Petition for Writ of Certiorari — Anthony Sims, Jr., Petitioner v. New Jersey

Supreme Court briefAug 1, 2022

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No. _ _ _ __

IN THE

Supre1ne Court of the United States

ANTHONY SIMS, JR,

Petitioner

V,

STATE OF NEW JERSEY,

Respondent

MOTION FOR LEAVE TO PROCEED IN FOR111A PAUPERJS

The petitioner asks leave to file the attached brief in support of her petition for a

writ of certiorari without prepayment of costs and to proceed in forma pauperis. In

support of this motion, petitioner submits:

1. That he has no funds with which to pay the necessary fees and costs of this

action.

2. That he was determined to be an indigent in accordance with NJ.S.A.

2A:158A·14 and entitled to appointed counsel. The New Jersey Office of the

•Public Defender was appointed by the New Jersey Superior Court to

represent him. He has remained indigent since that time.

Dated: August 1, 2022

~

Peter T. Blum

Counsel of Record for Petitioner

Assistant Deputy Public Defender

New Jersey Office of the Public Defender

31 Clinton Street, 9 th Floor

P.O. Box 46003

Newark, NJ 07101

(973) 877·1200

Peter.Blum@opd.nj.gov

No. _ _ _ __

IN THE

Supreme Court of the United States

ANTHONY SIMS, JR.,

Petitioner

v.

STATE OF NEW JERSEY,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF NEW JERSEY

JOSEPH E. KRAKORA, Esq.

New Jersey Public Defender

PETER BLUM, Esq.*

New Jersey Assistant Deputy Public Defender

ROCHELLE \VATSON, Esq.

New Jersey Deputy Public Defender

Office of the New Jersey Public Defender

31 Clinton St., 9th Floor

P.O. Box 46003

Newark, New Jersey 07101

(973)-877-1288

(973)-877-1239 (fax)

Rochelle. \Va tson@op d.nj. gov

Attorneys for Petitioner

*Counsel of Record

QUESTION PRESENTED

The Confrontation Clause bars testimonial hearsay when the defendant has

not had the opportunity for cross-examination. At.Mr. Sims' trial for attempted

murder, in lieu of live testimony from the victim, who was the sole eyewitness to the

shooting, the government relied on the victim's hearsay statements from a hospital

bed; these statements were embedded in the transcript of a pre-trial hearing

introduced at trial. At the pre-trial hearing, the victim denied any recollection of

incriminating Mr. Sims, so defense counsel was unable to cross-examine the victim

on the substance of the prior statement.

Was the opportunity for cross-examination at the pretrial hearing adequate

under the Confrontation Clause?

l

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

11

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

LIST OF PARTIES ............................... , ........................................................................ ii

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ....................................................................................................... l

JURISDICTION ............................... ,............................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED .................. :........................................ 1

STATEMENT OF THE CASE ....................................................................................... 2

A. Factual Background ................................................................................... 2

B. The Appellate Court Rules That the Introduction of the Victim's VVade

Hearing Testimony Violated Petitioner's Confrontation Rights ............. 5

C. The New Jersey Supreme Court Reverses the Appellate Court and

Finds No Confrontation Clause Violation in Admitting an Out-Of-Court

Statement Incriminating Mr. Sims, \¥here the Declarant Feigned

Memory Loss at the Prior Proceeding and Refused to Testify at Trial.. .. 6

REASONS FOR GRANTING THE WRIT ..................................................................... 9

I. \Vhether a Pretrial Hearing Provides an Adequate Opportunity for

Cross-examination is an Open Question under Federal Law and State

Courts have Taken Divergent Approaches to Resolving the Question ... 11

II.

The New Jersey Supreme Court's decision is incorrect ....................... 18

A. A defendant cannot have a constitutionally adequate opportunity

for cross- examination at a pre-trial hearing limited to the

reliability of an identification, especially where the overarching

defense at trial was that the witness had a motive to misidentify

defendant ........................................................ ,................................... 19

111

TABLE OF CONTENTS (CONT'D)

Page

B.

The prior opportunity for cross-examination is constitutionally

inadequate when the witness suffers memory loss in the prior

proceeding and defendant is unable to cross-examine on the

substance of the statement .................... ,.......................................... 25

III. This case presents the ideal opportunity for resolving the question

presented ............................................................................................... 29

CONCLUSION ............................................................................................................. 31

lV

INDEX OF APPENDICES

Appendix A:

Revised Opinion of the New Jersey Supreme Court,

(March 16, 2022) ..................................................................... App. 1-64

Appendix B:

Opinion of the New Jersey Superior Court,

Appellate Division (June 13, 2016) ................................... App. 65-115

Appendix C:

Order of the Supreme Court of New Jersey Denying

Reconsideration (May 3, 2022) ................................................ App. 116

V

TABLE OF AUTHORITIES

Page(s)

Cases

Al-Timimi v. Jae/won, 379 F. App'x 435 (6 th Cir. 2010) ........................................ l 7, 18

Barber v. Page, 390 U.S. 719 (1968) ...................................................................... 11, 13

California v. Green, 399 U.S. 149 (1970) ............................. 7, 11, 12, 13, 15, 19, 26, 27

Chavez v. State, 213 P.3d 476 (Nev. 2009) ....................................................... , .......... 15

Commonwealth v. Hurley, 913 N.E.2d 850 (Mass. 2009) ........................................... 16

Crawford v. Washington, 541 U.S. 36 (2004) .............................. 8, 9, 10, 13, 14, 18, 30

Davis v. Alaska, 415 U.S. 308 (1974) ..................................................................... 19, 23

Davis v. Bart, 100 F. App'x 340 (6th Cir. 2004) .......................................................... 23

Delaware v. Fensterer, 474 U.S. 15 (1985) .. :................................................................ 19

Dutton v. Evans, 400 U.S. 7 4 (1970) ............................................................................ 19

Gibbs v. Covello, 996 F.3d 596 (9th Cir. 2021) ............................................................ 18

Harris v. New Yorh, 401 U.S. 222 (1971) .................................................................... 23

Howell v. Trammell, 728 F.3d 1202 (10th Cir. 2013) .................................................. 17

Mattox v. United States, 156 U.S. 237 (1895) ................................ :............................. l l

Maxwell v. Roe, 628 F.3d 486 (9th Cir. 2010) ................................ ,............................ 17

