WEBVTT 2 00:00:12.007 --> 00:00:19.249 YOU DID TPHOTNOT LOOK UM YOU ARE STILL IN úTHESE CHAIRS TELL US WHY DOUGH. ú MONICA 3 00:00:19.249 --> 00:00:22.990 DO OUTEIRO: THE STATE DOESN'T HAVE REBUTTAL. ú CHIEF JUSTICE RABNER: YOU DIDN'T 4 00:00:22.990 --> 00:00:27.499 ASK TOR REBUTTAL. ú JUSTICE NORIEGA: SHE DID DOUGH TOY I DON'T FEEL IT'S úNEEDED 5 00:00:27.499 --> 00:00:33.447 I'M HAPPY TO ALLOW TO MOVE ON. ú CHIEF JUSTICE RABNER: THANK YOU. UYOU LOOK 6 00:00:33.447 --> 00:00:37.893 ONEDWONDERFUL úTHERE. TPIF COUNSEL COULD STEP FORWARD IN FERNANO J. úGARCIA-MORONTA. 7 00:00:37.893 --> 00:01:43.989 CAN WE PLEASE HAVE APPEARANCES OF COUNSEL ú00000046APPEAR(APPEARANCES ENTERED.) ú 8 00:01:43.989 --> 00:01:48.023 CHIEF JUSTICE RABNER: GOOD AFTERNOON AND WEPL WEPLLCOME. ú THE COURT: MS. 9 00:01:48.023 --> 00:01:56.446 LINED HURS IF EUI COULD ASK YOU TO úAPOLOGIZE I DEPARTMENT REALEEIZE WE KEPT EVERYBODY 10 00:01:56.446 --> 00:02:01.314 WAITING. NEXT úTIME COME KNOCK ON THE DOOR I'M GOING TO INVITE COUNSEL HAVE ALL úOF YOU 11 00:02:01.314 --> 00:02:05.810 BEEN HERE FOR THE EARLIER PROCEEDING. HAS ANYONE NOT úBEEN HERE FOR THE EARLIER PROCEEDING. 12 00:02:05.810 --> 00:02:11.144 TO THE EXTENT THAT IT IS úPRACTICEAL YOU ARE WELLCOME TO ADOPT WHAT HAS PREVIOUSLY BEEN 13 00:02:11.144 --> 00:02:17.798 úPRESENTED TO THE COURT TO TRY TO SHORT ENEN THE ARGUMENT AND WE úWON'T NEED TO NEED TO 14 00:02:17.798 --> 00:02:24.279 COVER THIS OF SA GROUND MR. MARK PLEASE GO úAHEAD MARKInclude File Not FoundMARK MARKInclude 15 00:02:24.279 --> 00:02:28.055 File Not FoundMARK MAR. ú ERIC M. MARK: MAY IT PLEASE THE COURT MAY I RESERVE 16 00:02:28.055 --> 00:02:31.848 úSOME TAOEUPLIME FOR REBUTTAL. ú CHIEF JUSTICE RABNER: YES MAR. ú ERIC M. 17 00:02:31.848 --> 00:02:37.088 MARK: THE FEDERAL GOVERNMENT IS PATROLMAN úREPUBLICANING ON BASIC HUMAN RIGHTS IN THIS 18 00:02:37.088 --> 00:02:42.145 COUNTRY. NEW JERSEY úHALLS A DUTY NOT TO BE KPHREUSCOMPLICIT IN THAT. UN UNFORTUNATELY 19 00:02:42.145 --> 00:02:48.359 A úPLANNING ET POLICY AND THE FREQUENT ISHSUANCE OF BENCH WARRANTS úFOR THOSE IN ICE CUSSTODY 20 00:02:48.359 --> 00:02:53.963 AN COMPORTED IS BEING KPHREUSCOMPLICIT WITH úTHAT PATROLMAN REPUBLICANING OF RIGHTS. 21 00:02:53.963 --> 00:03:00.600 IT SEPARATES FAMILY úSEPARATE RATES PEOPLE FROM THEIR HOUSES FROM THEIR BUSINESSES IT 22 00:03:00.600 --> 00:03:09.194 úDENIES THEM THEIR RIGHTS BEFORE THIS AND OTHER COURTS. AT THE AS úTHE COURT HAS BEEN 23 00:03:09.194 --> 00:03:13.749 SEARCHING FOR THIS MORNING AND ALL THE úPARTIES HAVE BEEN SEARCHING FOR IS A SOLUTION 24 00:03:13.749 --> 00:03:18.946 TO THE PROBLEM úIT'S NOT AN AOESEASY PROBLEM. THERE ARE A LOT OF COMPETEING 25 00:03:18.946 --> 00:03:23.908 ú00000047INTERESTS. THE DEFENDANT HAS RIGHTS TO SPEEDY TRIAL TO HIS DAY úIN COURT AND 26 00:03:23.908 --> 00:03:28.777 THE VICTIMS HAVE RIGHTS TO BE IN COURT TO HEAR úTHEIR CASES BEING HEARD. THE STATE HAS 27 00:03:28.777 --> 00:03:34.801 RIGHTS TO PROSECUTE CASEúCASES AN SOCIETY HAS A RITE TO SEEK CASES SEEN THROUGH. úBALANCING 28 00:03:34.801 --> 00:03:40.750 ALL THOSE INTERESTS IS EXTRAORDINARYILY DIFFICULT. I úCOME TO THIS FROM A DIFFERENT 29 00:03:40.750 --> 00:03:45.818 PERSPECTIVE THAN MOST IN THIS úCOURTROOM. AS EUI PRACTICE BOLT CRIMINAL DEFENSE AN IMMIGRATION 30 00:03:45.818 --> 00:03:50.771 úAND AS I'VE READ THE BRIEFS AND HEARD THE QUESTIONS AND ANSWERS úTODAY'S I CAN SEE 31 00:03:50.771 --> 00:03:55.652 THERE'S A LOT OF GAPS AND I'M HOPEING TO COURT úTO HELP FILL SOME OF THOSE GAPS TO FINES 32 00:03:55.652 --> 00:04:00.582 A SOLUTION. BEFORE I úGET TO THAT THOUGH I WOULD PROPOSE A SOLUTION. IT'S A LITTLE 33 00:04:00.582 --> 00:04:08.170 úBIT LONG AND I ASK THE COURT TO INDULGE ME. ú MY ASSERTION IS THAT EVERYBODY 34 00:04:08.170 --> 00:04:13.437 MUST FULLFILL THEIR OBLúOBLIGATIONS EVERY PARTY TO THEY ARE KAURT MUST FULLFILL THEIRS 35 00:04:13.437 --> 00:04:17.486 úOBLIGATIONS DEFENDANTS MOSS TAKE THE STEPS NECESSARY TO úPARTICIPATE IN THE COURT 36 00:04:17.486 --> 00:04:23.388 PROCEEDINGS, WORK WITH COUNSEL, REQUEST úREQUEST RELATE APPEARANCES MAKE THEMSELVES AVAILABLE. 37 00:04:23.388 --> 00:04:29.602 THE STATE úMUST PURSUE ALL AVENUES AVAILABLE TO THEM. WRITS TO PRODUCE úEXTRADITION, 38 00:04:29.602 --> 00:04:37.396 CONSENTING TO VIRT APPEARANCES. THE COURT MUST úFACILITATE THESE THINGS BY PROVIDING 39 00:04:37.396 --> 00:04:42.063 THE TECHNICAL AN LODGE EUSGISTICAL úEQUIPMENT TO MAC THISTHIS HAPPEN. THE COURT CANNOT 40 00:04:42.063 --> 00:04:47.700 BE STUB OTHER úTHAN IN HAVING BLANKET POLICIES WE MUST PROVIDE LARGE SCREENS úGOOD SPEAKERS, 41 00:04:47.700 --> 00:04:54.513 MIKECROPHONES THAT WORK WELL. TPIF ALL THE PARTIES úWORK TOGETHER RESTOLUTION IS 42 00:04:54.513 --> 00:05:01.552 POSSIBLE PERHAPS LIKELY. TPIF RESTúRESOLUTION PROVES I AMMPOSSIBLE THERE ARE THREE POSSIBLE 43 00:05:01.552 --> 00:05:09.191 OUTCOMES ú00000048REMOTE TRIAL DISMISSAL OR SOMETHING IN LIEU OF A BARN AS EUI úBELIEVE 44 00:05:09.191 --> 00:05:14.789 IN PROBABLY DISCUSSED BENCH WARRANTS ARE NOT THE PROPER úVEHICLE FOR THIS SITUATION. 45 00:05:14.789 --> 00:05:22.482 THE ATTORNEY GENERAL HAS PROPOSED úAN KNOWNOTATE BENCH WARRANTS AND I'LL ARTICULATE LATER 46 00:05:22.482 --> 00:05:26.379 WHY I DON'T úTHINK THAT'S APPROPRIATE. BUT IF WAOEE FOLLOW THESE GUIDELINES DISúDISMISSAL 47 00:05:26.379 --> 00:05:33.502 BECOMES LIKELY ON A LARGE PERCENTAGE OF CASES THAT THE úSTATE WILL NOT PURSUE IT'SS 48 00:05:33.502 --> 00:05:38.213 RESPONSIBILITIES FOR. THEY JUST IT IS TIME úCONSUMEING DEMANDSING THEY WILL NOT FOLLOW 49 00:05:38.213 --> 00:05:44.051 ALL THE WRITS THEY WILL úNOT FOLLOW EXTRADITION ON ALL THE CASES. THEY WILL HAVE TO 50 00:05:44.051 --> 00:05:48.920 úCHOOSE WHICH ONCE ARE PRIORITIES AN WHICH ONCE ARE NOT. AN úMAYBE THEY WILL PURSUE AND 51 00:05:48.920 --> 00:05:53.319 THAT WILL CONVINCE THE FEDERAL úGOVERNMENT TO BE MORE COOPERATEIVE. BUT IF THE STATE 52 00:05:53.319 --> 00:05:58.344 CHOOSES NOT úTO PURSUE THEIR OBLIGATIONS THAT SHOULD RESULT IN DISMISSAL IT úMUST RESULT 53 00:05:58.344 --> 00:06:02.639 IN DISMISSAL BECAUSE THEY ARE MAKEING A STATEMENT úTHIS THIS CASE IT NOT SUFFICIENTLY 54 00:06:02.639 --> 00:06:09.034 IMPORTANT AND IT SHOULD NOT úCONTINUE TO HINDER THAT DEFENDANT'S LIFE INDEFINITELY. THE 55 00:06:09.034 --> 00:06:15.197 SAME úGOES FOR THE DEFENDANT. THE DEFENDANT MUST CONTINUE TO úPARTICIPATE. TPIF THE 56 00:06:15.197 --> 00:06:21.355 DEFENDANT REFUSES TO COME OUTS OF HIS CELL úTO APPEAR ON A VIRT PROCEEDING OR REFUSES 57 00:06:21.355 --> 00:06:25.914 TO LOG IN A BENCH úWARRANTS BECOMES APPROPRIATE BECAUSE THAT IS A TRADITIONAL úSITUATION 58 00:06:25.914 --> 00:06:30.897 OF VOLITION ALAL REFUSEAL TO PARTICIPATE IN COURT AND A úBENCH WARRANT IS APPROPRIATE. 59 00:06:30.897 --> 00:06:38.396 TPIF EVERYBODY THE STATE AND THE úDEFENDANT DOES EVERYTHING THAT THEY ARE REQUIRED TO 60 00:06:38.396 --> 00:06:44.765 DO AND THAT úWOULD BE A LIMITED NUMBER OF CASES AND ONLY THING HINDERING CASE úFROM 61 00:06:44.765 --> 00:06:49.337 PROCEEDING IS THE FEDERAL COURT IS THE FEDERAL GOVERNMENT ú00000049AND IT'SS ERER 62 00:06:49.337 --> 00:06:54.606 INTERFERENCE IT'S REFUSEAL TO COMPLY WITH THE STATE'S úREQUEST OR IT'SS DE PORTPORTING 63 00:06:54.606 --> 00:06:59.179 SOMEONE IS OR NOT PRODUCEING THEM OR úTAKING THEM OUT OF STATE CUSSTODY WHATEVER THE 64 00:06:59.179 --> 00:07:04.933 INTERFERENCE THEN úWE HAVE TO CONSIDER REMOTE APPEARANCES AT THAT POINT. AND WITH úTODAY'S 65 00:07:04.933 --> 00:07:10.491 TECHNOLOGY AND WITH THE PHOETMOTIVATION OF THE PARTIES IN úTHESE CASE IS IT SHOULD BE 66 00:07:10.491 --> 00:07:17.029 DOABLE. IF THE STATE ARE YOULY WANTS úTO LITIGATE THESE CAN HES CASES THEY CAN DO SO 67 00:07:17.029 --> 00:07:21.966 IF THE DEFENDANTS WANTS úTO LITIGATE THEY CAN DO SO. MANY OF THE DEFENDANTS ARE 68 00:07:21.966 --> 00:07:26.069 PHOETMOTIVATEúMOTIVATED TO DO SO SO THEY CAN ARE THE OPPORTUNITIES TO RURP TO úTHEIR FAMILIES 69 00:07:26.069 --> 00:07:29.939 AN HOMES AND BUSINESSES. ú CHIEF JUSTICE RABNER: COUNSEL CAN WE ASK YOU TO 70 00:07:29.939 --> 00:07:35.869 FILL úIN WITH SOME DETAILS WHAT PRECISELY ARE THE STATE'S OBLIGATIONS úAS YOU SEE IT THAT 71 00:07:35.869 --> 00:07:41.885 THEY MUST FOLLOW ON MAR. ú ERIC M. MARK: THE STATES'S OBLIGATIONS FROM THE 72 00:07:41.885 --> 00:07:48.876 úBEGINNING ARE TO ASK THE COURTS AND ASK THE FEDERAL GOVERNMENT úTO MAKE THE DEFENDANTS 73 00:07:48.876 --> 00:07:56.329 AVAILABLE. SO AS PH MR. MORONTA'S CASE I úAPPEARED IN COURT I REQUESTED TO HAVE 74 00:07:56.329 --> 00:08:00.421 TELEPHONIC APPEARANCE. WE úDID TPHOTNOT AS THE GOVERNMENT NOTES REQUESTED VIRTUAL APPEARANCE 75 00:08:00.421 --> 00:08:04.518 úBECAUSE AT THAT TIME MOW SHAPBSHANNON HAD A POLICY TO NOT TO ALLOW úVIDEO APPEARANCES. 76 00:08:04.518 --> 00:08:08.853 THAT WAS BEFORE THE LAWSUIT COMPELLING THEM úTO PROVIDE THAT. ú CHIEF JUSTICE 77 00:08:08.853 --> 00:08:12.044 RABNER: WHEN YOU SAY MAKE AVAILABLE DO úUYOU MEAN REMOTE MAR. ú ERIC M. MARK: 78 00:08:12.044 --> 00:08:14.754 CORRECT. ú CHIEF JUSTICE RABNER: OR IN PERSON MAR. ú00000050 ERIC M. MARK: 79 00:08:14.754 --> 00:08:23.552 REMOTE. THEY I DID REQUEST AT THE úTRIAL COURT A WRIT TO PRODUCE MR. TKPWAURZ FROMGARCIA 80 00:08:23.552 --> 00:08:29.387 HE WAS AT MOW SHAPBSHANNON AND úTHAT WAS AT MY REQUEST FOR THE COURT TO ISHSUE A WRIT 81 00:08:29.387 --> 00:08:38.341 WHICH WAS úSHOT DOWN BECAUSE THE AOUPBUNION COUNTY SHERIFF'S REFUSES TO úTRANSPORT. ú 82 00:08:38.341 --> 00:08:41.863 CHIEF JUSTICE RABNER: WOULD YOU TICK OFF FOR US WHAT úTHE STATE'S OBLIGATIONS ARE 83 00:08:41.863 --> 00:08:47.076 MAR. ú ERIC M. MARK: I BELIEVE THE STATE'S OBLIGATION WAS TO úAGREE TO THE 84 00:08:47.076 --> 00:08:54.421 TELEPHONIC APPEARANCE, AGREE NOW IF IT'S POSSIBLE úTO THROUGH A VIDEO APAOERPBGS OR APPEARANCE 85 00:08:54.421 --> 00:09:00.745 OR REQUEST THE WRIT TO PRODUCE úTHAT FOR SOMEBODY WHO WAS IN ICE CUSSTODY. AT THAT POINT 86 00:09:00.745 --> 00:09:07.287 IN THE úPROCESS THAT IS THE STATE'S OBLIGATION. TPHIN OUR CASE CASE REQUESTED A úBENCH 87 00:09:07.287 --> 00:09:13.015 WARRANT AND THAT IS WHY MR. GARCIA'S CASE SHOULD BE úDISMISSED BECAUSE THE STATE REFUSED 88 00:09:13.015 --> 00:09:17.225 TO FACILITATE HIS úPARTICIPATION IN COURT CHOOSEING A BENCH WARRANT FOR SOMEBODY WHO 89 00:09:17.225 --> 00:09:26.017 úWAS TRYING TO PARTICIPATE. THAT THOSE THINGS SHOULD CONTINUE úFOR ANYONE WHO REMAINS 90 00:09:26.017 --> 00:09:31.576 IN ICE CUSSTODY REMOTE APPEARANCE úTELEPHONIC APPEARANCE OR WRIT TO PRODUCE. EACH ONE 91 00:09:31.576 --> 00:09:36.944 HAS IT'SS OWN úLIMBITATIONS AN PROBLEMS BUT THEY SHOULD BE WORKABLE IN MOST CASEúCASES 92 00:09:36.944 --> 00:09:44.741 FOR CONFERENCES FOR ARRAIGNMENTS FOR MANY OTHER PROCEEDúPROCEEDINGS THAT NEED TO BE DONE. 93 00:09:44.741 --> 00:09:50.851 ú CHIEF JUSTICE RABNER: ARE ALL THE FACILITATES USING úREMOTE PROCEEDING NOW 94 00:09:50.851 --> 00:09:54.311 IS THAT A PROBLEM TODAY MAR. ú ERIC M. MARK: THERE ARE NO PROBLEMS NOW THAN 95 00:09:54.311 --> 00:09:59.007 THAT IN úTHE SENSE THAT AT THE TIME THESE CASES WERE FILED THE VAST PHAú00000051MAJORITY 96 00:09:59.007 --> 00:10:03.827 OF NEW JERSEY DETAIN AOES WERE BEING HELD AT MOW SHAPBSHANNON. ú CHIEF JUSTICE 97 00:10:03.827 --> 00:10:08.006 RABNER: I'M ASKING ABOUT TODAY MAR. ú ERIC M. MARK: TODAY THERE ARE STILL MANY 98 00:10:08.006 --> 00:10:12.937 HELD AT MOW úSHAPBúMOSHANNON BUT THERE ARE A LOT IN AGAIN AND BEING TELLED IN TAKESEXAS 99 00:10:12.937 --> 00:10:18.808 úAN NEW PHAEBGSMEXICO AND IN VERY DISTANCE PLACES WHERE WRITS TO PRODUCE úBECOME MORE 100 00:10:18.808 --> 00:10:23.463 CHALLENGEING. ú JUSTICE PATTERSON: ARE YOU BUT ARE THEY ALLOWING VIDEO OR 101 00:10:23.463 --> 00:10:27.466 úTELEPHONIC COURT APPEARANCES MAR. ú ERIC M. MARK: THE DEFAULT POSITION FOR ICE 102 00:10:27.466 --> 00:10:33.306 IS NO. úTHEY ARE NOT ALLOWING VIDEO. MOW SHAPBSHANNON SRALVALLEY ALLOWS VIDEO úBECAUSE 103 00:10:33.306 --> 00:10:39.685 THEY'RE THEY'VE BEEN ORDERED TO BY THE DISTRICT FOF PENNSYLVANIA. úBUT OTHER FACILITIES 104 00:10:39.685 --> 00:10:44.987 ARE SUBJECT TO THEIR OWN POLICIES AND THERE úIS. ú JUSTICE PATTERSON: ARE THEY 105 00:10:44.987 --> 00:10:51.015 NOT ALLOWING ANY úTELEPHONIC APPEARANCES MAR. ú ERIC M. MARK: THEY ARE I CAN'T 106 00:10:51.015 --> 00:10:57.319 SPEAK FOR AOEU-- I'VE NOT úHAVE EXPERIENCE WITH EACH AND EVERY FACILITY. IT'S DIFFICULT 107 00:10:57.319 --> 00:11:01.270 úMANY OF THE FACILITIES THAT THE GENERAL ICE POLICY IS THAT THEY úDO TPHOTNOT PRODUCE 108 00:11:01.270 --> 00:11:07.266 AN MAKE AVAILABLE A PHONE BOOTH OR VIDEO BEAT. úTHEY DO TPHOTNOT PRODUCE THEIR DETAIN 109 00:11:07.266 --> 00:11:11.402 AOES FOR STATE COURT PROCEEDúPROCEEDINGS CRIMINAL FAMILY OR OTHERWISE. ú CHIEF JUSTICE 110 00:11:11.402 --> 00:11:16.769 RABNER: WHEN YOU SAY AND SPECIFICALLY úWHAT ARE YOU SAYING IS THE STATE AS OBLIGATION 111 00:11:16.769 --> 00:11:20.815 MAR. ú ERIC M. MARK: THE STATE'S OBLIGATION IS TO MAKE THE úREQUEST. ú00000052 112 00:11:20.815 --> 00:11:23.101 CHIEF JUSTICE RABNER: JUST SENDS A LETTER MAR. ú ERIC M. MARK: NO IT'S 113 00:11:23.101 --> 00:11:27.028 HAS TO BE A WRIT. ú CHIEF JUSTICE RABNER: IT HAS TO BE MAR. ú ERIC M. 114 00:11:27.028 --> 00:11:31.155 MARK: FOR A EUI VIDEO APPEARANCE THE STATE úSHOULD BE REACHING OUT TO ICE TO THAT 115 00:11:31.155 --> 00:11:35.842 FACILITY. ú CHIEF JUSTICE RABNER: A WRIT FOR A VIDEO APPEARANCE úMAR. ú ERIC 116 00:11:35.842 --> 00:11:40.229 M. MARK: TAKE WHATEVER STEPS ARE APPROPRIATE FOR úTHAT FACILITY. TPHIN IT MIGHT BE A 117 00:11:40.229 --> 00:11:43.172 WRIT IT MIGHT BE A REQUEST FOR úA VIDEO APPEARANCE. ú JUSTICE PATTERSON: TO 118 00:11:43.172 --> 00:11:48.527 GET AEU TELEPHONIC OR VIDEO AOEU-- I úTHINK WE'RE RIGHT NOW FOCUSSING ON VIDEO APPEARANCES 119 00:11:48.527 --> 00:11:53.301 REMOTE AúAPPEARANCES VIDEO AND TELEPHONIC MAR. ú ERIC M. MARK: THEN I BELIEVE 120 00:11:53.301 --> 00:11:58.819 YOUR OBLIGATION IS FOR úTHE STATE TO REACH OUT TO ICE TO MAKE THAT REQUEST. ú CHIEF 121 00:11:58.819 --> 00:12:03.732 JUSTICE RABNER: AND HOW WHAT IS YOUR POSITION úAS TO WHAT THEIR OBLIGATION IS REACH OUT 122 00:12:03.732 --> 00:12:11.588 IN THE TPOPL OF A úLETTER? SOMETHING ELSE? MARú ERIC M. MARK: I. ú CHIEF 123 00:12:11.588 --> 00:12:15.042 JUSTICE RABNER: THE REASON I'M ASKING FOR YOUR úDETAILS IS YOUR ARGUMENT IS IF THE STATE 124 00:12:15.042 --> 00:12:20.887 DOESN'T FULLFILL THE OBLúOBLIGATION THE CASE IS DISMISSED SO I WANT YOU TO SPECIFIC FOR 125 00:12:20.887 --> 00:12:26.011 úWHAT THE OBLIGATIONS ARE MAR. ú ERIC M. MARK: PROBABLY IN A LETTER FORM. MOST 126 00:12:26.011 --> 00:12:33.092 OF THE úAOEU-- AND THE STATE PROBABLY HAS ABGCCESS TO SOME WAY TO CONTACT ICE úTHAT 127 00:12:33.092 --> 00:12:38.859 PRIVATE COUNSEL DOES NOT ALWAYS HAVE BUT THEY HAVE E-MAIL ú00000053ADDRESSES THAT ARE AVAILABLE 128 00:12:38.859 --> 00:12:43.965 OR ARE PROBABLY THE MOST RELIABLE WAY úTO REACH ICE UNLESS THERE'S SOMETHING AVAILABLE 129 00:12:43.965 --> 00:12:48.776 TO THE STATE. ú JUSTICE WAINER APTER: UNLIKE IN THE PRIOR CASE IT WAS úTHE STATE 130 00:12:48.776 --> 00:12:52.604 OBJECTING TO A REMOTE APPEARANCE CORRECT MAR. ú ERIC M. MARK: IN OUR CASE IT 131 00:12:52.604 --> 00:12:56.814 WAS THE STATE THAT úOBJECTED TO THE REMOTE APPEARANCE. ú CHIEF JUSTICE RABNER: 132 00:12:56.814 --> 00:12:58.766 . ú JUSTICE WAINER APTER: SO IN THE PRIOR CASE WE ARE úWERE DISCUSSING WHETHER 133 00:12:58.766 --> 00:13:05.076 DEFENDANT BUT MY QUESTION IS HERE úDEFENDANT WAS TRYING TO ARRANGE REMOTE APPEARANCE AND 134 00:13:05.076 --> 00:13:08.568 THE STATE úOBJECTED MAR. ú ERIC M. MARK: CORRECT. ú JUSTICE HOFFMAN: 135 00:13:08.568 --> 00:13:16.114 DOES YOUR ARGUMENT DISTINGUISH úBETWEEN AN INITIAL OR AN ARRAIGNMENT A TRIAL A 136 00:13:16.114 --> 00:13:19.720 SENTENCEING OR IS úYOUR ARGUMENT GENERAL FOR ALL PROCEEDINGS MAR. ú ERIC M. MARK: 137 00:13:19.720 --> 00:13:23.791 MY ARGUMENT IS GENERAL FOR ALL PROCEEDúPROCEEDINGS THOUGH WHAT WOULD BE 138 00:13:23.791 --> 00:13:28.172 NECESSARY WOULD DEPENDS ON WHAT úTYPE OF PROCEEDING POSSIBLY. IN OTHER WORDS I THINK 139 00:13:28.172 --> 00:13:34.368 IN AN úARRAIGNMENT CAN AOESEASILY BE DONE THEREONICALLY TIPYPICALLY SPEAK AN 140 00:13:34.368 --> 00:13:38.579 úARRAIGNMENT IS THE DEFENDANT DOES NOT NEED TO SPEAK NEEDS TO úHEAR HELPS RIGHTS ATTORNEY 141 00:13:38.579 --> 00:13:46.891 WEIGHTS IT'S PRETTY STRAIGHT FORWARD. úOTHER PROCEEDINGS MIGHT REQUIRE BETTER MORE 142 00:13:46.891 --> 00:13:51.289 PARTICIPATION FROM úTHE DEFENDANT OR VIEWING THE DEFENDANT MIGHT REQUIRE VIDEO. I úBELIEVE 143 00:13:51.289 --> 00:13:56.268 THIS WORKS AS WELL FOR MOTIONS TO DISMISS. MOTIONS TO úSUPPRESS. TPIF THEY CAN BE ON 144 00:13:56.268 --> 00:14:00.917 VIDEO THERE'S REALLY NO REASON THAT úTHOSE TYPES OF THINGS CANNOT PROCEED VIRTUALLY. 145 00:14:00.917 --> 00:14:04.862 ú00000054 JUSTICE PATTERSON: DOES THE PRETRIAL PROCEEDINGS NOT úGETTING TO TRIAL 146 00:14:04.862 --> 00:14:09.807 YET. DOES THE DEFENDANT HAVE AN OBLIGATION TO úCONSENT TO REMOTE PROCEEDINGS MAR. ú 147 00:14:09.807 --> 00:14:14.189 ERIC M. MARK: YES IN MY PROPOSEAL YES THE DEFENDANT úHAS AN OBLIGATION TO CONSENT. ú 148 00:14:14.189 --> 00:14:19.563 JUSTICE NORIEGA: I'M ASSUMEING YOUR EXPERIENCE IN úCRIMINAL CASES WHAT IS THE 149 00:14:19.563 --> 00:14:25.493 LEVEL OF PARTICIPATION OR COOPERATION úTHAT YOU SEE IN YOU'VE SEEN FROM COUNTY PROSECUTOR'S 150 00:14:25.493 --> 00:14:32.145 OFFICES IN úTERMS FOF GETTING INVOLVED WITH ICE DIRECTLY OR REACHING OUT ON úAT YOUR BEEHEST 151 00:14:32.145 --> 00:14:37.041 MAR. ú ERIC M. MARK: I HAVE WORKED WITH ASSISTANT úPROSECUTORS WHO HAVE BEEN 152 00:14:37.041 --> 00:14:41.129 REALLY COOPERATEIVE AND REALLY VESTúINVESTIGATED IN MAYINGKING THOSE CONTACTS. I'VE WORKED 153 00:14:41.129 --> 00:14:46.420 WITH COURT úSTAFF SOME OF THE CLERKS WHO HAVE BEEN VERY PRO ACTIVE IN REACHúREACHING OUT 154 00:14:46.420 --> 00:14:51.320 TO ICE AND TO THE FACILITIES TO ARRANGE AND I'VE úWORKED WITH SOME WHO ARE ABSOLUTELY 155 00:14:51.320 --> 00:14:56.549 OBSTRUCT ITION ANDAND JUST WANTS úA BENCH WARRANTS AND THAT IS WHERE I THINK WHERE 156 00:14:56.549 --> 00:14:59.961 WE'RE SAYING úBENCH WARRANTS WE'RE NOT HERE THAT'S WHERE I BELIEVE THE STATE AúA-FAILING. 157 00:14:59.961 --> 00:15:03.247 ú THE SPEAKER: . ú JUSTICE NORIEGA: IN THE SNAPS WHERE THEY'RE 158 00:15:03.247 --> 00:15:06.675 COOPERATEúCOOPERATING HAS THERE BEEN SUCCESS IN TRYING TO GET AEU DEFENDANT úPRESENT IN 159 00:15:06.675 --> 00:15:12.530 COURT MAR. ú ERIC M. MARK: YES. I WOULD SAY THAT WHERE THE STATE úIS ACTIVELY 160 00:15:12.530 --> 00:15:18.336 ENGAGED IN SECURING THE DEFENDANT'S REMOTE úPARTICIPATION OR WRITING THEM TO APPEAR THAT 161 00:15:18.336 --> 00:15:24.482 IT ALMOST ALWAYS ú00000055HAS RESULTED IN SUCCESSFUL RESTOLUTION OF THOSE CASES. ú 162 00:15:24.482 --> 00:15:29.368 THE SPEAKER: IS THAT USUALLY STATE TO AOEUTS WITHOUT úTHE DEFENSE INVOLVEMENT OR COURT 163 00:15:29.368 --> 00:15:33.036 MAR. ú ERIC M. MARK: IR HELPSSITATEHESITATE TO USE USUALLY. 164 00:15:33.036 --> 00:15:38.996 SOMETIMES úIT'S THE COURT DIRECTLY SOMETIMES IT'S THE PROSECUTOR DIRECTLY, úSOMETIMES THE 165 00:15:38.996 --> 00:15:47.003 DEFENSE IS INVOLVED. KIND OF AOEU-- SO LONG AS úEVERYONE IS ON BOARD IN MAKEING THE REQUEST. 166 00:15:47.003 --> 00:15:53.845 PARTICULARLY WITH úWRITS. I KNOW WE'VE BEEN FOCUSSING ON REMOTE APPEARANCES. BUT 167 00:15:53.845 --> 00:15:57.742 úPARTICULARLY WITH WRIT MRS. IMAGINEMAGIC ATLANTICLANGUAGE THAT HAS TO BE úINCLUDED. 168 00:15:57.742 --> 00:16:02.751 IT CAN'T BE A REQUEST TO PRODUCE IT HAS TO BE A WRIT úAND I THOUGHT I SUBMITTED THIS IN 169 00:16:02.751 --> 00:16:09.607 MY A-PEND I CANS I DON'T THINK úI DID BUT THE ATLANTICLANGUAGE MUST INCLUDE ALONG THE 170 00:16:09.607 --> 00:16:16.025 LINES THAT THE DEúDETAINEE WILL BE TRANSFERRED TO STATE CUSSTODY OR REMAIN IN STATE úCUSSTODY 171 00:16:16.025 --> 00:16:21.076 UNTIL THE PROCEEDINGS IS CONCLUDED AND WILL BE RETURNED úTO ICE. TPIF THAT IS NOT INCLUDED 172 00:16:21.076 --> 00:16:25.440 ICE WILL NOT HONOR THE WRIT. ú CHIEF JUSTICE RABNER: IF THE SHERIFF'S OFFICE 173 00:16:25.440 --> 00:16:29.230 DEúDECLINED TO TRAVEL THE 3 HUNDRED MILES EACH WAY THEN WHAT MAR. ú ERIC M. MARK: 174 00:16:29.230 --> 00:16:34.519 THEN THE WRIT IS MEANINGLESS. IT THE úICE WILL NOT PRODUCE. ú CHIEF JUSTICE RABNER: 175 00:16:34.519 --> 00:16:38.230 WHAT HAPPENS TO THE PROCEEDING úMAR. ú ERIC M. MARK: IF IT CAN'T PROCEED VIRTUALLY 176 00:16:38.230 --> 00:16:46.697 THEN WELL úI WOULD SAY IF THE SHERIFF'S WON'T COMPLY THAT'S HEY FAILURE OF úTHE STATE 177 00:16:46.697 --> 00:16:50.398 AND THAT WOULD HAVE TO RESULT IN DISMISSAL. ú JUSTICE PATTERSON: WHAT IF THE 178 00:16:50.398 --> 00:16:54.028 DEFENDANT'S IN úCALIFORNIA HOW HAVE YOU HAD EXPERIENCE. ú00000056 JUSTICE 179 00:16:54.028 --> 00:16:57.655 PIERRE-LOUIS: HAVE YOU HAD EXPERIENCES THAT úARE OUT OF STATE WAY OUT OF STATE NOT JUST 180 00:16:57.655 --> 00:17:01.346 PENNSYLVANIA. ú CHIEF JUSTICE RABNER: YOU MENTIONED TAKESEXAS. ú JUSTICE 181 00:17:01.346 --> 00:17:05.204 PIERRE-LOUIS: DOING YOUR WRIT MAR. ú ERIC M. MARK: I HAVE EXPERIENCE WITH 182 00:17:05.204 --> 00:17:11.663 DETAINEES WHO úARE IN THOSE STATES THE REMOVAL PROCEEDINGS NOW ARE MUCH FASTER úAND I HAVE 183 00:17:11.663 --> 00:17:17.716 NOT HAD THE OPPORTUNITY I HAVE NOT HAD THE NEED. ú JUSTICE PATTERSON: YOU SEE 184 00:17:17.716 --> 00:17:21.949 THE CONCERN WE HAVE IS úTHAT IF YOU SAY THERE'S AN ABSOLUTELY OBLIGATION ON THE PART OF 185 00:17:21.949 --> 00:17:27.157 úTHE SHERIFF'S SHERIFF'S OFFICER TO GET TO CALIFORNIA OR TAKESEXAS OR WHEREVER úAND 186 00:17:27.157 --> 00:17:33.892 YOU'RE SAYING IF THESE EFFORTS ARE NOT MADE THE CASE IS úDISMISS THEED THAT'S NOT A 187 00:17:33.892 --> 00:17:40.527 REASONABLENESS STANDSARD THAT'S A úABSOLUTELY ROLE OF WHEREVER THE DEFENDANT IS THAT THE 188 00:17:40.527 --> 00:17:43.832 SHERIFF'S úOFFICER HAS THIS DRIVE THERE MAR. ú ERIC M. MARK: WHAT I'M SAYING 189 00:17:43.832 --> 00:17:46.804 IS THERE'S AN úABSOLUTELY OBLIGATION TO TRY. ú JUSTICE WAINER APTER: I THOUGHT 190 00:17:46.804 --> 00:17:51.739 THEY JUST LAD TO CONúCONSENT TO REMOTE. SO LET'S SAY THE STATE SAYS A OUR-OUR POG IS 191 00:17:51.739 --> 00:17:58.091 WE úDO TPHOTNOT FLY TO CALIFORNIA TO RETRIEVE ICE DETAINEES HOWEVER WE úWILL CONSENT TO 192 00:17:58.091 --> 00:18:03.258 VIDEO OR TELEPHONIC. I THOUGHT IN YOUR POSITION úTHAT WAS TOTEALLY FINE. IT WAS ONLY 193 00:18:03.258 --> 00:18:09.172 IF THE STATE WAS SAYING WE úWILL NOT TRAVEL TO GET THE PERSON AND WE WILL NOT CONSENT 194 00:18:09.172 --> 00:18:13.445 TO úVIDEO AND WE WILL NOT CONSENT TO TELEPHONIC THEN THE CASE SHOULD úBE DISMISSED BECAUSE 195 00:18:13.445 --> 00:18:21.005 THE STATE IS NOT CONSENTING FOR IT TO ANY úWAY FOR IT TO BE MOVED FORWARD MAN MAR. ú00000057 196 00:18:21.005 --> 00:18:24.237 ERIC M. MARK: I THINK THAT'S THE AOESEASY IF THE STATE REúREFUSES TO 197 00:18:24.237 --> 00:18:27.647 PARTICIPATE IT HAS TO BE DISMISSED. ú JUSTICE HOFFMAN: AND TO BE CLEAR IN YOUR 198 00:18:27.647 --> 00:18:32.032 PROPOSEAL HAD úTHAT CONSENTS OBLIGATION APPLIES TO A TRIAL AS MUCH AS IT AúAPPLIES TO 199 00:18:32.032 --> 00:18:37.044 AN ARRAIGNMENT MAR. ú ERIC M. MARK: MAYBE. I THINK TRIALS BECOME MORE FACT 200 00:18:37.044 --> 00:18:41.095 úSENSEITIVE. I THINK THE NUMBER OF CASES THAT ARE GOING TO GET TO úTHAT POINT ARE 201 00:18:41.095 --> 00:18:44.274 MINUTEIMAL. ú JUSTICE PATTERSON: WHAT'S YOUR POSITION WITH RESPECT úTO UNDER 202 00:18:44.274 --> 00:18:50.962 YOUR PROPERTIES ALAL THE DEFENDANT HAS AN OBLIGATION TO úWAIVE HIS OR HER PERSONAL 203 00:18:50.962 --> 00:18:55.173 APPEARANCE AT TRIAL AND CONSENT TO A úREMOTE TRIAL MAR. ú ERIC M. MARK: AGAIN 204 00:18:55.173 --> 00:19:01.685 I BELIEVE IT'S FACT SENSEITIVE úBECAUSE THAT IS THE DEFENDANT'S RIGHT TO WAIVE. AGAIN 205 00:19:01.685 --> 00:19:06.996 I THINK úIT'S GOING TO BE A NUMBER AND I THINK IT'S GOING TO DE PONDPOND ON PONDPENDS 206 00:19:06.996 --> 00:19:12.266 ON úTRIAL ENEN BECAUSE SOME DEFENDANTS WILL SAY I'M PREPARED TO APPEAR úVIRTUALLY I HAVE 207 00:19:12.266 --> 00:19:16.525 A STRONG DEFENSE. MY PRESENCE IN THE COURT IS úNOT GOING TO AFFECT THAT DEFENSE AND I'D 208 00:19:16.525 --> 00:19:20.224 LIKE TO PROCEED. ú JUSTICE PATTERSON: BUT IF THE RECOMMENDMEDY FOR THIS MORNING 209 00:19:20.224 --> 00:19:25.931 úYOU WERE IN THE COURT ROOM. BUT IF THE RECOMMENDMEDY WAS DISMISS ALAL WHY úWOULD A 210 00:19:25.931 --> 00:19:31.958 PROPERLY DEFENDANT COUNSEL EVER AGREE TO A REMOTE TRIAL úMAR. ú ERIC M. MARK: 211 00:19:31.958 --> 00:19:36.451 ONE IS SPEED GETTING THESE THINGS DONE. úTRIAL IS DOWN THE ROOM. THE CHANCES THAT SOMEBODY 212 00:19:36.451 --> 00:19:42.242 IS GOING TO úBE IN ICE CUSSTODY AN SKEDCHEDULED FOR A TRIAL ARE PROBABLY STATS úSHREU 213 00:19:42.242 --> 00:19:44.418 I AMMPOSSIBLE. ú00000058 JUSTICE WAINER APTER: I THOUGHT YOU WERE SAYING IF 214 00:19:44.418 --> 00:19:50.790 úTHE DEFENDANT REFUSES TO PARTICIPATE TELEPHONICALLY OR ON VIDEO úTHEN A BENCH 215 00:19:50.790 --> 00:19:57.561 WARRANTS CAN ISHSUE NOW IT SEEMS MAR NATURE IN THE úERLARLY FACES. ú JUSTICE WAINER 216 00:19:57.561 --> 00:20:02.189 APTER: PRETRIAL IF THE DEFENDANT REúREFUSES IT TO PARTICIPATE EITHER TELEPHONICALLY OR 217 00:20:02.189 --> 00:20:06.362 ON VIDEO THEN úA BENCH WARRANT ISHSUES MAR. ú ERIC M. MARK: IN THE EARLY FACES 218 00:20:06.362 --> 00:20:10.383 FOR ARRAIGNMENT FOR úA CONFERENCE FOR PRELIMINARY MATTERS I BELIEVE THAT'S úAPPROPRIATE. 