Harmless: adjective, free from harm or loss; lacking capacity to injure; innocuous. Merriam–Webster.

Defendants' trial, on charges of police misconduct, was not free from harmful evidence, which evidence was not innocuous and therefore, contrary to the 5-2 majority decision, the convictions should have been reversed. State v. Trinidad, ___ N.J. ____ (2020), 2020 WL 1281731.

At the trial of a June 7, 2012, police stop, the alleged victim (Jeter), in explaining why he refused to get out of the car when requested by defendants and why he gave media interviews, testified over objection, that after watching "situations with police brutality … (like) the Sean Bells, the Amadou Diallos, the Rodney King, the Oscar Grant … I can testify that I'm a victim of that."

The Appellate Division reversed, right? Wrong.

The Supreme Court reversed, right? Wrong.

In addition, at the trial, Internal Affairs Lieutenant Cofone, after investigating Jeter's allegations against the defendant police officers, testified, as a lay witness, that "the actions of the officers appeared to have been criminal."

The Appellate Division reversed, right? Wrong.

The Supreme Court reversed, right? Wrong.

The Supreme Court did not reverse because the majority felt that the aforesaid evidence was properly admitted into evidence, right? Wrong.

Indeed the majority conceded that:

Jeter's multiple declarations that his fear stemmed from notorious episodes of police brutality were highly prejudicial … (which) could inflame the passions of the jury, tainting their evaluation of (defendant) Trinidad (and) … liken Trinidad to the officers in those cases. The risk of undue prejudice was simply too high … (therefore) Jeter undoubtedly should not have referred to notorious cases of police brutality.

The majority even conceded that the trial judge's failure to strike these references "was error."

Similarly, the court conceded that Lt. Cofone's testimony that defendant's actions "appeared to have been criminal" should have been disregarded because "police officers may not opine directly on a defendant's guilt in a criminal case … (because it) invades the province of the jury to decide the ultimate question."

In spite of these significant concessions, the court held that these errors of the trial court were harmless error "considering the overwhelming evidence of Trinidad's guilt."

To which this author says: You've got to be kidding! Or as Justice Albin, in his well-reasoned dissent, more judiciously stated, "Errors of constitutional magnitude that possibly influenced the jury adversely to a litigant cannot be conceived of as harmless beyond a reasonable doubt."

Justice Albin properly pointed out that the admission of Jeter's testimony about the nationally high-profile police brutality cases was not harmless because:

[I]n a trial of a police officer for allegedly assaulting a person of color (Jeter), no testimony could have been more incendiary. The only issue in this trial should have been … Trinidad's individual guilt …. Permitting the jury to draw a connection to those past cases of police misconduct created an intolerable risk that the jury condemned Trinidad on the basis of collective guilt.

Justice Albin opined that "the majority has essentially convened as a jury, weighed the evidence, and cast its own verdict—using the harmless error doctrine to uphold this tainted verdict." This usurped the function of the jury. Therefore, regardless of other evidence, these errors, according to the dissent, "denied Trinidad the fundamental right to a fair trial." To which this author would add: by a jury of 12 peers, not five justices.

The dissent was also concerned that the majority decision could very well encourage appellate courts to save improper convictions by an over-use of the doctrine of harmless error. This doctrine, according to the dissent, is to be reserved for "minor errors"; to rely upon it to salvage "significant errors … undermine(s) the integrity and fairness of the trial process (and) must be addressed by the ultimate remedy—reversal of the conviction and the grant of a new trial."

Finally, Justice Albin cautioned trial courts and prosecutors, charged with honoring the constitutional rights of the accused, that "when they commit egregious errors that mortally cut into the fair-trial rights of a defendant, there will be consequences."

This author, both as a civil and criminal trial lawyer as well as a judge, has always had confidence in the integrity of the jury system, and, recognizing that our system is not perfect, our appellate courts' ability to rectify minor trial errors. However, to use the harmless error doctrine to replace the judgment of a jury flies in the face of the constitution, fairness and justice. Justice Albin's dissent recognizes that we should let the jury do its job and the court do its job, based only upon unbiased and proper evidence.

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.