Nelson v. O'Neil, 402 U.S. 622 (1971) .......................................................................... 19

Ohio v. Roberts, 448 U.S. 56 (1980) ............................................................................ 14

Olden v. Kentuchy, 488 U.S. 227 (1988) ...................................................................... 23

People v. Fry, 92 P.3d 970 (Colo. 2004) ....................................................................... 13

People v. Rosa, 754 N.Y.S.2d 279 (N.Y. App. Div. 2003) ............................................ 21

Vl

TABLE OF AUTHORITIES (CONT'D)

Page(s)

Cases (Cont'd)

People v. Torres, 962 N.E.2d 919 (Ill. 2012) ................................................................ 16

State v. Henderson, 208 N.J. 208 (2011) ............................................................ 7, 20, 25

State v. Richardson, 328 P.3d 504 (Idaho 2014) ......................................................... 17

State v. Stuart, 695 N.W.2d 259 (Wis. 2005) ............................................................... 14

United States ex rel. Bracey v. Fairman, 712 F.2d 315 (7 th CiT. 1983) ....................... 24

United States v. Abel, 469 U.S. 45 (1984) .................................................................... 23

United States v. Hargrove, 382 F. App'x 765 (10th Cir. 2010) ................ ,.................. 16

United States v. Owens, 484 U.S. 554 (1988) ........................................ 7, 19, 23, 26, 27

United States v. Wade, 388 U.S. 218 (1967) ........................................................ passim

Vasquez v. Jones, 496 F.3d 564 (6th Cir. 2007) ........................................................... 18

Williams v. Bauman, 759 F.3d 630 (6th Cir. 2014) .................................................... 17

Other Authorities

Christopher B. Mueller, Cross-Examination Earlier Or Later: When Is It

Enough To Satisfy Crawford?, 19 Regent U.L. Rev. 319 ........................................ 25

Vll

PETITION FOR A WRIT OF CERTIORARI

Petitioner Anthony Sims, Jr. respectfully petitions this Court for a writ of

certiorari to review the judgment of the New Jersey Supreme Court.

OPINIONS BELOW

The opinion of the New Jersey Supreme Court is reported at 271 A.3d 288

(N.J. 2022). (Appendix A) The opinion of the New Jersey Appellate Division is

reported at 246 A.3d 814 (N.J. Super. Ct. App. Div. 2021). (Appendix B)

JURISDICTION

The judgment of the New Jersey Supreme Court was entered on March 16,

2022. On May 6, 2022, the Supreme Court of New Jersey filed its order denying

Petitioner's timely Motion for Reconsideration of the March 16, 2022 judgment.

(Appendix C) This Petition for a Writ of Certiorari is filed within ninety days of the

Supreme Court of New Jersey's denial of the motion for rehearing. Petitioner

invokes this Court's jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment of the U.S. Constitution provides 111

relevant part:

"In all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him

"

1

STATEMENT OF THE CASE

At Mr. Sims' trial for attempted murder, the primary evidence against him

was the victim's identification from his hospital bed. The Government's theory was

that Mr. Sims' btother and the victim were embroiled in a feud and that the

shooting was retaliatory. At a Wade 1 hearing seeking the suppression of the

identification, the victim disclaimed any memory of identifying Mr. Sims. JV[r. Sims'

trial defense was that the victim did not have a sufficient opportunity to observe the

perpetrator during the shooting. In addition, Mr. Sims argued that the victim was

biased and motivated to misidentify him as the perpetrator. The victim refused to

testify at trial because criminal charges were pending against him for murdering

Mr. Sims' brothel'.- Thus, Mr. Sims' sole opportunity for cross-examination was at

the Wade hearing, an opportunity that was significantly hampered by the victim's

alleged memory loss and the limited scope of the proceeding.

A. Factual Background

P.V. was shot multiple times on April 9, 2014. He was sitting in his car,

talking on the phone, when he saw a man crouched down by the side of the car. The

man started shooting and P.V. jumped into the passenger seat.

At the scene, he told his grandmother that the shooter was "Sims," "B.J.'s

brother," but did not specify a first name. Minutes later, when the police arrived

and asked who shot him, P.V. told the police that he did not know. There were no

,other witnesses to the shooting itself, but several people in the neighborhood saw a

1

United States v. Wa.de, 388 U.S. 218 (1967).

2

black man dressed in a dark hoodie run from the area. A surveillance camera

captured the shooting, but no identification could be made from the video because a

hood obscured the suspect's face.

On April 13, 2014, four days after the shooting, the police interviewed P.V. at

the hospital. He had suffered nine gunshot wounds and had been intubated. Soon

after P.V. had been extubated and was taking opioids for his pain, he agreed to talk

to the police. He gave a statement asserting that Anthony Sims shot him and

identifying Mr. Sims from a single photo show-up. He recalled that the shooter was

wearing a dark sweatshirt and that a hood was pulled tightly over his face. P.V.

also told the police that he and Mr. Sims' brother B.J. had a "falling out," and the

two were supposed to fight. He speculated that Mr. Sims shot him in retaliation.

P.V.'s statement is sparse on details about the falling out.

Armed with P.V.'s statement, the police decided to arrest Mr. Sims for the

shooting. Following an interrogation - in which Mr. Sims denied any involvement

in the shooting - the police charged him with attempted murder and other

offenses.

Pre-trial, Mr. Sims filed a \Vade motion to suppress P.V.'s identification from

the hospital. At the Wade hearing, P.V. testified that he had no recollection of the

shooting or of giving a statement to police at the hospital. In response to P.V.'s lack

of recollection, the prosecutor introduced P .V.'s hospital statement at the hearing.

The prosecutor read each question the police posed to P.V. in the hospital; read

P.V.'s answer to each question; and inquired whether P.V. recalled providing that

3

answer. Almost invariably, P.V. responded, "I don't remember" to each question.

At the close of the hearing, the prosecutor argued that the defense motion to

suppress the identification should be denied because the issue in the case was not

the reliability of the identification. According to the prosecutor, this was not a

prototypical misidentification case because the victim's and the defendant's family

had known each for at least a decade. Rather, the central issue in the case was

whether the victim had a motive to misidentify Mr. Sims.

The trial court denied the defense motion to suppress P .V. 's identification.