219 00:20:10.383 --> 00:20:15.174 ú JUSTICE NORIEGA: WHICH IS OFFING LEADING UP TO A úTRIAL MAR. ú ERIC 220 00:20:15.174 --> 00:20:19.692 M. MARK: LEADING UP TO A TRIAL YES. A TRIAL úBECOMES MORE COMPLICATED AND I BELIEVE 221 00:20:19.692 --> 00:20:25.580 REQUIRES AN CASE BY CASE úFACT ANALYSIS. ú JUSTICE FASCIALE: WHAT HAPPENS IF 222 00:20:25.580 --> 00:20:32.163 THE DEFENDANT STATE úAND THE COURT ALL IN TKPWGOOD FAITH ATTEMPT TO COOPERATE AS YOU 223 00:20:32.163 --> 00:20:38.446 HAVE úOUTLINED AND THEY REACH AN I AMMPASSE AND THE DEFENDANT EUPBINSISTS ON úBEING PRESENT 224 00:20:38.446 --> 00:20:46.303 AT TRIAL AND WILL NOT PARTICIPATE VIRTUALLY UNDER úWHAT CIRCUMSTANCES THEN WOULD THE CHARGES 225 00:20:46.303 --> 00:20:51.151 BE APPROPRIATELY úDISMISSED MAR. ú ERIC M. MARK: AGAIN I BELIEVE THAT'S THE 226 00:20:51.151 --> 00:20:56.782 FACT. úTHAT'S THE FACT SENSEITIVE ANALYSIS THAT HAS TO BE DONE WITH THE úFOUR FACTORS 227 00:20:56.782 --> 00:21:01.712 AND THE DETAILS OF THAT CASE. I THINK IT WILL BE úEXTREMELY RARE THAT IT GETS TO THAT 228 00:21:01.712 --> 00:21:11.617 POINTS AND AT THAT POINT IT ú00000059BECOMES A MATTER OF TIME HOW LONG HAS PASSED, WHAT 229 00:21:11.617 --> 00:21:14.912 STEPS HAVE úBEEN TAKEN, WHAT ARE THE EURBISSUES IN QUESTION. ú JUSTICE PATTERSON: 230 00:21:14.912 --> 00:21:18.795 YOU SAY FOR FACTORS YOU'RE TALKING úABOUT BARKER MAR. ú ERIC M. MARK: YES BARK 231 00:21:18.795 --> 00:21:21.401 ARE. ú JUSTICE WAINER APTER: WHEN YOU SAY EXTREMELY RARE úTHAT'S THE FACTUAL 232 00:21:21.401 --> 00:21:27.958 CIRCUMSTANCES OF THE PREVIOUS CASE RIGHT? úWHEN IT COMES TO TRIAL DEFENDANT REFUSES TO 233 00:21:27.958 --> 00:21:31.058 PARTICIPATE VIRTúVIRTUALLY MAR. ú ERIC M. MARK: NO, YOUR HONOR, BECAUSE IN THE 234 00:21:31.058 --> 00:21:35.488 PREVIOUS úCASE IT WOULD HAVE BEEN DISMISSED EARLIER IN THE PROCEEDINGS úWHEN THE STATE 235 00:21:35.488 --> 00:21:41.060 REQUESTED A BENCH WARRANT INSTEAD OF PURSUING A úWRIT OR EXTRADITION. ú JUSTICE 236 00:21:41.060 --> 00:21:44.273 WAINER APTER: IN THE STATE THEY'RE ONLY úREQUESTING A BENCH WARRANT WHEN IT WAS READY 237 00:21:44.273 --> 00:21:48.716 FOR TRIAL AND úDEFENDANT REFUSED TO PARTICIPANT VIRTUALLY UP UNTIL THEN úDEFENDANT HAD 238 00:21:48.716 --> 00:21:53.302 BEEN PARTICIPATEING VIRTUALLY AND EVERYTHING WAS úPROCEEDING THEN IT WAS READY FOR TRIAL 239 00:21:53.302 --> 00:21:59.152 REGARDLESS YOU'RE SAYING úIF PRIMARILY IF THE DEFENDANT REFUSES TO PARTICIPATE VIRTUALLY 240 00:21:59.152 --> 00:22:03.479 úTHEN A BENCH WARRANTS IS APPROPRIATE MAR. ú ERIC M. MARK: YES EUI BELIEVE SO. 241 00:22:03.479 --> 00:22:09.460 PRIMARILY IF A úDEFENDANT REFUSES TO PARTICIPATE VIRTUALLY I DON'T HE SEE HOW úTHAT IS 242 00:22:09.460 --> 00:22:13.310 ANY DIFFERENT THAN REFUSEING TO COME TO COURT. IT'S THE úSAME THING. ú CHIEF 243 00:22:13.310 --> 00:22:16.504 JUSTICE RABNER: SO WHEN DOES A WRIT ISHSUE IN ú00000060THE PRIMARILY FACE IF THE DEFENDANT 244 00:22:16.504 --> 00:22:21.761 APPEARS REPHROETLY YOU DON'T úNEED HIM AND IF THE DEFENDANT DECLINED A BENCH WARRANT ISHSUE 245 00:22:21.761 --> 00:22:26.021 MAR. ú ERIC M. MARK: NOT IF THE DEFENDANT KHRAOE DECLINE IF THE úDEFENDANT 246 00:22:26.021 --> 00:22:29.797 REFUSES TO APPEAR THAT WOULD BE A BENCH WARRANT BUT IF úTHE DEFENDANT IS AGREEING TO APPEAR 247 00:22:29.797 --> 00:22:34.149 WANTS TO APPEAR AND THE FEDúFEDERAL AUTHORITIES WILL NOT ALLOW HIM TO APPEAR. IF HE'S 248 00:22:34.149 --> 00:22:39.728 IN úCUSSTODY AND HE CANNOT APPEAR. YOU HAD. ú JUSTICE PATTERSON: REMOTELY MAR. 249 00:22:39.728 --> 00:22:42.546 ú ERIC M. MARK: BECAUSE THE ICE FACILITIES DO TPHOTNOT úNECESSARYILY PROVIDE 250 00:22:42.546 --> 00:22:46.942 ABGCCESS TO VIDEO FOR STATE COURT PROCEEDINGS úMANY OF THEM DO TPHOTNOT. ú CHIEF 251 00:22:46.942 --> 00:22:50.737 JUSTICE RABNER: YOU'RE NOT TALKING ABOUT úPROSECUTOR'S YOU'RE TALKING ABOUT ICE'S 252 00:22:50.737 --> 00:22:54.062 TKERPBLG RPBL I'M. ú THE WITNESS: I'M MARú ERIC M. MARK: ú THE 253 00:22:54.062 --> 00:22:58.304 SPEAKER: ú JUSTICE PATTERSON: SO DEFENDANT IN ICE FACILITY WOULD úBE 254 00:22:58.304 --> 00:23:05.073 GUARDIANANTEED A DIS DISMISS ALAL AN ICE FACILITY THAT DOES NOT ALLOW úFOR REMOTE PROCEEDING 255 00:23:05.073 --> 00:23:08.424 AND YOU'RE TELLING US YOU SEE MANY OF úTHOSE MAR. ú ERIC M. MARK: THAT WOULD 256 00:23:08.424 --> 00:23:12.870 NOT GUARDIANANTEE A DISMISS SAL úIF THE STATE MADE THE PROPER REQUEST. TPIF THE STATE 257 00:23:12.870 --> 00:23:18.489 REQUESTED úVIDEO APPEARANCE AND BEEN DENIED IF THE STATE REQUESTED A WRIT úTO PRODUCE 258 00:23:18.489 --> 00:23:25.596 AND DESTINE DENIED BY HIGHEST AND WA WOULD PROBABLE HAVE TO úHAPPEN IS HELD IN ABEYANCE 259 00:23:25.596 --> 00:23:31.380 UNTIL THAT PERSON IS EITHER RELEASED úFROM ICE DID YOU SAY CUSSTODY ONE WAEUY OR ANOTHER 260 00:23:31.380 --> 00:23:37.450 HEATER HIM TO THE UNITED ú00000061STATES OR OVERASSESS AN WHEN OVERASSESS THEY CAN AND 261 00:23:37.450 --> 00:23:42.107 WE START úOVER. ú CHIEF JUSTICE RABNER: SO IF ICE REFUSES TO ALLOW A REúREMOTE 262 00:23:42.107 --> 00:23:46.553 PROCEEDING THEN THE STATE IS OBLIGATED TO OBTAIN A WRIT úMAR. ú ERIC M. MARK: 263 00:23:46.553 --> 00:23:52.892 YES THAT WOULD BE MY PROPOSE. THEY'RE úOBLIGATED TO REQUEST A WRIT AND REQUEST THAT ICE 264 00:23:52.892 --> 00:23:57.167 HONOR THAT WRITúWRIT. ú CHIEF JUSTICE RABNER: ANY REASON TO BELIEVE AOEUT úWOULD 265 00:23:57.167 --> 00:24:03.774 HONOR A WRIT AS EUI MAR. ú ERIC M. MARK: THE WRIT REQUIRES VERY LITTLE OF ICE 266 00:24:03.774 --> 00:24:09.534 úAND IT'S REALLY MORE OF AN ISHSUE FOR THE STATE TO GO GET THE úPERSON. I THINK THAT 267 00:24:09.534 --> 00:24:14.528 THIS MIGHT BE AOEU-- IT'S MORE COMPLICATED BY úTHE DISTANCE NOW THAT NEW JERSEY DETAINEES 268 00:24:14.528 --> 00:24:19.850 ARE BEING HELD FAR úAWAY. I THINK WHEN IF WAS RE STREUBGTSTRICTED TO NEW JERSEY AND 269 00:24:19.850 --> 00:24:25.140 úPENNSYLVANIA THAT OBLIGATION WOULD BE ABSOLUTE. GET THE WRIT GO úGET THE DEFENDANT AND 270 00:24:25.140 --> 00:24:32.690 HAVE THE PROCEEDING. I SEE HOW THAT WOULD úBE COMPLICATED BY OR DEFENDANTS BEING HELD 271 00:24:32.690 --> 00:24:38.235 IN CALIFORNIA AND úTAKESEXAS AND ARIZONA. THE LODGE EUSGISTICAL PROBLEMS WITH THAT. 272 00:24:38.235 --> 00:24:46.952 THAT'S A úNEW PROBLEM. I THINK THAT COULD BE ADDRESSED AS LONG AS THE úSTATE IS MAKEING 273 00:24:46.952 --> 00:24:52.090 THE REQUEST AND IF IT BECOMES THE COUNTY CAN'T úSPEND THE STATE OR COUNTY CAN'T SPENDS 274 00:24:52.090 --> 00:24:56.172 WHATEVER THE NUMBER IT TO úGET ALL OF THESE DEFENDANTS IT MIGHT JUST HAVE TO BE WHERE 275 00:24:56.172 --> 00:25:01.365 WE úHOLD THEM AT ABEYANCE. A BENCH WARRANT IS STILL NOT PROPER úBECAUSE IT'S NOT THAT 276 00:25:01.365 --> 00:25:08.076 DEFENDANT'S VOLITION AT CHOICE. IT MIGHT úBE UNTIL WE HOLD IT IN A-VEINSBEYANCE UNTIL 277 00:25:08.076 --> 00:25:14.079 HE'S RELEASED. TO IS THE ú00000062A CONTROL DATE SEVERAL MONTHS OUT AND TO. ú JUSTICE 278 00:25:14.079 --> 00:25:16.726 WAINER APTER: SO YOU'RE SAYING. ú JUSTICE PIERRE-LOUIS: JUST TO CLARIFY HERE. 279 00:25:16.726 --> 00:25:22.195 ú THE COURT: HERE A BENCH WARRANTS ISHSUE RIGHT MAR PHR úIN MY CASE. ú 280 00:25:22.195 --> 00:25:25.848 JUSTICE PIERRE-LOUIS: YES AND IT WAS LOGGED AS A DEúDETAIN ARE WELL THERE WAS A BENCH WARRANTS 281 00:25:25.848 --> 00:25:29.737 I'M GUESSING FILED úWITH ICE MAR. ú ERIC M. MARK: ú JUSTICE PIERRE-LOUIS: 282 00:25:29.737 --> 00:25:35.248 WHAT HAPPENED BECAUSE THE BENCH úWARRANT ISHSUE BUT DEFENDANT WAS DEPORTED ANYWAY MAR. 283 00:25:35.248 --> 00:25:40.095 ú ERIC M. MARK: ICE DOES NOT HONOR BENCH WARRANTS. ICE úIS NOT GOING TO STOP 284 00:25:40.095 --> 00:25:44.218 A REMOVAL BECAUSE THERE'S A BENCH WARRANT. úTHE ONLY EFFECT THAT A BENCH WARRANTS HAS 285 00:25:44.218 --> 00:25:47.503 IN IMMIGRATION PROCEEDúPROCEEDING IS TO PREJUDICE THE DEFENDANT FROM GETTING RELEASED 286 00:25:47.503 --> 00:25:53.263 úON BAIL OR FROM WINNING THEIR CASE. BECAUSE THE IMMIGRATION úAOEU-- úALL THAT ALL AOEU-- 287 00:25:53.263 --> 00:25:58.178 ALL THAT THEY SEE WHEN A BENCH WARRANT IS ENTERúENTERED INTO NCI KRFPLTC ALL THAT THE 288 00:25:58.178 --> 00:26:02.918 VIEWING AUTHORITIES ICE IS GOING úTO SEE IT BENCH WARRANTS FAILURE TO APPEAR BENCH WARRANTS. 289 00:26:02.918 --> 00:26:08.261 úTHEY'RE NOT GOING TO SEE THAT HANDWRITTEN NOTE ON THE BENCH úWARRANT IN NEW JERSEY THAT 290 00:26:08.261 --> 00:26:13.642 SAYS ANYTHING. THEY'RE NOT GOING TO úSEE IT. IT'S NEVER GOING TO BE PRODUCED AND THAT 291 00:26:13.642 --> 00:26:17.430 WAS THE A LAST-LAST úSTEP OF PRO H MY PROPOSEAL THAT BENCH WARRANTS ARE NOT úAPPROPRIATE 292 00:26:17.430 --> 00:26:20.919 FOR THAT REASON. ú JUSTICE PIERRE-LOUIS: SO YOU'VE NEVER SEEN A BENCH 293 00:26:20.919 --> 00:26:26.321 ú00000063WARRANTS LODGED AS A DETAIN ARE FOR SOMEBODY IN ICE CUSSTODY WORK úTO PLACE THAT 294 00:26:26.321 --> 00:26:31.124 PERSON BACK INTO STATE CUSSTODY IF IS OR FOR SOME úREASON THAT PERSON IS RELEASED FROM 295 00:26:31.124 --> 00:26:36.241 FOR DEPORTATION MAR. ú ERIC M. MARK: NEVER. IT'S NEVER WORKED AND THE ONLY 296 00:26:36.241 --> 00:26:40.701 úWAY IT WOULD WORK IS WHEN WE DO ISHSUE. TPIF WAOEE GET TO THE POINT úIN ANY OF THIS 297 00:26:40.701 --> 00:26:46.195 PROCEEDING WHERE WE'RE I WHAT I WOULD REFER TO AS úA HALT OR SOMETHING OTHER THAN A BENCH 298 00:26:46.195 --> 00:26:50.691 WARRANT BENCH WARRANTS BECAUSE THOSE úWORDS ARE TKAEUPBGDANGEROUS. IF WE'RE ISHSUES FOR 299 00:26:50.691 --> 00:26:57.601 AOUG FOR SOMETHING THAT úALL THE PARTIES BEING COMPLIANT AND THE ONLY BARRIER IS THE 300 00:26:57.601 --> 00:27:03.491 FEDúFEDERAL GOVERNMENT AND WE'RE ISHSUING A HOLD NOTICE, THAT NOTICE úNEEDS TO BE CLEAR 301 00:27:03.491 --> 00:27:10.645 AS TO WHY IT'S BEING ISHSUED THAT IT'S NOT A úVOLITION ALAL ACT OF THE DEFENDANT AND IT'S 302 00:27:10.645 --> 00:27:17.084 DUE TO THEURPD INTER THIRD PARTY TEAR úTPAOERPB AND THAT NEEDS TO BE PROVIDED TO DEFENSE 303 00:27:17.084 --> 00:27:21.610 COUNSEL SO úDEFENSE COUNSEL CAN GIVE IT TO IMMIGRATION COUNSEL OR TO THE úDEPARTMENT FOF 304 00:27:21.610 --> 00:27:27.145 STATE IN MAKEING A REQUEST FOR WHATEVER, FOR A úSRAOES A FOR-FOR A RELIEVE FOR A BOND. 305 00:27:27.145 --> 00:27:33.580 THE ONLY WAY TO PRESENT THAT úINFORMATION ACCURATELY IS TO HAVE THAT DOCUMENT WHICH 306 00:27:33.580 --> 00:27:37.694 LITERAL úDEVILS COUNSEL DOES NOT GET. ú JUSTICE HOFFMAN: YOU'RE SAYING HOLD NOTICE 307 00:27:37.694 --> 00:27:40.897 IS OR IS úNOT A BENCH WARRANTS MAR. ú ERIC M. MARK: IT IS NOT A BENCH WARRANTS 308 00:27:40.897 --> 00:27:48.290 IF IT TPWOES úNO NCI KRFPLTC AS BENCH WARRANT THAT DETAINEE IN IMMIGRATION CUSSTODY IS 309 00:27:48.290 --> 00:27:52.309 úGETTING ALL THE BAD PRESUMPTIONS. ú JUSTICE NORIEGA: HERE THE PROBLEM ACE AS 310 00:27:52.309 --> 00:27:57.146 EUI SEE IT. úTHERE'S NO WAY TO CONTROL WHAT FEDERAL AUTHORITIES WILL PUT INTO 311 00:27:57.146 --> 00:28:01.949 ú00000064THEIR SISYSTEM SO WHETHER WE CALL IT A HOLD A DETAIN ARE OR SAY úIT'S JUST AEU 312 00:28:01.949 --> 00:28:07.147 PAUSE REQUEST THEY MAY PUT IT IN AS A BENCH WARRANT úREGARDLESS AND THE PROBLEM IS THAT 313 00:28:07.147 --> 00:28:13.345 THERE'S NO WAY TO CONTROL úWHAT HAPPENS TO THE CASE BY NOT ISHSUING SOME KIND OF ORDER 314 00:28:13.345 --> 00:28:18.720 TO úPAUSE THE CASE HERE. AND I THINK THAT'S WHERE WE RUN INTO A úPROBLEM MAR. ú 315 00:28:18.720 --> 00:28:23.976 ERIC M. MARK: IT'S NOT THE TPEDZ WHO PUT THAT INTO úTHE SISYSTEM IT WOULD BE OUR COURTS 316 00:28:23.976 --> 00:28:29.856 OR POLICE THAT ENTERING THE úNOTICE INTO THE SISYSTEM. IT WOULD REALLY NECESSARYILY 317 00:28:29.856 --> 00:28:35.132 AOEU-- A úWARRANT GOES NO THE SISYSTEM BECAUSE IT IS A DETAINER. THAT'S WHY úI'M SAYING 318 00:28:35.132 --> 00:28:39.502 AS A DIE TAEURPB A BENCH WARRANTS IS TO DETAIN THIS úPERSON WHEN THEY'RE RELEASE DZ FROM 319 00:28:39.502 --> 00:28:43.785 YOUR CUSSTODY. ú JUSTICE NORIEGA: ARE YOU SEEN ANYTHING FROM ANY OR úSTATE THAT 320 00:28:43.785 --> 00:28:47.860 SAYS DETAINER BUT NOT WARRANTS MAR. ú ERIC M. MARK: NO AND I WOULDN'T USE THE 321 00:28:47.860 --> 00:28:55.072 WORD DETAINER úEITHER. I'VE NEVER SEEN THAT DON'T KNOW THAT IT EXISTS. WE'RE úIN NOVEL 322 00:28:55.072 --> 00:28:58.247 INTERTERRITORY. ú CHIEF JUSTICE RABNER: SO SUPPOSE YOU HAVE A CASE THAT úBEGINS 323 00:28:58.247 --> 00:29:05.370 WITH A SET OF CHARGES AND APPEARANCE A RELEASE ICE THEN úDETAEUPBS AND THEN THE STATE 324 00:29:05.370 --> 00:29:08.499 THROUGH A FOLLOW-UP INVESTIGATION úOR ADDITIONAL INVESTIGATION RETURNS SUPERCEDESEDING 325 00:29:08.499 --> 00:29:16.283 CHARGES AND HAS úCONCERNS ABOUT RELEASE ABOUT DETENTION, WHAT STEPS NEED TO BE úTAKEN 326 00:29:16.283 --> 00:29:23.292 IN ORDER TO ENSURE IN ANY EVENTS ICE RELEASES AS OWEPPOSED úTO REMOVES FROM THE COUNTRY 327 00:29:23.292 --> 00:29:28.523 THIS INDIVIDUAL. THEY'RE NOT SET úFREE A-AND THEY COME TO THEIR NEXT PROCEEDING IN THE 328 00:29:28.523 --> 00:29:31.858 STATE MAR. ú00000065 ERIC M. MARK: I UNDERSTAND YOUR, YOUR HONOR,'S úREQUEST 329 00:29:31.858 --> 00:29:36.709 CONNECTLY THERE'S A SUPERCEDESEDING CHARGE THAT HAS MORE úSEERRIOUS CHARGES. ú CHIEF 330 00:29:36.709 --> 00:29:39.167 JUSTICE RABNER: YEAH MAR. ú ERIC M. MARK: THAT WOULD REQUIRE THE STATE TO 331 00:29:39.167 --> 00:29:46.821 CONTACT úICE DIRECTLY AND SAY WE'VE ISHSUED MORE SEERRIOUS CHARGES AND TO úGET ICE TO AGREE. 332 00:29:46.821 --> 00:29:53.193 THAT IS ACTUALLY PROVIDED FOR IN THE ICE TOOL úKIT. WHERE STATE DOES NOT WANT REMOVAL 333 00:29:53.193 --> 00:29:57.925 TO HAPPEN. ú CHIEF JUSTICE RABNER: I'M NOT TALKING ABOUT REMOVAL. ú THE 334 00:29:57.925 --> 00:30:03.694 COURT: I'M IMAGINEING A SITUATION WHERE ICE úDETERMINES IT'S NOT GOING TO PROCEED HOW 335 00:30:03.694 --> 00:30:08.382 DO UYOU ENSURE THAT THE úDEFENDANT IS IS NOT RELEASED WITHOUT A BENCH WARRANT ISHSUING 336 00:30:08.382 --> 00:30:15.302 MAR. ú ERIC M. MARK: I CANNOT ENVISION A SCENARIO WHERE ICE úDIDN'T PRESIDENT 337 00:30:15.302 --> 00:30:22.576 PROCEED WITH WITHOUT A BENCH WARRANTS REMOVAL. TPIF THERETPIF THAT WERE úTO HAPPEN IT 338 00:30:22.576 --> 00:30:28.905 MOST LIKELY WOULD MEAN THAT THAT PERSON IS BEING úRELEASED STPHAOEUFPL. ú THE 339 00:30:28.905 --> 00:30:32.389 SPEAKER: LET'S SYY MAR. ú ERIC M. MARK: BACK INTO THE UNITED STATES AND THE 340 00:30:32.389 --> 00:30:38.100 úSTATE WOULD HAVE ABGCCESS. WITH A SUPERCEDESEDING INDICTMENT IT SEEMS úIT 341 00:30:38.100 --> 00:30:41.790 WOULDN'T NEED A BENCH WARRANTS IT WOULD NEED A NEW WARRANTS. úTHERE WOULD BE A NEW ARREST 342 00:30:41.790 --> 00:30:46.650 WARRANTS LIKE A COMPLAINT WARRANTS úWITH THE NEW CHARGES. ú JUSTICE PIERRE-LOUIS: 343 00:30:46.650 --> 00:30:51.219 WOULD THAT WORK AS A DETAINER úMAR. ú ERIC M. MARK: YES. A COMPLAINT WARRANT 344 00:30:51.219 --> 00:30:55.080 WOULD AND úTHAT HAPPENS ALL THE TIME WHERE A NEW COMPLAINT WARRANT IS ISHú00000066ISSUED 345 00:30:55.080 --> 00:30:59.900 FOR SOMEBODY IN ANOTHER STATE AND THAT WARRANTS IS ENTERúENTERED INTO THE SISYSTEM AND 346 00:30:59.900 --> 00:31:04.345 WHEN THAT AOEU-- WHEN THAT PERSON IS úBEING RELEASED FROM THE OTHER STATE OR FROM 347 00:31:04.345 --> 00:31:07.773 WHATEVER CUSSTODY úTHEY RUN THE CHECK AND THEY'LL SEE THERE'S A NEW WARRANTS IN úNUMBER 348 00:31:07.773 --> 00:31:14.081 AND THEY CONTACT FOR PRODUCTION. TPIF THERE'S HEY NEW úCHARGE A NEW COMPLAINT WARRANT 349 00:31:14.081 --> 00:31:18.276 IS ALL THAT WOULD BE NEEDED NOT A úBENCH WARRANT. ú JUSTICE FASCIALE: SO IN 350 00:31:18.276 --> 00:31:24.066 THIS CASE YOU WANTS US TO úVACATE THE WARRANT AND REMAND FOR FURTHER PROCEEDS MAR. ú 351 00:31:24.066 --> 00:31:28.855 ERIC M. MARK: IN MR. GARCIA'S CASE MY REQUEST TO WOULD úBE THAT THESE CHARGES SHOULD BE 352 00:31:28.855 --> 00:31:33.223 DISMISSED BECAUSE THE STATE REúREFUSED TO PARTICIPANT EITHER VIRTUALLY OR BY A WRIT 353 00:31:33.223 --> 00:31:37.824 ONTO PROúPRODUCE INITIALLY IN ABSENCE ABSENCE OF THAT WE WOULD REQUEST A REMAND úYES. 354 00:31:37.824 --> 00:31:40.815 ú JUSTICE PATTERSON: YOU SAID EARLIER IN YOUR ARGUMENT úTHAT YOU THOUGHT IT WOULD 355 00:31:40.815 --> 00:31:46.543 BE A RARE SITUATION WHERE THERE IS AN úISHSUE WITH RESPECT TO TRIAL. WHAT DOES THAT MEAN 356 00:31:46.543 --> 00:31:52.412 AS A PRACTICEAL úMATTER WHY WERE YOU SAYING THAT TRIAL WILL NOT BE AN ISHSUE MAR. ú 357 00:31:52.412 --> 00:31:56.322 ERIC M. MARK: BECAUSE THERE'S BEEN SOME QUESTIONING úIN THE PREVIOUS CASE ABOUT WHAT 358 00:31:56.322 --> 00:32:00.496 HAPPENS WITH MURDER RERS AN SEERúSERIOUS CHARGES. THOSE PEOPLE ARE IN PRIMARILY DETENTION. 359 00:32:00.496 --> 00:32:04.519 úTHEY'RE NOT PART OF THIS CALLINGCULUS. WE'RE NOT GOING TO BE HAVING úPEOPLE WHO ARE 360 00:32:04.519 --> 00:32:10.764 CHARGED WITH MURDER FIRST DEGREE DISTRIBUTION KIDúKIDNAPPING ARMED ROBBERY. THEY'RE GOING 361 00:32:10.764 --> 00:32:15.362 TO BE IN NEW JERSEY úCUSSTODY UNTIL THEIR CASE IS OVER. THEY'RE NOT GOING TO BE 362 00:32:15.362 --> 00:32:18.983 ú00000067TRANSPORTED THEY'RE NOT GOING TO BE TRANSFERRED TO ICE AND úRELEASED SO WE'RE 363 00:32:18.983 --> 00:32:22.783 TAKING THEM OUT OF THE CALLINGCULUS. ú JUSTICE PATTERSON: OKAY WHAT ABOUT ALL 364 00:32:22.783 --> 00:32:26.150 THE OTHER úDEFENDANTS MAR. ú ERIC M. MARK: RELEASEALISTICALLY EVEN NOW HOW MANY 365 00:32:26.150 --> 00:32:33.743 THIRD úDEGREE PROBATION ARYARY CASES GO TO TRIAL? IT'S A VERY SMALL VERY úSMALL NUMBER 366 00:32:33.743 --> 00:32:38.726 AND IN THOSE CASES BECAUSE THEY ARE THOSE TYPES OF úCASES THEY ARE CASES THAT EVEN IF 367 00:32:38.726 --> 00:32:43.836 GO TO TRIAL AN GO TO SENTENCEúSENTENCING SCARCE IS HIGHLY UNLIKELY UNDER NEW JERSEY 368 00:32:43.836 --> 00:32:48.460 SENTENCEING úSCHEME. ARE FOR MOST EVER THESE PEOPLE WITH FIRST OFFENSES úTHIRD DEGREE 369 00:32:48.460 --> 00:32:53.996 OFFENSES AND MOST LIKE LIE IF CONVICTED GOING TO úGET PROBATION. ú JUSTICE WAINER 370 00:32:53.996 --> 00:32:58.665 APTER: YOU'RE SAYING THAT úINCARCERATION DOESN'T HAPPEN FROM A PRACTICEAL PERSPECTIVE 371 00:32:58.665 --> 00:33:02.583 UNLESS úTHE PERSON IS DETAINED PRIMARILY MAR. ú ERIC M. MARK: THAT'S NOT WHAT 372 00:33:02.583 --> 00:33:07.662 I'M SAYING. I'M SAYING úTHAT FOR INSTANCE, IN THE PREVIOUS CASE THAT'S A THIRD DEGREE 373 00:33:07.662 --> 00:33:12.722 EN úTKAEUPBLGúENTKAEUPBLG ERG CHARGE FOR SOMEBODY WITH NO PRIOR HISTORY. THE úNEW JERSEY 374 00:33:12.722 --> 00:33:17.836 SENTENCEING PRESUMPTION IS THAT HE WILL IF CONVICTED úAT TRIAL IT WILL BE A NON 375 00:33:17.836 --> 00:33:20.735 INCARCERATION SENTENCE. ú JUSTICE WAINER APTER: BUT YOU COULD IMAGINE A CASE 376 00:33:20.735 --> 00:33:28.642 úWHERE THE PERSON IS NOT AOEU-- NOT DETAINED BEFORE TRIAL AND úSENTENCEING WOULD INVOLVE 377 00:33:28.642 --> 00:33:34.792 SOME PERIOD FOF INCARCERATION. HOW úWOULD THAT WORK IF THE PERSON HAS BEEN DEPORTED MAR. 378 00:33:34.792 --> 00:33:38.574 ú ERIC M. MARK: I THINK THAT IS SUCH A SMALL PERCENTAGE ú00000068OF THE CASES 379 00:33:38.574 --> 00:33:43.122 THAT TO MAKE A POLICY DECISION MACE BASED ON THAT LIMITúLIMITED NUMBER WOULD BE APPROACH 380 00:33:43.122 --> 00:33:50.125 APPROACHING THE SOLUTION THE WRONG WAY úBUT IF THAT WERE TO HAPPEN, PRESUMEABLY THERE'S 381 00:33:50.125 --> 00:33:55.510 A VIRTUAL TRIAL úAND HE'S CONVICTED AT THAT POINT IN TIME THE STATE CAN MOVE FOR úEXTRADITION. 382 00:33:55.510 --> 00:34:00.824 THEY NOW HAVE A CONVICTION. TPHAEUF GONE BEYOND úJUST AEU WARRANT. THEY NOW HAVE A 383 00:34:00.824 --> 00:34:05.722 CONVICTION THAT WILL MAKE EXTRAúEXTRADITION THAT MUCH YEARS. ú JUSTICE PATTERSON: . ú 384 00:34:05.722 --> 00:34:08.493 JUSTICE NORIEGA: BUT THEY CAN PUT A BENCH WARRANTS úOUT FOR THE PERSON'S ARREST 385 00:34:08.493 --> 00:34:13.527 IF THEY WERE BACK IN THE UNITED úSTATES WHICH THEY WOULD BE SENTENCED FORMLY MAR. ú 386 00:34:13.527 --> 00:34:18.302 ERIC M. MARK: CERTAINLY AFTER CONVICTION WITHOUT úSENTENCEING THERE WOULD BE A BENCH WARRANTS. 387 00:34:18.302 --> 00:34:23.277 THAT WOULD BE úAPPROPRIATE AND I THINK THAT AGAIN IT'S SUCH AW SMALL NUMBER OF úCASES 388 00:34:23.277 --> 00:34:28.108 WHERE THAT WILL APPLY AND THOSE SOLUTIONS ARE VIABLE AT A úTHATúA-THAT POINT EITHER JUST 389 00:34:28.108 --> 00:34:33.164 JUST AS A BENCH WARRANTS FOR IN CASE THERE'S úAN ENTRY AND THAT WOULD BE UP TO THE STATE 390 00:34:33.164 --> 00:34:36.858 DO UYOU WANT TO ISHSUE úA BENCH WARRANTS OR PURSUE EXTRADITION. ú JUSTICE WAINER 391 00:34:36.858 --> 00:34:40.521 APTER: THAT'S ONLY AFTER TRIAL BUT I úDON'T REMEMBER YOUR ANSWER SO THE DEFENDANT DOES 392 00:34:40.521 --> 00:34:47.002 NOT CONCEDE TO úVIRTUALLY PROCEED THIS TRIAL MAR. ú ERIC M. MARK: IF BY MY PROPOSEAL 393 00:34:47.002 --> 00:34:51.887 WE'VE GOT ENTEN TO THE úPOINT WHERE WE'RE CONSIDERING A VIRTUAL TRIAL APBDND THE 394 00:34:51.887 --> 00:34:56.801 DEFENDANT úIS REFUSEING TO PARTICIPANT IN THE TRIAL AT THAT TIME. IF YOU'RE 395 00:34:56.801 --> 00:35:00.892 úPARTICIPATEING ALL ALONG IT WOULD BE A EUI CASE BY CASE ANALYSIS BY úIT'S TRIAL JUDGE 396 00:35:00.892 --> 00:35:06.081 CONSIDERING CONSIDERING ALL THE FACTORS AND ALL ú00000069OF THE ISHSUES AND ALL THE 397 00:35:06.081 --> 00:35:09.419 GUIDELINES I THAT I THAT IS GOING TO úBE. ú CHIEF JUSTICE RABNER: COULD A JUST 398 00:35:09.419 --> 00:35:17.488 IN THAT KPEREXERCISE úDISCRETION TO I AMMPOSE A BENCH WARRANTS IN A-HEARING ALONG THE 399 00:35:17.488 --> 00:35:19.721 WAY úMARúWAY. ú ERIC M. MARK: I THINK A BENCH WARRANTS WOULD BE I AMúIMPROPER 400 00:35:19.721 --> 00:35:28.459 BECAUSE I THINK OWEPPOSEING A BENCH WARRANT FOR NOT úWAIVING THE RIGHT TO BE PRESENT IN 401 00:35:28.459 --> 00:35:36.981 PERSON IS NOT WHAT OUR úCONSTITUTION ENVISIONS BUT I THAT I THAT SOME TPORPLFORM OF HOLD 402 00:35:36.981 --> 00:35:43.382 úNOTICE AGAIN I DON'T KNOW WHAT THE PROPER TERMINOLOGY IS BUT úSOME NEW CREATION OF THIS 403 00:35:43.382 --> 00:35:50.064 COURT FOR THAT SCENARIO SO THAT IF úTHIS PERSON ENTERS, IF THIS PERSON DOES ENTERS WHICH IS 404 00:35:50.064 --> 00:35:54.344 NOT úGOING TO HAPPEN BUT TO BRING IT BACK. I THINK IT NEEDS TO úCONTINUE TO BE REVIEWED 405 00:35:54.344 --> 00:36:00.208 PERIODICALLY. I THIS THAT AT SOME úPOEUPBTPOINT úTHE RIGHT TO SPEEDY TRIAL DOES GET 406 00:36:00.208 --> 00:36:04.143 POTENTIALLY TRIGGERED BUT NOT úIN ALL CASE US INTO. ú JUSTICE NORIEGA: AT THAT 407 00:36:04.143 --> 00:36:08.357 POINT WE'RE TUG TALKING ABOUT úSOMEBODY WHOSE BEEN REMOVED. WE'RE TALKING ABOUT SOMEBODY'S 408 00:36:08.357 --> 00:36:14.395 úWHOSE BEEN REMOVED. HAD THEIR CONSTITUTIONAL RIGHTS TO NOT PROúPROCEED VIRTUALLY AND 409 00:36:14.395 --> 00:36:19.710 THEY'RE WISHING TO BE IN PERSON ALL úEFFORTS HAVE BEEN REJECTED TO ENTERS THE COUNTRY 410 00:36:19.710 --> 00:36:26.319 AGAIN, WHAT IS úTHE HARM AT THAT POINT TO THE COURT SETTING EVENTING A BENCH úWARRANTS 411 00:36:26.319 --> 00:36:31.720 OR SOME SRAEURPBT WHICH MAY BE CONSIDERED AIR BENCH úWARRANTS WHATEVER WE LABEL IT AND 412 00:36:31.720 --> 00:36:37.713 THAT BEING IN PLACE JUST TO úKEEP THE CASE IN SOME SORT OF STATIC POSITION SO THAT AT 413 00:36:37.713 --> 00:36:41.343 SOME ú00000070POEUPBTINT HAVE BEEN HAS AN INTEREST IN THE FUTURE OF IF THAT úINDIVIDUAL 414 00:36:41.343 --> 00:36:47.838 WERE TO APPEAR IN THE UNITED STATES AGAIN. WHAT'S úTHE HARM? MAR. ú JUSTICE 415 00:36:47.838 --> 00:36:52.111 NORIEGA: AND LET ME JUST ADD ONE MORE CALFVEAT úIF THE DEFENDANT SAID I WANTS TO ENTER 416 00:36:52.111 --> 00:36:56.148 THE UNITED STATES I'VE úMADE AND APPLICATION AND THE BENCH WARRANT IS HOLDING ME BACK 417 00:36:56.148 --> 00:37:01.219 úTHINGS CAN BE DONE TO LIFT IT MOMENT TAILOR FOR THE PURPOSES OF úTHAT APPLICATION. BUT 418 00:37:01.219 --> 00:37:05.909 WHEN NOTHING'S HAPPENING THE BENCH úWARRANTS IS THERE TO PROTECT ALL INTERESTED PARTS 419 00:37:05.909 --> 00:37:09.047 SO WHAT'S THE úHARM MAR. ú ERIC M. MARK: WELL THE BENCH WARRANTS IS THERE TO 420 00:37:09.047 --> 00:37:14.492 úPROTECT THE STATE'S IN IN TRYING THE CASE. I DON'T THINK IT úPROTECTS. ú THE 421 00:37:14.492 --> 00:37:20.308 SPEAKER: AT THAT POINT WE'RE TALKING ABOUT AOEU---Y úYES MAR. ú ERIC M. MARK: 422 00:37:20.308 --> 00:37:25.682 HERE'S THE INTEREST AOEU-- AGAIN WE'RE úTALKING ABOUT THE EXCEPTION TO THE RULE HERE. 423 00:37:25.682 --> 00:37:30.307 A VERY SMALL úEXCEPTION TO THE RULE HERE WHICH IS WHY I DON'T THINK THAT THE úANSWER TO 424 00:37:30.307 --> 00:37:35.036 THIS QUESTION OR THE DECISION TO THIS QUESTION SHOULD úCONTROL THE LARGE ARE POLICY. 425 00:37:35.036 --> 00:37:37.741 ú JUSTICE PATTERSON: LET ME ASK YOU SOMETHING BECAUSE úYOU SAID THIS IS A RARE 426 00:37:37.741 --> 00:37:42.633 THING BECAUSE OF THE PRESUMPTION OF NON úINCARCERATION THAT APPLIES TO THIRD ARD 427 00:37:42.633 --> 00:37:49.811 FOURTH DEGREES. BUT WHY úISN'T THERE A INTENSEIVE FOR A DEFENDANT TO PLEAD GUILTY. 428 00:37:49.811 --> 00:37:54.335 OFFICEúOBVIOUSLY IN THE WORLD THAT DOES NOT INVOLVE IMMIGRATION ISHSUES ú00000071THE VAST 429 00:37:54.335 --> 00:38:00.674 PHAMAJORITY OF THOSE CASES WOULD INVOLVE A PLEA TO A úPROBATION ARYARY SENTENCE OR SOMETHING 430 00:38:00.674 --> 00:38:05.643 LIKE THAT BUT ISN'T THERE A úSUBSTANTIAL DIS EUPBIN SEPBCENTIVE FOR A DEFENDANT WHO IS 431 00:38:05.643 --> 00:38:11.186 POTENTIALLY úGOING TO BE DEPORTED TO PLEAD GUILTY MAR. ú ERIC M. MARK: NO. 432 00:38:11.186 --> 00:38:16.915 WELL SOMETIMES BUT THERE ALSO. ú JUSTICE PATTERSON: WHY IS THE PROPERSSPECTS 433 00:38:16.915 --> 00:38:23.756 OF A TRIAL SO úREMOTE MAR. ú ERIC M. MARK: SOME DEFENDANTS, SOME NON SITSCITIZEN 434 00:38:23.756 --> 00:38:28.264 úDEFENDANTS ARE HIGHLY PHOET SRAOEUTMOTIVATED TO PLEAD GUILTY TO SOMETHING úTHAT WILL 435 00:38:28.264 --> 00:38:35.433 NOT PREVENT THEIR OBTAINING LAWFUL STATUS. SO FOR úINSTANCE, FOR IN MS. HRORDZ CASE HE'S 436 00:38:35.433 --> 00:38:37.816 CHARGED WITH ENDANGERING úTHE WELFARE OF A CHILD. ú CHIEF JUSTICE RABNER: DON'T 437 00:38:37.816 --> 00:38:41.648 TALK ABOUT THE CASE úWITHOUT THE PARTIES HERE MAR. ú ERIC M. MARK: IN THE 438 00:38:41.648 --> 00:38:46.879 HAOEUPTYPOTHETICAL CASE OF A THIRD úDEGREED ENDANGERING THE WELFARE OF A CHILD WE 439 00:38:46.879 --> 00:38:52.134 DEFENDANT MIGHT BE úHIGHLY PHOETMOTIVATED TO TAKE A PLEA TO A FOURTH DEGREE TITLE 9 úBECAUSE 440 00:38:52.134 --> 00:38:56.720 THAT DOES NOT TRIGGER IN ADD PHEUSMISSIBILITY UNDER IMMIGRATION úTHE WAY THAT A-THIRD 441 00:38:56.720 --> 00:39:02.152 DEGREED ENGAINING ERG DOES. SOMEBODY úCHARGE WITH AGGRAVATED ASSAULT MIGHT BE HIGHLY 442 00:39:02.152 --> 00:39:06.804 PHOETMOTIVATED TO úTAKING A FOURTH DEGREE UNLAWFUL PEGS OF A WEAPON CHARGE BECAUSE 443 00:39:06.804 --> 00:39:14.227 úTHAT WILL NOT PREVENTS THEM FROM OBJECTTAINING LAWFUL STATUS. SO úTIMES úSOMETIMES THERE'S 444 00:39:14.227 --> 00:39:21.037 THAN SOMETHING THAT IS NOT I WOULDN'T CALL IT úIMMIGRATION FRIENDLY BUT I AMMMIGRATION 445 00:39:21.037 --> 00:39:25.411 SAFE. ú JUSTICE PATTERSON: ISN'T THE OVER RIDERIDING PHOETMOTIVATION ú00000072FOR 446 00:39:25.411 --> 00:39:33.074 A DEFENDANT WHOSE REPRESENTED AND WELL ADVICESED TO BE DON'T úCONSENT TO ANYTHING, THEY'REING 447 00:39:33.074 --> 00:39:37.034 GOING TO PUT A HOLD NOTICE ON úTHIS WHICH MEANS THAT THE TIME IS GOING TO CONTINUE TO 448 00:39:37.034 --> 00:39:42.981 GO BY, úTHERE WILL BE NOTHING ON YOUR RECORD THAT WILL MAKE THINGS WORSE úWITH RESPECT 449 00:39:42.981 --> 00:39:49.030 TO ICE, AND THEN WHEN HE WE CABBING CAN MACKE A ARGUMENT ON úSPEEDY TRIAL. ISN'T THAT 450 00:39:49.030 --> 00:39:54.155 THE SOLUTION THAT WOULD ENDS WITH THE úDISMISS ALAL OF POTENTIALLY OF THE CASE MAR. ú 451 00:39:54.155 --> 00:39:58.443 ERIC M. MARK: I WOULD SAY, YOUR HONOR, IT'S THE VAST úPHA KWRORT ARE MORE PHOETMOTIVATED 452 00:39:58.443 --> 00:40:05.006 TO RESOLVE THE CASE IN ON ORDER TO úGET OUT OF DETENTION TO GET BACK TO THEIR SPOUSES 453 00:40:05.006 --> 00:40:10.845 AND CHILDREN úAND BUSINESS AN HOME SO THEIR MORTGAGE CAN GET PAID AND THEIR úKIDS CAN 454 00:40:10.845 --> 00:40:16.261 GO TO THE THERAPIST AND THE MEDICINE CAN BE PAID FOR úAND IF MAKEING A PLEA AGREEMENT 455 00:40:16.261 --> 00:40:25.245 IS THE PHOETMOTIVATION TO DO THAT THEN úTHAT IS WAY MORE OFTEN THE PREFERRED COURSE COURSE 456 00:40:25.245 --> 00:40:29.998 THAN SITTING ON úSOMETHING FOR AN EUPBINDEFINITE AMOUNT OF TIME HOPEING SAT SOME úTAOEUPLTIME 457 00:40:29.998 --> 00:40:34.174 úIT GETS DISMISSED. ú JUSTICE PATTERSON: EVEN FOR SOMEBODY WHO'S IN ICE úCUSSTODY 458 00:40:34.174 --> 00:40:37.763 MAR. ú ERIC M. MARK: ESPECIALLY FOR SOMEBODY IN ICE CUSSTODY. ú JUSTICE 459 00:40:37.763 --> 00:40:41.003 HOFFMAN: NOT NECESSARYILY FOR SOMEONE TKPAORTúTKPAORTED MAR. ú ERIC M. 460 00:40:41.003 --> 00:40:44.849 MARK: IT GETS MORE COMPLICATED WHEN YOU'VE úBEEN DEPORTED BECAUSE THERE'S OTHER CONSIDERATIONS 461 00:40:44.849 --> 00:40:51.992 BUT YET FOR úTHAT PERSON AS WELL AS. IN THE VIRGINIA VIRGINIA VAST IN IMMIGRATION úLAWS 462 00:40:51.992 --> 00:40:57.076 YOU'RE GUILTY UNTIL PROFESSORSHIP KNOWSINNOCENCE. SO IT'S GOING ú00000073TO BE A BIG 463 00:40:57.076 --> 00:41:01.049 ARE PROBLEM UNANIMOUS FOR A CONVICTION LESS ARE úKHARPB THAT DOING NOT TRIGGER THATTED 464 00:41:01.049 --> 00:41:06.268 PHEUSINADMISSIBILITY STPHEUFPLT IS IT úFAIR TO SAY THAT AS MUCH IN THE IMMIGRATION UNIVERSE 465 00:41:06.268 --> 00:41:12.223 THAT úSOMEBODY WHO HAS BEEN DEPORTED WHOSE ATTEMPTING TO APPLY FOR RE úEPBúREENTRY WILL 466 00:41:12.223 --> 00:41:16.862 NEVER HAVE ANY RELIEF GRANTED WITH AN OPEN CHARGE úMAR. ú ERIC M. MARK: NEVER 467 00:41:16.862 --> 00:41:23.370 IS ALWAYS A VERY STRONG WORD BUT úYES. I CANNOT ENVISION EVEN BEFORE THE PRESENT 468 00:41:23.370 --> 00:41:27.176 ADMINISTRATION I úCANNOT ENVISION A SCENARIO WHERE SOMEBODY CHARGED WITH A SECONDS úOR 469 00:41:27.176 --> 00:41:33.171 THIRD DEGREE INDICTABLE OFFENSE WOULD BE GIVEN A SRAOESVISA OF ANY úKINDS AT A UNITED STATES 470 00:41:33.171 --> 00:41:37.142 EPL PWAMBASSY. ú JUSTICE NORIEGA: IF THEY HAVE A BENCH WARRANTS AND úOPEN CHARGES 471 00:41:37.142 --> 00:41:42.585 IN THEIR BEST INTERESTS TO RESOLVE IT VIRTUALLY OR úOTHERWISE MAR. ú ERIC M. MARK: 472 00:41:42.585 --> 00:41:45.722 THAT'S CORRECT. ú JUSTICE WAINER APTER: THAT'S ONE WHEN YOU SAID BEFORE úTHAT 473 00:41:45.722 --> 00:41:53.642 IT'S THE CURRENT ICE POLICY NOT TO CONSENT OR NOT TO ALLOW úFOR VIRTUAL OR TELEPHONIC 474 00:41:53.642 --> 00:41:57.197 APPEARANCES I JUST WANTSED TO MAKE SURE úTHAT I UNDERSTOOD THAT CORRECTLY MAR. ú 475 00:41:57.197 --> 00:42:00.071 ERIC M. MARK: THAT IS THEIR DEFAULT POLICY YES. ú JUSTICE WAINER APTER: THAT 476 00:42:00.071 --> 00:42:03.108 IS ICE FACILITIES ACROSS úTHE COUNTRY MAR. ú ERIC M. MARK: YES. ú CHIEF 477 00:42:03.108 --> 00:42:08.564 JUSTICE RABNER: IS THAT AN OEFFICIAL POLICY SYISY OR úBASED ON YOUR EXPERIENCE. ú THE 478 00:42:08.564 --> 00:42:11.941 COURT: MAR. ú ERIC M. MARK: IT'S HAURPB ON MY EXPERIENCE AN I DO ú00000074BELIEVE 479 00:42:11.941 --> 00:42:17.163 THAT IS THEIR STATED POLICY #WEU6789 MEANING