State of the Judiciary Address

Thank you and good morning everyone. It’s an honor to share the podium again with Chief Judge Simandle, a wise, thoughtful, and gracious leader of the federal courts. Thank you for inviting both of us to speak with you this morning. I join in the Chief Judge’s comments and offer condolences to the friends and family of Bill McGuire, a leader of the Bar who will be missed.

This annual convention presents a wonderful opportunity for all of us to interact with friends and colleagues in the Bar. Let me acknowledge two colleagues in particular: Paris Eliades, who just completed his term as President of the State Bar. Paris is an exemplary advocate for the Bar and a true friend of the courts. We are grateful for his leadership and continued friendship.

And, Miles, congratulations to you. It’s good to see your broad smile after having taken the oath as president last night. We look forward to working with you this coming year on a number of important projects.

This morning, I’d like to speak about three projects that are critical to the Bar, the public, and our system of justice. Let me first thank the dedicated efforts of judges and staff who are responsible for the strong strides that we’ve made to date in all of these areas.

Last year, I reported briefly on the work of the Joint Committee on Criminal Justice, a special committee of the Supreme Court that examined the issues of bail reform and speedy trial. The committee was comprised of the Attorney General, the Public Defender, judges, representatives of the Executive and Legislative branches, prosecutors, defense counsel, and the ACLU.

The group made a series of recommendations, and a great deal has happened in the year since. The Legislature passed, and the Governor signed, landmark legislation that incorporates many of the recommendations made. And the citizens voted to amend the State Constitution in a manner that is consistent with the statute and recommendations. That means that today we are on the verge of one of the most significant criminal justice reform measures that our State has seen in quite some time, which will go into effect on January 1, 2017. That’s why it is worth talking about these changes regardless of what area you practice in.

What will the new law do? In short, it will substantially change our approach to setting bail and enact a speedy trial act for the first time in our State.

As for bail, we will shift from a system that relies principally upon setting monetary bail as a condition of release to a risk-based system that other states have used with success. That means we will shift from the current practice in which a dollar amount of bail is typically set, and poor defendants who pose little risk of danger or flight are sometimes held in county jail because they can’t make even modest amounts of bail.

A study done of the county jail population a year and a half ago showed that twelve percent of defendants held pretrial could not post bail in amounts up to $2500. They were held sometimes for months, at a cost estimated at $100 a day. Two-thirds of the individuals were members of minority groups.

There are real consequences for those held pretrial in this fashion. Poor defendants are cut off from families; they may lose their jobs; they may go without access to medication for a period of time. In terms of the charges against them, studies have shown that they face tougher plea offers, they face pressure to plead guilty because of the amount of time they have already spent in jail, and they receive longer sentences as compared to similarly-situated defendants who were able to make bail.

Meanwhile, under the current law -- which is set to change soon -- defendants with assets can post bail and be released even if they pose a serious risk of flight or danger.

What will happen under the new law? Instead of setting bail, judges will try to assess the level of risk that each defendant presents and impose conditions of release in response. To do that, judges will have the benefit of an objective risk-assessment tool that has been tested and validated with data from hundreds of thousands of actual cases in New Jersey. Judges will consider nine common-sense factors like the defendant’s age at the time of arrest, whether the defendant had pending charges at the time, any prior convictions, whether any of those involved violence, any prior failures to appear, and any prior jail sentences. With that information, each defendant will be classified as low, moderate, or high risk and will likely be released on a series of conditions without having to post bail.

The second big change is that those defendants released pretrial will be monitored and supervised by pretrial services officers -- as is the case in the federal system and a number of states. No easy task. We will need to have a functioning pretrial services agency in operation in New Jersey by January 1, 2017. We expect that the agency will be asked to conduct fifty to sixty thousand risk assessments per year, or more, and to complete them within forty-eight hours of each arrest. The agency will then supervise defendants on release based on the level of supervision that each defendant requires. For low-risk defendants, that could amount to nothing more than a phone call to remind them to show up in court. As the risk level increases, the nature of the monitoring will be enhanced as well.

Why are these changes important? For the simple reason that in other states that have done this -- let’s take Kentucky, as an example -- more defendants are being released pretrial, yet there has been no increase in the rate of failures to appear and there has been a drop in the arrest rate for defendants on supervision.

