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The Jailhouse Door to the Courthouse Steps The Law Journal recently reported a suit by a newly-freed prisoner who is suing the Public Defender’s Office, which allegedly refused for 10 years to obtain the DNA test that eventually cleared the plaintiff of the rape for which he had been imprisoned. See “First Exoneration, Next Compensation,” 175 N.J.L.J. 536, Feb. 16, 2004. Judge Mary Jacobson refused to dismiss the action. She refused to apply the time bar in the wrongful imprisonment statute and found other factual issues that defeated the defender’s summary judgment motion. This civil action appears to be the only available remedy to provide the plaintiff full redress. Since 1991, New Jersey has recognized a prisoner’s right to DNA testing, even at the post-trial stage. State v. Thomas, 245 N.J. Super. 428 (App. Div. 1991). In effect since June 2002, N.J.S.A. 2A:84A-32a provides for the DNA testing at the expense of the convicted person, subject to detailed criteria. But even prior to the statute, testing was available. Although the case raises other issues, the importance of DNA as an exonerating tool cannot be stated too strongly. We cannot imagine what years of unjustified imprisonment can do to an innocent person. Here the plaintiff’s belated guilty plea was attributed to his attorney’s dire warnings of a 50-year sentence, although the judge later rejected the plea agreement and imposed a 45-year term. However, both the public defender’s alleged indifference and the sentencing court’s failure to respond to the prisoner’s repeated requests for the DNA examination should send chills up our collective spines. It was only after the Prosecutor’s Office, rather than the Public Defender, agreed to the testing, that it was shown that the plaintiff could not have been the rapist. We call upon the criminal justice system to ensure that a travesty such as has been revealed in this case not be repeated. Under N.J.S.A. 52:4C-1 et seq., the state is the responsible party to pay for some damages (the greater of two times wages, or $20,000 per year), but the act states that it is not the exclusive remedy for a wrongly-convicted defendant. The cost of the tests, even for one who has pleaded guilty, is a small price to prevent miscarriages of justice. Where the testing exonerates a prisoner, should not the state pay for both the testing and the plaintiff’s full damages in a simplified proceeding? If a third party is liable, let the state seek redress as a subrogee. We certainly do not quarrel with Jacobson’s innovative approach, only with the lack of a fair and ready administrative remedy to remove these DNA cases from the judicial system. It is not too late for a more comprehensive legislative solution. Undiplomatic An ambassador is an honest man sent to lie abroad for the good of his country. � Sir Henry Wotton , 17th Century English diplomat “Diplomatic” language is a byword for polite refusal to give offense by the plain statement of distasteful facts. The Second U.S. Circuit Court of Appeals has recently held, in Chen v. INS, that diplomatic language must therefore be taken with a considerable grain of salt. Chen involved a claim for asylum by a refugee who alleged that he had been arrested and beaten in China because of his active role in building unlicensed Roman Catholic churches. The immigration judge who heard his asylum claim admitted a 1995 State Department report on human rights in China, which stated that the Chinese government indeed persecuted Catholic priests and religious leaders but left individual worshippers alone. Chen’s testimony was discredited on the basis of the report. The Second Circuit reversed and remanded, pointing out that such official reports did not deserve automatic credence because they “are sometimes skewed towards the governing administration’s foreign policy goals and concerns.” While applicants for asylum have motive to exaggerate or lie, and are not worthy of automatic belief, neither are the diplomats whose duty is diplomacy. This is not a criticism of the State Department, whose job is to further the government’s “foreign policy goals and concerns.” It is a reminder that the courts have a different job to do. The law governing political asylum is supposed to protect individuals from genuine risk of political and religious persecution without regard to the wounded sensibilities of their home government. It is the court’s task to distill the truth from all sources taken for what they are worth, including not only the testimony of the applicant and government reports, but background information from nongovernmental sources such as Amnesty International. An immigration judge is not sent to “lie abroad for his country” but to find the facts at home. Money Talks, Mount Laurel Walks In the Mount Laurel I case in 1975, the New Jersey Supreme Court ruled that the state constitution and implementing police power statutes invalidated exclusionary zoning in developing communities. There was then a genuine housing crisis involving the inability of those in low and moderate income brackets to obtain affordable dwellings. Eight years later nothing much had happened to improve the situation, and the Supreme Court reacted in Mount Laurel II by extending to every municipality the obligation to provide for low and moderate income housing and by promulgating a long list of available remedies to address continued disobedience to the Court’s mandate. Included in that second opinion was a plea to the Legislature to adopt laws necessary to implement the Mount Laurel doctrine. The Legislature’s response was the Fair Housing Act, N.J.S.A. 52:27D-301 et seq. Included in � 312 of the act was a provision whereby a municipality could buy out of up to 50 percent of its obligation by entering into a “regional contribution agreement” (RCA) with another municipality. By opting for such agreements and taking advantage of other escape mechanisms in the law, most municipalities have done little if anything to carry out the Mount Laurel mandate. Except in the rarest of instances, there is no more low and moderate income housing in New Jersey now than there was 30 years ago. It is a difficult and complex problem, and we don’t pretend to have the answers, but one thing seems obvious — if a municipality has only to write a check to avoid responsibility, nothing meaningful will ever happen to correct the social wrongs in this area. A step in the right direction would be to eliminate the RCAs. We urge the Legislature to consider doing so. And while they’re about it, they ought to reckon, in some meaningful fashion, with the fact that there is still a housing crisis in New Jersey. It is a shameful situation.

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