IT'S ANOUSúANOUSED SOMEWHERE THAT THEY WILL 480 00:42:17.163 --> 00:42:21.535 NOT ALLOW YOU TO PARTICIPATE IN úSTATE PROCEEDING TELEPHONICALLY MAR. ú ERIC M. MARK: 481 00:42:21.535 --> 00:42:27.723 YES THEIR RATIONAL IS THEY HAVE SO MANY úVIDEO BOOTS AND THEY NEED THOSE VIDEO BOOTS FOR 482 00:42:27.723 --> 00:42:33.092 IMMIGRATION úCOURT APPEARANCES AND FOR ATTORNEY ADVICEVISITATION AND THAT STATE úCOURT 483 00:42:33.092 --> 00:42:39.133 REQUESTS OVERWHELM THEM AND THEY CAN ACCOMMODATE. ú CHIEF JUSTICE RABNER: PERHAPS 484 00:42:39.133 --> 00:42:43.264 THE PUBLIC DEFENDER CAN úHELP US AS WELL MAR. ú ERIC M. MARK: I'LL GIVE YOU 485 00:42:43.264 --> 00:42:49.211 AN AN EBGHE CAN DOUGH TAIL I úHAVE A CLIENTS WHO WAS CHARGED WITH SECOND DEGREE DISTRIBUTION 486 00:42:49.211 --> 00:42:56.207 úOF MARIJUANA WHO DID TPHOTNOT HAVE ANY LEGAL STATUS. AND THE PLEA úOFFER WAS TO A FOURTH 487 00:42:56.207 --> 00:43:03.862 DEGREE NON CUSSTODIAL SENTENCE AND WE WOUND úUP RESOLVING THAT TO 1 # 79 DAYS IN JAIL AND 488 00:43:03.862 --> 00:43:09.177 A D PFPLTP POSSESSION úBECAUSE IT WAS MORE IMPORTANT FOR TO THAT PERSON TO BE ABLE TO 489 00:43:09.177 --> 00:43:14.488 úREENTER THE UNITED STATES OR TO GET LAWFUL START US IN THE úUNITED STATES BECAUSE THE 490 00:43:14.488 --> 00:43:22.255 D PFPLTP MARIJUANA POSSESSION IS WAIVE úABDOMINAL THAN TO NOT GO TO JAIL FOR A CONVICTION 491 00:43:22.255 --> 00:43:26.545 THAN NEVER úCOME BEING BACK TO THE UNITED STATES. BEING IN THE UNITED úSTATES WITH YOUR 492 00:43:26.545 --> 00:43:35.327 FAMILY WITH YOUR LIFE IS OFTEN THE STRONGEST úPHOETMOTIVATEING FACTOR NOT JAIL OR THE 493 00:43:35.327 --> 00:43:39.735 DEGREE OF THE CHARGE. ú CHIEF JUSTICE RABNER: CONSIDERING THE BEYOND THE 20 494 00:43:39.735 --> 00:43:44.582 úMINUTES YOU ASKED FOR ANY QUESTIONS ANYONE. ANYTHING YOU'D LIKE úTO ADD MAR. ú 495 00:43:44.582 --> 00:43:52.335 ERIC M. MARK: JUDGE IF EUI MAY JUST REFER THERE IS ONE ú00000075ISHSUE THAT CAME UP EARLIER 496 00:43:52.335 --> 00:43:57.945 ABOUT EXTRADITION THAT I DID WANT TO úADDRESS. WHEN WRAOE WERE READING THE ARTICLE 10 497 00:43:57.945 --> 00:44:04.220 OF THE TREATY. úNOTEABLY DIDN'T SAY BENCH WARRANT. IT SAID WARRANT OF ARREST. úALL 498 00:44:04.220 --> 00:44:09.871 THAT'S REQUIRED FOR EXTRADITION IS A WARRANTS. THE úCOMPLAINT WARRANT SIGNED BY A JUDICIAL 499 00:44:09.871 --> 00:44:14.527 OFFICER. ú CHIEF JUSTICE RABNER: YOUR CLIENT WAS FORTHED THROUGH úVENEZUELA 500 00:44:14.527 --> 00:44:19.458 MAR. ú ERIC M. MARK: HE'S IN ECUADOR. ú CHIEF JUSTICE RABNER: WHERE 501 00:44:19.458 --> 00:44:25.186 WAS HE FORTHED TO MAR. ú ERIC M. MARK: I BELIEVE ON ECUADOR. ú CHIEF 502 00:44:25.186 --> 00:44:31.119 JUSTICE RABNER: IT'S NOT APPROPRIATE FOR YOU TO úWEIGHING IN ON THE EXTRADITION TREATY 503 00:44:31.119 --> 00:44:35.663 MAR. ú ERIC M. MARK: THE BENCH WARRANTS IS PRE REBGRECOLLECT SIS úTO REQUESTING 504 00:44:35.663 --> 00:44:40.283 EXTRADITION AND I WANTED TO POINT OUT THAT THAT IS úNOT ACCURATE. A WARRANTS IS A PRE 505 00:44:40.283 --> 00:44:44.746 REBG WEUSREQUISITE BUT NOT A BENCH úWARRANT. ú JUSTICE PIERRE-LOUIS: BUT DOESN'T 506 00:44:44.746 --> 00:44:48.768 A BENCH WARRANT AúALLOW FOR THE ARREST OF SOMEONE MAR. ú ERIC M. MARK: IT DOES 507 00:44:48.768 --> 00:44:52.476 BUT NOT MEANINGFUL IN AN EXTRAúEXTRADITION BECAUSE IF THE PERSON IS CHALLENGEING 508 00:44:52.476 --> 00:44:58.531 EXTRADITION úTHEN IT IS ONLY REQUESTING AUTHORITY TO ESTABLISH I'DDENTITY AND úPROBABLE CAUSE 509 00:44:58.531 --> 00:45:03.595 OF THE OFFENSE FOR THE EXTRA DIEDING COUNTRY TO úCONSIDER. SO SAY BENCH WARRANTS DOES 510 00:45:03.595 --> 00:45:07.652 NOT ALL A BENCH WARRANT úESTABLISHES THAT THIS PERSON HAD HEY COURT DATE AND DIDN'T COME 511 00:45:07.652 --> 00:45:11.996 úTO COURT. WHAT ESTABLISHES THE I'DDENTITY AND PROBABLE CAUSE ú00000076SUFFICIENTLY IS 512 00:45:11.996 --> 00:45:16.950 THE EVIDENCE AND THAT IS WHY DOCUMENTS HAVE TO úBE TRANCESLATED IN THE PROPER HE IS HE IS 513 00:45:16.950 --> 00:45:20.619 IS SO OWN RUST. ú JUSTICE PIERRE-LOUIS: BUT A BENCH WARRANTS IS STILL A úWARRANTS 514 00:45:20.619 --> 00:45:23.387 FOR ARREST MAR. ú ERIC M. MARK: IT IS. ú JUSTICE PIERRE-LOUIS: AND 515 00:45:23.387 --> 00:45:29.238 THE SOME TREAT AOES SAY SAY úWARRANTS FOR ARREST A BENCH WARRANTS MAR. ú ERIC M. 516 00:45:29.238 --> 00:45:32.666 MARK: ú JUSTICE WAINER APTER: I JUST WANTED TO UNDERSTAND úYOUR ARGUMENTS. 517 00:45:32.666 --> 00:45:36.485 YOU WERE BEFORE SAYING THAT WHATEVER HAPPENED úSHOULDN'T BE A BENCH WARRANTS IT SHOULD 518 00:45:36.485 --> 00:45:42.410 BE SOME OTHER KIND OF úWARRANT FOR AN ARREST MAR. ú ERIC M. MARK: YES. ú 519 00:45:42.410 --> 00:45:45.466 JUSTICE WAINER APTER: WHY WAS THAT AGAIN MAR. ú ERIC M. MARK: I'M NOT SAYING 520 00:45:45.466 --> 00:45:51.748 FOR ANY KIND I'M SAYING úPARTICULARLY EARLY IN THE PROCEEDINGS ISHSUING A WARRANTS WILL 521 00:45:51.748 --> 00:45:57.068 úPREVENT THAT DEFENDANT IN ICE CUSSTODY FROM GETTING PONDS BONDS IT WILL úGET THAT PERSON 522 00:45:57.068 --> 00:46:00.683 FROM GETTING RELIEF FROM REMOVAL AND IT WILL úPREVENT THAT PERSON. ú CHIEF 523 00:46:00.683 --> 00:46:05.683 JUSTICE RABNER: PREVENTS THEM FROM BEDDING MAR. ú ERIC M. MARK: BONDS. ú 524 00:46:05.683 --> 00:46:08.885 JUSTICE WAINER APTER: IF HE'S BEEN DE PORTPORTED THEN WHATúWHAT. I THOUGHT YOU WERE SAYING 525 00:46:08.885 --> 00:46:13.544 IT SHOULDN'T BE A BENCH úWARRANTS IT SHOULD BE SOME OTHER THING AND WHY IS THAT MAR. 526 00:46:13.544 --> 00:46:16.142 ú ERIC M. MARK: BECAUSE THAT BENCH WARRANTS WILL ú00000077PREVENT OBTAINING A 527 00:46:16.142 --> 00:46:22.714 SRAOESVISA THROUGH THE EPL PWAMBASSY. ú JUSTICE WAINER APTER: WHERE AN WARRANTS 528 00:46:22.714 --> 00:46:29.709 MAR. ú ERIC M. MARK: MIGHT. ú JUSTICE PATTERSON: POST DE PORPORTATION 529 00:46:29.709 --> 00:46:35.348 MAR. ú ERIC M. MARK: I DON'T KNOW THERE WOULD BE ANY THE úCHANCES OF THEM GETTING 530 00:46:35.348 --> 00:46:39.210 A CEASE VIRGINIA TO THE UNITED STATES. ú JUSTICE PIERRE-LOUIS: AND WHAT ARE 531 00:46:39.210 --> 00:46:43.747 THE CHANCES IN úYOUR EXPERIENCE RAOESECENTLY OF A DEFENDANT IN ICE CUSSTODY GETTING úBOND? 532 00:46:43.747 --> 00:46:48.630 MARú ERIC M. MARK: IT'S A NIGHTMARE. IT'S A NIGHTMARE AND úA BENCH WARRANTS 533 00:46:48.630 --> 00:46:54.751 WOULD MAKEING WORSE. ú CHIEF JUSTICE RABNER: THANK YOU MR. MARK. MR. KISCH. 534 00:46:54.751 --> 00:47:03.596 úKISCH ETHAN KISCH: MAY MAY IT PLEASE THE COURT THIS COURT HAD úHAERBD A LOT 535 00:47:03.596 --> 00:47:08.323 OF ARGUMENTS ABOUT TRIALS BUT I'D LIKE TO FOCUS úNATURERROWLY ON THE QUESTIONS PRESENTED 536 00:47:08.323 --> 00:47:13.660 IN IT CASE WHICH IS HOW OUR úNEW JERSEY COURTS CAN HELP RESTOLUTION FOR THE NATURERROW 537 00:47:13.660 --> 00:47:19.295 AND GROWING úCLASS OF CASES OF PRELIMINARY PROCEEDINGS IN WHICH DEFENDANTS úWANT TO 538 00:47:19.295 --> 00:47:24.411 RESOLVE THEIR CHARGES BUT ARE CURRENT DETAINED BY ICE úAND TO CONFIRM THIS NATURERROW QUESTION 539 00:47:24.411 --> 00:47:28.905 THE OFFICER THE PUBLIC úDEFENDER ASKS THIS COURT TO PROCEED THREE PIECES OF GUIDANCE TO 540 00:47:28.905 --> 00:47:34.891 úTRIAL COURTS. FIRST, BENCH WARRANTS ARE GENERALLY INAPPROPRIATE úAND INEFFECTIVE FOR 541 00:47:34.891 --> 00:47:39.341 ICE DETAINED DEFENDANTS. BENCH WARRANTS ARE úKRAEURCONTRARY TO OUR COURT RULES WHICH 542 00:47:39.341 --> 00:47:44.383 REQUIRE VOLITION ALAL NON AúAPPEARANCE BECAUSE THE DEFENDANT HAS NO CONTROL OVER WHETHER 543 00:47:44.383 --> 00:47:49.226 úTHEY CAN APPEAR IN PERSON AND THE COURT KNOWS WHERE THEY'RE ú00000078LOCATED. ú 544 00:47:49.226 --> 00:47:53.796 JUSTICE WAINER APTER: YOU MEAN ICE DETAINED IN THE U úSFPLTS úTHIS IS PRE DE PORDEPORTATION. 545 00:47:53.796 --> 00:47:58.159 ú JUSTICE PIERRE-LOUIS: MR. KISCH DO UYOU AGREE WITH úMR. MARK HAS IT BEEN YOUR 546 00:47:58.159 --> 00:48:03.798 EXPERIENCE OR OF OFFICER THE PUBLIC úDEFENDER THAT A BENCH WARRANTS LODGES A DETAIN ERER 547 00:48:03.798 --> 00:48:09.206 DOES NOTHING IF úSOMEONE IS IN ICE CUSSTODY KISCH. ú ETHAN KISCH: I THINK WHAT 548 00:48:09.206 --> 00:48:15.207 IT DOES IS IT KEEPS THE úDEFENDANT IN ICE CUSSTODY. I THINK BOND IS MUCH MORE 549 00:48:15.207 --> 00:48:18.335 DIFFICULT úTO GET WHEN THERE IS A BENCH WARRANTS HROPBLED AND SO THE BENCH úWARRANTS ITSELF 550 00:48:18.335 --> 00:48:23.407 DOES NOT ACTUALLY FACILITATE A TRAFR IN ANY WAY. ú JUSTICE PIERRE-LOUIS: WHAT 551 00:48:23.407 --> 00:48:28.130 I'M ASKING IS DOES A BENCH úWARRANTS ACTUALLY KEEP THAT DEFENDANT IN ICE CUSSTODY. 552 00:48:28.130 --> 00:48:35.179 ANYTHING úTHERE WAS A BENCH WARRANTS AND. I'M TRYING TO UNDERSTAND IF YOU úHAVE ANY 553 00:48:35.179 --> 00:48:38.997 EXPERIENCE OR THE OFFICER OF THE PUBLIC DEFENDER HAS úANY EXPERIENCE WITH THIS TYPE OF 554 00:48:38.997 --> 00:48:44.773 SITUATION THAT THERE IS A BENCH úWARRANTS ENTERSED IN NCI KRFPLTC BUT ICE NEVER 555 00:48:44.773 --> 00:48:49.734 TTHELESS FORTHS SOMEONE úSANDS DOES NOT KEEP THEM HERE FOR PURPOSESES OF SENDSING EPL 556 00:48:49.734 --> 00:48:53.870 úTHIS NO NO STATE CUSSTODY KISCH. ú ETHAN KISCH: IT'S MY UNDERSTANDING THAT ICE 557 00:48:53.870 --> 00:48:58.359 DOES NOT úCOMPARE úCARE IF THERE'S A BENCH WARRANTS IN PLACE. THEY'LL DE FORTHFORTH. 558 00:48:58.359 --> 00:49:04.183 úTHE ONLY ANYTHING THE BENCH WARRANT IS DOING ENSURING THIS úPERSON IS NOT GRANTED I 559 00:49:04.183 --> 00:49:07.478 AMMMIGRATION BOND. ú JUSTICE NORIEGA: THE OPEN CHARGE IS DOING THAT JUST úAS 560 00:49:07.478 --> 00:49:13.568 MUCH AS A BENCH WARRANT WOULD KISCH CURB THE BENCH WARRANTS ú00000079ITSELF ALSO THE OTHER 561 00:49:13.568 --> 00:49:19.539 PRACTICEAL ELEMENT OF THE BENCH WARRANTS IS úTHAT THE CRIMINAL CASES STALL OUT AND SO 562 00:49:19.539 --> 00:49:24.332 THE BENCH WARRANTS AND úTHE CHARGES KINDS OF WORK IN COLLABORATEION TO STALL THE CRIMINAL 563 00:49:24.332 --> 00:49:31.500 úCASE, STOP ANY KINDS OF BONDS FROM BEING GRANTSED AND IT COULD úLEAD TO HARMFUL 564 00:49:31.500 --> 00:49:37.088 REMOVAL OUTCOMES AS WELL. ú JUSTICE NORIEGA: BUT LIKE MR. MARK SAID IMMIGRATION 565 00:49:37.088 --> 00:49:42.629 úIT'S, YOU KNOW, I THINK HIS COMMENTS WAS PRESUMED GUILTY. I úTHINK THE MEANING OF 566 00:49:42.629 --> 00:49:47.214 THAT WAS THEY SOMETIMES TAKE THE CHARGES úAND USE THEM TO MAKE DECISIONS ON BOND REGARDLESS 567 00:49:47.214 --> 00:49:52.097 OF THE OUT úCOMECOME úOF THE CASE OR WHAT IT COULD BE. RIGHT SO IF THAT'S THE CASE úWHY 568 00:49:52.097 --> 00:49:58.938 SHOULD WE FOR TKPWOE A PROCEEDDURAL TOOL THAT WE HAVE TO úPHRAEUBG SURE THAT WE KAOPB 569 00:49:58.938 --> 00:50:06.525 CAN KEEP TRACK OF WHERE A DEFENDANT IS IF úRELEASED WHERE EXISTENCE OF THE CASE WHICH 570 00:50:06.525 --> 00:50:10.845 IS THE CRIMINAL COURT úIS NOT CONTROLLING IS WHAT'S DRIVING THE BONDS DECISION. I úTHINK 571 00:50:10.845 --> 00:50:14.633 MORE THAN A PWAPT IS KISCH. ú ETHAN KISCH: I THINK I HAVE TWO TO RESPONSES. 572 00:50:14.633 --> 00:50:18.437 I úDON'T THINK THE BENCH WARRANTS IS KEEPING TRACK OF THE DEFENDANT úIF THEY'RE RELEASED 573 00:50:18.437 --> 00:50:22.916 FROM ICE DETENTION. ú JUSTICE NORIEGA: IF THEY'RE RELEASED TO THE TREAT IT 574 00:50:22.916 --> 00:50:27.158 úDOES KISCH. ú ETHAN KISCH: THEY THEY'RE RELEASED ROR THEN THEY HAVE úTHE ABILITY 575 00:50:27.158 --> 00:50:33.387 TO SHOW UP WHEN THEY'RE SUMMONSED TO SHOW UP TO úTRIAL COURT BUT. ú JUSTICE NORIEGA: 576 00:50:33.387 --> 00:50:38.397 BUT IF A BOND IS GRANTED AND A úDEFENDANT PAYS THE BONDS TO I AMMMIGRATION AND A BENCH 577 00:50:38.397 --> 00:50:43.045 WARRANT ú00000080EXISTS FROM THE STATE COURT THEN CHANCES ARE THEY'RE NOT GOING úTO BE 578 00:50:43.045 --> 00:50:47.178 RELEASED FROM THE COUNTY AND THE SHERIFF'S DEPARTMENT WILL úBE CALLED TO SAY DO UYOU 579 00:50:47.178 --> 00:50:51.075 WANT TO COME GET THIS PERSON WE HAVE A úBENCH WARRANT KISCH. ú ETHAN KISCH: I 580 00:50:51.075 --> 00:50:55.885 GOT LOST A LIFT. ú JUSTICE NORIEGA: SURE THEY MISS A COURT DATE BECAUSE úTHEY'RE 581 00:50:55.885 --> 00:50:59.716 IN IMMIGRATION CUSSTODY THEY'RE ISHSUED A BENCH WARRANTS úBY HE IS CONNECTION COUNTSY 582 00:50:59.716 --> 00:51:05.567 THEY'RE THEY ICE FACILITY. I AMúIMMIGRATION JUDGE ISHSUES A BONDS. THEY PAY IT WHEN 583 00:51:05.567 --> 00:51:09.484 THEY'RE úBEING PROPERSCESSED OUT SOMEBODY WILL SAY YOU HAVE A BENCH WARRANTS úFROMMEST 584 00:51:09.484 --> 00:51:15.044 EX AND SEE IF THEY WANTS TO PICKS YOU UP. ISN'T THAT úTHE ENTIRE REASON WHY THAT PROPERS 585 00:51:15.044 --> 00:51:19.396 ECESS EXISTS TO ENSURE THE PERSON úISN'T RELEASED TO THE STREET KISCH. ú ETHAN KISCH: 586 00:51:19.396 --> 00:51:23.280 THAT MAY BE TRUE BUT MY UNDERSTANDING AN úI'M GOING TO DEFER TO MY FRIENDS FROM THE 587 00:51:23.280 --> 00:51:28.413 IMMIGRATION BAR WHO úWILL SPEAK LATER THAT THE BENCH WARRANTS ITSELF IS GOING TO BE A 588 00:51:28.413 --> 00:51:33.030 úPRETTY SIGNIFICANT BAR THAN BONDS BEING GRANTED IN THE FIRST úPLACE STPHEUFPLT LET'S SAY 589 00:51:33.030 --> 00:51:37.992 IT'S GRANTSED KISCHISH I DON'T HAVE A úLOT OF EXPERIENCE THIS THAT SPECIFIC EXPERIENCE. 590 00:51:37.992 --> 00:51:41.497 ú JUSTICE WAINER APTER: THE ONLY WAY WE GOT HERE IS YOU úWERE TALKING ABOUT ONLY 591 00:51:41.497 --> 00:51:47.601 PRELIMINARY PROCEEDINGS AND ONLY WHEN úTHE DEFENDANT WANTS TO PARTICIPATE VIRTUALLY 592 00:51:47.601 --> 00:51:51.201 CORRECT KISCH. ú ETHAN KISCH: PARTICIPATEING IN THE PROCEEDING AND I úTHINK 593 00:51:51.201 --> 00:51:58.337 THIS RACES A GOOD POINT. MOST IF NOT ALL ICE DETAIN AOES úARE GOING TO PREFER A VIRTUAL 594 00:51:58.337 --> 00:52:04.141 PROCEEDING AS MR. MARK SAYS IT ú00000081MOVES FASTER AND THERE'S ALSO DIG TPHEU TAEURNITARY 595 00:52:04.141 --> 00:52:09.118 HARM TO BEING úTRANSFERRED. STRIP SEARCHES BEING LOADED ON A VAN FOR HOURS AND úHOURS 596 00:52:09.118 --> 00:52:15.508 AN HOURS AND SO IN OUR EXPERIENCE DEFENDANTS ARE HAPPY TO úPROCEED VIRTUALLY I'M NOT SAYING 597 00:52:15.508 --> 00:52:20.034 THERE'S A DEFENDANT OUT THERE úWHO WANTS TO STAND IN COURT BUT IN OUR EXPERIENCE DEFENDANTS 598 00:52:20.034 --> 00:52:25.830 ARE úHAPPY TO PROCEED VIRTUALLY AND BECAUSE IT MOVES THE CASE FORWARD úFASTER TOO. ú 599 00:52:25.830 --> 00:52:29.491 JUSTICE WAINER APTER: SO THAT GETS BACK TO WHAT YOU úARE CONFINEING YOUR THREE PIECES 600 00:52:29.491 --> 00:52:34.938 OF THREE THINGS THAT YOU WANTS úUS TO GIVE AS GUIDANCE TO TRIAL COURTS TO ONLY WHEN IT'S 601 00:52:34.938 --> 00:52:39.619 A úPRELIMINARY PROCEEDING AND THE DEFENDANT WANTS TO PARTICIPATE úVIRTUALLY OR IN THEORY 602 00:52:39.619 --> 00:52:43.410 P PERSON BUT YOU'RE SAYING IT'S ALMOST úALWAYS VIRTUALLY KISCH. ú ETHAN KISCH: 603 00:52:43.410 --> 00:52:46.461 I THINK A THAT'S-THAT'S THE NATURERROW SCOPE OF úWHAT THIS COURT HAS TO ADDRESS IN THIS CASE. 604 00:52:46.461 --> 00:52:49.403 ú CHIEF JUSTICE RABNER: WHY DON'T YOU GIVER US THE úSECRETARIED AND THIRD POINTS 605 00:52:49.403 --> 00:52:54.187 KISCH. ú ETHAN KISCH: AFTER THAT I'LL ALSO TALK ABOUT I THINK úTWO 606 00:52:54.187 --> 00:52:59.947 HAOEUPTYPOTHETICAL CASES OR EXCUSE ME REAM CASES IN WHICH THE WITHúWITHHOLDING OF A BENCH 607 00:52:59.947 --> 00:53:04.870 WARRANTS WILL BE HELPFUL BUT I'LL DO THAT úAFTER. SO THE SECOND GUIDELINE WOULD BE THAT 608 00:53:04.870 --> 00:53:10.060 REMOTE APPEARANCES úWILL OFTEN BE THE BEST SOLUTION AS YOU WERE SUGGESTING. ú 609 00:53:10.060 --> 00:53:14.451 JUSTICE PATTERSON: I'M SORRY THE FIRST ONE SO WE HAVE úTHE THREE CLEAR ARE KISCH. ú 610 00:53:14.451 --> 00:53:18.249 ETHAN KISCH: ú00000082 JUSTICE PATTERSON: KRAEURCONTRARY TO COURT RULES 611 00:53:18.249 --> 00:53:21.214 KISCH. ú ETHAN KISCH: THEY'RE ALSO INEFFECTIVELY BECAUSE THEY úDON'T FACILITY 612 00:53:21.214 --> 00:53:25.984 ALLTHOUGH WE'VE HAD A LITTLE BACK APBDZND FORTH. THEY úDON'T FACILITY THE TRANSFER OF THE 613 00:53:25.984 --> 00:53:31.165 PERSON FROM ICE CUSSTODY TO úSTATE CUSSTODY THAT WOULD BE I A WRIT. ú JUSTICE WAINER 614 00:53:31.165 --> 00:53:34.897 APTER: I THOUGHT THE STALL OUT THE úCRIMINAL CASE EVEN THOEPB WE'RE AT A PRELIMINARY PROCEEDING 615 00:53:34.897 --> 00:53:38.770 AN úTHE DEFENDANT DOES NOT WANTS THE CASE TO STALL THE DEFENDANT úWANTS TO TO CONTINUE 616 00:53:38.770 --> 00:53:42.504 KISCH. ú ETHAN KISCH: I AGREE WITH ALL OF THAT. THE SECOND úGUIDELINE WOULD 617 00:53:42.504 --> 00:53:47.966 BE REMOTE APPEARANCES WOULD BE WILL BE THE BEST SOLUTION úFOR ALL PARTIES INCLUDING THE 618 00:53:47.966 --> 00:53:52.097 STATE AND COURT. OUR TRIAL COURTS úIN LITIGATEING PARTIES HAVE BECOME A 619 00:53:52.097 --> 00:53:57.498 DEPARTMENT-DEPARTMENT AT USING TECHúTECHNOLOGY TO ENSURE ABGCCESS FOR ALL OF NEW JERSEY 620 00:53:57.498 --> 00:54:02.037 RESIDENTS. úWHEN A DEFENDANT IS HELD IN ICE DETENTION AND WANTS TO RESOLVE úTHEIR CHARGES 621 00:54:02.037 --> 00:54:06.669 GOOD CAUSE FOR THE VIRTUAL APPEARANCE THEY EXIST úIN THE TRIAL COURT AND THE PARTIES SHOULD 622 00:54:06.669 --> 00:54:10.795 MAKE REASONABLE úEFFORTS TO FACILITATE THAT AND I THINK THIS IS SOMETHING YOU úASKED MR. 623 00:54:10.795 --> 00:54:19.693 CHIEF JUSTICE AFTER CONFERRING WITH OUR I AMMMIGRATION úFOLLOWING WE HAVE HAD SUCCESS 624 00:54:19.693 --> 00:54:26.813 IF FROM FROM MASSACHUSETTS COLUMN úRADúCOLORADO SKWREUFPLT YOU'VE SKWREUFPLT YOU'RE TALKING 625 00:54:26.813 --> 00:54:30.401 ABOUT ICE FACILITIES KISCH. ú ETHAN KISCH: ú JUSTICE PATTERSON: WHAT 626 00:54:30.401 --> 00:54:33.838 ARE THE OTHER STATES MASSúMASSACHUSETTS KISCH. ú ETHAN KISCH: MASSACHUSETTS 627 00:54:33.838 --> 00:54:40.014 COLUMN RADORADO AND TAKESEXAS. ú00000083 JUSTICE PATTERSON: I'M GETTING TO 628 00:54:40.014 --> 00:54:46.082 THE THIRD POINT BUT úIS IT YOUR CON CONTENTION THAT ICE HAS A DEFAULT PROCEDURE THAT SAYS 629 00:54:46.082 --> 00:54:53.825 úNO OTHER REMOTE APPEARANCES. WE DON'T HAVE THE FACILITIES TPR FOR úTHAT KISCH. ú 630 00:54:53.825 --> 00:54:58.263 ETHAN KISCH: I'M NOT AWARE OF THAT. SO I DON'T KNOW úEITHER WAY. I WILL SAY THOUGH JUST 631 00:54:58.263 --> 00:55:03.242 AS A GENERAL MATTER IN THIS úCASE I THINK WE AULLL ABGCKNOWLEDGE WE'RE WALKING ON SHAKEY 632 00:55:03.242 --> 00:55:08.797 GROUND úWITH THE POLICIES OF FEDERAL GOVERNMENT BUT WHAT WE CAN ENSURE. ú. WE CAN'T CONTROL 633 00:55:08.797 --> 00:55:14.219 WHAT THE FEDERAL POLICIES ARE BUT WE CAN ENúENSURE THAT OUR PARTS ADAM COURTS WORK 634 00:55:14.219 --> 00:55:18.905 TOGETHER COLLABORATE RA úTOUGH HREUFL AND WE'RE TALKING ABOUT THE NATURERROW CLASS OF 635 00:55:18.905 --> 00:55:22.589 úDEFENDANTS WHO WANTS TO MOVE THEIR CASES FORWARD LIKELY WANTS TO úPLEAD OUT BECAUSE IT'S 636 00:55:22.589 --> 00:55:29.777 GOING TO ASSIST IN THEIR IMMIGRATION úBONDS AND DEPORTATION PROCEEDINGS AND I THINK THAT 637 00:55:29.777 --> 00:55:34.675 WAS IN ANSWER úTO, YOUR HONOR,'S QUESTIONS EARLIER ABOUT THE REMOTE 638 00:55:34.675 --> 00:55:40.585 PROCEEDINGSúPROCEEDINGS. AND THEN THIRD OUTSIDE OF REMOTE APPEARANCES IN úTHE CASES IN 639 00:55:40.585 --> 00:55:46.144 WHICH THOSE ARE I AMMPOSSIBLE THE STATE DOES THIS úTOOLS TO FACILITY AN ICE DETAINED DEFENDANTS 640 00:55:46.144 --> 00:55:51.039 IN COURT APPEARANCE úAND SHOULD MAKE A GOOD FAITH EFFORT TO USE THEM. AS THE úATTORNEY GENERAL 641 00:55:51.039 --> 00:55:58.459 HAS WRITTEN IN THIS CASE ICE WILL USUALLY HONOR úA STATE JUDGE'S WRIT DIRECTING AN BY 642 00:55:58.459 --> 00:56:02.949 MAKEING A GOOD FAITH EFFORT úTO USE WRITS AND THE OTHER AVAILABLE TOOLS IN THE TOOL KIT 643 00:56:02.949 --> 00:56:07.322 THE úSTATE CAN WORK TOGETHER WITH DEFENSE COUNSEL AND THE COURT TO úMOVE THE CRIMINAL 644 00:56:07.322 --> 00:56:13.104 CASE FORWARD TOWARDS RESTOLUTION RATHER THAN. ú JUSTICE PATTERSON: I WOULD SUGGEST 645 00:56:13.104 --> 00:56:17.092 WE NEED MORE PREú00000084PRECISION THAN THE STATE SHOULD USE WHAT'S AVAILABLE TO THEM. 646 00:56:17.092 --> 00:56:22.534 úTHAT IS ONE OF THOSE STANDSARDS THAT I THINK IS THEY'RE GOING TO úBE LITIGATION OVER 647 00:56:22.534 --> 00:56:27.925 THAT ISHSUE FOR THE NEXT FIVE YEARS SO WHAT úEXACTLY IS IT THAT THE STATE SHOULD ATTEMPT 648 00:56:27.925 --> 00:56:32.714 TO DO KISCH. ú ETHAN KISCH: I THINK NUMBER ONE IS A WRIT. WE HAVE úHAD AS WE 649 00:56:32.714 --> 00:56:41.869 CERTIFY IN OUR APPENDIX WITH THE OPD IN GETTING IN úPERSON APPEARANCE USING WRITS. I 650 00:56:41.869 --> 00:56:46.864 THINK THEN BURDEN BECOMES ONTO úTHE STATE TO LOOK AT THE REST OF THE TOOL KIT AND WE'RE 651 00:56:46.864 --> 00:56:52.687 NOT úSAYING THINK HAVE RO TRY EVERY EUPBG ISLE THING IF IT'S THAT úAPPLICABLING úAPPLICABLE. 652 00:56:52.687 --> 00:56:57.937 BUT FOR THING THAT ARE APPLICABLE AND SUCCESSFUL SUCCESSFUL úTHE STATE HAD HAS A TO MAKE 653 00:56:57.937 --> 00:57:01.585 A GOOD FAITH EFFORT. ú JUSTICE WAINER APTER: HOW DO WE GET THERE TO BEGIN úWITH 654 00:57:01.585 --> 00:57:06.439 IN TERMS YOU SAID WHERE REMOTE APPEARANCE IS I AMMPOSSIBLE úWHAT DOES THAT MEAN DOES THAT 655 00:57:06.439 --> 00:57:09.599 MEAN THE DEFENDANTS IS NOT BECAUSE úI THOUGHT WE WRERE ONLY TALKING ABOUT PRELIMINARY 656 00:57:09.599 --> 00:57:14.703 PROCEEDINGS úWHERE THE DEFENDANT CONSENTS TO PARTICIPATE VIRTUALLY SO WHEN úYOU SAY WHERE 657 00:57:14.703 --> 00:57:19.033 REMOTE APPEARANCE IS I AMMPOSSIBLE DOES THAT MEAN úTHAO ICE IS REFUSEING IT CASH OCCASION 658 00:57:19.033 --> 00:57:24.983 EXACTLY. IN SOS TYPES OF úCASES WHERE RE ICEICE IS NOT FACILITYATING IS AND I THINK THIS IS 659 00:57:24.983 --> 00:57:28.675 úCOUNSEL FROM THE LEGAL SOEUFS SERVICES CAN CERTAINLY ADDRESS MY úUNDERSTANDING IS THAT 660 00:57:28.675 --> 00:57:33.800 THE PHRAOUR ALITYALITY OF NEW JERSEY RESIDENT RE úTKAEUPBúRETKAEUPBEES ARE HELD AT MOW 661 00:57:33.800 --> 00:57:38.504 SHAPBSHANNON IN PENNSYLVANIA WHICH IS úUNDER A FED COURT ORDER TO BOTH COMPLY WITH WRITS 662 00:57:38.504 --> 00:57:45.283 FROM STATE úJUDGES IN NEW JERSEY AND TO FACILITATE REMOTE APPEARANCES SO úTHAT IS A 663 00:57:45.283 --> 00:57:53.531 SUCCESSFUL AVENUE THAT CAN BE USED FOR THE PHRAOURLT ú00000085OF NEW JERSEY. ú 664 00:57:53.531 --> 00:57:57.552 JUSTICE PATTERSON: SO YOU SAT SAID THE WRIT IS NUMBER ONEúONE. DOES THE WRIT MEAN THAT 665 00:57:57.552 --> 00:58:05.881 IF THERE'S A WRIT FOR AR EUZ ICE úFACILITY IN ARIZONA AND THE COUNTSY PROSECUTOR CAN'T 666 00:58:05.881 --> 00:58:10.804 SHARE A úSHERIFF TO SPENDS A COUPLE DAYS IN THE SUN AND GET THIS DONE úDOES THAT MEAN 667 00:58:10.804 --> 00:58:14.312 THAT THE STATE HAS FAILED IN WHAT YOU WOULD úEXPECT IT TO DO KISCH. ú ETHAN 668 00:58:14.312 --> 00:58:20.208 KISCH: I THINK THERE'S GOING TO BE A FACT SENSE úTIPúSENSITIVE ANALYSIS BUT ULTIMATELEY 669 00:58:20.208 --> 00:58:24.935 IT IS THE STATE'S OBLIGATION úTO CONTINUE THE PROSECUTION AND SO, YOU KNOW, IN THE AOEU-- 670 00:58:24.935 --> 00:58:30.977 IN THE úPOTENTIALLY UNLIKELY SCENARIO WHERE AN EXCUSE ME A VIRTUAL AúAPPEARANCE IS I 671 00:58:30.977 --> 00:58:36.274 AMMPOSSIBLE AND THERE'S NO OTHER WAY, YOU KNOW, A úTELEPHONIC APPEARANCE I DO BELIEVE THAT 672 00:58:36.274 --> 00:58:40.921 THE OBLIGATION IS ON THE úSTATE. AND AGAIN THIS IS THE NATURE OTHER CLASS OF CASES WHERE 673 00:58:40.921 --> 00:58:45.669 úTHE DEFENDANT IS DEMANDSING TO MOVE FORWARD WITH HIS CASE AND IS úIN SENTSENT VICEADVISED 674 00:58:45.669 --> 00:58:50.962 TO MOVE FORWARD. ú CHIEF JUSTICE RABNER: IS THE WRIT YOU ENVISION JUST úFOR 675 00:58:50.962 --> 00:58:58.888 UPPERS P OF INDIVIDUAL PROCEEDING AND SATISFIED THE HAVE THE úINDIVIDUAL GOES BACK KISCH. 676 00:58:58.888 --> 00:59:02.611 ú ETHAN KISCH: THAT WOULD BE NEGOTIATED IN THE TRIAL úCOURT. IT COULD BE FOR 677 00:59:02.611 --> 00:59:06.894 THE LENGTHS OF THE PROCEEDING. I'VE úCONSULTED WITH OUR IMMIGRATION FOLKS OVER LUNCH 678 00:59:06.894 --> 00:59:13.135 AND THERE HAD úBEEN WRITS THAT WRIT SOMEBODY BACK TO NEW JERSEY CUSSTODY AND úTHEY TAKE 679 00:59:13.135 --> 00:59:17.624 STAY THERE FOR THE PENNEDDENCY OF THEIR PROCEEDINGS AND úTHEY ARE THEN TURNED OVER TO 680 00:59:17.624 --> 00:59:23.134 ICE AT THE ENDS OF THAT. SO THAT'S ú00000086MY UNDERSTANDING OF THE WRIT PROCESS. ú 681 00:59:23.134 --> 00:59:28.001 JUSTICE PIERRE-LOUIS: BUT THERE ARE OTHERS THAT ONLY úDRAIN úBRING THAT DEFENDANT INTO 682 00:59:28.001 --> 00:59:32.871 STATE CUSSTODY FOR PURPOSES OF ONE úCOURT APPEARANCE OR SPECIFIC DATES AND THEN THEY 683 00:59:32.871 --> 00:59:36.566 MIGHT GO BACK úTO AOUS CUSSTODY KISCH. ú ETHAN KISCH: I BELIEVE THAT'S TRUE. 684 00:59:36.566 --> 00:59:40.134 ú JUSTICE PIERRE-LOUIS: THEN IN ICE CUSSTODY FOR ANOTHER úMONTH OR TWO MONTHS 685 00:59:40.134 --> 00:59:44.844 THERE'S A POSSIBILITY THEY COULD BE DEPORTED úDURING THAT TIME FRAME KISCH KRB I THAT I 686 00:59:44.844 --> 00:59:49.414 THAT'S WHY IT'S úIMPORTANT THAT WE USE ALL OF THE TOOLS TA TO ENSURE THAT THESE úCASES 687 00:59:49.414 --> 00:59:53.751 MOVE FORWARD QUICKLY AS QUICKLY AS POSSIBLE AND I HAVE A úCOUPLE OF EXAMPLES THAT I'D 688 00:59:53.751 --> 00:59:58.870 LIKE TO GIVE THE COURT TO KINDS OF úSHOW, YOU KNOW, WHAT CAN HAPPEN WHEN THINGS GO WEPL. 689 00:59:58.870 --> 01:00:03.788 SO FOR úEXAMPLE, IN PENNSYLVANIAASSAIC COUNTSY I SPOKE TO A TRAOEURL ATTORNEY WHO úREPORTED 690 01:00:03.788 --> 01:00:09.296 THAT HER ICE DETAINED CLIENTS HAD APPEARED VIRTUALLY úFOR ARRAIGNMENT AND FIVE STATUS 691 01:00:09.296 --> 01:00:13.889 CONFERENCES FROM ICE. AND úBECAUSE THE TRIAL COURT WITHHELD THE BENCH WARRANTS SHE WAS 692 01:00:13.889 --> 01:00:20.114 úACTUALLY GRANTED I AMMMIGRATION BOND AND IS ABLE TO COME TO NEW úJERSEY COURT AND DEFENDING 693 01:00:20.114 --> 01:00:25.559 HERSELF IN HER CRIMINAL CASE. IN úANOTHERED COUNTSY ATTORNEYS HAVE REPORTED THAT TWO 694 01:00:25.559 --> 01:00:31.851 NON SITSCITIZEN úCLIENTS WERE PERMITTED TO APPEAR REMOTELY AND WERE SENTENCED TO úFINES 695 01:00:31.851 --> 01:00:36.454 AN FEES BECAUSE THE TRIAL COURT WITHHELD ISHSUING THE BENCH úWARRANT THE CASE CASE STAYED 696 01:00:36.454 --> 01:00:40.804 ON THE ACTIVITY DOCKET. ú JUSTICE NORIEGA: ON THE PENNSYLVANIAASSAIC CASE THE 697 01:00:40.804 --> 01:00:45.775 PERSON úSEPARATE APPEARING REMOTELY SO THERE WAS NO NEED TO ISHSUE AW ú00000087BENCH WARRANT 698 01:00:45.775 --> 01:00:48.424 KISCH. ú ETHAN KISCH: THAT'S TRUE. ú JUSTICE NORIEGA: KISCHú ETHAN 699 01:00:48.424 --> 01:00:53.830 KISCH: IN THIS CASE THE DEFENDANT WAS APPEARING úVIRTUALLY AND THE COURT ISHSUED A BENCH 700 01:00:53.830 --> 01:00:58.060 WARRANTS SO WE'RE ASKING úTHAT IS A CLEAR RULE THAT WE WORPBT BE ISHSUING BENCH WARRANTS 701 01:00:58.060 --> 01:01:00.770 IN úTHOSE TYPES OF CASES. ú JUSTICE NORIEGA: WHEN THE DEFENDANT IS ATTEMPTING 702 01:01:00.770 --> 01:01:05.649 TO úAPPEAR MAKEING EVERY EFFORTS TO APPEAR AND IT'S JUST NOT WORKING úFOR SOME REASON 703 01:01:05.649 --> 01:01:09.514 AND IT'S OUT OF THEIR CONTROL. ú ATTORNEY2: EXACTLY AND I THINK THIS IS A 704 01:01:09.514 --> 01:01:14.086 GOOD EXAMPLE úOF PRACTICEAL REALITY IN SOME OF THIGHS CASES WHERE MR. MARKS úCOMES TO KOUTS 705 01:01:14.086 --> 01:01:19.074 AND SAYS MY CLIENTS WANTS ON APPEAR VIRTUALLY I úTHINK IN A CASE LIKE THAT THE TRIAL COURT 706 01:01:19.074 --> 01:01:23.816 SHOULD REALLY SET A úDATE A WEEK OUT AND TRY TO FACILITATE THIS WORK TOGETHER WITH úTHE 707 01:01:23.816 --> 01:01:28.263 STATE AND DEFENSE COUNSEL TO MOVE THIS CASE FORWARD. ú JUSTICE NORIEGA: 708 01:01:28.263 --> 01:01:32.517 ESPECIALLY IT DEFENSE COUNSEL IS AúAPPEARS ON THE DATES OF COURT DATE AND SAYING I'VE BEEN 709 01:01:32.517 --> 01:01:36.420 IN KUFP úWITH MY CLIENT THIS IS THE NEXT HEARING PLEASE DON'T ISHSUE THE úBENCH WARRANTS 710 01:01:36.420 --> 01:01:43.521 OTHERWISE THEY'RE GOING TO LOOSE THEIR HAURG ON úTHE BOND. CAN I ASK YOUR OFFICE'S POSITION 711 01:01:43.521 --> 01:01:50.073 ON THIS. MR. MARK úMADE A ARGUMENT ABOUT THE LIMITED AMOUNT OF TRIALS THAT WOULD úMAKE 712 01:01:50.073 --> 01:01:57.814 IT TO FULLY FRUITION BASED ON THE DEGREE AN NATURE OF THE úCASES. DURING WITH THAT 713 01:01:57.814 --> 01:02:02.811 PREPLMISE KISCH. ú ETHAN KISCH: I DON'T HAVE ENOUGH INFORMATION TO MAKE ú00000088AN 714 01:02:02.811 --> 01:02:06.957 ANALYSIS ON THAT SO I APOLOGIZE. ú CHIEF JUSTICE RABNER: THERE ARE A SUBSTANTIAL 715 01:02:06.957 --> 01:02:12.486 NUMBER úEVER DEFENDANTS WHO ARE RELEASED ON THREE PLUS MONDAYITORING LEVELS úKISCHúLEVELS. 