Kentucky is also detaining more high-risk defendants, which brings us to a third significant change to our system. With the constitutional amendment that passed last November, judges in New Jersey will soon have the authority to detain defendants, that is, to order them held without bail. That will apply in a small number of cases to defendants who pose a serious risk of flight, or a serious risk of danger to the community or to witnesses. Those defendants will no longer have a constitutional right to be released pretrial on bail.

As for speedy trial, practices vary across our State in terms of how fast a case moves to indictment and trial. We know that it can sometimes take many years for a case to go from arrest to trial. That’s not good for anyone involved in the process: not for defendants, who have charges hanging over their heads, whether they are in or out of custody; not for the prosecution, which has a more difficult time presenting cases with the passage of time, as memories dim and evidence may be lost; and not good for victims who sometimes have to wait a long time to see a case resolved.

The new statute set limits on the amount of time from arrest to indictment and from indictment to trial -- with appropriate extensions of time for pretrial motions, competency hearings, plea negotiations, the consent of the parties, and other valid reasons.

A lot of work is underway, with much more to be done by January 2017. In addition to developing and finalizing the risk-assessment tool, and creating a pretrial services agency within the Judiciary -- that will be housed throughout the State to work closely with criminal judges -- we now have a working group of judges, practitioners, and staff considering proposed rule changes. When they are ready, they will be published for comment by you.

Our IT staff has also been hard at work helping implement various changes to enable bail reform and speedy trial to proceed efficiently and smoothly.

The changes underway are a result, of course, of the efforts of the Governor, legislative leaders, and legislators, as well as the fine work of the Court Committee. The varied group of members who served on the Committee don’t always see eye-to-eye on issues in the criminal justice system, yet their recommendations were nearly unanimous. We will need the continued cooperation of all parties in the criminal justice system for these historic changes to take hold.

We’ll also need more judges appointed to the bench to handle the increased workload that the Criminal Division alone will face in light of the new law and its requirements. We are pleased to work with the Legislative and Executive Branches to help reduce the number of existing vacancies in any way that we can.

As you can tell, there are both hard deadlines and a number of moving parts to the new law, which require steadfast attention and creativity. There are a lot of people involved in that process. I want to pause to highlight one of them. Our State’s Judiciary is most fortunate to have Judge Glenn Grant as the Director of the Administrative Office of the Courts. He has been overseeing this process and its many challenges. He has approached them all with the same level of excellence, commitment, and grace that he brings to all of the tasks that he handles. We are all extremely grateful for that, and I am pleased to have the opportunity to thank him publicly. Thank you, Judge Grant, for all of your efforts.

Another change you may have heard about relates to the Judiciary’s new approach to handling complex commercial cases, which has been in place since January of this year. We have had an ongoing dialogue for a number of years with members of the Bar and the business community about how our courts have traditionally handled these types of cases, and how we might improve our efforts.

We formed a working group that was led by Judge Doyne and comprised of private practitioners, judges, legislators, and others. They examined the different ways that the Judiciary has handled complex commercial disputes. The group issued a report with a series of recommendations, which the Court adopted.

As a result, starting four months ago, one judge has been assigned in each vicinage to handle complex commercial matters from beginning to end. An impressive roster of judges has been selected for this assignment, and we will make every effort not to rotate them with frequency to allow for greater stability in this area of the law.

What does that mean for members of the Bar? If you have a case that involves a complex commercial or construction dispute with damages of more than $200,000, and complex factual or legal issues, or a large number of parties, or difficult or novel pretrial legal issues, you can designate the case on the Civil Case Information Statement. A judge will determine if the case qualifies for the program by looking at the pleadings or raising this issue at the first case-management conference. If the case is deemed eligible for the program, it will be assigned accordingly, and a single judge will handle it from start to finish. As part of the program, we have also encouraged the designated judges to publish more opinions to provide greater guidance to the Bar and industry.

I hope that the program will offer litigants a more timely and cost-effective way to approach business disputes. In the short while the program has been in effect, sixty-nine cases have been designated for this track. That’s a good start. But almost half of those cases are in two vicinages, Bergen and Middlesex, with only a smattering of cases in the remaining vicinages. I bring this to your attention now to encourage members of the Bar to try this program and give us feedback so that we can make improvements over time.