The court ruled that P.V. had feigned memory loss at the pre-trial hearing, and if he

maintained his memory loss at trial, then his hospital statement would be

admissible as a prior inconsistent statement. Ultimately, the issue of whether P.V.

was feigning memory loss was a matter for the jury to resolve, the lower court ruled.

The jury was never able to resolve that issue because P.V. did not testify at

trial. In the period between the pretrial hearing and trial, P.V. was accused of

murdering Mr. Sims' brother. By the time of Mr. Sims' trial, P.V. had been charged

and detained at the county jail awaiting trial. Although the State offered P.V. a

grant of immunity and the lower court ordered him to testify, P.V. invoked his Fifth

An1endment privilege against self-incrimination, rendering him "unavailable." The

State then moved to admit P.V.'s Wade hearing testimony into evidence and the

defendant objected under the state evidence rules and on Confrontation Clause

grounds. The objection was overruled.

4

The State then admitted P.V.'s Wade hearing testimony ''by way of the

prosecutor reading the questions put to the victim and [ a detective] reading the

victim's answers." App. 92. Embedded within the Wade hearing testimony was the

statement that P.V. gave to the police at the hospital. Thus, the testifying

detective also read the questions put to P.V. when he was in the hospital, P.V.'s

corresponding answers - including his identification of Petitioner - and P.V.'s

response at the Wade hearing about whether he recalled giving the recorded

answers to the police questions in the hospital. ':Through that process, the State

was able to introduce into evidence at trial the victim's entire statement to police.''

App. 93.

As part of the final instructions before the jury retired to deliberate on the

charge, the judge instructed: "you will be afforded the opportunity to hear [P.V.]'s

statement from a prior proceeding that you may now consider as substantive

evidence." During deliberations, the jury requested to review a copy of P.V.'s

hospital statement. Responding to the jury's question, the lower court clarified that

"the statement of the victim at the hospital is subsumed on this record within the

testimony of [the detective].''

B. The Appellate Court Rules That the Introduction of the Victim's

Wade Hearing Testimony Violated Petitioner's Confrontation Rights.

On direct appeal, the Appellate Division found multiple errors, warranting

the reversal of defendant's convictions. Relevant to the Confrontation Clause

violation, the appellate court ruled that the defendant did not have an adequate

5

opportunity to cross-examine the victim at the Wade hearing. App. 101-102.

Because the victim disclaimed memory of making the statement in the hospital, the

victim's testimony was lacking substance - "there was nothing to cross-examine

the victim about" at the hearing. App. 102.

Before the appellate court, the Government conceded that the hospital

statement could not have been introduced independently at trial as a prior

inconsistei1t statement unless P.V. testified. App. 100. The court ruled that, by

using the Wade hearing testimony as a vehicle for the admission of the hospital

statement, the Government accomplished what it conceded was otherwise

impermissible. Moreover, although the trial judge had anticipated that the jury

would ultimately decide whether the victim was feigning memory loss, the manner

in which the testimony was introduced - through the detective's reading- deprived

the jury of tha:t opportunity and consequently denied the defendant his right to

confrontation. App. 102-103.

C. The New Jersey Supreme Court Reverses the Appellate Court and

Finds No Confrontation Clause Violation in Ad111itting an Out-OfCourt Statement Incrin1inating Mr, Sims, Where the Declarant

Feigned Memory Loss at the Prior Proceeding and Refused to Testify

at Trial.

The New Jersey Supreme Court granted the Government's petition for

certification on the Confrontation Clause issue. In a 3-2 opinion, the Supreme

Court disagreed with Mr. Sims' position that the victim's Wade hearing testimony

was inadmissible under both the state evidence rules and on Confrontation Clause

grounds. App. 44.

6

The focus of the majority's Confrontation Clause analysis was whether the

constitutionally guaranteed opportunity for cross-examination had been satisfied.

App. 45. Starting from the premise that the prior opportunity for cross-examination

must be "adequate," the majority relied on two strands of cases in its ruling. App.

45. First, it cited several federal circuit court cases holding that a preliminary

hearing offers an adequate prior opportunity for cross-examination for

Confrontation Clause purposes. App. 42. Second, citing California v. Green, 399

U.S. 149 (1970), and United States v. Owens, 484 U.S. 554, 559 (1988), the majority

concluded that a witness's lack of memory of a prior statement does not frustrate a

defendant's opportunity for cross-examination at trial. App. 42-43. Although Green

and Owens addressed the lack of memory of witnesses who were available at trial,

the New Jersey Supreme Court did not address the factual distinction between the

present case and those precedents. The majority opinion implicitly held that there

are no constitutional implications when an unavailable witness's prior statement is

admitted at trial even though the defendant could not previously cross-examine on

the substance of the statement due to feigned memory loss.

Putting these strands together, the Court concluded that Mr. Sims'

opportunity for cross-examination was constitutionally adequate. Its assessment of

adequacy was based on Mr. Sims' opportunity to attack the credibility of the

statement "identifying" him as the shooter at the ii\lade hearing, and that "[b]y

virtue of the direct and cross-examination at the Wade I Henderson hearing, the jury

was fully informed that P.V. denied any recollection of the shooting or his statement

7

to police." App. 45. The majority did not address how exactly the jury would have

been able to determine whether to credit P.V.'s hospital statement or his implicit

denial of the prior statement based on the cold reading of the transcript by an

investigating detective at trial.

Two justices of the New Jersey Supreme Court dissented from the majority

.opinion. The dissent would have excluded from evidence both the hos.pita!

statement and the Wade hearing testimony under the Confrontation Clause and the

state evidence rules.

Starting its analysis with the hospital statement, the dissent had no objection

to its introduction at the V\!ade hearing when P.V. claimed lack of memory. App. 58.

But, because he failed to testify at trial, "[t]he jury did not have the opportunity to

hear from or scrutinize P.V. on the witness stand to determine whether his lack of

memory at the Wade hearing was feigned or real or whether he gave an honest or

accurate account of his identification of Sims as his assailant at the hospital." App.

59. The hospital statement was "laundered" through the Wade hearing, and

improperly admitted at trial. App. 59.

The dissent also concluded that the opportunity for cross-examination at the

1'\!ade hearing was not meaningful, as contemplated by Crawford v. Washington;

541 U.S. 36, 61 (2004). A Wade hearing and a criminal trial are vastly disparate

proceedings with disparate parameters for cross-examination. The former is a

pretrial hearing, limited to a narrow inquiry: the suggestiveness and reliability of

an identification procedure. Because of its limited nature, cross-examination is

8

necessarily circumscribed. App. 60. This dissent also observed that as a general

matter and especially in the instant case, Mr. Sims' attorney did not have a similar

motive for cross-examination at the Wade hearing as he would have had at trial.