716 01:02:12.486 --> 01:02:16.380 ú ETHAN KISCH: YEAH. ú JUSTICE HOFFMAN: I THINK YOU SAID THERES LAY 717 01:02:16.380 --> 01:02:21.411 HISTORY úOF VIRT APPEARANCE. ú JUSTICE WAINER APTER: NO THAT WAS THE OTHER KISCH. 718 01:02:21.411 --> 01:02:23.587 ú ETHAN KISCH: IT'S IN THE OTHER CASE. ú JUSTICE WAINER APTER: THAT 719 01:02:23.587 --> 01:02:27.641 WAS THE PENNSYLVANIAASSAIC COUNTSY úCASE KISCH. ú ETHAN KISCH: THAT'S RIGHT. 720 01:02:27.641 --> 01:02:32.850 SO UNLESS THE COURT HAS úANY OTHER QUESTIONS FOR THESE REASONS WE'D ASK THE COURT TO 721 01:02:32.850 --> 01:02:38.485 úPROVIDE THE THREE PIECES OF GUIDANCE THAT I OUT LINED EARLIER SO úOUR COURTS WITH AN WORK 722 01:02:38.485 --> 01:02:43.337 COLLABORATEIVELY WHERE DIRECTIONALLY ALL úTHE PARTIES ARE SORT OF IN THE SAME DIRECTION 723 01:02:43.337 --> 01:02:48.476 THEY WANTS THESE úCASES TO MOVE FORWARD TOWARDS RESTOLUTION. TO ENSURE THAT OUR úCLIENTS 724 01:02:48.476 --> 01:02:53.765 IN ICE CUSSTODY GET THEIR DAY IN COURT. ú CHIEF JUSTICE RABNER: THANK YOU KISCH. 725 01:02:53.765 --> 01:03:05.951 ú ETHAN KISCH: THANK YOU. LINú MOLLY K.C. LINHORST: MAY IT PLEASE THE COURT 726 01:03:05.951 --> 01:03:12.850 THE úKRAOUPBLG OF AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY AND I úKNOW YOU ALL HAVE 727 01:03:12.850 --> 01:03:17.599 HEARD FROM PLEA TODAY I STANDS BY THOSE PRIOR úSTATEMENT SO I WON'T TAKE UP TOO MUCH TIME 728 01:03:17.599 --> 01:03:22.363 BUT I'M HAPPY TO úANSWER QUESTIONS AND THERE ARE A FEW QUESTIONS THAT THE JUSTICES 729 01:03:22.363 --> 01:03:27.610 ú00000089RACEISED PRIOR TO WITH MY TWO COLLEAGUES THAT I'D LIKE TO GO BACK úTO. AND THE 730 01:03:27.610 --> 01:03:34.697 FIRST THAT I WROTE DOWN RELATED TO A QUESTION FROM úJUDGE PAT ERTERSON WHICH WAS WHAT 731 01:03:34.697 --> 01:03:40.363 FOLKS DEFENDANT'S PHOET SWRAEUGS úWOULD BE IF THEY CAN JUST HOLD OFF ON PROCEEDING TO 732 01:03:40.363 --> 01:03:48.061 TRIAL AND úPOTENTIALLY BENEFIT FROM SPEEDY TRIAL AND I THINK THAT'S WHERE úAGAIN YOU GO 733 01:03:48.061 --> 01:03:54.276 BACK TO BARK ARE V WINGO BECAUSE THAT WOULD TAKE úINTO ACCOUNT ISHSUES OF GAMES MAN SHIP 734 01:03:54.276 --> 01:03:58.044 IF PEOPLE ARE IN TKPWGOOD úFAITH. ú JUSTICE PATTERSON: I'M NOT SUGGESTING GAMES 735 01:03:58.044 --> 01:04:04.752 MAN SHIP. úI'M TALKING ABOUT A DETERMINATION THAT THEY WOULD NOT CONSENT TO úFOR EXAMPLE, 736 01:04:04.752 --> 01:04:11.268 TO REMOTE PROCEEDING KNOWING THAT THAT IS GOING úPOTENTIALLY TO DELAY EVERYTHING TO A 737 01:04:11.268 --> 01:04:20.134 GREAT DEGREE AND I'M NOT úSUGGESTING ANYTHING OTHER THAN STRATEGY HERE. SO IT'S STRIKES 738 01:04:20.134 --> 01:04:28.134 úME THAT SOME OF WHAT'S BEING TALKED ABOUT CREATES SNIFF IN TEN SEPBCENTIVE NOT úTO 739 01:04:28.134 --> 01:04:33.880 COOPERATE AS REALLY ACROSS THE BOARD THE MODELS THAT PEOPLE úARE DISCUSSING ENVISION SO 740 01:04:33.880 --> 01:04:37.982 TELL ME WHY I'M WRONG LIN. ú MOLLY K.C. LINHORST: I THINK I INTERPRET THAT AT 741 01:04:37.982 --> 01:04:41.572 úLEAST IN YOUR HAOEUPTYPOTHETICAL I'M UNDERSTANDING THAT THE DEFENDANT úSAYING I'M 742 01:04:41.572 --> 01:04:46.361 NOT KPWOG ONNING GOING TO CONSENT TO THIS THIS BECAUSE I KNOW HA úWILL LEAD TO. ú 743 01:04:46.361 --> 01:04:49.915 JUSTICE PATTERSON: ON THE I'M NOT SUGGESTING THAT. OFFICEúOBVIOUSLY A LAWYER WILL TELL 744 01:04:49.915 --> 01:04:53.997 A CLIENT YOU DON'T HAVE AN OBLúOBLIGATION TO AGREE TO THIS LIN. ú MOLLY K.C. 745 01:04:53.997 --> 01:04:56.219 LINHORST: YEAH. ú JUSTICE WAINER APTER: IF YOU DON'T THE STATE 746 01:04:56.219 --> 01:04:59.756 WON'Tú00000090WON'TABLE ABLE TO PROSECUTE AND YOUR CASE CAN EVENTSUALLY BE úDISMISSED HRP 747 01:04:59.756 --> 01:05:03.724 LIN LIN. ú MOLLY K.C. LINHORST: I THINK WE'RE SOMEWHERE IN THE úMIDDLE. THERE'S 748 01:05:03.724 --> 01:05:10.584 OFFING THE CONSTITUTIONAL RIGHTS THAT PEOPLE úHAVE, YOU KNOW, THAT THEY CAN AVAIL THREPLSS 749 01:05:10.584 --> 01:05:15.058 OF AND THEY SHOULD úBE ABLE TO AVAIL THEMSELVES OF. IF THAT RESULTS TPHR DELAY, úTHAT 750 01:05:15.058 --> 01:05:21.152 COULD ULTIMATELY BE TAKEN INTO TA COUNT IN BARK ARE V WINGO úANALYSIS THEN SO BE IT AND 751 01:05:21.152 --> 01:05:26.350 THAT DELAY MIGHT TPHOTNOT NECESSARYILY BE AúATTRIBUTED TO THE STATE THERE. THERE MIGHT 752 01:05:26.350 --> 01:05:32.286 BE. ú JUSTICE PATTERSON: BUT IT PUTS THE STATE'S úPROSECUTION AT RISK. I DON'T 753 01:05:32.286 --> 01:05:38.737 SEE HOW YOU COULD POSSIBLY DISPUTE úTHAT IT IS A AOEU-- IF THE DEFENDANT DOESN'T AGREE 754 01:05:38.737 --> 01:05:45.039 IT PUTS THE STATEúSTATE'S PROSECUTION AT RISK ON A SPEEDY TRIAL VIOLATION WHICH IS úSOMETHING 755 01:05:45.039 --> 01:05:52.855 THE PROSECUTOR'S ARE FOR GOOD REASONS A VERSEVERSE TO HAVING úSPEEDY TRIALS DISMISS 756 01:05:52.855 --> 01:05:55.477 ALS LIN. ú MOLLY K.C. LINHORST: YES. ú JUSTICE PATTERSON: SO THAT'S 757 01:05:55.477 --> 01:06:00.566 AOEU-- THAT'S WHERE I'M COMEúCOMING FROM SPEAKING FOR MYSELF AND THAT IS WHY WOULD A 758 01:06:00.566 --> 01:06:06.975 úDEFENDANT AOEU-- EVERYBODY'S ASSUMEING THAT THERE WILL BE CONSENT AND úTHERE WILL BE REMOTE 759 01:06:06.975 --> 01:06:15.023 PROCEEDINGS BUT A DEFENDANT MAY BE GAINING úA REAL POTENTIAL FOR THE DISMISS ALAL OF A 760 01:06:15.023 --> 01:06:20.815 CASE BECAUSE THAT AND úTHE STATE WOULD HAVE REAL CONCERNS ABOUT THAT LIN HRUPB I úUNDERSTAND 761 01:06:20.815 --> 01:06:26.811 THOSE CONCERNS. I CAN ENTIRELY SEE WHY THAT COULD BE úA CONCERN BUT I THINK THEN AGAIN 762 01:06:26.811 --> 01:06:31.350 AND I'M SORRY IF EUI SOUND LIKE A úBROKEN RECORD ON THIS. I THINK AGAIN IT GOES BACK 763 01:06:31.350 --> 01:06:34.919 TO THE TRIAL ú00000091COURT TO DETERMINE WHETHER OR NOT THIS IS A LEDGEGITIMATE ISHSUE 764 01:06:34.919 --> 01:06:40.366 OF úSPEEDY TRIAL OR NOT. AND SO, YOU KNOW, I SHOULD ALSO EPL TPAMPHASIZE úOR RE EPL 765 01:06:40.366 --> 01:06:44.936 TPAEMPHASIZE WHAT MY COLLEAGUES HAVE ALREADY SAID WHICH úTHERE'S AN OFTENTIMES IN THESE 766 01:06:44.936 --> 01:06:50.090 CASES ESPECIALLY A HUGE IN TENTEN OF TENTEN úSEPB ACTIVE TO TRY TO GETS THESE CASES RESOLVED 767 01:06:50.090 --> 01:06:54.968 AND THERE'S A úLOT OF INTEREST IN PROCEEDING REMOTELY FOR THAT REASON BECAUSE úOF THE 768 01:06:54.968 --> 01:07:01.898 IMPACT OF OPEN CHARGES AND ANY CONVICTION AT ALL ON THEIR úCRIMINAL CASES. SO I. ú 769 01:07:01.898 --> 01:07:08.608 JUSTICE HOFFMAN: I'M NOT SURE HOW YOU I UNDERSTAND úHOW YOU ANSWERED UP'S QUESTION. 770 01:07:08.608 --> 01:07:16.627 I HERE YOU SAY IN KPEREXERCISEING A úRIGHT TO BE PRESENT THAT COULD CAUSE DELAY AND THAT 771 01:07:16.627 --> 01:07:23.443 DELAY COULD úBE TAKEN INTO CONSIDERATION BY THE COURT IN MAKEING A úDETERMINATION TO TOLL 772 01:07:23.443 --> 01:07:27.334 THE SPEEDY TRIAL CLOCK. DID I GET THAT úRIGHT LIN. ú MOLLY K.C. LINHORST: YES 773 01:07:27.334 --> 01:07:33.570 BUT CAN I ADD A LITTLE BIT úEVER COLOR ONTO THAT WHICH WAS THAT MAYBE, WHICH IS THAT I 774 01:07:33.570 --> 01:07:44.370 THINK úTHE WAY THAT UP JUSTICE PATTERSON WAS TALKING ABOUT THAT. I COULD úSEE HOW IF 775 01:07:44.370 --> 01:07:49.707 THAT WERE INTENDED IN ORDER TO GAIN AN SIGNIFICANT úADVANTAGE TO JUST DISMISS THE 776 01:07:49.707 --> 01:07:54.544 CHARGES A TRIAL COURT COULD, YOU úKNOW, PARSE THE INFORMATION TO TRY TO FIGURE OUT WHAT 777 01:07:54.544 --> 01:07:59.303 THE PHROET úVAGUSES WERE. ú JUSTICE HOFFMAN: I DON'T WANT TO SPEAK FOR JUSTICE 778 01:07:59.303 --> 01:08:03.748 úPATTERSON BUT I THINK ONE OF HER POINTS WAS THAT'S REALLY PRETTY úHARD TO TELL WHEN ALL 779 01:08:03.748 --> 01:08:10.244 THE ATTORNEY IS SAYING MY CLIENT WILL NOT úPARTICIPATE. LINú00000092 MOLLY 780 01:08:10.244 --> 01:08:14.141 K.C. LINHORST: YEAH, THAT COULD BE. THAT'S úTRUE. ú JUSTICE HOFFMAN: EVEN THEN 781 01:08:14.141 --> 01:08:17.160 THAT'S SOMETHING TO BE úTAKEN INTO CONSIDERATION LIN. ú MOLLY K.C. LINHORST: 782 01:08:17.160 --> 01:08:22.797 SO I'M HELPSSITANT TO TALK ABOUT úTAKING INTO CONSIDERATION AOEU-- I KNOW EUI SAID THAT 783 01:08:22.797 --> 01:08:30.812 EARLIER AND I úTHINK IN SOME CASES IT COULD BE BUT I'M PLGS THES HELPSSITANT TO SAY úTHIS 784 01:08:30.812 --> 01:08:34.070 ALL CASES IT WILL NECESSARYILY WEIGH IN UPON WAY OR THE úOTHER. ú JUSTICE PATTERSON: 785 01:08:34.070 --> 01:08:43.145 NOT SAYING THAT BUT LOOKING AT IT úFROM THE PERSPECTIVE COURT OF THE COURT AND THE 786 01:08:43.145 --> 01:08:48.765 PROSECUTOR A DISMISS úAL OAL úON A SPEEDY TRIAL IS A REALLY SEERRIOUS THING. IT'S SEERRIOUS 787 01:08:48.765 --> 01:08:55.482 FOR úSREUGTS, IT'S SEERRIOUS FOR THE CRIMINAL JUSTICE AND WHAT I'M úSUGGESTING IS THAT 788 01:08:55.482 --> 01:09:01.213 THIS AOEUIDEA THAT EVERYBODY WILL CONSENT AND WE úCAN SET UP A PARADIGM WHERE THERE'S 789 01:09:01.213 --> 01:09:06.369 CONSENT SOME BOTH SIDE AND úHAVE BEEN WILL WORK TOGETHER JUST MAY NOT BE RELEASE I CAN. 790 01:09:06.369 --> 01:09:12.219 IT úMIGHT WORK FOR SOME PEOPLE THAT WANT QUICK RESULTS OR OTHER úREASONS BUT IT MAY NOT 791 01:09:12.219 --> 01:09:18.881 BE RELEASE I CAN IN A LOT OF CASES SO úTHAT'S ALL I'M SUGGESTING. I'M NOT ACUTEING ANYBODY 792 01:09:18.881 --> 01:09:23.789 OF, YOU úKNOW, PERSPECTIVE IVEIVELY ACCUSEING ANYBODY OF GAME MAN SHIP I'M úSIMPLY SAYING 793 01:09:23.789 --> 01:09:28.944 THE REALITY IS THAT THIS STRIKES PLEA AS A VERY úRISKY THING FOR HAVE BEEN TO AGREE TO 794 01:09:28.944 --> 01:09:37.076 FROM THE POINT OF VIEW OF úSPEEDY TRIAL LIN. ú MOLLY K.C. LINHORST: I'M LESS 795 01:09:37.076 --> 01:09:43.218 CONCERNED THAT IT'S úTHAT RISKY AND PART OF THAT IS THE INTEREST THAT FOLKS HAVE IN 796 01:09:43.218 --> 01:09:48.188 ú00000093LITIGATEING THEIR CASES BUT THE OTHER PIECE OF THAT IS THAT THE úSTATE HAS THE 797 01:09:48.188 --> 01:09:53.960 DUTY TO MOVE THESE CASES FORWARD AND SO TO THE úEXTENT THAT THERE IS A SEERRIOUS CONCERN 798 01:09:53.960 --> 01:09:58.905 ABOUT DISMISSAL I THINK úTHAT'S ALL THE MORE REASON FOR THE STATE TO PURSUE ALL THESE 799 01:09:58.905 --> 01:10:05.556 úOTHER SORTS OF TOOLS TO PROCEED IN THE CASE I DON'T KNOW IF EUI úFULLY RESOLVED THAT 800 01:10:05.556 --> 01:10:11.935 BUT I DID WANT TO TOUCH QUICKLY ON THE ABGúACCESS TO VIDEO AND THROWN TELEPHONE PROCEEDINGS 801 01:10:11.935 --> 01:10:18.090 IN ICE DE TENDINGTENDING úBECAUSE I AGREE WITH MR. MARK THAT ICE CAN BE EXTREMELY RESIST 802 01:10:18.090 --> 01:10:23.838 úANT AND THERE ARE DEFINITELY CASES WHERE THERE ARE INTO úDETENTION FACILITIES. THEY 803 01:10:23.838 --> 01:10:28.365 HAVEN'T SET UP A GOOD SIS EPL IT. úSOMETIMES REQUIRES LITIGATION BUT MY UNDERSTANDING 804 01:10:28.365 --> 01:10:34.222 IS THAT IT'S úVERY MUCH A FACILITY BY FACILITY ISHSUE. IN TERMS OF WHAT IS úAVAILABLE 805 01:10:34.222 --> 01:10:41.788 AND I BELIEVE NOT TO PUT HER ON THE SPOT BUT I THINK úMS. WISOTSKY WITH AN TAOEBG ONTO 806 01:10:41.788 --> 01:10:47.710 THIS BECAUSE SHE HAS LITIGATION úON THIS. JUSTICE PIERRE-LOUIS YOU WERE ASKING ABOUT 807 01:10:47.710 --> 01:10:53.376 THE EFFECT úTHAT THE BENCH WARRANTS MAY HAVE ON ICE DEPORTATION AN I THINK úTHIS WAS ANSWERED 808 01:10:53.376 --> 01:10:59.945 BUT JUST TO CLARIFY AND CONFIRM THAT MY úUNDERSTANDING IS BENCH WARRANTS A STATE'S 809 01:10:59.945 --> 01:11:06.051 BENCH WARRANT THAT'S úOUT THERE WILL NOT IMPACT HOW SHUN IS DE PORTPORTED WILL NOT PREVENTS 810 01:11:06.051 --> 01:11:09.885 úICE FROM DE PORTPORTING. ú JUSTICE PIERRE-LOUIS: ANY WARRANTS IF IT'S A NEW 811 01:11:09.885 --> 01:11:14.806 úCOMPLAINT WARRANT OR LIN. ú MOLLY K.C. LINHORST: NOT SURE. THESE ARE TWO SISYSTEMS 812 01:11:14.806 --> 01:11:19.837 úTHAT HAVE THEIR OWN DISTINCT INTERESTS. WE KNOW THAT ICE IS úWORKING REALLY QUICKLY 813 01:11:19.837 --> 01:11:26.326 TO GET PEOPLE OUT OF THE COUNTRY SO AOEU-- I ú00000094I'M NOT SURE THAT A WARRANTS ITSELF. 814 01:11:26.326 --> 01:11:31.861 NOW IF THERE ARE ENGAGE IN úA BACK APBDZND FORTH THERE MIGHT BE AOEU-- THAT MIGHT BE 815 01:11:31.861 --> 01:11:37.641 DIFFERENT. WE úKNOW THAT THERE'S SOME AND HES WITH WRITS FOR SURE BUT I JUST úDON'T KNOW 816 01:11:37.641 --> 01:11:44.730 IF LODGEING A WARRANTS AND DETAIN ARE OF SO ANY SORT IN úAND OF ITSELF WOULD BE SUFFICIENT 817 01:11:44.730 --> 01:11:53.823 IF THAT MAKES SENSE. AND THEN úJUSTICE NORIEGA YOU WERE TALKING ABOUT, YOU KNOW, WHETHER 818 01:11:53.823 --> 01:11:59.381 IT úMIGHT MAKE SENSE TO HAVE A BENCH WARRANTS IN THE EVENT THAT SHUN úIS RELEASED BY ICE. 819 01:11:59.381 --> 01:12:04.884 AND I THINK MY FIRST REACTION IS TO JUST úWHY IS IT NECESSARY TO HAVE A BENCH WARRANTS 820 01:12:04.884 --> 01:12:10.002 IF SOMEONE IS úRELEASED BY ICE. BECAUSE THEY HAVE NOT OF THEIR OWN VOLITION úACTUALLY 821 01:12:10.002 --> 01:12:14.820 MISSED ANYTHING. THEY KNOW THIS CASE IS ONGOING. I úTHINK IT WOULD BE IN OTHER ANALOGOUS 822 01:12:14.820 --> 01:12:22.665 TO SOMEONE WHO IS RELEASED úON THEIR OWN RAWS RECOGNIZANCE FROM JAIL AND THEY SKR AN COURT 823 01:12:22.665 --> 01:12:29.851 DATE. ú JUSTICE NORIEGA: WHAT'S THE TREUGIGGERING MACHINE SUM. úTHE COURT DATE 824 01:12:29.851 --> 01:12:36.658 HAS COME AND GONE ICE THE IMMIGRATION CASE IS ONúONGOING AND A MONTH LATER THE RESPONDENT 825 01:12:36.658 --> 01:12:43.154 IN IMMIGRATION PROCEEDúPROCEEDINGS IS RELEASED ON BOND AND IS RELEASED ON THE STREET 826 01:12:43.154 --> 01:12:47.552 úIMMEDIATELY PRIME TRYING TO FIGURE OUT TO YOU WHO PUT THEIR LIFE BACK úTOGETHER AND THERE 827 01:12:47.552 --> 01:12:52.749 IS NO COURT DATE. THERE IS NO CRIMINAL COURT úDATE UP COMECOMING BECAUSE IT WAS DISMISSED 828 01:12:52.749 --> 01:12:57.649 SO WHAT HAPPENS AT THAT úPOINT. JUST TECHNICALLY AND PROCEDURALLY THERE HAS TO BE SOME 829 01:12:57.649 --> 01:13:02.399 úTICKLER SISYSTEM IN PLACE AND A BENCH WARRANTS HAS OFTEN STOOD IN úTHE PLACE FOF THAT 830 01:13:02.399 --> 01:13:07.677 FOR OUR SISYSTEM LIN ENEN IN THE CRIMINAL CONTEXT. ú JUSTICE NORIEGA: IT'S 831 01:13:07.677 --> 01:13:11.851 REALLY A PLACE HOLDER TO SAY úTHIS IS THE DATE THAT WAS MISSED AND NOW YOU NEED TO RETURN 832 01:13:11.851 --> 01:13:15.508 OF ú00000095YOUR OWN VOLITION AN GET IT LIFTED OR BE ARRESTED AT SOME úPOEUPBTPOINT. 833 01:13:15.508 --> 01:13:18.968 úTHAT'S ALWAYS BEEN THE WAIT IT'SS WORKED LIN. ú MOLLY K.C. LINHORST: SO I THINK 834 01:13:18.968 --> 01:13:23.378 A COUPLE THINGS MUCH úONE IS JUST ON PRINCIPLE THE CONCERN THAT THERE IS SOME SOME SOLG 835 01:13:23.378 --> 01:13:30.157 úSAYING úSOMETHING SAYING THEY MISSED BECAUSE THEY WERE DETAINED. ú JUSTICE 836 01:13:30.157 --> 01:13:34.650 NORIEGA: LET'S ASSUME MR. MARK'S HAOEUPTYPOTHETICAL úTHIS THEY CHOSE NOT TO 837 01:13:34.650 --> 01:13:40.777 COME OUT AND THEY'VE SAID I'M NOT AúAPAOERPBT VIRTUALLY I'M TRYING TO FINISH MY CASE AND 838 01:13:40.777 --> 01:13:46.781 I JUST NEED úTO WORK NOVEMBER ON AND THEN THAT ARE BONDED AND AND THEY DIDN'T WANT úON 839 01:13:46.781 --> 01:13:50.585 APPEAR IN A CRIMINAL CASE IN THAT CASE YOU'RE OKAY WITH A úBENCH WARRANTS BEING ISHSUED 840 01:13:50.585 --> 01:13:54.781 LIN. ú MOLLY K.C. LINHORST: I GUESS I'M HAVING A HARD TIME úIMAGINEING THAT 841 01:13:54.781 --> 01:13:59.752 CASE. ú JUSTICE NORIEGA: IMAGINE FOR INSTANCE, FOR TODAY LIN. ú MOLLY 842 01:13:59.752 --> 01:14:04.532 K.C. LINHORST: ú JUSTICE WAINER APTER: BECAUSE FOR EXAMPLE, THE úOFFICER THE 843 01:14:04.532 --> 01:14:09.772 PUBLIC DEFENDER A BENCH WARRANTS WOULD NOT BE úAPPROPRIATE IF WE'RE PRIMARILY AND THE 844 01:14:09.772 --> 01:14:13.078 DEFENDANT WANTS TO úPARTICIPATE SO WE'RE SAYING ASSUME THE BENCH WARRANT GETS ISHSUED 845 01:14:13.078 --> 01:14:17.919 úBECAUSE WE'RE PRIMARILY BUT THE DEFENDANT DEFENDANT IS REFUSEING TO úPARTICIPATE 846 01:14:17.919 --> 01:14:21.629 REMOTELY. ú JUSTICE NORIEGA: AND EVERYBODY'S TRYINGS TO GET THEM úTHERE AND 847 01:14:21.629 --> 01:14:25.624 HE'S SAYING I'M NOT COMEING OUT TODAY LIN. ú MOLLY K.C. LINHORST: AS LONG AS 848 01:14:25.624 --> 01:14:31.385 THERE'S CONFIDENCE úTHAT THAT IS OF THEIR OWN VOLITION I COULD SEE THAT BENCH 849 01:14:31.385 --> 01:14:35.173 ú00000096WARRANTS BEING MORE APPLICABLE THIS TA CASE. IF FETALS LIKE A úVERY SPECIFIC 850 01:14:35.173 --> 01:14:41.567 CASE AND SO I'M HELPSSITANT TO AGREE TO THE USE OF úBENCH WARRANTS GIVEN THAT I HAVE A 851 01:14:41.567 --> 01:14:46.292 HARD TIME MATCHING THAT CASE úBUT GIVEN THE FACTS AS YOU LAID THEM OUT I THINK THERE'S 852 01:14:46.292 --> 01:14:49.903 THAT úVOLITION ALAL ANGLE THERE. ú JUSTICE NORIEGA: BECAUSE WHAT I'M ASSUMEING 853 01:14:49.903 --> 01:14:56.884 IS IF THE úINFORMATION IS AVAILABLE AND TKEFPS COUNSEL'S ON BOARD AND IS úTELLING 854 01:14:56.884 --> 01:15:00.140 IMMIGRATION COUNSEL IS TELLING DEFENSE COUNSEL THIS IS úWHAT'S GOING ON THIS IS WHERE WE 855 01:15:00.140 --> 01:15:05.281 ARE I KNOW YOU HAVE A STATUS úCONFERENCE ON TUESDAY AND IN MOST INSTANCES THE ATTORNEY 856 01:15:05.281 --> 01:15:09.893 IS úGOING TO COME TO COURT JUDGE DON'T ISHSUE THE BENCH WARRANTS THIS úIS WHAT'S HAPPENING 857 01:15:09.893 --> 01:15:15.622 WE'RE COME BEING UP THIS WEEK. I THINK úNOBODY KNOWS WHERE THE DEFENDANT IS. COURT COMES 858 01:15:15.622 --> 01:15:20.568 UP THEY LOOK úIN THE SISYSTEM MAYBE THERE'S AN ICE DETAINER MAYBE THERE ISN'T. úTHEY 859 01:15:20.568 --> 01:15:25.413 THINK THERE MAY BE AN IMMIGRATION ISHSUE BUT NOBODY KNOWS. úDEFENDANT IS NOT PRESENT. 860 01:15:25.413 --> 01:15:30.304 WHAT'S THE COURT GOING TO DO. THEY úHAVE TO MAKE A CHOICE AT THAT POINT BECAUSE THE DEFENDANT 861 01:15:30.304 --> 01:15:34.385 IS NOT úPRESENT WHICH HAS ALWAYS GIVEN A JUDGE THE POSSIBILITY OF SAYING úI'M GOING TO 862 01:15:34.385 --> 01:15:39.877 ISHSUE THE WARRANTS JUST UNTIL WE KNOW WHAT'S GOING úON BECAUSE WE HAVE TO PROTECTS 863 01:15:39.877 --> 01:15:44.027 EVERYONE GOING ON AND ALLOW THE úCASE TO HAVE SOME MARKING THAT SAYS WE'VE MISSED A COURT 864 01:15:44.027 --> 01:15:50.198 AúAPPEARANCE AND WE NEED SOMETHING TO HASHING PBEN BACK TO LATER LIN úHRUPB AND I THINK 865 01:15:50.198 --> 01:15:55.303 IN THAT CASE AS YOU DESCRIBE IT IT IS MORE úANALOGOUS FOLKS DON'T KNOW WHERE THE OF 866 01:15:55.303 --> 01:16:00.373 DEFENDANT IS. THE úDEFENDANT HASN'T SHOWN UP SO THAT IS THAT'S IN OTHER ANALOGOUS ú00000097TO 867 01:16:00.373 --> 01:16:05.096 THE CRIMINAL CONTEXT AND I THINK THE BENCH WARRANTS WOULD úTHAT WOULD MAKE RELEASE I CAN 868 01:16:05.096 --> 01:16:08.829 SENSE YES. ú CHIEF JUSTICE RABNER: OTHER QUESTIONS TPHAEUPB úANYTHING YOU'D 869 01:16:08.829 --> 01:16:12.032 LIKE TO ADD LIN. ú MOLLY K.C. LINHORST: NO THANK YOU VERY MUCH MS. WEUSú 870 01:16:12.032 --> 01:16:42.754 SHIRA WISOTSKY: Pending at the time that they're then brought into federal custody. And, 871 01:16:42.754 --> 01:16:47.902 in fact immigration authorities own records show that one of the most frequent locations 872 01:16:47.902 --> 01:16:55.806 of ICE apprehensions in New Jersey is at our county jails. In the legal services of 873 01:16:55.806 --> 01:17:03.387 New Jersey is experience or L-S N.J. New Jersey courts will frequently issue bench warrant 874 01:17:03.387 --> 01:17:09.968 or other wise take cases off calendar pause them which is what the impact of bench warrant 875 01:17:09.968 --> 01:17:16.801 are, as a matter of fact when somebody who has criminal charges against them are brought 876 01:17:16.801 --> 01:17:23.873 and detained by immigration authorities. And so is here today to ask that this court 877 01:17:23.873 --> 01:17:30.935 clarify that trial court's in New Jersey cannot automatically as a matter of fact for 878 01:17:30.935 --> 01:17:38.181 people in detention only because they're in ICE detention but before doing that, has 879 01:17:38.181 --> 01:17:44.379 to explore alternative options for production, including virtual production.in order to 880 01:17:44.379 --> 01:17:50.154 insure that the constitutional rights of defendants unresolved charges within its 881 01:17:50.154 --> 01:17:56.224 court system.I know it's been a really long day, JUSTICE PATTERSON: Let me ask 882 01:17:56.224 --> 01:18:03.037 you Miss Wisotsky, is it the trial court's burden to do this. ATTORNEY: 883 01:18:03.037 --> 01:18:06.415 I'm sorry southern. JUSTICE: It would be the trial court's burden to explore 884 01:18:06.415 --> 01:18:11.551 the options. SHIRA WISOTSKY: Wells Fargo issuing a bench warrant in the 885 01:18:11.551 --> 01:18:16.050 trial court notices an individual is in immigration custody so rather than 886 01:18:16.050 --> 01:18:21.335 issue a bench warrant as a matter of of course just because someone who is in 887 01:18:21.335 --> 01:18:25.424 immigration detention which is something that L-S and J has seen or clients that be represent 888 01:18:25.424 --> 01:18:29.933 in removal proceedings in multiple cross and municipality courts across the 889 01:18:29.933 --> 01:18:33.987 state,. JUSTICE WAINER APTER: Do you mean for example what happened here 890 01:18:33.987 --> 01:18:37.274 where miss I being detained bays ICE were the United States and they want to 891 01:18:37.274 --> 01:18:41.323 participate virtually the state says, no, and then a bench warrant issues even 892 01:18:41.323 --> 01:18:46.undefined though the defendant is trying to participate in the case and wants to parts take 894 01:18:47.624 --> 01:18:52.670 inappropriate. The individual who is seeking virtually proceedings should be 895 01:18:52.670 --> 01:18:57.401 permitted to seek that virtual production and all means should be. CHIEF JUSTICE 896 01:18:57.401 --> 01:19:01.542 RABNER: What should the trial judge do what had you had the prosecutor do in 897 01:19:01.542 --> 01:19:06.446 your constrict. SHIRA WISOTSKY: So Your Honor, I think it depends on what 898 01:19:06.446 --> 01:19:11.242 phase of the case we're in. And so I just want to begin with a address something 899 01:19:11.242 --> 01:19:15.502 of the logistics Al concerns and we will get to your question. But addressing some 900 01:19:15.502 --> 01:19:21.325 of the logistics Al concerns and how in person where is work and how virtual 901 01:19:21.325 --> 01:19:26.305 production works. Because following an ICE. JUSTICE PATTERSON: I thought 902 01:19:26.305 --> 01:19:32.373 you heard he say all means must be explored. SHIRA WISOTSKY: All practical 903 01:19:32.373 --> 01:19:37.547 means must be assuming that virtual production is an option: If virtual 904 01:19:37.547 --> 01:19:44.029 production is not an option, then whether an in person writ is appropriate should 905 01:19:44.029 --> 01:19:49.971 be considered. But for the most part, L-S and J has focus the post fewer TV 906 01:19:49.971 --> 01:19:54.118 case and the question that's I certified which is the initial hearings. Before 907 01:19:54.118 --> 01:20:00.364 the court. Whether it's an arrange or a post arraign consist of or other pretrial 908 01:20:00.364 --> 01:20:04.982 conferences. And whether telephonic and virtual appearances are permitted 909 01:20:04.982 --> 01:20:07.511 there. JUSTICE WAINER APTER: Where the defendants wants the parts pit in 910 01:20:07.511 --> 01:20:09.720 there is this what you meant whether you say possible. ATTORNEY: Yes, 911 01:20:09.720 --> 01:20:15.048 Your Honor thank you for the correction. So following an ICE detention people 912 01:20:15.048 --> 01:20:20.645 are frequently transported by ICE out of state to detention facility that could 913 01:20:20.645 --> 01:20:25.126 be hundreds after miles a ways way and travel from those detention facilities 914 01:20:25.126 --> 01:20:29.988 to New Jersey courts can take hours by plain, or by car, and that's even with 915 01:20:29.988 --> 01:20:36.345 the help added security precautions and de oars that are continues to a nationwide 916 01:20:36.345 --> 01:20:41.320 federal detention system. CHIEF JUSTICE RABNER: Do you have a sense 917 01:20:41.320 --> 01:20:44.916 takes what merge of New Jersey defendants ever taken out of states when ICE does 918 01:20:44.916 --> 01:20:49.512 that. ATTORNEY: Yes, Your Honor although the time that we filed our brief 919 01:20:49.512 --> 01:20:55.137 we had just received data from an ICE identify a request which is the floor 920 01:20:55.137 --> 01:20:59.446 all together of individuals who are brought the ice held at the Moshannon Valley 921 01:20:59.446 --> 01:21:04.699 processing officer in clear field county in physicals beg your pardon Pennsylvania 922 01:21:04.699 --> 01:21:09.215 that includes has changed. And I don't stolen want the hide the Paul this 923 01:21:09.215 --> 01:21:13.395 both because of the opening of drain' hall, in New Jersey, which actually allows 924 01:21:13.395 --> 01:21:19.583 about lumbar a you this people to be held within the state, and because justice 925 01:21:19.583 --> 01:21:23.748 sheer number of people who have been brought into immigration custody in the last 926 01:21:23.748 --> 01:21:30.138 several months, means that there more non citizen who are appear handed in 927 01:21:30.138 --> 01:21:34.275 New Jersey that are transferred to other facilities out of state and that can 928 01:21:34.275 --> 01:21:38.788 include we've seen a number of kind of the cohort of individuals who have been 929 01:21:38.788 --> 01:21:44.531 transferred to Indiana we've seen' number of people who have been held south or 930 01:21:44.531 --> 01:21:50.037 at other immigration detention facilities across the country. ICE 931 01:21:50.037 --> 01:21:55.876 generally has a consistent practice of refusing to transport the penal that are in 932 01:21:55.876 --> 01:22:01.619 their custody for state court criminal proceedings. And specifically they 933 01:22:01.619 --> 01:22:07.018 wouldn't allow someone to be transported from their custody to state court criminal 934 01:22:07.018 --> 01:22:13.725 proceedings absent a writ that was issued by a New Jersey court mandating in 935 01:22:13.725 --> 01:22:21.406 person appearance. That writ process can be complicated. It first requires 936 01:22:21.406 --> 01:22:27.006 an application to a New Jersey court, which has to be issued by the judge, it's 937 01:22:27.006 --> 01:22:31.099 a part of it includes there owe he we kind of talk but a little bit my company -- 938 01:22:31.099 --> 01:22:37.702 my colleagues about magic words but it has to include an agreement by New Jersey 939 01:22:37.702 --> 01:22:42.835 to detainer individuals in their custody for the time that the charges remain 940 01:22:42.835 --> 01:22:46.923 pending or during the time that those individuals are in their custody and 941 01:22:46.923 --> 01:22:53.085 it has to include an agreement for transport said New Jersey goes picks up that person, 942 01:22:53.085 --> 01:23:00.423 holds them and then returns them to ICE custody afterwards. So. 943 01:23:00.423 --> 01:23:01.758 CHIEF JUSTICE RABNER: The first. JUSTICE WAINER APTER: The width would 944 01:23:01.758 --> 01:23:06.161 bring this individual over for the balance of the proceedings in the case. 945 01:23:06.161 --> 01:23:10.098 ATTORNEY: So it can be either Your Honor. We have seen both people who are writ 946 01:23:10.098 --> 01:23:15.800 dollars tore the entire process, of a case, we recently had a client who was 947 01:23:15.800 --> 01:23:20.558 writ dollars I believe for about three months to a county facility so that 948 01:23:20.558 --> 01:23:25.162 charges could be addressed there was a plea agreement entered, and he received PTI. 949 01:23:25.162 --> 01:23:29.778 We've also had other clients who have been writ dollars for particular proceedings 950 01:23:29.778 --> 01:23:33.964 only, and one client that immediately comes the mind, is a client that I've 951 01:23:33.964 --> 01:23:38.801 represented now in several maybe why you will petitions she had a bench warrant 952 01:23:38.801 --> 01:23:43.538 that was automatically issued by a Superior Court in New Jersey by virtue of the 953 01:23:43.538 --> 01:23:47.921 fact that she was was an immigration detention. Once that came to light with 954 01:23:47.921 --> 01:23:52.410 the county, county official went to the Moshannon Valley processing sister 955 01:23:52.410 --> 01:23:58.003 and picked her up. From custody at me shin brought a back, to section where 956 01:23:58.003 --> 01:24:03.373 she was detained, she was then put in a criminal proceeding to lift the bench warrant 957 01:24:03.373 --> 01:24:09.515 with a Superior Court judge, in section on Zoom, from the Essex County facility, 958 01:24:09.515 --> 01:24:14.665 and was then left they're annex explained it was because New Jersey could not 959 01:24:14.665 --> 01:24:20.536 release her because of the language in the writ. It was three weeks later 960 01:24:20.536 --> 01:24:24.844 that legal services of New Jersey along with Amica sent her for greats rights 961 01:24:24.844 --> 01:24:28.858 failed a maybe I couldn't say petition the District of New Jersey. Not understanding 962 01:24:28.858 --> 01:24:33.680 the authority under which she was still being detained, while proceedings were 963 01:24:33.680 --> 01:24:38.826 not ongoing and there was no court patterns, and tap I I responded by picking 964 01:24:38.826 --> 01:24:44.421 her up and returning her to immigration custody. JUSTICE NORIEGA: Can 965 01:24:44.421 --> 01:24:49.446 I ask you are you aware of any case any statute, constitution Sal principal 966 01:24:49.446 --> 01:24:54.753 anything anything that would explain to us which party has the authority to make 967 01:24:54.753 --> 01:24:58.950 these things happen? Because everyone has a suggested a different person is 968 01:24:58.950 --> 01:25:03.093 responsible and Mr. Mark suggested maybe everybody should be responsible. So 969 01:25:03.093 --> 01:25:07.923 is there a source for us to go to. SHIRA WISOTSKY: Sure. Your Honor, 970 01:25:07.923 --> 01:25:11.215 that's a complicated question that I'm gonna do I best to answer. And I think 971 01:25:11.215 --> 01:25:15.955 they're two pieces of it. The first piece of it is practically what is happening 972 01:25:15.955 --> 01:25:21.325 on the ground. Which is that glycols is making (the State of New Jersey 973 01:25:21.325 --> 01:25:27.235 responsible at least with respect to effectuating in person writs. Such that 974 01:25:27.235 --> 01:25:30.749 someone is physically present not virtually but physically present in New Jersey. 