The last topic I would like to update you on relates to ongoing efforts to make greater use of technology throughout the court system. The courts have made substantial strides in the past five or six years with a number of projects that we believe have made the Judiciary more transparent, more accessible, and more user-friendly to the public and the Bar.

We now post a variety of materials online for ready use: opinions of the Tax Court; of the Disciplinary Review Board; and hundreds of model jury charges in criminal cases, as well as hundreds more for use in civil cases. In the last two years, lawyers, judges, and staff have used that system to generate jury charges or review model charges nearly ten thousand times. We have a complete index of civil judgments online. There’s also an online attorney index that lawyers and members of the public can use to check the status of the more than 70,000 registered attorneys in our State.

Almost all New Jersey lawyers now register online as part of the annual registration process. Twenty-five thousand did so in 2010, more than 65,000 did so this past cycle, and starting next year, online registration will be required for all attorneys, with a few sensible exceptions. It’s easy to register online, and as an added benefit, lawyers will be able to review and acknowledge that they understand new policies by simply clicking a mouse or touching an iPad.

We interact with jurors online. More than half respond to the standard jury questionnaire online. More than 700,000 jurors did so this past year alone, and those jurors can sign up to receive text messages from the court system. The AOC now sends out more than 24,000 text messages each month telling jurors if they have to report shortly before their designated date and on each day of their service. We are the first state in the nation to do so. We also invite jurors to download an app that gives them basic logistical information about where to go, where to park, and where to eat, as well as details about actual jury service. And there’s an attorney app that you can download with similar information about each vicinage.

Today, as well, victims of domestic violence can apply for a temporary restraining order without going to a courthouse. They can appear by way of videoconferencing equipment from seven hospitals throughout the State, and from ten safehouses in ten different counties. At the same time that they receive treatment, they can speak to a judge and court staff and seek a TRO and information about follow-up proceedings.

For practitioners here, the continued roll-out of electronic filing may be an important item on your list. Starting in mid- to late last year, attorneys began filing motions in criminal matters electronically. At the start, only prosecutors and public defenders participated in the program; it was recently opened up to private defense counsel as well. So far, more than ten thousand filings have been done electronically in this area.

Since February, Tax Court filings have been done electronically, and about three-quarters of tax filings today are handled in that way.

Our next projects relate to Family and Civil. The filings in these areas are more varied and more complicated. That will create more complex programming issues. We also anticipate a much higher volume. But we are committed to tackling these issues in the coming years, relying in part on the new dedicated funding source that the bail reform bill provides.

When we developed programs for motions to be filed electronically in Criminal and Tax, our IT staff worked with judges and practicing lawyers as they created the systems. We will take the same approach in Family and Civil to ensure that we develop the most sensible and user-friendly products for the bench and the Bar.

If you, or any practitioners you know, have an interest in getting involved in that process and working with the courts, send me or Judge Grant an e-mail to let us know. Better still, go to the lecture today at 11:30 a.m. You can see a demo, ask questions, and learn about the development of the e-courts project for the Civil Division. Judge Happas, Jack McCarthy, the Judiciary’s Chief Information Officer, and Jennifer Perez, the Director of Trial Court Services, will be leading that discussion. I especially want to thank Jack and Jennifer and so many other members of the Judiciary IT staff for their hard work and achievements to date.

In these and other areas, the successes that the Judiciary has been able to achieve are the result of cooperation between the bench and the Bar. The judges and the court system, as a whole, deeply appreciate the support of the State Bar and the County Bars in recent years. We welcome your continued help, suggestions, and any constructive criticism you may have, which is part of any healthy relationship.

This well-attended conference, with scores of judges and hundreds of law clerks among thousands of our colleagues in the Bar, is a good example of the continuing strength of the ties among us.

As part of that relationship, I thank you for inviting so many judges to participate on panels this week and in other ways, and for asking Chief Judge Simandle and me to speak to you again this morning.

I hope that you enjoy the balance of the programs and take advantage of the camaraderie that this convention fosters.

Thank you very much.