"[A]ttorneys ordinarily do not cross-examine a witness at a Wade hearing with the

expectation that the witness, when called to the stand at trial, will refuse to testify,

disregarding a grant of immunity and the threat of a contempt citation," as the

victim did in this case. App. 60-61.

Rejecting the majority's analogy to preliminary hearings and the federal

precedents cited, the dissent highlighted that preliminary hearings are far broader

in scope than Wade hearings. In some states, preliminary hearings constitute minitrials; the hearings are designed to be used as a tool for discovery and are far more

complex and inclusive than a Wade hearing. App. 62-63. This dissent criticized the

majority's opinion as unprecedented, emphasizing that "no single reported case

from any jurisdiction" has permitted the government to introduce at trial "an

unavailable witness's testimony from a Wade hearing." App. 63.

REASONS FOR GRANTING THE \VRIT

In Crawford, this Court rejected the existing Confrontation Clause

paradigm, which focused on the reliability of a statement as the threshold for

admissibility. 541 U.S. at 60. In reaching its conclusion, the Court reviewed the

nascency of the common law right to confrontation and the abuses it was designed

to prevent. Id. at 41-45. From its historical review, the Court reached two

conclusions: (1) the clause was targeted at preventing trial by affidavit, wherein the

9

Government's case was based on a transcribed statement of a witness, who was not

present to vouch for the statement or submit to cross-examination; (2) the framers

would not have "allowed the admission of testimonial statements of a witness who

did not appear at trial unless he was unavailable to testify, and the defendant had

had a prior opportunity for cross-examination." Id. at 38. Thus, post-Crawford,

cross-examination is the focal point of the right to confrontation.

In the almost two decades since Crawford, the Court. has never provided

guidance on when the prior opportunity for cross-examination is adequate so that

later admission at trial does not violate the Confrontation Clause. The circumstances

implicating this issue arise frequently. In the vast majority of criminal cases brought

to trial, a critical witness will testify in a·prior proceeding, e.g., a preliminary hearing,

or a motion to suppress physical evidence, an interrogation statement, or a pre-trial

identification. That witness may then become unavailable at some subsequent point

for any number of reasons, including death, refusal to testify, loss of memory, failed

service of process, or inability to locate the witness.

Given the recurring nature of the issue and the lack of guidance, there is a

conflict between some state courts and federal circuits about whether a pretrial

hearing can provide an adequate opportunity for cross-examination. The resolution

to that question has direct implications for trial and pre-trial defense strategy.

While most defense lawyers think it is better to hold back, and to save the most

searching questions for cross-examination at trial, this strategy presumes that

there will be a meaningful opportunity for cross-examination at trial. This calculus

10

would change if the right to confrontation at a subsequent trial were not fully

guaranteed. Accordingly, criminal defendants need clear guidance of when, how,

and whether to deploy cross-examination:-- "the greatest legal engine ever invented

for the discovery of truth" ~ at a pre-trial hearing. California v. Green, 399 U.S. at

158 (citation omitted).

I.

Whether a Pretrial Hearing Provides an Adequate Opportunity

for Cross-exainination is an Open Question under Federal Law

and State Courts have Taken Divergent Approaches to Resolving

the Question.

Admitting the prior trial testimony of an unavailable witness does not

generally violate the Confrontation Clause. Mattox v. United States, 156 U.S. 237,

243-44 (1895). Where the former trial involves the same parties and charges, the

content, scope and the motive for cross-examination in the former trial will

generally mirror cross-examination in any subsequent proceeding. Thus, the

defendant will have an adequate prior opportunity for cross-examination and the

Confrontation Clause is not offended by the introduction of the unavailable

witness's prior trial testimony.

The more common and the more difficult question arises when the prior

testimony of the unavailable witness was elicited, not at trial, but in a pre-trial

proceeding, e.g, preliminary hearing, suppression hearing, etc. This Court has never

directly ruled on the issue but has referenced those circumstances twice in

counterfactual dicta. The opinions take opposing views.

In Barber u. Page, 390 U.S. 719, 725 (1968), the Court held that the

admission of the witness's preliminary hearing testimony violated the defendant's

11

Confrontation Clause rights. However, the issue in Barber was not the adequacy of

the prior cross-examination, but rather, the witness's unavailability. The witness's

incarceration 200 miles away at the time of trial did not render him unavailable,

the Court found. Id. at 724-25.

In dicta, the Court said that even if there had been thorough crossexamination at the preliminary hearing, the witness's prior testimony would have

still been inadmissible. Id. at 725. Responding to the Government's argument that

the right had been waived at the preliminary hearing, the Court affirmed that the

confrontation right is "basically a trial right," which "includes both the opportunity

to cross-examine and the occasion for the jury to weigh the demeanor of the

witness." Id. at 725. Further, the Court reasoned that a preliminary hearing is

unlikely to afford an adequate opportunity for cross-examination because it is

"ordinarily a much less searching exploration into the merits of a case than a trial,"

and "its function is the more the more limited one of determining whether probable

cause exists to hold the accused for trial." Id. at 725. vVhile the Court did concede

there may be exceptions to this rule, it did not expound on the circumstances in

which a preliminary hearing would satisfy the "the demands of the confrontation

clause." Id. at 726.

In California v. Green, the Court issued dicta retreating from its prior

observation about preliminary hearings. Before the Court in Green was whether a

declarant's prior inconsistent statement may be used as substantive evidence of

guilt at trial. Id. at 149. The case involved a witness who appeared at trial and had

12

testified inconsistently with his testimony at a preliminary hearing. After resolving

the question about the admissibility of his preliminary hearing testimony as

substantive evidence, the Court then considered whether the testimony would have

also been admissible had the witness not appeared at trial. In addressing this

hypothetical, the Court first found that a preliminary hearing is sufficiently similar

in kind to an actual trial. Id. at 165. This conclusion, however, ·ignored the

potentially different objectives of the defense at the preliminary hearing and

focused merely on the procedural similarities: the witness was under oath;

represented by counsel at the hearing and the same counsel at trial; and the

proceedings were before a judicial tribunal equipped to provide a recording. Id. at

165. The only consideration given to the adequacy of prior cross-examination was

that defense counsel was not limited in any manner in cross-examining the witness

at the preliminary hearing. Id. at 165. Therefore, had the witness been unavailable

at trial, admitting his preliminary hearing testimony would not have violated the

confrontation clause, the Court opined in dicta.