975 01:25:30.749 --> 01:25:36.918 With respect to kind of the finances and how that. JUSTICE PATTERSON: 976 01:25:36.918 --> 01:25:42.036 That means you pick them up. SHIRA WISOTSKY: That's right Your Honor. 977 01:25:42.036 --> 01:25:44.665 JUSTICE NORIEGA: State of New Jersey usual lieu shared not the prosecutor's office. 978 01:25:44.665 --> 01:25:48.655 SHIRA WISOTSKY: Sowffed one case I believe about two years ago, where 979 01:25:48.655 --> 01:25:51.939 someone from the prosecutor's office was so frustrated any did \she\show up. 980 01:25:51.939 --> 01:25:57.395 And ICE detention feel free to transport someone but generally help we are 981 01:25:57.395 --> 01:26:01.819 talking with respect to Superior Court about the county sheriff's office when we're 982 01:26:01.819 --> 01:26:07.427 talking about municipal court it actually becomes much more complicated. Where 983 01:26:07.427 --> 01:26:11.910 multiple courts might not have the same resources let's say available to 984 01:26:11.910 --> 01:26:19.551 Superior Court. That said, and I want to get back to your question in a moment. 985 01:26:19.551 --> 01:26:24.829 But that said, we had sheriff's office say, we don't have the jurisdiction 986 01:26:24.829 --> 01:26:28.266 to leaf New Jersey and pick someone up. We are not gonna do it. We don't have 987 01:26:28.266 --> 01:26:35.442 the resources to do so. In order to effectuate this in person writ and we have 988 01:26:35.442 --> 01:26:39.147 had municipal courts similarly say, I was a friend of the cart in this appearance 989 01:26:39.147 --> 01:26:44.694 and I heard the municipal court kind say warp I can't direct the local police 990 01:26:44.694 --> 01:26:49.863 to go and bring that person back. And before justice New York City resources, 991 01:26:49.863 --> 01:26:57.359 I do want to acknowledge justice hof the question you asked before about Lopez 992 01:26:57.359 --> 01:27:02.604 Carrera. Because I think there is an open question and to be clear, L-S-J not taking 993 01:27:02.604 --> 01:27:07.494 a passion to the -- the it wasn't in the petition for certification. But there 994 01:27:07.494 --> 01:27:10.440 I want an open question about holding someone in New Jersey who is previously 995 01:27:10.440 --> 01:27:18.107 released. And so when people are picked up by ICE for in this posture, for 996 01:27:18.107 --> 01:27:21.277 the most part they are picked up after a Superior Court judge has ordered their 997 01:27:21.277 --> 01:27:26.891 release. It's to be a Reiss the own recognizance much morphinely it's 998 01:27:26.891 --> 01:27:30.159 release with assistance with checking in with pretrial services. But they are 999 01:27:30.159 --> 01:27:35.012 released from state custody and then they are and landed by ICE and there have been 1000 01:27:35.012 --> 01:27:40.396 Superior Court judges who will have said because of this courts prior decisions 1001 01:27:40.396 --> 01:27:47.525 including in lines care, we do not have the jurisdiction to. CHIEF JUSTICE 1002 01:27:47.525 --> 01:27:49.387 RABNER: Upper if you you the this is not before the court today I'm saying 1003 01:27:49.387 --> 01:27:54.047 that the all counsel. We can move beyond it. SHIRA WISOTSKY: Thank you, 1004 01:27:54.047 --> 01:27:57.824 Your Honor. JUSTICE FASCIALE: Can I give a equip hypo? Defendants arrested 1005 01:27:57.824 --> 01:28:06.282 and charged, he's released on condition, he's then detained by ICE, and fails 1006 01:28:06.282 --> 01:28:13.926 to appear at an a go arraignment. What does the judge do at that point? 1007 01:28:13.926 --> 01:28:16.501 SHIRA WISOTSKY: I'm sorry Your Honor you didn't hear all of. JUSTICE 1008 01:28:16.501 --> 01:28:21.315 FASCIALE: I'll do it again. Appeared and charges dollars, released on condition, 1009 01:28:21.315 --> 01:28:29.797 detained by ICE, failure to appear for an arraignment. What happens then? What 1010 01:28:29.797 --> 01:28:35.331 is the judge supposed to. SHIRA WISOTSKY: So Your Honor I think it 1011 01:28:35.331 --> 01:28:39.053 depends also on additional circumstances like whether it's known to the court if 1012 01:28:39.053 --> 01:28:45.648 this individual is in immigration custody. And so to get back to the chief 1013 01:28:45.648 --> 01:28:51.011 justice' question before, one of the reasons that makes the writ in turn writ 1014 01:28:51.011 --> 01:28:56.619 process so complicated, is that it frequently people are picked up by ICE before 1015 01:28:56.619 --> 01:29:01.620 they have the opportunity to for defense counsel to be appointed. The defendant 1016 01:29:01.620 --> 01:29:07.136 in the matter was so lucky to have wonderful and able counsel but many people 1017 01:29:07.136 --> 01:29:11.285 particularly folks who are indigent, they are picked up by ICE following the 1018 01:29:11.285 --> 01:29:17.280 release order by Superior Court judge, but before they're first appearance. 1019 01:29:17.280 --> 01:29:20.563 JUSTICE FASCIALE: So let's say the judge doesn't know why the defendant has failed 1020 01:29:20.563 --> 01:29:25.880 to appear. Doesn't know if et cetera been detained, by ICE or is simply failing 1021 01:29:25.880 --> 01:29:34.510 to appear. What happens at the arraignment what does the judge do? SHIRA 1022 01:29:34.510 --> 01:29:39.645 WISOTSKY: So I think again in terms of looking at failure to appear, I also think 1023 01:29:39.645 --> 01:29:43.269 it needs to be understood what's known to the court. JUSTICE FASCIALE: 1024 01:29:43.269 --> 01:29:47.902 What does judge do does the judge question the assistant prosecutor at that 1025 01:29:47.902 --> 01:29:50.407 point. SHIRA WISOTSKY: Sure so the eCourts in the event that someone is 1026 01:29:50.407 --> 01:29:56.426 picked up on an ICE detainer, it frequently list it is that a transfer to other 1027 01:29:56.426 --> 01:30:02.129 authority. And so there is an indication in the court system that a person has 1028 01:30:02.129 --> 01:30:06.843 been transferred to ICE custody. THE COURT: IT so the judge assessment 1029 01:30:06.843 --> 01:30:13.485 about the that and learns that the defendant in my hypo has Danny by ICE. Then what 1030 01:30:13.485 --> 01:30:17.452 does the judge does. SHIRA WISOTSKY: So this that case, I think 1031 01:30:17.452 --> 01:30:24.158 the court first I think if again this is but a back about in the as a attorney whether 1032 01:30:24.158 --> 01:30:28.665 which is why I'm thinking you there both associations. I think if counsel 1033 01:30:28.665 --> 01:30:33.495 has not yet been pointed, for that individual, which frequently happens, 1034 01:30:33.495 --> 01:30:38.142 the judge does not issue a bench warrant but arrangements for a virtual appearance 1035 01:30:38.142 --> 01:30:43.395 assuming that's permitted. Which very frequently it is. Such this an ability to 1036 01:30:43.395 --> 01:30:47.788 pay hearing is conducts and counsel is pointed for that individual. So that 1037 01:30:47.788 --> 01:30:51.065 person in criminal proceedings has a bench of counsel. JUSTICE FASCIALE: 1038 01:30:51.065 --> 01:30:54.599 Let's say they've counsel I. SHIRA WISOTSKY: To they've counsel I 1039 01:30:54.599 --> 01:30:58.469 think at that point the point is how can we get the persons to appear can you seek' 1040 01:30:58.469 --> 01:31:02.563 virtually patterns? Assuming that's in at the beginning of the case and it's 1041 01:31:02.563 --> 01:31:06.092 appropriate for that type of hearing. JUSTICE FASCIALE: That's if arraignment. 1042 01:31:06.092 --> 01:31:10.360 SHIRA WISOTSKY: So then I think in that case, yes, then you would seek' 1043 01:31:10.360 --> 01:31:13.306 virtual appearance. JUSTICE FASCIALE: And. JUSTICE WAINER 1044 01:31:13.306 --> 01:31:17.573 APTER: I'm sorry are you owe on think a lot of disagreement as to whether virtual 1045 01:31:17.573 --> 01:31:22.540 appearances are possible because ICE either blanketly prohibit them or ICE 1046 01:31:22.540 --> 01:31:26.402 does at the blanketly prohibit them and we've will a lot of success with them. 1047 01:31:26.402 --> 01:31:30.816 Can you weigh in on is that. SHIRA WISOTSKY: Absolutely. JUSTICE 1048 01:31:30.816 --> 01:31:32.928 WAINER APTER: Both telephonic and video. SHIRA WISOTSKY: Yes, Your Honor. 1049 01:31:32.928 --> 01:31:37.545 As far as I know, ICE no, sir, at the remember a blanket policy of prohibiting 1050 01:31:37.545 --> 01:31:42.695 virtual appearance. As a alluded to before, legal services of New Jersey along 1051 01:31:42.695 --> 01:31:46.482 with loan stand and the immigration cling along familiar Shaw is company 1052 01:31:46.482 --> 01:31:51.180 downstairs in the matter of dough V department of home land scare way is a Peter 1053 01:31:51.180 --> 01:31:55.063 indication argue situation a plaintiff case brought to behalf of people with 1054 01:31:55.063 --> 01:32:00.010 unresolve criminal charges in New Jersey, detained at the Moshannon Valley 1055 01:32:00.010 --> 01:32:04.770 processing center in Pennsylvania. Who are seeking to participate in the criminal 1056 01:32:04.770 --> 01:32:08.919 court charges virtually. During the course of litigation in that case, which 1057 01:32:08.919 --> 01:32:13.989 has primarily been through a preliminary injunction, where plaintiffs have asserted 1058 01:32:13.989 --> 01:32:19.491 both cons taking a arguments and arguments under the anyone procedural act 1059 01:32:19.491 --> 01:32:24.371 which involves agency policy, defendants have not represented that there is 1060 01:32:24.371 --> 01:32:30.566 a blanket and defendants including ICE, have not represented that there's a blanket 1061 01:32:30.566 --> 01:32:35.701 policy prohibiting virtual appearance. Now, it is a case by case scenario, at least 1062 01:32:35.701 --> 01:32:42.428 in terms of a facility by facility scenario. Part of plaintiffs argument with 1063 01:32:42.428 --> 01:32:48.019 respect to the A-P claims is that ICE is very I object consist and ice will 1064 01:32:48.019 --> 01:32:53.169 permit virtual telephonic or video Zoom appearances, in some facilities, and not 1065 01:32:53.169 --> 01:32:57.911 in other facilities. So for example, the Elizabeth contract detention center 1066 01:32:57.911 --> 01:33:02.294 in Elizabeth New Jersey has a touringly permitted Zoom or virtual appearances 1067 01:33:02.294 --> 01:33:07.254 for people that are held by ICE in that facility. The Moshannon Valley 1068 01:33:07.254 --> 01:33:11.936 processing center where at that time held a blunt of individuals in that 1069 01:33:11.936 --> 01:33:16.554 circumstance, had a blanket both of prohibiting the individuals that they held in 1070 01:33:16.554 --> 01:33:21.750 their custody from participate willing in criminal corporate in New Jersey 1071 01:33:21.750 --> 01:33:25.192 virtually. A preliminary. JUSTICE WAINER APTER: On video or telephone 1072 01:33:25.192 --> 01:33:29.671 or just video. SHIRA WISOTSKY: Both Your Honor. A preliminary junction 1073 01:33:29.671 --> 01:33:34.722 as issued in the western district of Pennsylvania in January of last year. 1074 01:33:34.722 --> 01:33:39.896 Which was Larry clarified by the court that it does apply to the computer class. 1075 01:33:39.896 --> 01:33:45.402 Such that people who are detained at me Shannon with unresolved criminal charges 1076 01:33:45.402 --> 01:33:49.994 in New Jersey, have the right and ability to participate in the charges against 1077 01:33:49.994 --> 01:33:55.040 them in New Jersey by virtual means. Those virtual means typically are conducted 1078 01:33:55.040 --> 01:34:01.877 over Zoom. I'll also note that we have seen plans transferred across the country, 1079 01:34:01.877 --> 01:34:06.770 where we will developing our expertise with respect to other facilities and 1080 01:34:06.770 --> 01:34:12.356 I certainly' ahead of my squeeze, but I have consulted both with advocates 1081 01:34:12.356 --> 01:34:16.862 and with Superior Court clerks with respect to virtual appearances at other 1082 01:34:16.862 --> 01:34:22.940 facilities and we have had success for example in Arizona, I believe in Texas, as 1083 01:34:22.940 --> 01:34:27.113 well. JUSTICE PATTERSON: Success meaning they are allowing the virtual 1084 01:34:27.113 --> 01:34:30.532 proceedings. ATTORNEY: Yes, Your Honor. JUSTICE PATTERSON: Are the 1085 01:34:30.532 --> 01:34:34.243 facility where New Jersey or New Jersey defendants are being held which have 1086 01:34:34.243 --> 01:34:38.608 say we were never going to law or don't allow this at all. SHIRA WISOTSKY: 1087 01:34:38.608 --> 01:34:41.103 I believe so Your Honor, yes. JUSTICE WAINER APTER: But you don't know 1088 01:34:41.103 --> 01:34:44.992 withers are. ATTORNEY: I do not by haven't seen as many people detained 1089 01:34:44.992 --> 01:34:50.583 there. That's not to say we will not. In the near future but as of. JUSTICE 1090 01:34:50.583 --> 01:34:52.348 WAINER APTER: There meaning you know there is a place that's the applicant both 1091 01:34:52.348 --> 01:34:56.931 but just that New Jersey people who have been picked up by ICE will not sent 1092 01:34:56.931 --> 01:35:01.013 there or they're meaning you don't know if there is a specific there that has 1093 01:35:01.013 --> 01:35:05.221 a policy aside from money. ATTORNEY: I would say both Your Honor. We 1094 01:35:05.221 --> 01:35:10.030 don't we certainly there's a university representation so I can't know about go every 1095 01:35:10.030 --> 01:35:14.111 place a non citizen New Jersey is sent. And I mean universal representation 1096 01:35:14.111 --> 01:35:18.729 for removal proceedings. JUSTICE WAINER APTER: Sorry, I phrased it 1097 01:35:18.729 --> 01:35:23.268 the question poorly, do you know of another facility aside from me Shannon and me 1098 01:35:23.268 --> 01:35:26.884 shaken doesn't my nowhere but that high school a blanket policy no remote 1099 01:35:26.884 --> 01:35:30.611 proceedings period. ATTORNEY: Drain' hall in Newark has represented that 1100 01:35:30.611 --> 01:35:35.243 that's their policy. JUSTICE WAINER APTER: So they do not allow anything 1101 01:35:35.243 --> 01:35:38.185 to. ATTORNEY: I believe so they're limited within New Jersey though F 1102 01:35:38.185 --> 01:35:42.505 so what I think I'm hearing he saying necessary the judge has discretion at 1103 01:35:42.505 --> 01:35:48.360 the arraignment about whether tow issue a bench warrant or not issue a bench 1104 01:35:48.360 --> 01:35:50.773 warrant. SHIRA WISOTSKY: So Your Honor, we would respectful through defer 1105 01:35:50.773 --> 01:35:56.345 to the office of the public defender. In terms of their position that a 1106 01:35:56.345 --> 01:35:58.996 volitional acts needs to happen. Fertility a bench warrant to be issued. And I 1107 01:35:58.996 --> 01:36:03.582 think that gets directly the prejudice and the motivations that justice pat 1108 01:36:03.582 --> 01:36:09.949 was discussing before. With respect to the impact of a bench warrant and both 1109 01:36:09.949 --> 01:36:15.823 on detention and on removal proceedings. In addition to the facts that a bench 1110 01:36:15.823 --> 01:36:20.774 warrant does stall out does if you will through put. Those proceedings. 1111 01:36:20.774 --> 01:36:23.304 CHIEF JUSTICE RABNER: Recommend ask you the one question the delay has anyone changed 1112 01:36:23.304 --> 01:36:25.721 the. ATTORNEY: Not yet Your Honor. JUSTICE WAINER APTER: Has 1113 01:36:25.721 --> 01:36:29.461 it the not of a New Jersey tore emergency room because it's in New Jersey so 1114 01:36:29.461 --> 01:36:35.048 you don't need a writ you just how does it work people ever why you always. 1115 01:36:35.048 --> 01:36:38.893 ATTORNEY: Have been issues Your Honor I don't have particular information at this 1116 01:36:38.893 --> 01:36:40.758 time. CHIEF JUSTICE RABNER: Please go ahead. ATTORNEY: Thank you, 1117 01:36:40.758 --> 01:36:45.345 Your Honor. Orthopedics and just I'm sorry. Just in terms of the in person 1118 01:36:45.345 --> 01:36:49.979 procedure and process before I get to the prejudice of warrants I would do want 1119 01:36:49.979 --> 01:36:56.302 the note as part of the litigation around the preliminary unaging and a dough matter 1120 01:36:56.302 --> 01:37:03.553 defendants eyes represented from March of 2023 through October of 2024 only 1121 01:37:03.553 --> 01:37:10.794 eight feeble were actually writ dollars in person from the me Shannon for criminal 1122 01:37:10.794 --> 01:37:15.481 court in New Jersey. JUSTICE: Miss within I beyond 20 minutes you some 1123 01:37:15.481 --> 01:37:19.882 so please try the trim the barrel a argument. ATTORNEY: Almost done 1124 01:37:19.882 --> 01:37:24.652 Your Honor. Just with respect to the prejudice, I just want the note that 1125 01:37:24.652 --> 01:37:28.520 people who are detained during the pendency he middle lane' can either can detained 1126 01:37:28.520 --> 01:37:35.995 at the discretion of ICE or pursuant to mandatory detention. I agree with and join 1127 01:37:35.995 --> 01:37:40.503 what counsel has said before with respect to prejudice, but only note that 1128 01:37:40.503 --> 01:37:43.915 dismissal down grown resolution of charges can change whether someone subject 1129 01:37:43.915 --> 01:37:49.017 to mandatory other discretionary detention, with respect to people subject 1130 01:37:49.017 --> 01:37:52.930 to discretionary detention, they've right to a bond hearing before an immigration 1131 01:37:52.930 --> 01:37:57.422 judge or an I-S whose task to consider factors appear financing the flight 1132 01:37:57.422 --> 01:38:02.056 risk or preordaining tore the community and that can consider allegations in 1133 01:38:02.056 --> 01:38:07.755 criminal matters. In fact, an (I-S ray afternoon request and will review the 1134 01:38:07.755 --> 01:38:13.502 police records when considering bond and other discretionary relief. JUSTICE 1135 01:38:13.502 --> 01:38:18.327 PATTERSON: That's about open criminal charges. ATTORNEY: Yes. 1136 01:38:18.327 --> 01:38:20.298 JUSTICE PATTERSON: That's the impact of the bench warrant is it. ATTORNEY: 1137 01:38:20.298 --> 01:38:23.679 Except Your Honor that when a bench warrant is issued, the criminal case is taken 1138 01:38:23.679 --> 01:38:28.739 off calendar which leaves the charges open. And so when those charges are remain 1139 01:38:28.739 --> 01:38:33.481 open it can prejudice and I would only add that a bench warrant, weigh against 1140 01:38:33.481 --> 01:38:37.791 the burden of showing that an individual is not a flight risk. And so now 1141 01:38:37.791 --> 01:38:41.386 or I. JUSTICE WAINER APTER: Especially genoblast the person it's detained 1142 01:38:41.386 --> 01:38:45.832 by ICE the United States. ATTORNEY: Yes, Your Honor which is -- the only 1143 01:38:45.832 --> 01:38:48.461 (. JUSTICE WAINER APTER: Understood. ATTORNEY: So for all these reasons 1144 01:38:48.461 --> 01:38:53.203 L-S-J respectful through ask the court the find the automatic issuance of the 1145 01:38:53.203 --> 01:38:56.412 bench warrant as a matter of fact of cork without an individualized term that 1146 01:38:56.412 --> 01:38:59.855 is is not permitted as a denies the rights of criminal defendants and victims 1147 01:38:59.855 --> 01:39:07.292 align we also think the court for permitting our parts pays in the matter. CHIEF 1148 01:39:07.292 --> 01:39:17.638 JUSTICE RABNER: Thank you. Mr. Leibowitz. MILTON S. LEIBOWITZ: Thank you 1149 01:39:17.638 --> 01:39:20.899 Your Honor's and may or may not. The state remain but questions that you either 1150 01:39:20.899 --> 01:39:23.901 it the defendants or pee moot or from the aerial I order issue be a bench warrant 1151 01:39:23.901 --> 01:39:29.076 as a detainer. My argument has three parts. The first is why it should be dismissed 1152 01:39:29.076 --> 01:39:32.882 at moot which I'm going to rely on P brief for unless Your Honor have any questions. 1153 01:39:32.882 --> 01:39:37.400 My second point is why the trial court's order should be affirmed. And 1154 01:39:37.400 --> 01:39:44.091 why it was abuse of discrimination then point A pack to what Chief Justice 1155 01:39:44.091 --> 01:39:49.144 Rabner stated before we argued did which is a request that you issue a narrow 1156 01:39:49.144 --> 01:39:53.226 opinion in this case dealing with this case, and not all pretrial proceedings not 1157 01:39:53.226 --> 01:39:57.830 trials, and things of that nature. Because those aren't the facts of this 1158 01:39:57.830 --> 01:40:03.123 case. As far why the trial court's order should be affirmed. The trail 1159 01:40:03.123 --> 01:40:06.863 are should be because it was not abuse of discretion. The court does not have 1160 01:40:06.863 --> 01:40:12.783 a policy of issuing a bench warrant as a detainer because someone is in a ICE 1161 01:40:12.783 --> 01:40:16.165 facility. The trial court also had a policy of issuing a bench warrant as a detainer 1162 01:40:16.165 --> 01:40:22.086 when someone fails to appear even if that failure the app is because the person 1163 01:40:22.086 --> 01:40:27.276 is in an ice get that is not a difference open ding it is a meaningful distinction 1164 01:40:27.276 --> 01:40:31.880 and it demonstrates that this was a facts specific case. Here defendant 1165 01:40:31.880 --> 01:40:36.165 did not appear physically. Counsel did not notify the court in advance of 1166 01:40:36.165 --> 01:40:40.327 the hearing that his client could not appear but it seems based on the limited record 1167 01:40:40.327 --> 01:40:45.544 we have, it was made during a prehearing conference in chambers. Counsel 1168 01:40:45.544 --> 01:40:50.728 did not request a virtual appearance. Presumably, giving counsel the bell 1169 01:40:50.728 --> 01:40:54.661 the I because ever I languages a money and they didn't have that ability. But the 1170 01:40:54.661 --> 01:40:59.276 record does not actually state that. I would highlight the fact though he 1171 01:40:59.276 --> 01:41:04.114 did not make a virtual request the state did not object to a virtual appearance. 1172 01:41:04.114 --> 01:41:08.387 And fact while this appeal has been pending and defendant has been deported, 1173 01:41:08.387 --> 01:41:12.541 I have reached out the counsel and inquired if his client want to do a appear 1174 01:41:12.541 --> 01:41:17.934 virtually, for his post indictment arraignment and was re buffed. So do claim that 1175 01:41:17.934 --> 01:41:21.222 the state is the one holding the up based on virtual appearance I think is 1176 01:41:21.222 --> 01:41:25.370 inaccurate. Counsel did request telephonic appearance. But he never 1177 01:41:25.370 --> 01:41:27.781 offered a insurance that's the person on the other end of the file would be 1178 01:41:27.781 --> 01:41:31.442 his client. He never indicated how many times he met his client. That he news his 1179 01:41:31.442 --> 01:41:36.086 clients voice, how he would informed a wasn't there. And the state put this 1180 01:41:36.086 --> 01:41:39.363 on the record. It's concerns and the objection was premises order the lack 1181 01:41:39.363 --> 01:41:45.942 of assurance. That was never cured or clarified. Left. JUSTICE 1182 01:41:45.942 --> 01:41:48.116 NORIEGA: I'm sorry go ahead. ATTORNEY: With the situation, the court had 1183 01:41:48.116 --> 01:41:52.617 no other option but to issue a bench warrant. And it was a appropriate to do so 1184 01:41:52.617 --> 01:41:57.387 given the fact that the defendant wasn't there. As far as why this court 1185 01:41:57.387 --> 01:42:01.759 should and a narrow ruling I would note that the trial court issue is whether 1186 01:42:01.759 --> 01:42:05.689 or not a bench warrant should be issued. On appeal. The defendant claimed 1187 01:42:05.689 --> 01:42:09.241 the trial or abuses in issue a bench warrant. When he filed any motion tore leave 1188 01:42:09.241 --> 01:42:13.401 the appeal before this court, again it was did the trial court abuse it discretion 1189 01:42:13.401 --> 01:42:17.814 and issuing a bench warrant? Only when merits beefs about if speedy trial 1190 01:42:17.814 --> 01:42:21.657 ever come into play. And I estimate it went \promise\promly considered below. 1191 01:42:21.657 --> 01:42:25.406 I think it clearly is not ripe for and it's I proper a before the case. 1192 01:42:25.406 --> 01:42:29.679 So I'd ask the court not consider all of the speedy trial claims and dismissal that 1193 01:42:29.679 --> 01:42:33.314 defendant asks. However if the court nevertheless does consider it, 1194 01:42:33.314 --> 01:42:37.150 I think it's clearly without merit given the that's correct of that case. The 1195 01:42:37.150 --> 01:42:41.538 peel is what has caused the majority of the delay in this matter. Applying barkers 1196 01:42:41.538 --> 01:42:46.149 facts the case, I think that none of the factors really weigh in defendant's 1197 01:42:46.149 --> 01:42:51.265 favor. Programs factser one day because now I believe over a year and thus 1198 01:42:51.265 --> 01:42:55.014 she triggers to look in it but I think the where's of the factser under factor two 1199 01:42:55.014 --> 01:42:59.508 weigh the favor of the stayed factor three defendants is raising a speedy trial 1200 01:42:59.508 --> 01:43:06.422 claim than limely so fact of. But dismissal would be an onerous issue. 1201 01:43:06.422 --> 01:43:11.178 This courts opinion also should be restricted to post indictment arraignment 1202 01:43:11.178 --> 01:43:14.392 appearances and not all pretrial hearings think the carts a asked appellate divisions 1203 01:43:14.392 --> 01:43:19.335 report go motions, status conferences and trials. I submit a post indictment 1204 01:43:19.335 --> 01:43:23.467 arraignment also a very urinal a proceeding it's know it's more conversational 1205 01:43:23.467 --> 01:43:27.614 in tone. It's fairly I want a accepted but everyone knows what will be addressed. 