James Troiano and have no opinion regarding their Judicial ability. I do however believe, it sets a very dangerous precedent to call for the removal of a Judge because you disagree with their ruling or opinion in a particular case. Judicial opinion must be divorced from public opinion and the winds of politics.
The New Jersey Senate majority leader Loretta Weinberg called for the removal of both trial judges, as did Senate President Stephen Sweeney. She was joined by Middlesex County Senators Bob Smith, Joseph Vitale, Linda Greenstein and Patrick Diegnan, Jr. These office holders want Judge Silva removed because her judgment was carelessly poor. I fear for the quality of our legal system and the time honored rights of individuals charged with crimes, if Judges were removed from office because politicians viewed their judgments as poor.
Presidential hopefuls have jumped on the bandwagon of attacking these judges to enhance their campaign. U.S. Senator Kirsten Gillibrand of New York has tweeted about these cases and said: stop making excuses for perpetrators and stand up for those who have been violated. I would like to remind her that in America, individuals are still presumed innocent until and unless proven guilty. The judges in question were simply determining the appropriate court for the cases to be resolved.
United States Senator Cory Booker of New Jersey, another presidential hopeful, also stated the Judge should no longer serve as he is incapable of properly fulfilling his duties. While presidential candidates should be allowed to express their opinions, Judges should not be removed based on rulings in a case and should not be attacked by politicians seeking election to office.
It is agreed that victim’s of sexual assaults have rights and absolutely must be protected and treated with dignity and respect. However, removing Judges because of their legal rulings is simply wrong and does not satisfy this goal.
I must commend New Jersey Governor Phil Murphy who has very responsibly rejected these calls for resignation or removal. He has supported an investigation by the “appropriate judicial watchdogs” and properly supported the legal process being pursued.
It is critical to our legal process and the representation of individual accused of crimes, many of whom are very unpopular, that New Jersey has an independent judiciary who can make decisions based on their honest assessment of the law, facts and merits of legal argument presented and not based on fear of public and political disapproval and calls for removal from their positions.