The Barber and Green decisions pre-date the Court's watershed decision in

Crawford. Although the Crawford decision did not indicate that it was redefining or

altering its jurisprudence on the "prior opportunity for cross-examination," at least

two states have interpreted Crawford as doing so.

In People v. Fry, 92 P.Sd 970 (Colo. 2004), Colorado's high court ruled that as

a matter of law, the opportunity for cross-examination at a preliminary hearing is

inadequate and does not satisfy the Confrontation Clause guarantee. Before the

13

decision in Fry, Colorado courts determined the admissibility of preliminary hearing

testimony on a case-by-case basis, focusing on the reliability of the statement under

Ohio v. Roberts, 448 U.S. 56 (1980). However, after Crawford, the Colorado

Supreme Court revisited and overturned its jurisprudence. Directing its focus on

the opportunity for cross-examination, the Colorado Supreme Court took note of the

limited nature of preliminary hearings, which pertain to probable cause

determinations. The Court ruled that because of the thrust and nature of the

hearings, including the absence of safeguards provided at trial, cross-examination

at the hearing is necessarily restricted. Issues of credibility are best reserved for

exploration at trial and prudent counsel "may decline to cross-examine witness,

understanding that cross-examination would have no bearing on the issue of

probable cause and that the judge may limit or prohibit the cross-examination." Id.

at 977.

Wisconsin courts also changed course after Crawford. In State v. Stua.rt, 695

N.W.2d 259 (\Vis. 2005), the Wisconsin Supreme Court reversed the defendant's

murder conviction because the admission of a witness' preliminary hearing

transcript violated the constitutional right to confrontation.

The case had originally come before the VVisconsin Supreme Court when Ohio v.

Roberts was the prevailing law, and the Court, using the Robert's reliability

framework, found no error in admitting the statement. However, because the case

was still pending on direct appeal when Crawford was decided, the \Visconsin Court

reconsidered its decision under the Crawford framework and found that the

14

opportunity for cross-examination was insufficient. The decision primarily focused

on the truncated nature of preliminary hearings, "a summary proceeding to

determine essential or basic facts, relating to probable cause." Id. at 266. Crossexamination during the proceedings are "limited to issues of plausibility, not

credibility." Id. at 266. Although the Court identified a specific line of crossexamination that defense counsel was prohibited from exploring at the preliminary

hearing in Stuart's case, the bulk of its reasoning would apply to categorically bar

the admission of an unavailable witness's preliminary hearing testimony.

Other states court have a more flexible rule that takes certain enumerated

factors into consideration in deciding whether prior cross-examination was

adequate. For example, Nevada courts assess the extent to which discovery was

complete and whether the judge placed any limitation mi. the scope of crossexamination at the prior proceeding. Chauez u. State, 213 P.3d 476, 484 (Nev.

2009). In Chauez u. State, the Supreme Court directly confronted the decisions from

Wisconsin and Colorado and held that Nevada's preliminary hearings are different

in kind from those two states. "Nevada law is generally more permissive with

regard to a defendant's right to discovery and cross-examination at the preliminary

hearing"; issues of credibility and motive are ripe for cross-examination during the

hearing. Id. at 484.

Massachusetts and Illinois have created rules to assess adequacy that appear

to be more protective of the right of confrontation. In those states, the relevant

considerations extend beyond those mentioned in Green and include not just

15

procedural safeguards but also factors relevant to the effectiveness of crossexamination, such as the defendant's motive for ·cross-examination and the

completeness of discovery. See contra United States v. Hargrove, 382 F. App'x 765,

778 (10th Cir. 2010) (rejecting the "similar motive" requirement as part of the

Confrontation Clause analysis and noting that the requirement is only relevant to

the analysis under the federal rules of evidence).

In Illinois, courts focus on four different factors: whether the "motive and

focus of cross-examination at the time of the initial proceeding" is same or similar to

that which guides the cross-examination during the subsequent proceeding;

whether defendant had the benefit of unlimited cross-examination; and whether

counsel had access to all relevant discovery. People v. Torres, 962 N.E.2d 919, 932

(Ill. 2012) (finding preliminary hearing t~stimony inadmissible at trial where

defendant did not have access to witness's inconsistent statements to police at time

of prior cross-examination and where trial judge implicitly and explicitly

discouraged cross-examination).

Under Massachusetts law, prior cross-examination is adequate when: the

declarant is under oath; the defendant was represented by counsel; the proceeding

was recorded and before a judicial tribunal; it was "addressed to substantially the

same issues as in the current proceeding," and the defendant had "reasonable

opportunity and similar motivation on the prior occasion for cross-examination of

the declarant." Commonwealth v. Hurley, 913 N.E.2d 850, 858 (Mass. 2009). And,

in Idaho, the Court has propounded three indicia of an adequate opportunity for

16

cross-examination: representation by counsel; "no significant limitation in the scope

or nature of counsel's cross-examination; and counsel failure to proffer any new and

significantly material line of cross-examination. State v. Richardson, 328 P.3d 504,

508 (Idaho 2014).

What constitutes an effective or adequate opportunity for cross-examination

also remains an open question under federal law. See Williams v. Bauman, 759 F.3d

630, 635-36 (6th Cir. 2014) (rejecting habeas claim that preliminary hearing did not

offer an adequate opportunity for cross-examination "given the dearth of Supreme

Court precedent"); Al-Timimi v. Jachson, 379 F. App'x 435, 437 (6 th Cir.

2010)("there is some question whether a preliminary hearing necessarily offers an

adequate opportunity for cross-examination for Confrontation Clause purposes").

The issue generally comes before federal courts on habeas corpus

And considering the stringent habeas standard of review, it is not surprising that

some federal .courts have found that the admission of statements subject to crossexamination at pretrial hearing do not run afoul of the Confrontation Clause. See,

e.g., Howell u. Tramm.ell, 728 F.3d 1202, 1215-18 (10th Cir. 2013); l\1axwell u. Roe,

628 F.3d 486, 491 n.1 (9th Cir. 2010); Bauman, 759 F.3d at 636 (explaining that "[i]f

there is room for reasonable debate on the issue, the state court's decision to align

itself with one side of the argument is necessarily beyond this court's power to

remedy under§ 2254, even ifit turns out to be wrong").