1206 01:43:27.614 --> 01:43:33.420 Be the judge advice it is the defendant of his rights. The judge advices the. 1207 01:43:33.420 --> 01:43:41.656 The charges in sure the defendant has already discovery. And given this very 1208 01:43:41.656 --> 01:43:44.211 discrete issue I think virtual appearance is appropriate. I think telephonic parents 1209 01:43:44.211 --> 01:43:49.517 can be appropriate. That can't be said for all other pretrial hearings way 1210 01:43:49.517 --> 01:43:53.132 of a dawn earmarks goes motions with visual evidence that are going to come 1211 01:43:53.132 --> 01:43:56.354 into play body corn cameras you think that that should be left to the discrimination 1212 01:43:56.354 --> 01:44:02.147 of the court and perhaps this court should consider that issue when an appropriate 1213 01:44:02.147 --> 01:44:05.357 case comes around. This respectful you is not that case. And therefore 1214 01:44:05.357 --> 01:44:12.971 the state would ask that this court consider the issue before it. Whether 1215 01:44:12.971 --> 01:44:17.689 or not a way? Appropriate where a defendant fails tow appear at his post indictment 1216 01:44:17.689 --> 01:44:23.855 arraignment after being afforded opportunities for virtual and telephonic 1217 01:44:23.855 --> 01:44:26.500 appearance. Justice Noriega I believe you had a question. JUSTICE NORIEGA: 1218 01:44:26.500 --> 01:44:31.227 You mentioned that it's impossible to know the tide de of the person if you 1219 01:44:31.227 --> 01:44:36.373 if list a facility, wouldn't they be working with someone from within the facility 1220 01:44:36.373 --> 01:44:39.801 to produce them for the phone call they're usually a guard there's somebody 1221 01:44:39.801 --> 01:44:45.154 in place who -- identify the individual. ATTORNEY: I think they're the 1222 01:44:45.154 --> 01:44:48.152 ails I, yes. But bias the nature. That was not explained here. Suggested 1223 01:44:48.152 --> 01:44:53.918 here. ICE is quite fallible the who they putting in the place so I'm not sure 1224 01:44:53.918 --> 01:44:57.731 we always want to defer this 'em. But is think it is in upon could you say to 1225 01:44:57.731 --> 01:45:01.004 have met their client beforehand than be able the for identification identify their 1226 01:45:01.004 --> 01:45:06.759 voice on the phone. I think a lot of the concerns that the state has for 1227 01:45:06.759 --> 01:45:09.147 telephonic appearance are limited for virtual appearance when we can see them. 1228 01:45:09.147 --> 01:45:14.309 That just wasn't an option in this case giving the in fact the scenario. 1229 01:45:14.309 --> 01:45:17.201 JUSTICE FASCIALE: What other offices would the judge have had other than the issue 1230 01:45:17.201 --> 01:45:20.725 a parent under the fact that you just described them. MILTON S. 1231 01:45:20.725 --> 01:45:23.928 LEIBOWITZ: I can't really think of anything other than perhaps an adjournment 1232 01:45:23.928 --> 01:45:27.650 to permit the against counsel the a investigate whether or not they can set up some 1233 01:45:27.650 --> 01:45:32.053 other form of arraignment there they could satisfy the states concerns regarding. 1234 01:45:32.053 --> 01:45:35.479 JUSTICE WAINER APTER: I don't know why would that no -- we're talking 1235 01:45:35.479 --> 01:45:40.206 about the indictment was on September 18th correct. ATTORNEY: I think so, 1236 01:45:40.206 --> 01:45:43.431 yes, at. JUSTICE WAINER APTER: And here the arraignment was on October 1237 01:45:43.431 --> 01:45:47.342 seventh. So we're talking about two and a half week later. And the defendant 1238 01:45:47.342 --> 01:45:52.952 isn't there and counsel says it's because he's been detained by ICE. Why does a 1239 01:45:52.952 --> 01:45:57.022 bench warrant have to be issued to two and a half weeks post indictment when 1240 01:45:57.022 --> 01:46:02.830 the defendant is not choosing not the app, he is instead being detained by 1241 01:46:02.830 --> 01:46:08.467 ICE and it is very possible that a virtual or telephonic appearance could have 1242 01:46:08.467 --> 01:46:14.696 been arranged liniments I am defense to make that request to make that argument 1243 01:46:14.696 --> 01:46:19.438 and defense did request a telephonic appearance but admitted he was you 1244 01:46:19.438 --> 01:46:23.474 believe able the reach the facility. So. JUSTICE WAINER APTER: Again had 1245 01:46:23.474 --> 01:46:29.003 the two weeks post indictment is not for years or months and defense counsel 1246 01:46:29.003 --> 01:46:34.278 hasn't done anything. So where -- when exactly was defense counsel requirement 1247 01:46:34.278 --> 01:46:40.242 to do what such that a bench warrant must have been appropriate at assist point. 1248 01:46:40.242 --> 01:46:42.534 MILTON S. LEIBOWITZ: So the states position is not that there's a timeframe 1249 01:46:42.534 --> 01:46:46.939 upon which the bench warrant should issue or not issue. It's not if this is 1250 01:46:46.939 --> 01:46:51.117 lingering a month a bench warrant issues two months/bench warrant issues. It's 1251 01:46:51.117 --> 01:46:54.118 whether or not the defendant has a appeared. And whether or not denies counsel 1252 01:46:54.118 --> 01:46:58.217 requested an adjournment. And I would submit in this case denies tones did 1253 01:46:58.217 --> 01:47:03.368 sort of he said, I asked that the be scheduled for a telephonic appearance. 1254 01:47:03.368 --> 01:47:07.522 But when the court as faced with a empty report or I courtroom without defendant, 1255 01:47:07.522 --> 01:47:14.534 as I -- submit I directed towards Justice Fasciale ways left with I need to 1256 01:47:14.534 --> 01:47:18.401 make a decision here. I think W why couldn't the discussion can okay, we 1257 01:47:18.401 --> 01:47:23.775 will reconvene if a week and the defendant has to be able to participate 1258 01:47:23.775 --> 01:47:26.559 telephonically at that point or. MILTON S. LEIBOWITZ: I think that would have 1259 01:47:26.559 --> 01:47:30.520 been appropriate avenue had the court located to do that. I don't think it was 1260 01:47:30.520 --> 01:47:33.726 a bulse of discretion given the and accepts of get the arguments product by 1261 01:47:33.726 --> 01:47:37.895 counsel not to do so. I don't think the court needed to sua sponte say we are 1262 01:47:37.895 --> 01:47:43.856 going to come back a week. JUSTICE WAINER APTER: W my client is in ICE 1263 01:47:43.856 --> 01:47:46.297 activity correct. ATTORNEY: Yes. JUSTICE: And I request a telephonic 1264 01:47:46.297 --> 01:47:49.585 appearance or I every request rescheduling. MILTON S. LEIBOWITZ: I thought 1265 01:47:49.585 --> 01:47:55.391 it was I request or re hearing. It's on page. JUSTICE WAINER APTER: I 1266 01:47:55.391 --> 01:47:59.917 have the defense counsel asked the court the reschedule the matter as a telephonic 1267 01:47:59.917 --> 01:48:02.690 appearance. ATTORNEY: With the purpose of having a telephonic or issue 1268 01:48:02.690 --> 01:48:06.024 a writ tore him to be produced. Both viable wrong asp the court hood are the 1269 01:48:06.024 --> 01:48:10.535 guidance explaining it. And then they sort of proceeding into argument as to what 1270 01:48:10.535 --> 01:48:15.266 authority do you have? And should the trial judge was not satisfied with the 1271 01:48:15.266 --> 01:48:17.676 defense representations of the rule of less than I think it we'll rule one 1272 01:48:17.676 --> 01:48:25.254 one one, explaining it, and find I have no other option. And decided not to 1273 01:48:25.254 --> 01:48:29.787 grant the telephonic. JUSTICE WAINER APTER: Seems a mitt order to say, 1274 01:48:29.787 --> 01:48:34.829 if we were to say that it was in the a abuse of discretion here, couldn't every 1275 01:48:34.829 --> 01:48:38.773 trial court judge say, I have no other option defendant is detained by ICE teen 1276 01:48:38.773 --> 01:48:42.153 they he want to participate virtually I'm issuing a bench warrant? Because 1277 01:48:42.153 --> 01:48:45.047 I have no other option? ATTORNEY: I think the the court were the usually 1278 01:48:45.047 --> 01:48:49.984 a pin saying that asset forth the states breach in person appearance is 1279 01:48:49.984 --> 01:48:53.279 preferred, virtually \patterns\appearance is permissible, and telephonic is permissible 1280 01:48:53.279 --> 01:48:59.199 with certain conditions to insure that is the defendant, yes, a trial court 1281 01:48:59.199 --> 01:49:02.725 would have abuse is discretion in failing to abide by that. I think there 1282 01:49:02.725 --> 01:49:07.001 is a lack of guidance specifically spelling it on it for this judge. And once she 1283 01:49:07.001 --> 01:49:12.385 sought giddiness the counsel, was left wanting more. And as a result, default 1284 01:49:12.385 --> 01:49:16.657 to do the there will memory for a failure to appear which is a bench warrant. 1285 01:49:16.657 --> 01:49:23.993 F in person, preferable, virtual, permissible, and telephonic subject to 1286 01:49:23.993 --> 01:49:28.968 conditions, say to me that you agree that judge did have discretion about whether 1287 01:49:28.968 --> 01:49:33.493 tow issue the bench warrant or not and it should not have everyone issued 1288 01:49:33.493 --> 01:49:37.140 automatically. Am I right. ATTORNEY: Correct. JUSTICE FASCIALE: Okay. 1289 01:49:37.140 --> 01:49:40.767 ATTORNEY: Given take fact of the case entire defendant can't she up where 1290 01:49:40.767 --> 01:49:44.055 virtual appearance wasn't requested, where telephonic parents was unable to 1291 01:49:44.055 --> 01:49:48.735 be achieved by counsel, the court had no reason toil that it could be in the 1292 01:49:48.735 --> 01:49:53.244 future. And thus a bench warrant was appropriate W when you know Atlantic parent 1293 01:49:53.244 --> 01:49:57.318 was at changed by counsel. What does that mean. MILTON S. LEIBOWITZ: 1294 01:49:57.318 --> 01:50:01.487 So at the hearing counsel asked for a telephonic patterns I don't know what 1295 01:50:01.487 --> 01:50:08.879 exactly he intend intended to do that if. JUSTICE PATTERSON: Counsel downstairs 1296 01:50:08.879 --> 01:50:10.397 denies. ATTORNEY: Necessary eastlings give the number the court 1297 01:50:10.397 --> 01:50:14.790 assist call did immigration facility. I honestly don't know given this record. 1298 01:50:14.790 --> 01:50:20.170 I think it's your. JUSTICE NORIEGA: But the records suggest that court 1299 01:50:20.170 --> 01:50:31.097 said, the county is the issue the bench warrant not a Garcia hassle fought a (. 1300 01:50:31.097 --> 01:50:38.936 (Reading ) ,) so it is object obtain that's 1301 01:50:38.936 --> 01:50:42.381 not the same thinking a evaluating the \although\all 1302 01:50:42.381 --> 01:50:43.241 together earn materials presented versus issuing the 1303 01:50:43.241 --> 01:50:46.433 bench warrant. That's standard policy is, issue the bench 1304 01:50:46.433 --> 01:50:49.424 warrant if the person is not here even if it's because 1305 01:50:49.424 --> 01:50:52.467 they're in ICE custody. And that -- that's different from 1306 01:50:52.467 --> 01:50:55.771 what you're arguing right MILTON S. LEIBOWITZ: I'm trying to give the 1307 01:50:55.771 --> 01:50:58.947 court honestly the benefit of the doubt and saying that she evaluated all the fact 1308 01:50:58.947 --> 01:51:02.578 he was in reaching it. I think the record is a bit sparse on that it happens. 1309 01:51:02.578 --> 01:51:04.982 JUSTICE WAINER APTER: She it is specifically say the policy in this county 1310 01:51:04.982 --> 01:51:08.284 is to issue a bench warrant. Right? MILTON S. LEIBOWITZ: But it is the 1311 01:51:08.284 --> 01:51:12.245 policy to issue that bench warrant when the person is in ICE bought in the 1312 01:51:12.245 --> 01:51:17.980 not here. JUSTICE WAINER APTER: So what is P so what is it that you suggest 1313 01:51:17.980 --> 01:51:22.024 we prescribe as a standard for courts to make this determination if we were 1314 01:51:22.024 --> 01:51:26.098 to agree with you that there is some discretion here. MILTON S. 1315 01:51:26.098 --> 01:51:29.931 LEIBOWITZ: Courts are to evaluate the case before them, if the defendant can 1316 01:51:29.931 --> 01:51:34.991 appear in person, they should be permitted to do so. So that this case doesn't 1317 01:51:34.991 --> 01:51:39.471 move beyond the immigration can text, for example someone who justice out and 1318 01:51:39.471 --> 01:51:41.776 decides they department ban the come enter clearly they case shouldn't apply. 1319 01:51:41.776 --> 01:51:49.997 If in person appearance is not something that the defendant can avail himself 1320 01:51:49.997 --> 01:51:56.790 of the court a consider whether or not telephonic or I'm sorry, virtual appearance 1321 01:51:56.790 --> 01:52:01.049 is appropriate. Whether or not it can actually occur in the case. And whether 1322 01:52:01.049 --> 01:52:06.812 or not defendant wants it. As defendant has a right to appear and he can waive 1323 01:52:06.812 --> 01:52:12.352 his right or not. If the defendant at P inning I miss mood what I down you 1324 01:52:12.352 --> 01:52:15.629 said it's a virtual appearance is appropriate whether or not defendant wants 1325 01:52:15.629 --> 01:52:19.701 it. But I think what you were saying is the court should consider whether or 1326 01:52:19.701 --> 01:52:24.778 not destains it. A Leibowitz, yes, sorry as part of the evaluation ways its defendants 1327 01:52:24.778 --> 01:52:27.894 desire to appear virtually and then vinyl if you ever \a\your\you're scenario where the 1328 01:52:27.894 --> 01:52:33.203 person cannot appear virtually because they're in a facility that wouldn't permit it 1329 01:52:33.203 --> 01:52:37.572 it, and telephonic appearance is something the facility is willing to do, the court needs 1330 01:52:37.572 --> 01:52:42.175 to consider are there appropriate safety guards to insure that? If after considering 1331 01:52:42.175 --> 01:52:47.278 those three avenue knees, the court deems that they cannot proceed from the manner the 1332 01:52:47.278 --> 01:52:52.458 defendant isn't here physically, he either can't or wouldn't appear virtually, and can't 1333 01:52:52.458 --> 01:52:58.144 or wouldn't appear Atlantic thirty then I think it is proper to issue a Wainer Apter. 1334 01:52:58.144 --> 01:53:00.828 JUSTICE NORIEGA: Can't or wouldn't, either way. So if the defendant hasn't 1335 01:53:00.828 --> 01:53:06.179 done anything one way or the other and no one can arrange with ICE to produce 1336 01:53:06.179 --> 01:53:12.996 them because ICE rise refusing or is -- is creating a barrier, then the defendants 1337 01:53:12.996 --> 01:53:18.240 still should be issued your bench warrant. MILTON S. LEIBOWITZ: Yes. 1338 01:53:18.240 --> 01:53:24.051 JUSTICE NORIEGA: Does do you take a position on the idea that the state has some 1339 01:53:24.051 --> 01:53:27.232 obligation to get involved in the production process. MILTON S. LEIBOWITZ: 1340 01:53:27.232 --> 01:53:32.525 Disagree with that assertion that assist state is obligated to file a writ to 1341 01:53:32.525 --> 01:53:36.666 seek anything in the prosecutors tool book to have \ice\eyes rebbe if the custody 1342 01:53:36.666 --> 01:53:42.909 or delay removal. I think that the burn of patterns falls on the defendant 1343 01:53:42.909 --> 01:53:47.549 who's -- has a abilities such at the Moshannon Valley class action suit has demonstrated 1344 01:53:47.549 --> 01:53:50.749 to follows the federal court and jury to do store tissue that it may not be. 1345 01:53:50.749 --> 01:53:55.517 And so in the scenario in which railroad the ICE facility where at first a 1346 01:53:55.517 --> 01:54:00.561 virtual hearing is not permitted permitted, they can file a federal suit. To 1347 01:54:00.561 --> 01:54:05.581 assert their federal rights to say, you're doing for a handprint your strike of 1348 01:54:05.581 --> 01:54:10.492 my rights, I'm entitled to this. And hopefully a some of' chore sought a they 1349 01:54:10.492 --> 01:54:16.292 received in the district of Pennsylvania W if the defendant is detained by 1350 01:54:16.292 --> 01:54:22.661 ICE and ICE says, no Zoom patterns, and no telephonic appearance is allowed, then 1351 01:54:22.661 --> 01:54:27.272 the defendant should have a bench warrant issued unless they found counsel 1352 01:54:27.272 --> 01:54:30.354 to file a class action lawsuit oh they're back and forth than then perhaps even 1353 01:54:30.354 --> 01:54:33.207 if they did. MILTON S. LEIBOWITZ: I'm in saying a bench warrant should 1354 01:54:33.207 --> 01:54:37.268 be issued because they failed to appear. They have avenues by which they can 1355 01:54:37.268 --> 01:54:43.035 attempt to compel the federal government to allow them to do virtual and if they 1356 01:54:43.035 --> 01:54:48.971 succeed, we can proceed virtually. I understand that is quite the task. 1357 01:54:48.971 --> 01:54:52.258 CHIEF JUSTICE RABNER: What role does the prosecution have. MILTON S. 1358 01:54:52.258 --> 01:54:55.936 LEIBOWITZ: We investigate the charges U we bring. CHIEF JUSTICE RABNER: 1359 01:54:55.936 --> 01:54:59.318 I'm talking about this issue. ATTORNEY: As far as this concerned the 1360 01:54:59.318 --> 01:55:05.237 state at times may assist may reach out to ICE. But the garbage isn't say Monday 1361 01:55:05.237 --> 01:55:09.242 litigate I can neglect which week compel the federal government to do things 1362 01:55:09.242 --> 01:55:12.890 I believe counsel in raise Reyes-Rodriguez bought they're the drive were a 1363 01:55:12.890 --> 01:55:19.627 else help the case is interpret a pre rock and federal I'm like we are ham trunk 1364 01:55:19.627 --> 01:55:24.371 by window whack do. As far as our we are obligated to do so? I submit we weren't. 1365 01:55:24.371 --> 01:55:29.286 I think that may be appropriate to consider in a barker analysis down the 1366 01:55:29.286 --> 01:55:34.247 road one day. I think our good faith execution of those requests demonstrates 1367 01:55:34.247 --> 01:55:38.200 that we've attempted to do everything week and I'm sure defense will point to 1368 01:55:38.200 --> 01:55:43.177 our failure to do so at a later barker V winger those but are the purposes of the 1369 01:55:43.177 --> 01:55:47.813 bench warrant or no bench warrant, I submit that the state is not the county 1370 01:55:47.813 --> 01:55:55.938 prosecutor's office, and the A G office, is not obligated to file with ICE 1371 01:55:55.938 --> 01:56:02.838 everything in the tool kit in order to before be seek' bench warrant. JUSTICE 1372 01:56:02.838 --> 01:56:05.328 HOFFMAN: Don't I think your taking little bit assist phrase fails to appear 1373 01:56:05.328 --> 01:56:09.961 doesn't fails have a volitional amendment saint a doesn't appear. MILTON S. 1374 01:56:09.961 --> 01:56:12.839 LEIBOWITZ: I believe it says does not appear it doesn't satisfy fails to appear. 1375 01:56:12.839 --> 01:56:17.333 Fails tow appear comes from Lopez Carrera where the volitional act was considered 1376 01:56:17.333 --> 01:56:21.934 and couldn't tension of the statute. I believe that the Court Rule that 1377 01:56:21.934 --> 01:56:26.916 everyone has cited in they're brief I want to say it three H. JUSTICE HOFFMAN: 1378 01:56:26.916 --> 01:56:32.199 Let's s saying the hope extradition aren't you taking liberty with the word 1379 01:56:32.199 --> 01:56:37.230 fails with. ATTORNEY: I would disagree libriform act considering the risk. 1380 01:56:37.230 --> 01:56:43.011 A defendants flight and a outside agencies' actions being unfair to a prerogative 1381 01:56:43.011 --> 01:56:47.982 writ tow that individual. Whereas rule three seven eight says if you do not 1382 01:56:47.982 --> 01:56:56.943 appear, a bench warrant shall issue. And doesn't have the same verbiage as Lopez 1383 01:56:56.943 --> 01:56:58.632 Carrera. I think. JUSTICE PATTERSON: If you have a situation 1384 01:56:58.632 --> 01:57:02.668 which the certainly reading the transcript suggests there was an element of, we 1385 01:57:02.668 --> 01:57:09.930 don't know you what's going on here. You know, we're all -- lawyers the court, sitting 1386 01:57:09.930 --> 01:57:17.454 in a courtroom or virtually with incomplete information. Should we encourage 1387 01:57:17.454 --> 01:57:23.151 judges in that situation to -- to a yes or no the proceedings not for three 1388 01:57:23.151 --> 01:57:27.913 months, but for a week or two your short adjournment so that everybody that's 1389 01:57:27.913 --> 01:57:33.196 -- the prosecutors can find out more information, perhaps communicate with 1390 01:57:33.196 --> 01:57:39.124 ICE, a defendant can find out what exactly where the you know, where the location 1391 01:57:39.124 --> 01:57:44.611 is what the circumstances are. And the court can think about the case a little 1392 01:57:44.611 --> 01:57:48.947 bit before issuing a bench warrant. MILTON S. LEIBOWITZ: I think that 1393 01:57:48.947 --> 01:57:51.264 would be reasonable. I don't think it would be a abuse have discretion had 1394 01:57:51.264 --> 01:57:55.083 the court in this case said, I'm surprised about this information I thought 1395 01:57:55.083 --> 01:57:58.272 we were proceeding today. I'd like you all the return in a week so we can reconvene 1396 01:57:58.272 --> 01:58:03.954 and see the best way to proceed. JUSTICE FASCIALE: Can you -- JUSTICE WAINER 1397 01:58:03.954 --> 01:58:07.132 APTER: Back to the rule that justice hof asked about I believe it was case 1398 01:58:07.132 --> 01:58:12.205 in the fest fails to appear in response to a summons a bench warrant shall issue 1399 01:58:12.205 --> 01:58:17.875 period. That's rule three colon seven dash eight. MILTON S. LEIBOWITZ: 1400 01:58:17.875 --> 01:58:23.055 I miss wrote what it stated. I apologize I did not. JUSTICE HOFFMAN: If 1401 01:58:23.055 --> 01:58:26.329 we can stick with that. The exact answer you gave would be option. Because 1402 01:58:26.329 --> 01:58:31.272 you're saying the rule doesn't say fails to appear. Therefore the point is not 1403 01:58:31.272 --> 01:58:38.321 volitional. But if it does say fails to appear there might be the volitional comment. 1404 01:58:38.321 --> 01:58:41.618 MILTON S. LEIBOWITZ: If it says does not appear,. JUSTICE HOFFMAN: 1405 01:58:41.618 --> 01:58:44.041 It says fails. ATTORNEY: If it sauce fails to appear the cart already deemed 1406 01:58:44.041 --> 01:58:50.751 that to mean under Lopez Carrera, to have a volitional component. JUSTICE 1407 01:58:50.751 --> 01:58:52.861 HOFFMAN: Okay. MILTON S. LEIBOWITZ: I may not agree about it that's not 1408 01:58:52.861 --> 01:58:57.495 for me to say. I know some -- advocates of scored reconsidering but I know that's 1409 01:58:57.495 --> 01:59:02.505 beyond why we are here today I. JUSTICE WAINER APTER: F can you explain what 1410 01:59:02.505 --> 01:59:05.800 the bench warrant as a detainer means? Because compliance the other side of the 1411 01:59:05.800 --> 01:59:10.214 I'll always represented that it means nothing to ICE. Here the bench warrant 1412 01:59:10.214 --> 01:59:16.191 was entered as a detainer that's what how we've been discussing these bench 1413 01:59:16.191 --> 01:59:20.987 warrant meeting if I'm custody, but here there was a bench warrant defendant was 1414 01:59:20.987 --> 01:59:24.541 deported nevertheless. What from the states percent suspect I've is -- what 1415 01:59:24.541 --> 01:59:29.153 the operation in practically does the bench warrant quote unquote as a detainer 1416 01:59:29.153 --> 01:59:33.532 do. ATTORNEY: So it does not stop immigration from deport go the defendant 1417 01:59:33.532 --> 01:59:38.687 as this case clearly shows. But as justice Noriega had asked counsel earlier, 1418 01:59:38.687 --> 01:59:45.313 had this defendant been released on bond, it would have alerted the sheriff's 1419 01:59:45.313 --> 01:59:48.789 office that he was being released, and we would have had an opportunity to decide 1420 01:59:48.789 --> 01:59:54.284 are we go to go come or not (but put on notice that the kiss a continue to 1421 01:59:54.284 --> 02:00:00.578 proceed. And that serves a very valuable mechanism it also serves a very have 1422 02:00:00.578 --> 02:00:04.382 you February the is I deposited and then end you have come back are the country, 1423 02:00:04.382 --> 02:00:08.356 that he can be picked up and again route back tow we can bring this case back 1424 02:00:08.356 --> 02:00:12.316 to the front of the line and make sure that we move forward. As far as justice 1425 02:00:12.316 --> 02:00:18.390 Noriegas sent regarding if a defendant has been deposited answer to seek payroll 1426 02:00:18.390 --> 02:00:20.846 into to consider I think it would be cellar appropriate the remove the bench warrant 1427 02:00:20.846 --> 02:00:24.696 for the duration to facilitate that. But I don't think that's say reason why 1428 02:00:24.696 --> 02:00:28.797 we shouldn't issue the bench warrant. Actually disagree did many of the 1429 02:00:28.797 --> 02:00:33.717 prejudices that defense counsel claims they bench warrant causes. Defense counsel 1430 02:00:33.717 --> 02:00:38.006 claims that the bench warrant causes the case to language within forever. The 1431 02:00:38.006 --> 02:00:42.523 reason the case moves to to in act list is because to a defendant isn't appearing 1432 02:00:42.523 --> 02:00:47.121 and he aunt waving his appearance and counsel is file motions just 1433 02:00:47.121 --> 02:00:51.145 pragmatically we move it to the inactive let'sing the any that talaris us to 1434 02:00:51.145 --> 02:00:55.120 hit because on the case. JUSTICE PATTERSON: That is the correct term 1435 02:00:55.120 --> 02:00:59.924 inactive list Leibowitz there is the inactive list. There is a list of cases that 1436 02:00:59.924 --> 02:01:06.264 is brought before the assignment judge that are old that the state is required 1437 02:01:06.264 --> 02:01:09.175 to explained why what the intending to do. JUSTICE WAINER APTER: That 1438 02:01:09.175 --> 02:01:13.378 is not cases in write a bench warrant was issued. ATTORNEY: No stays separate 1439 02:01:13.378 --> 02:01:16.321 list. JUSTICE PATTERSON: Perm terminology being an important -- 1440 02:01:16.321 --> 02:01:22.413 inability I've list is the list in which -- where we could expect to see a case 1441 02:01:22.413 --> 02:01:26.842 such as this after a bench warrant was issued. MILTON S. LEIBOWITZ: Yes. Nothing 1442 02:01:26.842 --> 02:01:31.709 is agency that goes on to the -- inactive list it doesn't count when the vicinage 1443 02:01:31.709 --> 02:01:35.785 is doing it's tasks tore how many outstanding case there's are which I 1444 02:01:35.785 --> 02:01:40.387 think is probably why judges like issuing bench warrant to in sure they don't 1445 02:01:40.387 --> 02:01:47.195 have the thiazole Caicos the list. But back to the prejudices. The bench 1446 02:01:47.195 --> 02:01:52.552 warrant that is issued as a detainer sent top the from getting a job presumably it's 1447 02:01:52.552 --> 02:01:56.549 because he's an ICE custody. JUSTICE FASCIALE: Given the fact this 1448 02:01:56.549 --> 02:02:01.697 your office initially requested the bench warrant that the judge ruled on, right? 1449 02:02:01.697 --> 02:02:06.408 And it doesn't strike below that anyone been a point a source of whose 1450 02:02:06.408 --> 02:02:10.812 responsibility it is to have a defendant appear in the court the being held speak 1451 02:02:10.812 --> 02:02:15.298 some other custody or outside of the country and there's an interference by federal 1452 02:02:15.298 --> 02:02:19.510 authorities in that persons appearance. Wouldn't it make sense given that 1453 02:02:19.510 --> 02:02:24.447 the state would otherwise let a case language wish that they would 1454 02:02:24.447 --> 02:02:29.706 participate in attempting to help allow the individual to appear in court when 1455 02:02:29.706 --> 02:02:35.090 they're requesting to? It's seems you suggested that at least the county of union 1456 02:02:35.090 --> 02:02:39.254 is not gonna participate in those en differs. But wouldn't it make more 1457 02:02:39.254 --> 02:02:41.699 sense if the state is would the one the graduates if chance if parking lot of 1458 02:02:41.699 --> 02:02:45.858 the state on behalf of you victim, that they participate to the extent less 1459 02:02:45.858 --> 02:02:51.479 than if we've the get guidance to the entire system as to what has to happen next. 1460 02:02:51.479 --> 02:02:53.752 MILTON S. LEIBOWITZ: I think there are circumstances in which it would 1461 02:02:53.752 --> 02:03:01.330 be in our best interest to do so. I foresee our failure to be to do so being' 1462 02:03:01.330 --> 02:03:06.715 potential problem down the road. If this case is three year old five year 1463 02:03:06.715 --> 02:03:12.239 old. Maybe less. So it may be 'em upon the stayed whether or not we should be obligated 1464 02:03:12.239 --> 02:03:18.153 to do so. Though, I think is a different question. ER let me ask a suggest 1465 02:03:18.153 --> 02:03:22.215 another reason because you're answer earlier was wait tore Parker versus bang 1466 02:03:22.215 --> 02:03:25.682 owe always I heard and I re in rate that had the have glycols now as well. 1467 02:03:25.682 --> 02:03:30.183 All of the actors in the courtroom have apart of the responsibilities to advance 1468 02:03:30.183 --> 02:03:35.459 the I'm sorry of a justice system. This individual through no act by the county 1469 02:03:35.459 --> 02:03:42.410 prosecutor's office, has ended up in the custody of a governmental entity. 