The Sixth Circuit, however, has expressed reservation about whether a

preliminary hearing offers an adequate opportunity of cross-examination. Echoing

17

the concerns of the Colorado and Wisconsin courts, the Circuit has observed that

the purpose of the hearing "is only to determine whether probable cause exists";

"defense counsel may lack adequate motivation to conduct a thorough c1•ossexamination"; and cross-examination may come too early in the proceedings to be

useful to the defense. Al-Timimi v. Jachson, 379 F. App'x at 438. See also Vasquez

v. Jones, 496 F.3d 564, 577 (6th Cir. 2007))( "we doubt that the opportunity to

question a witness at a preliminary examination hearing satisfies the pre-

Crawford understanding of the Confrontation Clause's guarantee of "an opportunity

for effective cross-examination,"); Gibbs v. Covello, 996 F.3d 596, 603 (9th Cir.

2021)(noting that, "on the merits," the question of whether defendant was afforded

an adequate opportmiity for cross-examination at the preliminary hearing is a

"close one," and had the case arose outside the habeas context, the outcome may

have been different).

II.

The New Jersey Supreme Court's decision is incorrect.

· The New Jersey Supreme Court erred in concluding that Mr. Sims had an

adequate opportunity for cross-examination in a pretrial hearing, where the witness

feigned memory loss and the issue was limited to the reliability of the identification.

The decision glossed over the difference in the objectives of a Wade hearing and a

criminal trial; it gave no consideration to how the issues at the Wade hearing

diverged from the trial defense that the witness had a motive to misidentify Mr.

Sims; nor did the decision reckon with the witness's memory loss and its impact on

cross-examination strategy before a judge, who was not the ultimate trier of fact.

18

Moreover, the Court's ruling that the victim's memory loss in the prior proceeding

did not infringe on Petitioner' s right of confrontation misapplied United States

Supreme Court precedents in California v. Green and United States v. Owens.

In upholding the cross-examination as constitutionally adequate, the New

Jersey Supreme Court reduced the defendant's right to a formality, finding that the

mere opportunity to "gaze" upon the witness or "of being gazed upon by him" was

satisfactory. Davis u. Alasha, 415 U.S. 308, 316 (1974)(citation omitted).

A. A defendant cannot have a constitutionally adequate opportunity

for cross-examination at a pre-trial hearing li1nited to the reliability

of an identification, especially where the overarching defense at

trial was that the witness had a motive to n1isidentify defendant.

Mere physical confrontation of a witness is not adequate to satisfy a criminal

defendant's fundamental right to confrontation. The right of confrontation ensures

"an opportunity for effective cross-examination." Delaware v. Fensterer, 474 U.S. 15,

20 (1985) (per curiam). While the Court has never defined the parameters or

specified the circumstances under which the opportunity for cross-examination

might be constitutionally adequate, it has affirmed that the right assures "full and

effective" cross-examination. Id. at 20; Nelson v. O'Neil, 402 U.S. 622, 629 (1971).

Because the mission of the Confrontation Cause is to "advance a practical concern

for the accuracy of the truth-determining process in criminal trials," the measure of

effectiveness is not the defendant's ultimate success - but whether the trier of fact

"had a satisfactory basis for evaluating the truth of the prior statement."

Dutton v. Evans, 400 U.S. 74, 89 (1970). Here, the cross-examination at the Wade

19

hearing provided the jury with little to no basis by which to assess P.V.'s conflicting

testimony.

Any evaluation of the adequacy of cross-examination at a prior proceeding

must begin with an examination of the purpose of the prior proceeding. The

objective of the proceeding necessarily defines the metes and bounds of direct

examination and cross-examination. The majority opinion in the New Jersey

Supreme Court relied on federal precedents that have found that a preliminary

hearing can offer an adequate opportunity for cross-examination. App. At 42.

However, preliminary hearings are broader in scope than Wade hearings; the

former embraces the ultimate issue at trial - whether defendant committed the

charged offenses -

although it examines that question by a probable cause

standard. Whatever doubts may exist about whether a preliminary hearing can

offer an adequate opportunity for cross-examinations, those doubts are amplified

when the prior proceeding is a Wade hearing.

Under New Jersey law, the purpose of a Wade hearing is to determine

whether the out-of-court identification was made under unduly suggestive

circumstances, and if so, whether or not any subsequent in-court identification

procedure would be fatally tainted. State v. Henderson, 208 N.J. 208, 218-19 (2011).

Therefore, the central issue at the Wade hearing was whether P.V.'s identification

of Mr. Sims, from a single photo show-up in the hospital was unduly suggestive and

whether P.V. had had a sufficient opportunity to observe the shooter to enable him

to make the identification.

20

Related to that issue, defense counsel cross-examined P.V. about his last

memory before the shooting, whether he recalled his statement being transcribed,

and whethf)r he recalled talking to the police at the hospital. Defense counsel did

ask some basic questions about P.V.'s relationship with Mr. Sims' brother and

whether P.V. _was aware of a rumor that "Anthony Sims was going to kill" him and

his brother. P.V. testified, "I don't remember" to most of these questions.

However, because of the limited scope and purpose of the Wade hearing,

defense counsel did not have an incentive to delve deeper or to.. ask more probing

questions to explore P.V.'s memory loss. See,~-, People v. Rosa, 754 N.Y.S.2d 279,

281 (App. Div. 2003) (finding that the Government did not have an incentive to

impeach witness's credibility at suppression hearing because "the witness's

testimony was more helpful than harmful," therefore prior testimony was properly

excluded at trial).

At trial, this was not a straightforward case of misidentification. Rather,

because P.V. had known Petitioner almost his entire life and there was a simmering

feud between the Petitioner's brother and P.V., misidentification was presented

alongside the defense of bias. In fact, the prosecutor argued at the Wade hearing

that the misidentification argument was specious and the real issue in the case was

P.V.'s bias: "the real argument is not going to be that he didn't know Anthony Sims.

They're not going to argue that to the jury. They're going to say that he pinned it on

Anthony Sims .... But I think, fast forwarding, if this case goes to trial you're

going to see something different which is going to be inconsistent with the

21

arguments that are being made here."

Consequently, cross-examination at trial would have encompassed a much

broader purpose than cross-examination at the Wade hearing. The objective of trial

cross-examination would have been to highlight P.V.'s bias against defendant,

which provided the motive to misidentify him as the shooter. Cross-examination

would have explored the nature of the dispute between Mr. Sims' brother and P.V.;

it would have delved into P.V.'s statement that Mr. Sims would have certainly

known about the dispute; it would have probed what Mr. Sims knew of the

relationship between P.V. and his brother, and more generally, why Mr. Sims would

have committed the offense on behalf of his brother.

\,Vhile cross-examination at both proceedings would have covered some of the

same territory - P.V.'s ability and opportunity to see the shooter - the bias

evidence was solely an issue for trial and could not have been developed at the

Wade hearing. The question before the trial judge at the Wade hearing was limited

to the suggestiveness of the police identification procedures. P.V.'s bias against Mr.

Sims was not a relevant consideration in resolving those issues as the trial judge

aptly noted: "Did he in bad faith, shortly after he was shot ... pretty much

immediately after he was shot, identify him with some ulterior motive. Misidentify

him. But I don't think that is a reason, at this point, to exclude the statement."

Because his sole opportunity to confront the witnesses occurred in a forum in

which bias impeachment was procedurally and substantively improper, Mr. Sims

was deprived of the opportunity for effective cross-examination. A defendant has a

22

clearly established right to impeach a witness through evidence of bias. United

States v. Abel, 469 U.S. 45, 51 (1984). "[T]he jury, as finder of fact and weigher of

credibility, has historically been entitled to assess all evidence which might bear on

the accuracy and truth of a witness's testimony." Id. at 52. Certain lines of

inquiries are essential to effective cross-examination, such as those that "impeach"

the witness, or demonstrate the witness's "possible biases, prejudices, or ulterior

motives" Davis, 415 U.S. at 316; Olden v. Kentucky, 488 U.S. 227, 231 (1988)

("[T]he exposure of a witness' motivation in testifying is a proper and important

function of the ... right of cross-examination."); Owens, 484 U.S. at 559 (the

"constitutionally requisite opportunity for cross-examination" includes an

opportunity to expose a witness's bias). Naturally, juries draw "negative inferences"

from a witness's inconsistent stories and incentives to lie, Davis v. Bart, 100 F.

App'x 340, 349 (6th Cir. 2004). Therefore, cross-examination along these lines of

inquiry "undoubtedly provides valuable aid to the jury in assessing [the witness's]

credibility." Harris v. New Yorh, 401 U.S. 222, 225 (1971).

As the dissenting opinion before the New Jersey Supreme Court detailed,

"the permissible parameters of cross-examination" at the Wade hearing excluded

prototypical impeachment inquiries. The VVade hearing is "not an occasion for

attorneys to rummage for discovery that might be useful at trial for impeachment

purposes. Judges corral attorneys who wander afield." App . 60. In light of the trial

judge's comments at the Wade hearing that ill motive was not cause for excluding

the identification, there is reason to believe that had defense counsel even

23

attempted to "wander afield" and probe P.V.'s bias, the judge would have rebuked

him.

Moreover, Petition did not have an affirmative obligation to exhaust crossexamination at the pretrial hearing anticipating that "the witness, when called to

the stand at trial, will refuse to testify, disregarding a grant of immunity and the

threat of a contempt citation" - such as occurred here. App. 60-61. A requirement

of pretrial cross-examination exhaustion places an unfair burden on criminal

defendants. Moreover, as the Seventh Circuit reasoned, it would waste judicial

resources to require a party to treat cross-examination at a pretrial hearing as a

dress rehearsal for trial. See United States ex rel. Bracey v. Fairman, 712 F.2d 315,

318 (7 th Cir. 1983) ("This of course assumes that the State should have foreseen that

[the witness] would have unavailable for trial, and should have taken the time of a

no doubt busy court to build up a record in anticipation of that possibility.").

A defendant has no obligation to optimize the opportunity for crossexamination at a pretrial hearing, and reasonably prudent counsel may

strategically decide to forgo or limit cross-examination to not risk disclosing its

theory of defense, especially where the hearing decision is a foregone conclusion.

See Al-Timini v. Jachson, 379 F. App'x 435 at 438 (questioning whether a probable

cause hearing affords an adequate opportunity for cross-examination; defense

counsel lacks motivation to conduct a thorough cross-examination and because "it is

a less searching exploration into the merits of the case ... counsel may wish to

avoid tipping its hand to the prosecution by revealing the lines of questioning it

24

plans to pursue"). See also Christopher B. Mueller, Cross-Examination Earlier Or

Later: When Is It Enough To Satisfy Crawford?, 19 Regent U.L. Rev. 319, 360-361

(explaining that lawyers generally reserve more searching cross-examination for

trial because judges will almost invariably find witness's credible at pretrial

hearings; thus lawyers find little "point in cross-examining, except to the extent

that it might be necessary to clarify testimony in order to be informed about the

worst thing that could happen at trial")

Here, defense counsel was confronted with a reluctant witness who claimed

to have no memory of his statement identifying Mr. Sims. Few identifications are

excluded from evidence under New Jersey's framework for evaluating eyewitness

identification evidence and there was no reason to believe that P.V.'s identification

would be the exception, especially since he was familiar with Mr. Sims before the

shooting. See State v. Henderson, 208 N.J. at 219 (revising the framework for

assessing reliability, while "anticipat[ing] that identification evidence will continue

to be admitted in the vast majority of cases"). Under those circumstances, the

utility of further cross-examination was limited - even for those matters properly

within the scope of the hearing.

Cross-examination at the Wade hearing of the State's central witness -

the

victim and the sole eyewitness to the crime -· was not an adequate substitute for

cross-examination at trial.

B. The prior opportunity for cross-examination is constitutionally

inadequate when the witness suffers memory loss in the prior

proceeding and defendant is unable to cross-examine on the

substance of the statement.