1470 02:03:42.410 --> 02:03:47.020 The county will deal with move thee cases than inn individual defense attorney 1471 02:03:47.020 --> 02:03:51.454 might. And would have more familiarity with whom to contact and a track record 1472 02:03:51.454 --> 02:03:58.565 of what that has worked or not. Why wouldn't it be appropriate for the state to 1473 02:03:58.565 --> 02:04:02.618 assist in this regard. MILTON S. LEIBOWITZ: I think it is appropriate 1474 02:04:02.618 --> 02:04:10.129 for the state the assist. But not such that they should can required to do so. 1475 02:04:10.129 --> 02:04:13.411 CHIEF JUSTICE RABNER: What in the mean in practice it's a gneissoid we don't have 1476 02:04:13.411 --> 02:04:18.078 to do it judge we don't get it so sorry? What the means I don't know lien 1477 02:04:18.078 --> 02:04:23.306 I don't think it's be didn't get it so sorry. I think it is -- my plight way 1478 02:04:23.306 --> 02:04:30.569 have asking this court not to issue an opinion ambulating us to avail yourself of 1479 02:04:30.569 --> 02:04:36.148 the ICE prosecutors tool kit in every case. Merely because we deal with these 1480 02:04:36.148 --> 02:04:39.785 cases more than any individual defense counsel. CHIEF JUSTICE RABNER: 1481 02:04:39.785 --> 02:04:45.005 There is a step short of the tool kit of reaching out to individuals at the 1482 02:04:45.005 --> 02:04:49.982 drain a hall and saying, what can we do do get this gun. MILTON S. LEIBOWITZ: 1483 02:04:49.982 --> 02:04:53.985 I have to assume so. That there are lines ever communication that we can call 1484 02:04:53.985 --> 02:04:57.723 and inquire. I'm not sure they will always be response responded kindly to or that 1485 02:04:57.723 --> 02:05:01.665 they would than amenable to it as the court is recognized we capital compel 1486 02:05:01.665 --> 02:05:06.236 the federal government to do anything. As I think New Jersey drafts mother 1487 02:05:06.236 --> 02:05:12.755 and fourth away from how the federal government may see certain things. 1488 02:05:12.755 --> 02:05:17.164 However rims may become more and/ability to do this. Becomes or tenuous. So it's 1489 02:05:17.164 --> 02:05:23.577 quite abstract while I get that from a pragmatic standpoint the county 1490 02:05:23.577 --> 02:05:28.425 prosecutor's office looks like the easiest person to put this purchased on, 1491 02:05:28.425 --> 02:05:34.570 it is quite an onerous burden and not just the phone call, I understand the appearance 1492 02:05:34.570 --> 02:05:37.161 of how are you telling me et cetera onerous when all you've Thomas a pickup 1493 02:05:37.161 --> 02:05:41.087 the phone and call drain' hall? But I think this is more do it drain a maybe 1494 02:05:41.087 --> 02:05:46.377 easy because it's I New Jersey. Oh shown en value I think I go four hours away 1495 02:05:46.377 --> 02:05:51.322 always we move to different states different facilities, I think it becomes 1496 02:05:51.322 --> 02:05:57.158 very different. And therefore the -- the I -- refer back to my earlier point 1497 02:05:57.158 --> 02:06:02.642 of I think that it may be in the states best interest to try and get involved 1498 02:06:02.642 --> 02:06:08.025 early and do certain things but the state should not be played to do so. 1499 02:06:08.025 --> 02:06:11.514 JUSTICE NORIEGA: But the state is the one that brought charges against an individual 1500 02:06:11.514 --> 02:06:16.692 who's now legally prevented from appearing in court to deal with them at least 1501 02:06:16.692 --> 02:06:23.147 in person. And you're saying the state should have no port to play in assisting 1502 02:06:23.147 --> 02:06:30.328 in court cooperating to try to make that persons appearance possible. CHIEF 1503 02:06:30.328 --> 02:06:33.068 JUSTICE RABNER: If I may add, to state that's the obligation to bring the 1504 02:06:33.068 --> 02:06:37.697 individual to trial I think lien NJ. ATTORNEY: I think that ultimate 1505 02:06:37.697 --> 02:06:40.914 obligation is borne out the park and the our fall where you are that's why I sort 1506 02:06:40.914 --> 02:06:46.838 of said, this may be looked upon unfavor LLC upon the state at a later date, 1507 02:06:46.838 --> 02:06:51.707 and I think that barker \may\May{#N} up holding the key as to what happened 1508 02:06:51.707 --> 02:06:56.840 when we didn't maybe the containing or what happened what we didn't lect to file 1509 02:06:56.840 --> 02:07:03.248 a motion. CHIEF JUSTICE RABNER: Before/moved in on he asked a articulate 1510 02:07:03.248 --> 02:07:08.143 one if may answer it's go back to barker again, I'll go with his. MILTON S. 1511 02:07:08.143 --> 02:07:13.005 LEIBOWITZ: Do you repeat or question as I lost the threat. JUSTICE NORIEGA: 1512 02:07:13.005 --> 02:07:16.063 The state brought the charges individual not legal they least dollars from coming 1513 02:07:16.063 --> 02:07:21.110 into court. Why shouldn't the state be obligated to participate in the process 1514 02:07:21.110 --> 02:07:28.018 tow bring them in and person where possible. MILTON S. LEIBOWITZ: The 1515 02:07:28.018 --> 02:07:32.067 state in this case moved to detainer the defendant and he was released by the 1516 02:07:32.067 --> 02:07:38.555 court. And then this occurs, and it's now coming back to say state we know that 1517 02:07:38.555 --> 02:07:43.181 you attempted to detainer this defendant. He was released than now ICE taken him. 1518 02:07:43.181 --> 02:07:46.147 JUSTICE NORIEGA: Doesn't the procedural hurls the happen through any case 1519 02:07:46.147 --> 02:07:49.803 the state brought the charges. To state ultimate through wants to bring those 1520 02:07:49.803 --> 02:07:54.745 charges to fruition. And in the meantime, if nothing happens the defendant 1521 02:07:54.745 --> 02:08:01.866 walks around with the bench warrant on them tore a case that any cannot resolve 1522 02:08:01.866 --> 02:08:04.817 voluntary. JUSTICE WAINER APTER: Easy rule like no parties, issue 1523 02:08:04.817 --> 02:08:10.988 if the state has not made an effort. The defendant can con sewn the participate 1524 02:08:10.988 --> 02:08:15.704 virtually. In a pretrial proceeding. No bench warrant can issue if the state 1525 02:08:15.704 --> 02:08:20.190 is the one not conceding for the defendant to participate telephonic orally 1526 02:08:20.190 --> 02:08:27.267 virtually. Or P the state has not made a request for telephonic or virtual appearance. 1527 02:08:27.267 --> 02:08:30.230 MILTON S. LEIBOWITZ: I think the the state is preventing telephonic or 1528 02:08:30.230 --> 02:08:35.841 virtual appearance, for a post indictment arraignment a bench warrant should 1529 02:08:35.841 --> 02:08:38.942 not issue I would agree from the scenario. JUSTICE PATTERSON: There's 1530 02:08:38.942 --> 02:08:45.297 a -- there's -- the state is put to its basis in a lot of context in the criminal 1531 02:08:45.297 --> 02:08:50.477 justice text message. What would be wrong with requiring the prosecutor to 1532 02:08:50.477 --> 02:08:56.672 make five phone calls to drain' hall and put together a short affidavit the 1533 02:08:56.672 --> 02:09:02.399 kind of which are seen all the time in sessions where there has are the a choir 1534 02:09:02.399 --> 02:09:05.150 your made about some aspect of the criminal justice \system\stem say a tried 1535 02:09:05.150 --> 02:09:11.875 on the days this date this date. Nobody picked up. And I left messages. But 1536 02:09:11.875 --> 02:09:16.280 nobody's responded to them. That's an effort. So what would be so onerous 1537 02:09:16.280 --> 02:09:20.352 about requiring the assistant prosecutor to devote an hour to making an attempt to 1538 02:09:20.352 --> 02:09:28.404 find on you what could be done. MILTON S. LEIBOWITZ: I think that trying 1539 02:09:28.404 --> 02:09:33.314 to create such a rule would be difficult and what if it's not drain' hall what 1540 02:09:33.314 --> 02:09:36.505 it's if a different state and this is the. JUSTICE PATTERSON: Phone calls 1541 02:09:36.505 --> 02:09:42.222 not to have the assistant procedure driver anywhere. Just inquire about virtual 1542 02:09:42.222 --> 02:09:47.518 appearances. MILTON S. LEIBOWITZ: If the simply calling the facility, 1543 02:09:47.518 --> 02:09:51.483 two things one I think that defense counsel who represents the person in the 1544 02:09:51.483 --> 02:09:58.401 facility, cowiest' do that we may be more successful I understand. Two, what 1545 02:09:58.401 --> 02:10:02.170 happens when they give us some information? So that affidavit is a made five calls, 1546 02:10:02.170 --> 02:10:07.843 on the third call I reached out and the administrator of the declare how about 1547 02:10:07.843 --> 02:10:11.209 at all my these whether the things that were available. Is the state now obligated 1548 02:10:11.209 --> 02:10:15.399 to go do those things? JUSTICE PATTERSON: States a little bit to do 1549 02:10:15.399 --> 02:10:18.924 tell the report all right the gender conference this is what I found out. This is 1550 02:10:18.924 --> 02:10:25.299 how it can be done we don't know yet. But this is what I was told I. 1551 02:10:25.299 --> 02:10:29.436 CHIEF JUSTICE RABNER: In Mrs. Lines sentence at did end of Leibowitz lopes we urge 1552 02:10:29.436 --> 02:10:32.792 ICE firms the work the prosecutors to allow pending criminal charges to be 1553 02:10:32.792 --> 02:10:37.073 resolved. If the court would issue a similar assistance the under prosecutor 1554 02:10:37.073 --> 02:10:45.025 to work with ICE, to have these matters proceed, what would your office do. 1555 02:10:45.025 --> 02:10:51.054 MILTON S. LEIBOWITZ: Abide by the courts directions as this court is the 1556 02:10:51.054 --> 02:10:53.469 highest police report the land,. CHIEF JUSTICE RABNER: And practically 1557 02:10:53.469 --> 02:10:58.544 what would you do. MILTON S. LEIBOWITZ: Start making phone calls. 1558 02:10:58.544 --> 02:11:02.483 I think that that's where we would begin. But I don't know if that's the pan a 1559 02:11:02.483 --> 02:11:08.256 see a for it as I don't know why it two Lee he where. JUSTICE WAINER APTER: 1560 02:11:08.256 --> 02:11:12.198 Has been I think the all sides that this needs to be a collaborative effort 1561 02:11:12.198 --> 02:11:16.067 I don't think anyone has said the state has to do everything. But you have 1562 02:11:16.067 --> 02:11:20.998 to do something. Attempt to do something. Particularly after having been the -- 1563 02:11:20.998 --> 02:11:25.828 the party that brought the charges. And I understand in this case the states 1564 02:11:25.828 --> 02:11:29.710 sought detention detention. But what about cases in which the state doesn't 1565 02:11:29.710 --> 02:11:34.407 each detention does the analysis changes? You know, I know we went to -- you 1566 02:11:34.407 --> 02:11:41.989 wouldn't the focus very Marley on what happens mere. But it's -- not a case I think 1567 02:11:41.989 --> 02:11:45.554 anyone organizing that no one else has any responsibility it's just \a\your\you're 1568 02:11:45.554 --> 02:11:49.123 pat says makes phone call you find the information. Bring the information 1569 02:11:49.123 --> 02:11:52.961 to the court and to defense counsel and everyone works together the figure out 1570 02:11:52.961 --> 02:11:55.842 what can happen. Dose to make sense. MILTON S. LEIBOWITZ: I understand 1571 02:11:55.842 --> 02:12:00.009 what you're saying. I guess I heard defense counsels argument lightly different. 1572 02:12:00.009 --> 02:12:04.383 Does he listed the obligations of each of the parties. And seemed to put 1573 02:12:04.383 --> 02:12:08.827 the onus of producing the defendant in this scenario and along the all of these 1574 02:12:08.827 --> 02:12:13.398 establishments owe the state. JUSTICE NORIEGA: But in this case, in this 1575 02:12:13.398 --> 02:12:18.456 case defense attorney was the one saying, I called I scheduled to telephonic, I 1576 02:12:18.456 --> 02:12:23.446 -- they didn't purpose through fail to appear. They he's arranged for a phone 1577 02:12:23.446 --> 02:12:29.020 call with me Shannon. And didn't work tore tech realize if the defendant did 1578 02:12:29.020 --> 02:12:33.110 have counsel present making all of those efforts and it was actually your office 1579 02:12:33.110 --> 02:12:37.443 that objected to the appearance in this casely and said we are not agreeing to a 1580 02:12:37.443 --> 02:12:40.842 telephonic appearance. So in this case as much as we're talking white 1581 02:12:40.842 --> 02:12:45.058 if you about the period on the county and the state, defense towns cock on this 1582 02:12:45.058 --> 02:12:49.473 burden, got all the way to the end, and your office objected. So -- there has 1583 02:12:49.473 --> 02:12:53.566 to be some give on this if we're not going to put a obligation on but her I 1584 02:12:53.566 --> 02:12:57.975 can't be objection also to efforts on the other side to make it appear heater. 1585 02:12:57.975 --> 02:13:00.874 MILTON S. LEIBOWITZ: The objection wasn't to the telephonic appearance in principle 1586 02:13:00.874 --> 02:13:04.924 but was to do you the -- the lack of assurances and I think had the been 1587 02:13:04.924 --> 02:13:08.217 clarify poor by preferred' different result. And so I think a set forth the 1588 02:13:08.217 --> 02:13:12.720 states brief it's clear we weren't objecting to virtual appearances, or telephonic 1589 02:13:12.720 --> 02:13:16.680 appearances. They just need. JUSTICE PATTERSON: Maybe a lot more 1590 02:13:16.680 --> 02:13:21.835 agreement about the room today's the case than appeared, at the time of the hearing 1591 02:13:21.835 --> 02:13:24.570 Leibowitz admittedly. JUSTICE WAINER APTER: Actually why you're 1592 02:13:24.570 --> 02:13:29.064 arguing that it's moot now right because now you're arguing you would consent to 1593 02:13:29.064 --> 02:13:32.336 virtually appearance and so that's why Your Honor it now moot. MILTON S. 1594 02:13:32.336 --> 02:13:34.666 LEIBOWITZ: Yes. JUSTICE WAINER APTER: Bougle there was the issue where 1595 02:13:34.666 --> 02:13:38.295 now con sent go to it before. MILTON S. LEIBOWITZ: Correct. We were not 1596 02:13:38.295 --> 02:13:43.018 be en before at the out asset because of some ever the deck issues and Moshannon 1597 02:13:43.018 --> 02:13:46.161 Valley' tables deny I'm so the along about us the record earns your September. 1598 02:13:46.161 --> 02:13:51.907 Now that that has been rectified. We weren't categorially only go to virtual 1599 02:13:51.907 --> 02:13:56.378 appearance or telephonic appearance. Provided there are guards. JUSTICE 1600 02:13:56.378 --> 02:14:01.575 FASCIALE: Does the mean ear agreeing to vacate the bench warrant. MILTON S. 1601 02:14:01.575 --> 02:14:05.947 LEIBOWITZ: If you answer virtually of course. In the scenario had he lady 1602 02:14:05.947 --> 02:14:08.976 virtual a bench warrant never should issued by November in the proceedings. So in 1603 02:14:08.976 --> 02:14:12.297 this case if it were remanded and defendant has the ability to appear virtually 1604 02:14:12.297 --> 02:14:18.647 which sounds like he does. And the counsel requests a post indictment arrangement, 1605 02:14:18.647 --> 02:14:26.316 before the -- the trial judge, and that goes off without a hitch and he gets' 1606 02:14:26.316 --> 02:14:30.269 arraignment the bench should be. JUSTICE HOFFMAN: That is the Santiago of 1607 02:14:30.269 --> 02:14:35.873 case, too, with the state could step forward and say, maybe defense counsel isn't 1608 02:14:35.873 --> 02:14:39.978 able the provide the let's fee we can get the touch with the facility and see 1609 02:14:39.978 --> 02:14:46.287 if that facility can provide safe guards that are satisfy. What tubing the 1610 02:14:46.287 --> 02:14:50.457 get you get isn't that the kind of situation where the state then can step up and 1611 02:14:50.457 --> 02:14:55.956 not just say, hey, even they we may get more access, you didn't do what you 1612 02:14:55.956 --> 02:14:58.600 had to do. MILTON S. LEIBOWITZ: I think the biggest disbarred I was candy 1613 02:14:58.600 --> 02:15:02.580 the Atlantic pattern was this insuring that he new defendants voice. As opposed 1614 02:15:02.580 --> 02:15:08.635 to the virtual or where we can. JUSTICE HOFFMAN: A insurance the facility. 1615 02:15:08.635 --> 02:15:10.836 MILTON S. LEIBOWITZ: That this is. JUSTICE HOFFMAN: This is the defendant 1616 02:15:10.836 --> 02:15:14.041 right? MILTON S. LEIBOWITZ: I hope the facility would be able to 1617 02:15:14.041 --> 02:15:18.307 provide that. Even if they did, I had stale want confirmation the pressure they 1618 02:15:18.307 --> 02:15:21.941 brought in somebody can identify I. JUSTICE HOFFMAN: You don't know if you 1619 02:15:21.941 --> 02:15:24.283 don't ask. MILTON S. LEIBOWITZ: It wasn't. JUSTICE HOFFMAN: You 1620 02:15:24.283 --> 02:15:28.208 don't in the assist facility can provide if you don't ask. MILTON S. LEIBOWITZ: 1621 02:15:28.208 --> 02:15:31.915 That is correct. CHIEF JUSTICE RABNER: Other guess anything you like the 1622 02:15:31.915 --> 02:15:35.987 ad Mr. Leibowitz? MILTON S. LEIBOWITZ: I believe that was it. So I will 1623 02:15:35.987 --> 02:15:43.791 just re it my request that the court issue a narrow opinion on post indictment 1624 02:15:43.791 --> 02:15:47.544 arraignment. And whether or not the bench warrant issued in this case was abuse 1625 02:15:47.544 --> 02:15:53.352 of discretion. And that is all. CHIEF JUSTICE RABNER: Thank you. 1626 02:15:53.352 --> 02:16:06.180 Miss Brigham. SARAH D. BRIGHAM: Good afternoon. May it please the court. 1627 02:16:06.180 --> 02:16:10.891 Attorney attorney general has five main points in response and I have be 1628 02:16:10.891 --> 02:16:18.160 listening to both proceedings so I'm gonna try to address matters that have come 1629 02:16:18.160 --> 02:16:24.313 up. First, first point. The judge issued a detainer bench warrant here. 1630 02:16:24.313 --> 02:16:29.573 That should remain in place if this case is remand. The detainer bench warrant 1631 02:16:29.573 --> 02:16:35.601 is a sincere procedural mechanism that serves a vital purpose, whether a 1632 02:16:35.601 --> 02:16:40.639 defendant is detained by ICE or deported. When a defendant is in ICE detention, 1633 02:16:40.639 --> 02:16:44.245 the detainer bench warrant serves to alert ICE that a defendant is still wanted 1634 02:16:44.245 --> 02:16:50.728 on his pending state charges. And engages New Jersey authorities to be notified 1635 02:16:50.728 --> 02:16:56.096 upon defendants release therefrom. Because that warrant can be entered into 1636 02:16:56.096 --> 02:17:05.362 NCIC. And after deportation it still serves a vital purpose it still a mechanism, 1637 02:17:05.362 --> 02:17:12.482 for that warrant to remain in NCIC for New Jersey authorities to be notified either 1638 02:17:12.482 --> 02:17:19.084 upon a defendant's lawful re entry into the United States, or unlawful Rio entry 1639 02:17:19.084 --> 02:17:25.780 and they come into contact with law enforcement again. This is why 1640 02:17:25.780 --> 02:17:33.125 they attorney general has suggested updating the standard failure to appear 1641 02:17:33.125 --> 02:17:41.460 bench warrant form. That's being used to hand write or typewritten whether its 1642 02:17:41.460 --> 02:17:49.704 detainer or not to avoid confusion in future cases. The -- so those changes 1643 02:17:49.704 --> 02:17:56.420 are the current bench warrant form has failure to appear language detainer 1644 02:17:56.420 --> 02:18:01.063 bench warrant form could have inability to appear. The detainer bench warrant 1645 02:18:01.063 --> 02:18:09.480 form could also specify whether the defendant is detained in a certain ICE 1646 02:18:09.480 --> 02:18:20.024 facility or deported to a certain country. And instead of -- instead of 1647 02:18:20.024 --> 02:18:24.894 having a for legislature of recognizance way is on the current standard bench 1648 02:18:24.894 --> 02:18:31.593 warrant form it could be a surrender to New Jersey authorities. And by 1649 02:18:31.593 --> 02:18:36.763 having this detainer bench warrant form, it would also help distinguish between a 1650 02:18:36.763 --> 02:18:44.155 failure to appear which is currently counted he was against defendant for pretrial 1651 02:18:44.155 --> 02:18:55.847 purposes the P.A. C risk assessment score. But it accepts that PSI score accepts 1652 02:18:55.847 --> 02:19:01.204 a detainer situation where a defendant is say like detained -- is detained 1653 02:19:01.204 --> 02:19:06.788 in federal custody or state custody, that's not supposed to count against them. So 1654 02:19:06.788 --> 02:19:12.647 a defendant's detention in ICE custody shouldn't count against them as well 1655 02:19:12.647 --> 02:19:19.593 for a detainer bench warrant. Second point. Like Reyes-Rodriguez the attorney 1656 02:19:19.593 --> 02:19:24.305 general recommended relevant factors in safe guards for a judge to consider 1657 02:19:24.305 --> 02:19:31.020 in exercising their discretion to hold' criminal proceeding remotely. 1658 02:19:31.020 --> 02:19:36.865 And in this context, for a defendant has either been detained by ICE or deported, 1659 02:19:36.865 --> 02:19:43.471 the courts not operating on a blank canvas the court already said fort a sensible 1660 02:19:43.471 --> 02:19:50.130 framework in it's October 2022 on the odd recording in person and virtual events. 1661 02:19:50.130 --> 02:19:56.289 The recognizes whether a proceeding may proceed virtual is context specific. 1662 02:19:56.289 --> 02:20:02.022 Depending on the nature and type of proceeding and that certain proceedings 1663 02:20:02.022 --> 02:20:09.245 should continue to be in person. This court and the appellate division guide 1664 02:20:09.245 --> 02:20:16.509 go principles in Santos (that establishes a baseline of considerations the wait 1665 02:20:16.509 --> 02:20:22.658 I which will vary on the cases stage and the type of proceeding. Which 1666 02:20:22.658 --> 02:20:31.085 leads me to a third point. Here a weight go consideration for whether an arraignment 1667 02:20:31.085 --> 02:20:37.095 may proceed virtually or remain in person, which this courts October 20, 22 order 1668 02:20:37.095 --> 02:20:41.725 directs, should generally proceed in person. Should be a defendants good faith 1669 02:20:41.725 --> 02:20:46.446 difficulty in being able to do so. So where a defendant is in ICE custody 1670 02:20:46.446 --> 02:20:52.575 within the state, and in person appearance, will typically be practical, the 1671 02:20:52.575 --> 02:20:55.548 ICE tool kit tore prosecutors notes that the Immigration and Customs Enforcement 1672 02:20:55.548 --> 02:21:01.107 will genion are' stage judges writ directing a why court patterns how far it 1673 02:21:01.107 --> 02:21:08.840 does have a could have I can't tell on page eight to nine on page 11 of the ice 1674 02:21:08.840 --> 02:21:13.550 tool kit, it states that it's the preceding is six months out, it has to discretion 1675 02:21:13.550 --> 02:21:19.437 not to honor that writ. And that it wouldn't be honored. JUSTICE 1676 02:21:19.437 --> 02:21:22.372 PATTERSON: Six months out meaning what. ATTORNEY: If the would go et cetera 1677 02:21:22.372 --> 02:21:25.979 six months on you defendant can be pre moved the states rights not going to 1678 02:21:25.979 --> 02:21:29.629 be honored. JUSTICE PATTERSON: He in other words if it's six months from 1679 02:21:29.629 --> 02:21:36.699 now the schedule for six months from now, they're not gonna -- JUSTICE 1680 02:21:36.699 --> 02:21:41.924 PIERRE-LOUIS: You can't writ something out for a trial scheduled for next your 1681 02:21:41.924 --> 02:21:45.480 seven months from now. ATTORNEY: Yes, exactly Your Honor. Which I was 1682 02:21:45.480 --> 02:21:52.194 gonna point to just us Pierre-Louis hypothetical about writ go state defendant 1683 02:21:52.194 --> 02:21:56.921 for had you have a trial one year two year out it's no I gonna be practical 1684 02:21:56.921 --> 02:22:04.473 and ICE is not gonna honor state writs in the attorney engines experience. I 1685 02:22:04.473 --> 02:22:12.794 know L-S N.J. brought up a example where a defendant who was in ICE custody 1686 02:22:12.794 --> 02:22:17.759 was held here for three weeks, that sounds like special circumstances where if you 1687 02:22:17.759 --> 02:22:23.856 have an do you understand upled left arm I if plea proceeding as well, where 1688 02:22:23.856 --> 02:22:29.758 the arranged for the defendant to have a guilty plea that's different than 1689 02:22:29.758 --> 02:22:33.631 having an definite trial date and trying to keep them there here for a year or 1690 02:22:33.631 --> 02:22:40.091 two. That's not gonna work. And if that was the case, we wouldn't be here before 1691 02:22:40.091 --> 02:22:49.196 Your Honor's now. Because that would have cured the situation here. 1692 02:22:49.196 --> 02:22:52.796 JUSTICE PATTERSON: Let me ask you one thing in the unusual back the someone is local 1693 02:22:52.796 --> 02:22:56.951 just one day thing they come prosecutor the take arrangement, and they returned 1694 02:22:56.951 --> 02:23:00.484 to ICE custody immediately. SARAH D. BRIGHAM: That's my understanding. 1695 02:23:00.484 --> 02:23:07.086 So with the opening of drain' hall now, it's should be typically practical to 1696 02:23:07.086 --> 02:23:14.381 secure an in person appearance shoalings drain' hall is honoring those state writs. 1697 02:23:14.381 --> 02:23:19.017 My fourth point. CHIEF JUSTICE RABNER: Urine knowledge as well 1698 02:23:19.017 --> 02:23:22.572 as delay a hall is not a how long for remote proceedings. SARAH D. BRIGHAM: 1699 02:23:22.572 --> 02:23:30.482 This is the first time I've heard that. And if that -- if that's the case, 1700 02:23:30.482 --> 02:23:35.648 the attorney engines possession is that for arraignment the defendants detained at 1701 02:23:35.648 --> 02:23:39.914 drain' hall should be produced in person in a bass because of the nature of 1702 02:23:39.914 --> 02:23:46.082 those proceedings. So that would cure any policy that the drain a might hall 1703 02:23:46.082 --> 02:23:53.282 might have. Against remote proceedings which is not my understanding. Drain 1704 02:23:53.282 --> 02:23:59.526 a hall does represent ICE represents on hits remember its website withdrawn' 1705 02:23:59.526 --> 02:24:08.984 hauls videoconference go capability which is at it's at page 25 note six of the 1706 02:24:08.984 --> 02:24:16.497 attorney generals' brief. Drain hall does have videoconferences capability, 1707 02:24:16.497 --> 02:24:22.540 and ICE tell ton to be let's that are used to facilitate video chats. 