25

Although a witness's memory loss does not result in a per se deprivation of

the right to confrontation, when a witness suffers memory loss, feigned or real, the

jury's opportunity to observe the witness and assess demeanor is a critical

component of the right to confrontation. The majority opinion in the New Jersey

Supreme Court treated the decisions in Owens and Green as dispositive in its ruling

that P.V.'s memory loss at the Wade hearing did not interfere with Mr. Sim's right

to confrontation. App. 43-44. However, in Green and Owens the witness's prior

statements did not violate the Confrontation Clause because both witnesses

actually testified at trial. Notwithstanding the witness's memory loss in Owens, and

the witness's evasiveness in Green, the respective defendants had an opportunity to

confront the witnesses before the jury on their prior inconsistent statements.

In Owens, the victim's memory was impaired by an assault for which the

defendant was being tried. 484 U.S. at 556. Shortly after the assault, the victim

made an out-of-court identification of the defendant. Ibid. In his trial testimony,

while the victim recalled making the identification, he could not recall who had

assaulted him. Thus, the witness testified to his current belief but could not recall

why he possessed that belief. Ibid. The Court found no constitutional violation in

the admission of the out-of-court identification. Defense counsel's opportunity to

confront the memory-impaired victim before the jury was critical to the decision.

The Court acknowledged that "the weapons available to impugn the witness's

statement when memory loss is asserted will of course not always achieve success."

Id. at 560. However, in the underlying case, defense counsel deployed "realistic

26

weapons," "which emphasized [the witness's] memory loss" to undermine his

reliability. Ibid. Implicit in the Owen's decision was the fact that cross-examination

was likely very effective: the victim's memory loss was authentic at trial and, at the

time of the out-of-court identification, the victim's memory was already selfimpaired -

a self-impeaching fact.

The principles of Owens apply to feigned memory loss. When memory loss is

contrived, the witness's out-of-court statement is admissible as a prior inconsistent

statement. \-Vhile out-of-court statements are inherently untrustworthy, the

Supreme Court in Green held that "there is good reason to conclude that the

Confrontation Clause is not violated by admitting a declarant's out-of-court

statements," with one significant caveat: "as long as the declarant is testifying as a

witness and subject to full and effective cross-examination." 399 U.S. at 157. In so

ruling, the Court considered the purposes of the confrontation clause, which

includes "forcing the witness to submit to cross-examination" and permitting the

jury to "observe the demeanor of the witness in making his statement, thus aiding

in assessing his credibility." Id. at 158. While the out-of-court statement may have

been made under circumstances lacking an indicia of reliability, "if the declarant is

present and testifying at trial," the statement "for all practical purposes regains

most of the lost protections." Id. at 158.

P.V.'s hospital statement never regained the protectio11s lost by its utterance

out of court because one of the purposes of the Confrontation Clause was never

satisfied - the jury never had the opportunity to observe his demeanor at trial. A

27

witness claiming memory loss is in effect disavowing his prior testimony or

statement. The introduction of the prior inconsistent statement then presents the

jury with opposing accounts of the event. But to decide which account to accept and

to safeguard the right to confrontation, the jury must observe the witness and make

a decision about which version to credit. Confrontation that occurs in another

proceeding does nothing to aid in this assessment. Cross-examination of the

forgetful witness has little value where it consists of a third-party reading to the

jury the witness's repeated refrain of "I don't recall." The value of cross-examination

of the forgetful witness hes entirely in the jury observing the witness deny

recollection. It is only from this observation that the jury can evaluate the witness's

demeanor and assess the credibility of the witness's failure of recollection.

Of course, the lost of the opportunity to observe demeanor is always present

when a witness is unavailable and prior testimony is admitted. However, when the

witness does not suffer memory loss, defense counsel will be able to cross-examine

on the substance of the witness's testimony. That substantive cross-examination

retains most of its value even when the witness becomes unavailable at trial. When

the witness is claiming memory loss, however, the value of cross-examination is

seriously eroded if it does not occur before the trier of fact.

Here, "the jury did not have an opportunity to hear from or scrutinize P.V. on

the witness stand to determine whether his lack of memory at the Wade hearing

was feigned or real or whether he gave an honest or accurate account of his

identification of Sims as his assailant at the hospital." App. 59. As the dissent

28

stated, "P.V.'s hospital statement was "too many steps removed from its source to

be credited for Confrontation Clause purposes." App. 59-60.

III.

This case presents the ideal opportunity for resolving the

question presented.

This case has all of the attributes of an ideal vehicle for addressing the

question presented. The federal constitutional question is squarely and cleanly

presented: Mr. Sims's challenged the admission of the out-of-court statement at

every sequence of the litigation: in the trial court, in the intermediate appellate

court, and in the state supreme court.

The New Jersey Supreme Court explicitly decided that the out-of-court

statement was admissible and the opportunity for cross-examination was adequate

on federal constitutional grounds. Thus, there are no procedural or jurisdictional

obstacles preventing the Court from reaching the merits. Moreover, both sides of

the question have been aired at length because there was a dissenting opinion in

the highest court.

The question is outcome determinative. The out-of-court statement

incriminating Mr. Sims was the cornerstone of the Government's case. No argument_

has ever been raised that the admission of the statement constitutes harmless

error.

Finally, the facts of this case place the constitutional violation in stark relief.

The jury never presented the damning identification evidence directly from the

accuser, neither at trial nor the pre-trial hearing. Rather, the accusation was read

into the record by someone other than declarant, at a hearing when the declarant

29

disclaimed memory of making the statement - and then the hearing transcript was

itself read into the record at trial. This trial-by-hearsay is the principal evil against

which the confrontation right was directed. In refocusirig the right on crossexamination, as opposed to reliability, the Crawford Court cited the trial of Sir

Walter Raleigh. The evidence against Raleigh consisted of a statement accusing him

of treason read out by someone other than the declarant, without him ever being

allowed to confront his accusers. Id. at 44. The outcry following Raleigh's trial was

the impetus for the common law confrontation right. The commonalities between

Mr. Sims' trial and Sir \¥alter Raleigh's are glaring.

This case underscores the necessity of a clear, defined, uniform standard by

which to assess the adequacy of the prior opportunity for cross-examination. The

cross-examination afforded Mr. Sims reduced his right to nothing more than the

physical presence of the witness on the stand. This Court should grant the petition

for certiorari to answer this important question.

30

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JOSEPH E. KRAKORA, Esq.

New Jersey Public Defender

~~ecL

PETER BLUM, Esq.

New Jersey Assistant Deputy Public Defender

Counsel of Record

ROCHELLE WATSON, Esq.

New Jersey Deputy Public Defender

DATED:

August 1, 2022

31

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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