1708 02:24:22.540 --> 02:24:28.677 Which was leading me to my fourth point. About videoconference go capability. So 1709 02:24:28.677 --> 02:24:36.613 drain a hall does have them. As far as me Shannon, there's been representation 1710 02:24:36.613 --> 02:24:43.958 before Your Honor's today about how a plural of New Jersey criminal defendants 1711 02:24:43.958 --> 02:24:51.029 are being detained by ICE at me Shannon. Like S. There's currently 1712 02:24:51.029 --> 02:24:56.257 \a\your\you're in junk of place since January of last year specifically for New Jersey 1713 02:24:56.257 --> 02:25:01.861 criminal defendants where me Shannon is obligated to provide for videoconferencing 1714 02:25:01.861 --> 02:25:10.231 appearances and the ICE resulted rests that are part of that federal suit are 1715 02:25:10.231 --> 02:25:17.294 also obligated to provide the resources that they would need to facilitate 1716 02:25:17.294 --> 02:25:21.923 those videoconference go appearances. And I just wanted to take a moment 1717 02:25:21.923 --> 02:25:32.409 about to represent station that me Shannon had a policy not -- not to provide 1718 02:25:32.409 --> 02:25:42.230 those appearances. According to the attorney general provided the opinions 1719 02:25:42.230 --> 02:25:47.459 for those federal suits, the original opinion and the clarification, so at pages 1720 02:25:47.459 --> 02:25:54.253 13 to 14 of the A Gs a appendix and 33 to 34 me Shannon claimed I didn't a 1721 02:25:54.253 --> 02:26:00.387 policy against remote persons they claimed a lack of resources. Because they 1722 02:26:00.387 --> 02:26:05.113 prioritize family court and immigration proceedings over New Jersey state 1723 02:26:05.113 --> 02:26:09.478 criminal proceedings. But as I said, under the injunction they're now obligated 1724 02:26:09.478 --> 02:26:14.890 to provide for videoconferencing appearances. CHIEF JUSTICE RABNER: 1725 02:26:14.890 --> 02:26:18.759 I heard the quoll we the Mr. Leibowitz. Now that we understand that both drain' 1726 02:26:18.759 --> 02:26:22.865 hall and me Shannon I've inference videoconference willing equipment, is it 1727 02:26:22.865 --> 02:26:29.741 sensible for the state around the state a wore county left, to reach out and attempt 1728 02:26:29.741 --> 02:26:35.272 to coordinate remote proceedings in those kinds of cases four a restraints 1729 02:26:35.272 --> 02:26:41.344 at on or about matters. SARAH D. BRIGHAM: So that's actually my fifth point. 1730 02:26:41.344 --> 02:26:48.489 About whose obligation it should be to arrange for the videoconferencing 1731 02:26:48.489 --> 02:26:55.533 appearance. If the statehouse notice that could be a consideration, perhaps defense 1732 02:26:55.533 --> 02:27:01.387 counsel could reach out to the state for help if the defendant is having the 1733 02:27:01.387 --> 02:27:06.313 trouble arranging the videoconferencing appearance. However, three -- I've 1734 02:27:06.313 --> 02:27:12.965 three points to that. The first is so \site\sight\cite one 41242 of the Santos 1735 02:27:12.965 --> 02:27:23.266 opinion, part of the test for allowing a telephonic testimony, which were -- 1736 02:27:23.266 --> 02:27:28.245 adapt go the factors as part -- the A G is did adapt go did factors to the situation 1737 02:27:28.245 --> 02:27:37.082 here, under the second prong the applicant is suppose insure that the means 1738 02:27:37.082 --> 02:27:43.904 to be used will insure the essential integrity of the testimony or the 1739 02:27:43.904 --> 02:27:49.819 proceeding for fact finding purposes. And it states that it's the applicants' burden 1740 02:27:49.819 --> 02:27:57.873 to make those in insurances. Even for videoconferencing accountability. And 1741 02:27:57.873 --> 02:28:01.717 that's. JUSTICE PATTERSON: Who's the applicant in that case. SARAH 1742 02:28:01.717 --> 02:28:04.714 D. BRIGHAM: Well, here owe necessity the situation -- I'm understanding issues 1743 02:28:04.714 --> 02:28:09.756 your Honor's question, to be in this situation I would say it's the -- the 1744 02:28:09.756 --> 02:28:17.134 defendants the pling can't. And I think for burden -- for notice purposes, defendants 1745 02:28:17.134 --> 02:28:26.715 motion gonna have notice first, here under the conditional release order when 1746 02:28:26.715 --> 02:28:30.591 defendant was released. CHIEF JUSTICE RABNER: May a I want interrupt 1747 02:28:30.591 --> 02:28:35.044 for a secretary step back from the particulars of how an individual 1748 02:28:35.044 --> 02:28:40.982 videoconference can be set up. Does it make sense to -- and I'm asking the Attorney 1749 02:28:40.982 --> 02:28:49.353 General's Office in good faith, for them to attempt to development a set of 1750 02:28:49.353 --> 02:28:53.878 procedures that ICE would like toss how Facebook a drain' hall in machan and 1751 02:28:53.878 --> 02:28:58.502 in other places at least that are dealt with pregnantly, this is what we went 1752 02:28:58.502 --> 02:29:03.110 individual cases toed. Attorneys should coach out the this western nod my the request. 1753 02:29:03.110 --> 02:29:08.253 Should file this kind of document. Would it make sense for the attorney general 1754 02:29:08.253 --> 02:29:12.545 to step in offer to work with you county prosecutor's offices and come up with 1755 02:29:12.545 --> 02:29:17.588 a protocol that can be shared. SARAH D. BRIGHAM: Of course the attorney 1756 02:29:17.588 --> 02:29:21.413 general could and were this court to recommend that the attorney general 1757 02:29:21.413 --> 02:29:26.594 should, the attorney general would certainly take that recommendation seriously. 1758 02:29:26.594 --> 02:29:35.475 CHIEF JUSTICE RABNER: I'll invite you toss this sometimes a days a for 1759 02:29:35.475 --> 02:29:41.196 a pin to get out. No one has stopping the Attorney General from under taking 1760 02:29:41.196 --> 02:29:45.492 this sort have effort and reporting back to the court. SARAH D. BRIGHAM: 1761 02:29:45.492 --> 02:29:52.638 I understand Your Honor. If I could -- I understand. CHIEF JUSTICE 1762 02:29:52.638 --> 02:29:56.044 RABNER: Please go ahead. SARAH D. BRIGHAM: Just to finish about who's 1763 02:29:56.044 --> 02:30:02.455 initial obligation it should be to try to radio range for the videoconferencing, 1764 02:30:02.455 --> 02:30:07.486 capability, I did provide the sanity -- the Santos site indication. It's also 1765 02:30:07.486 --> 02:30:13.199 about notice, the Rowan why it shut defendants initial obligation is because 1766 02:30:13.199 --> 02:30:20.835 they're going to have notice first. And also hear the defendant conditions 1767 02:30:20.835 --> 02:30:25.414 release order it expected him to notify the court immediately in writing if he 1768 02:30:25.414 --> 02:30:30.258 was detained in jail in prison/otherwise could not appear at a court proceeding. 1769 02:30:30.258 --> 02:30:36.098 That's at page four of the state appendix. So even under the conditional release 1770 02:30:36.098 --> 02:30:42.661 order defendant here had an obligation to notify the court in advance if they 1771 02:30:42.661 --> 02:30:52.227 could not apeshit that proceeding. Which is for the obligation to be on defendant 1772 02:30:52.227 --> 02:30:57.399 to first try to arrange the videoconference proceeding and reach out to the 1773 02:30:57.399 --> 02:31:02.542 state if there having troubling to. JUSTICE PATTERSON: How about everybody 1774 02:31:02.542 --> 02:31:06.930 works together. Very smart lawyers. May have notice shares were the court, 1775 02:31:06.930 --> 02:31:13.546 shirt with the prosecutor. There's a discussion, it happens among lawyers. 1776 02:31:13.546 --> 02:31:20.435 Everywhere all day every day. And just work together to reach out to ICE. And 1777 02:31:20.435 --> 02:31:26.294 just handle the practicality just strikes me that arranging videoconferencing is 1778 02:31:26.294 --> 02:31:31.365 something lawyers are pretty darn why at these days most COVID. And making 1779 02:31:31.365 --> 02:31:36.223 -- you know obviously -- important aspect. It it reaching out to ICE is something 1780 02:31:36.223 --> 02:31:41.028 that lawyers could work cooperatively on. SARAH D. BRIGHAM: I understand 1781 02:31:41.028 --> 02:31:46.868 Your Honor's point. Of course attorneys could work cooperatively ultimately 1782 02:31:46.868 --> 02:31:51.705 though it's within ICE' discretion. JUSTICE PATTERSON: Understood. 1783 02:31:51.705 --> 02:31:54.361 SARAH D. BRIGHAM: Whether they're gonna actually provide that remote. 1784 02:31:54.361 --> 02:31:57.183 JUSTICE PATTERSON: But the terms of who has notice first lawyers all time notify 1785 02:31:57.183 --> 02:32:02.160 each over material information. Quiggley. I. JUSTICE NORIEGA: Here talking 1786 02:32:02.160 --> 02:32:06.430 about the weather whether he' as a result. So let me propose to you that if 1787 02:32:06.430 --> 02:32:10.860 a the alternative in this case defendant companies should northbound the said 1788 02:32:10.860 --> 02:32:14.168 this evening the efforts I've made with mislain in, and these are the on owe what 1789 02:32:14.168 --> 02:32:17.741 I've done so far and their everything Dick difficulty be want I did on the 1790 02:32:17.741 --> 02:32:22.913 phone today, which is the arrange day. Could we have an adjournment for a telephonic 1791 02:32:22.913 --> 02:32:27.962 conference? With the attorney general object to a circumstance where the 1792 02:32:27.962 --> 02:32:33.261 parties say okay, you try again gave he none who you contact and then I'll call the 1793 02:32:33.261 --> 02:32:37.779 state \ace\as I say listen any prosecutor, we're on board for this Kay. By 1794 02:32:37.779 --> 02:32:41.388 agree this persons should be on Lloyd this patterns. Colloquy Your Honor, 1795 02:32:41.388 --> 02:32:43.481 work together with postoperative to share information. And the bench warrant 1796 02:32:43.481 --> 02:32:48.967 is not yet should issued because the defendant everyone knows who the defendant 1797 02:32:48.967 --> 02:32:53.252 is. Defendants counsel now on board went go where they will remain for the 1798 02:32:53.252 --> 02:32:57.137 mode future until at least the next court parents. So that these things could 1799 02:32:57.137 --> 02:33:01.204 be arrange will with the Attorney General object to that type of circumstance 1800 02:33:01.204 --> 02:33:06.176 playing out. SARAH D. BRIGHAM: So to respond to your independence question. 1801 02:33:06.176 --> 02:33:11.478 First, the Attorney General wouldn't object to the defense counsel and state 1802 02:33:11.478 --> 02:33:20.174 cooperating and trying to arrange proceedings with ICE. Second, response to 1803 02:33:20.174 --> 02:33:23.775 your Honor's question, you mentioned about when the detainer bench warrant should 1804 02:33:23.775 --> 02:33:30.130 be issued. And here the attorney generals takes a taking in the detainer bench 1805 02:33:30.130 --> 02:33:35.196 warrant is different than a failure to appear bench warrant. The detainer 1806 02:33:35.196 --> 02:33:41.704 bench warrant serves as a mechanism on the first notify ICE and for allowing us to 1807 02:33:41.704 --> 02:33:45.999 put manage in N. CHIEF JUSTICE RABNER: So the defendant released by 1808 02:33:45.999 --> 02:33:51.633 ICE without notice to the state. A There will may be some mechanism in place to 1809 02:33:51.633 --> 02:33:57.570 get them back to New Jersey authorities if they come into contact with. JUSTICE 1810 02:33:57.570 --> 02:33:59.975 WAINER APTER: Until be that next the defendants was the power virtually, and 1811 02:33:59.975 --> 02:34:06.410 it's the state that has hasn't conceded or called ICE to say, yes, we can consently 1812 02:34:06.410 --> 02:34:12.434 let's take I virtually. JUSTICE NORIEGA: Follow up on that. Does 1813 02:34:12.434 --> 02:34:18.726 a detainer warrant exist currently. SARAH D. BRIGHAM: So what's -- what's 1814 02:34:18.726 --> 02:34:23.508 been happening in court, is the only standard bench warrant form out there has the 1815 02:34:23.508 --> 02:34:29.524 failure tow appear language. So to use it as a detainer bench warrant, they've 1816 02:34:29.524 --> 02:34:33.902 been on the courts have been handle writing on it or typing on it that it's 1817 02:34:33.902 --> 02:34:38.791 a warrant as a detainer MRI. CHIEF JUSTICE RABNER: That's the modified 1818 02:34:38.791 --> 02:34:43.497 Bernie asking the court the scart requesting that's whether the warrant to as the 1819 02:34:43.497 --> 02:34:46.757 detainer bench warrant. SARAH D. BRIGHAM: So two ports to Your Honor's 1820 02:34:46.757 --> 02:34:53.232 question. Yes, the Attorney General is recommending a minor modified detainer bench 1821 02:34:53.232 --> 02:34:59.525 warrant form. Second answer to your Honor's question, there would -- the type 1822 02:34:59.525 --> 02:35:05.379 of bench warrant that was issued here was a detainer bench warrant. With the 1823 02:35:05.379 --> 02:35:12.737 handwriting on the warrant and on the eCourts it's Saturday I think it's at 1824 02:35:12.737 --> 02:35:25.020 -- there was it was -- it was inputted on I courts two as a warrant is detainer. 1825 02:35:25.020 --> 02:35:31.063 So there's a way for each to also differentiate between these know types of 1826 02:35:31.063 --> 02:35:33.543 warrants. JUSTICE WAINER APTER: If the persons held he ICE, why is that 1827 02:35:33.543 --> 02:35:38.456 necessary if the person wants to appear and the state is saying, no, we don't 1828 02:35:38.456 --> 02:35:43.091 want virtual appearance no, window don't believe telephonically that you know, we 1829 02:35:43.091 --> 02:35:46.649 can be convinced that they're advertise speaking right here. SARAH D. 1830 02:35:46.649 --> 02:35:49.369 BRIGHAM: It's neglect because it's still serves as a latter to ICE that we 1831 02:35:49.369 --> 02:35:53.433 still want them on there state. JUSTICE WAINER APTER: So your saying any time 1832 02:35:53.433 --> 02:35:59.115 someone is obtained bay black ice the United States detainer warrant should only 1833 02:35:59.115 --> 02:36:04.716 automatic through issue. SARAH D. BRIGHAM: It knowledge -- if the 1834 02:36:04.716 --> 02:36:10.305 court was to make a modified detainer bench warrant form that was more con sues you 1835 02:36:10.305 --> 02:36:14.787 go to the detainer bench warrant situation, whereas about in able to the app 1836 02:36:14.787 --> 02:36:22.458 and a surround to New Jersey authorities, yes. Upon that defendant being detained 1837 02:36:22.458 --> 02:36:27.542 by ICE, a detainer bench warrant would be concerned under those circumstances. 1838 02:36:27.542 --> 02:36:29.261 JUSTICE WAINER APTER: Should be your saying. SARAH D. BRIGHAM: Yet because 1839 02:36:29.261 --> 02:36:34.666 it's serves as a latter to ICE so we still want them. And it's not guaranteed 1840 02:36:34.666 --> 02:36:40.896 that ICE is going tow alert us if they are released. So it rifles a mechanism 1841 02:36:40.896 --> 02:36:45.822 in place to put into NCIC in case they come into contact with law enforcement in 1842 02:36:45.822 --> 02:36:49.458 the future. JUSTICE WAINER APTER: No party in the case requested 1843 02:36:49.458 --> 02:36:56.294 that right? A G is participate P-G a amicus curiae no party any of the cases 1844 02:36:56.294 --> 02:37:00.347 that I had there should be a bench warrant even if it's called something else. A 1845 02:37:00.347 --> 02:37:05.294 detainer warrant. Every time someone is taken into ice custody right. 1846 02:37:05.294 --> 02:37:07.156 SARAH D. BRIGHAM: That is correct Your Honor. JUSTICE NORIEGA: Just to 1847 02:37:07.156 --> 02:37:10.288 be clear, that doesn't have a standard that we're aware are so we'd have to 1848 02:37:10.288 --> 02:37:13.012 create anno standard foreclosure when that issues as a posed to a bench warrant 1849 02:37:13.012 --> 02:37:18.914 which has a Court Rule what you're suggesting. SARAH D. BRIGHAM: Would 1850 02:37:18.914 --> 02:37:21.482 you. JUSTICE NORIEGA: Ask you suggest that's the detainer is issued regardless 1851 02:37:21.482 --> 02:37:27.287 of whether the court find that the defendant volumely attempted himself from 1852 02:37:27.287 --> 02:37:32.215 court. It's just because he's an ICE custody. SARAH D. BRIGHAM: Yes. 1853 02:37:32.215 --> 02:37:37.585 I. JUSTICE NORIEGA: So we want every a standard for that other than to 1854 02:37:37.585 --> 02:37:39.881 say. JUSTICE WAINER APTER: As a matter of course. JUSTICE NORIEGA: 1855 02:37:39.881 --> 02:37:44.701 Every single time is that you're suggesting. SARAH D. BRIGHAM: No, I'm 1856 02:37:44.701 --> 02:37:48.568 not saying it has to issue. I'm saying that it could be issued. JUSTICE 1857 02:37:48.568 --> 02:37:53.485 FASCIALE: So this orzos of that is problematic in the sense that if we know 1858 02:37:53.485 --> 02:37:59.650 that ICE will not deliver an individual that is released from their custody on writ, 1859 02:37:59.650 --> 02:38:03.854 to a state authority, what happens when they want to release someone because 1860 02:38:03.854 --> 02:38:09.460 they're completed with their process and nobody wants to come get them? There 1861 02:38:09.460 --> 02:38:14.403 just I mean what happens at this point. SARAH D. BRIGHAM: I think in your 1862 02:38:14.403 --> 02:38:18.587 in Your Honor's question, it might be a assuming that the state has notice 1863 02:38:18.587 --> 02:38:22.977 from ICE that that person is gonna be released. JUSTICE NORIEGA: Sure 1864 02:38:22.977 --> 02:38:25.557 they're gonna respect the -- because also a detainer the staple say ships I 1865 02:38:25.557 --> 02:38:29.306 used when a persons in state custody or federal custody. Trial court's issues 1866 02:38:29.306 --> 02:38:32.937 a detainer knots a bench warrant saying if you're gonna release the purpose give 1867 02:38:32.937 --> 02:38:37.261 along I heads up. Right? SARAH D. BRIGHAM: That is the function of the 1868 02:38:37.261 --> 02:38:40.358 detainer, yes. JUSTICE NORIEGA: From I wasn't but in this case that detainer 1869 02:38:40.358 --> 02:38:45.118 if ICE gets that dishes and any call the state and say we ergo the re did he 1870 02:38:45.118 --> 02:38:49.844 person, is now the stating go to send somebody to Pennsylvania or California or 1871 02:38:49.844 --> 02:38:55.992 Arizona to pick this person up because it's a detainer verse also a warrants. 1872 02:38:55.992 --> 02:39:00.080 SARAH D. BRIGHAM: To answer Your Honor's question, in the warrant it says to surrender 1873 02:39:00.080 --> 02:39:04.494 to New Jersey -- New Jersey authorities. I think it work umm on the person 1874 02:39:04.494 --> 02:39:09.482 who's being released to come back to New Jersey to answer for those charges 1875 02:39:09.482 --> 02:39:11.534 yes. JUSTICE NORIEGA: They're not going to be released because films a 1876 02:39:11.534 --> 02:39:15.351 detainer. So there's go to be sitting in ICE with ICE saying to them, we will 1877 02:39:15.351 --> 02:39:19.094 we can't let you know because New Jersey wants you. So we're going to keep 1878 02:39:19.094 --> 02:39:24.054 holding you inspire New Jersey decide what to do with you. It's concrete at procedural 1879 02:39:24.054 --> 02:39:29.072 hurdle that they may have to jump through. SARAH D. BRIGHAM: I understand 1880 02:39:29.072 --> 02:39:33.464 Your Honor. I think ICE though has discrimination whether or not they're 1881 02:39:33.464 --> 02:39:37.608 gonna honor the detains. So the reason why it would be if place would be in 1882 02:39:37.608 --> 02:39:42.628 the case where ICE' Reisss and doesn't notify the state. JUSTICE NORIEGA: 1883 02:39:42.628 --> 02:39:46.403 Okay. CHIEF JUSTICE RABNER: Do you have a sixth point. SARAH D. 1884 02:39:46.403 --> 02:39:50.019 BRIGHAM: I believe I said I had five points. CHIEF JUSTICE RABNER: Let 1885 02:39:50.019 --> 02:39:53.852 me give a six this is the problem with what you reach 4:00 o'clock. And mind 1886 02:39:53.852 --> 02:39:59.343 start the wanted' little bit. So everybody may thing this is ad about idea. 1887 02:39:59.343 --> 02:40:06.190 Have the act of COVID court brought together a group of stakeholders like 1888 02:40:06.190 --> 02:40:10.603 those seated in the which will and some others. To try to address pressing problems 1889 02:40:10.603 --> 02:40:15.331 and a cooperative manner and report back to the court that will dealt particularly 1890 02:40:15.331 --> 02:40:20.497 with the jail population and how to address concerns that COVID had brought 1891 02:40:20.497 --> 02:40:24.708 to the status quo. And we ended up with judge cash minimum sense working 1892 02:40:24.708 --> 02:40:32.313 with the parties with an order that was largely consent to do by call parties 1893 02:40:32.313 --> 02:40:39.311 and that some have said worked well. Would it be any sense in this situation 1894 02:40:39.311 --> 02:40:43.362 to do something similar to that? Because what we're attempting to do is not 1895 02:40:43.362 --> 02:40:49.242 simply address the bench warrant in this case, but to overaged answer which 1896 02:40:49.242 --> 02:40:54.242 would potentially pivot off of understandings as the who can do what the 1897 02:40:54.242 --> 02:40:58.134 facility day moving he's the cases forward. I realize how unorthodox said to even 1898 02:40:58.134 --> 02:41:02.673 question the gentleman. After hours and hours of oral argument today. But 1899 02:41:02.673 --> 02:41:07.643 is that something that A the attorney general would be to go participate in, 1900 02:41:07.643 --> 02:41:12.245 and I know I may no, it be answer the as that the moment. But perhaps you will, 1901 02:41:12.245 --> 02:41:17.536 and do you think it would be productive. SARAH D. BRIGHAM: So if I'm 1902 02:41:17.536 --> 02:41:23.370 understanding Your Honor's question, you want to gather steaks holders from 1903 02:41:23.370 --> 02:41:27.524 that have different interests to come and discuss what would be the better -- 1904 02:41:27.524 --> 02:41:34.318 the best solution for -- I think the Attorney General would want to participate 1905 02:41:34.318 --> 02:41:40.674 if the court was going to. CHIEF JUSTICE RABNER: I would most certainly 1906 02:41:40.674 --> 02:41:44.112 be invite to do the table do you think it whack a property I've exercise. 1907 02:41:44.112 --> 02:41:49.925 ATTORNEY: And I understand that Your Honor is in the lancing case referred that 1908 02:41:49.925 --> 02:41:54.785 case to the criminal practical committee to establish guidelines for pretrial 1909 02:41:54.785 --> 02:42:01.152 and trial proceedings. About when they should have happened dollars virtual 1910 02:42:01.152 --> 02:42:04.778 sound like its something similar that you would wouldn't tam here and of course 1911 02:42:04.778 --> 02:42:09.391 the attorney general would want the participate. CHIEF JUSTICE RABNER: 1912 02:42:09.391 --> 02:42:21.954 Thank you. Other consequence? Thank you. Mr. Mark brief re belt. ERIC M. 1913 02:42:21.954 --> 02:42:32.853 MARK: ERIC M. MARK: YOUR HONOR'S LAST QUESTION WENT TO THE ONE OF THE POINTS I WAS 1914 02:42:32.853 --> 02:42:34.213 GOING TO MAKE WHICH WAS REALLY THAT THE JUSTICE PATTERSON'S QUESTION THAT SHE'S BEEN ASKING 1915 02:42:34.213 --> 02:42:39.926 ALL DAY WHAT'S THE TKEFLT AETS MOTIVATION TO APPEAR WHICH WE'VE ADDRESSED. BUT WE HAVEN'T 1916 02:42:39.926 --> 02:42:45.937 ASKED IS WHAT ARE THE STATE'S INCENTIVE TO AN APPEAR IF THEY KNOW A BENCH WARRANT IS LIKELY 1917 02:42:45.937 --> 02:42:51.853 TO ISSUE AND THERE'S NO PUNITIVE DISMISSAL OF THE CHARGE AT ANY POINT EVEN THOUGH THE 1918 02:42:51.853 --> 02:43:03.782 DEFENDANT HASN'T HAS DONE NOTHING VOLITIONLY WRONG SO THAT THE STATE HAS TO HAVE 1919 02:43:03.782 --> 02:43:08.211 INCENTIVE. THE SUPREME COURT HAS PUT THE BURDEN ON THE STATE TO PRODUCE THE DEFENDANT. 1920 02:43:08.211 --> 02:43:16.915 IN BARKER THE SUPREME COURT SAID THAT THE STATE HAS THE DUTY SPECIFICALLY SAID THAT THE 1921 02:43:16.915 --> 02:43:21.554 FACT TOS NOT ARGUE FOR PLACING THE BURDEN F PROTECTING THE RIGHT THE DEFENDANT HAS NO 1922 02:43:21.554 --> 02:43:27.302 DUTY TO BRING HIMSELF TO TRIAL. THE STATE HAS THAT DUTY. IT'S BEEN ADDRESSED. BY THE 1923 02:43:27.302 --> 02:43:34.695 UNITED STATES SUPREME COURT AND THE STATE HAS THEY HAVE TO PARTICIPATE. ACTIVELY NOT 1924 02:43:34.695 --> 02:43:40.932 PASSIVELY NOT AFTER THE DEFENSE HAS TAKEN A SHOT AT THE APPLE. THE STATE HAS TO PARTICIPATE 1925 02:43:40.932 --> 02:43:46.113 IN THE GET GO THEY NEED TO BE OUT THERE DOING IT IN ORDER TO GIVE THIS A CHANCE TO SUCCEED. 1926 02:43:46.113 --> 02:44:07.937 JUSTICE NORIEGA MENTIONED THE LIKELY PROTECTIONS OF TELEPHONIC APPEARANCES FOR 1927 02:44:07.937 --> 02:44:16.055 PERSONS IN ICE CUSTODY. THE WAY THAT THAT WOULD BE DONE IS NOT THROUGH THE FACILITY TA 1928 02:44:16.055 --> 02:44:24.527 REQUESTS OR THROUGH TELEPHONE. THEY'RE DONE THROUGH ICE. AND IT IS TYPICALLY DONE AT 1929 02:44:24.527 --> 02:44:30.684 THIS POINT EITHER THROUGH ICE'S PORTAL OR THROUGH E-MAIL DEPENDING ON THE FACILITY. OBVIOUSLY 1930 02:44:30.684 --> 02:44:39.230 EVERYONE HAS TO BE IDENTIFIED BY THEIR ALIEN NUMBER IT'S A NINE DIGIT NUMBER AND ONLY 1931 02:44:39.230 --> 02:44:44.489 THAT PERSON WOULD BE PRODUCED. I HAVE MULTIPLE TIMES SENT E-MAILS REQUESTING TO HAVE 1932 02:44:44.489 --> 02:44:48.932 A CONFERENCE WITH SOMEONE AND BEEN TOLD THEY'RE NOT IN THE FACILITY. THEY'RE PROBABLY 1933 02:44:48.932 --> 02:44:56.672 THE ONE THING THEIR BEST AT IS MAKING SURE THEY HAVE. AND IF ICE IS PRODUCING SOMEONE 1934 02:44:56.672 --> 02:45:02.165 SUCH A PERSON WITH SPECIFIC A NUMBER THAT IS WAY MORE PROTECTION AN IDENTIFICATION THAT 1935 02:45:02.165 --> 02:45:07.138 WE HAVE DAY-TO-DAY IN THE COURTROOM. I'VE BEEN DOING THIS 20 YEARS I CAN COUNT ON ONE 1936 02:45:07.138 --> 02:45:13.277 HAND THE TIMES THAT A DEFENDANT HAS BEEN ASKED TO IDENTIFY THEMS OTHER THAN STATING THEIR 1937 02:45:13.277 --> 02:45:19.530 IN MANY. NOBODY ASKED FOR IDENTIFICATION. AFTER THEY ARREST ANYBODY CAN COME NO COURT 1938 02:45:19.530 --> 02:45:25.171 AND SAY I'M SO AN SO ASK THIS IS HIGH KAY. BUT THE PROTECTIONS DON'T EXIST IN THE COURTROOM 1939 02:45:25.171 --> 02:45:42.778 ANYMORE AND ICE WOULD PROVIDE WAY MORE PROTECTIONS THAN THE DAY-TO-DAY. THERE WAS 1940 02:45:42.778 --> 02:45:49.057 DISCUSSION I PWRAOEFB THIS IS MY LAST POINT AS TO THE BENCH WARRANTS STOPPING THE CRIMINAL 1941 02:45:49.057 --> 02:45:54.960 PROCEDURE. AND HOW THAT AFFECTS THE IMMIGRATION PROCESS. AND THAT IS EXACTLY WHAT HAPPENS 1942 02:45:54.960 --> 02:46:02.113 IS THIS CASE MR. GARCIA'S CASE THE BENCH WARRANT WAS ISSUED VERY EARLY IN THE PROCESS 1943 02:46:02.113 --> 02:46:10.090 AND HE WAS NOT TKPWORTED FOR MONTHS. HE WAS NOT DEPORTED UNTIL AFTER WE FILED THE APPEAL. 1944 02:46:10.090 --> 02:46:17.944 FILED FOR CERTIFICATION AND GOT AND THE APPEAL LEAVE TO APPEAL WAS GRANT. IT WAS ONLY 1945 02:46:17.944 --> 02:46:25.393 SHORTLY BEFORE OR SUPPLEMENTAL BRIEF WAS SUBMITTED THAT HE WAS ACTUALLY DEPORTED AND 1946 02:46:25.393 --> 02:46:31.405 HAD THE CRIMINAL PROCESS BEEN MOVING FORWARD HIS DEPORTATION COULD HAVE BEEN PREVENTED 1947 02:46:31.405 --> 02:46:35.386 IT COULD HAVE BEEN RESOLVED. I'M NOT SAYING IT WOULD HAVE BEEN BUT IT COULD HAVE BEEN 1948 02:46:35.386 --> 02:46:39.780 AND HE DESERVED THAT OPPORTUNITY AS DO ALL OF THE PEOPLE THIS THAT POSITION. THEY DOUGH 1949 02:46:39.780 --> 02:46:44.616 SERVE THE OPPORTUNITY. EVEN THE EXISTENCE OF THE I'M SURE THE TKOURT HAS HEARD OF THE 1950 02:46:44.616 --> 02:46:51.371 LAKE AND REILLY ACT YOU FOR ACCUSATIONS RELATING TO THEFT CERTAIN FRAUD AND OTHER CHARGES. 1951 02:46:51.371 --> 02:46:59.471 BUT IF THOSE CHARGES ARE RESOLVED SOMEBODY'S DISCHARGED WITH A DISORDERLY PERSON THEFT 1952 02:46:59.471 --> 02:47:05.715 THEIR MANDATORY DETENTION NO BOND IN IMMIGRATION COURT IF THEY COME NO COURT AN INTO A 1953 02:47:05.715 --> 02:47:11.351 SOMETHING THAT'S NOT THEFT RELATED THEY'RE NOT BONDS ELIGIBLE AND THEY COULD BE RELEASED 1954 02:47:11.351 --> 02:47:17.267 FROM IMMIGRATION DETENTION. THE THERE IS A MASSIVE DIFFERENCE TO BE ABLE TO MOVE THESE 1955 02:47:17.267 --> 02:47:22.015 CASES AND TO SAY THAT THERE'S A BENCH WARRANT AND ALL THE DEFENSE HAS TO ASK IS NOT REASONABLE. 1956 02:47:22.015 --> 02:47:28.341 TPHUFPLT I DON'T WANT TO INTERRUPT YOUR FINAL COLT BUT GIVEN THE DEPORTATION ARE YOU 1957 02:47:28.341 --> 02:47:35.913 LOOKING FOR THE BENCH WARRANTS TO BE VACATED AND REMOTE PROCEEDINGS TO PROCEED. ERIC 1958 02:47:35.913 --> 02:47:39.559 M. MARK: THAT WOULD BE OUR SECOND PREFERENCE YES. JUSTICE NORIEGA: BEYOND THE 1959 02:47:39.559 --> 02:47:43.474 DISMISSAL. ERIC M. MARK: THAT WOULD BE AUR PREFERENCE AT THIS POINT BECAUSE 1960 02:47:43.474 --> 02:47:47.557 I BELIEVE IT WAS CLEARLY AN ABUSE OF DISCRETION. THAT WAS A BLANK THE POLICY TO ISSUE 1961 02:47:47.557 --> 02:47:53.588 THE BENCH WARRANT WITH NO CONSIDERATION OF THE VOLITIONAL ACT OR OTHERWISE. THANK YOU. 1962 02:47:53.588 --> 02:47:58.283 CHIEF JUSTICE RABNER: THANK YOU TO ALL COUNSEL FOR STAYING WITH US ALL DAY AND 1963 02:47:58.283 --> 02:48:01.283 FOR THE HELPFUL ARGUMENTS.