A case argued Tuesday asks the New Jersey Supreme Court to define the standard of entitlement to an evidentiary hearing on a claim that ineffective assistance of counsel led to a criminal conviction.
Terry Jones, serving a 14-year sentence on a sexual-assault conviction, says his trial attorney failed to call a key witness, to present alibi evidence and to advise him properly about his right to testify in his defense.
Union County Superior Court Judge William Wertheimer denied Jones’ post-conviction relief petition without a hearing and the Appellate Division affirmed, but the Supreme Court took his appeal.
The heart of Jones’ trial defense was that the alleged victim, the 19-year-old daughter of a friend, concocted a rape story in retaliation for Jones’ sending her back home to her mother in Florida because of behavior problems.
Jones says his trial lawyer failed to call as a witness his girlfriend, Bernadette Brame, who purportedly was with him at the time of the alleged assault and heard him on the phone with the girl’s mother. The lawyer also did not introduce Jones’ phone records documenting the call.
Jones also alleged the attorney failed to tell him that his prior conviction for endangering the welfare of a child would be sanitized if he chose to testify.
“There is a reasonable likelihood that he would prevail if he is granted a PCR hearing,” Assistant Deputy Public Defender Lois De Julio told the court.
She added that Jones’ attorney on the original PCR petition failed to properly file a certification stating that Brame was available to testify on Jones’ behalf. Rather, the attorney presented Wertheimer with a sworn statement Brame gave to police after the assaults exculpating Jones.
Justice Anne Patterson asked if Brame really could be an alibi since Jones could have left the bedroom they shared to assault the girl, identified in court papers as K.A.
De Julio said Brame has maintained all along that Jones was with her and that she was present when Jones called K.A.’s mother.
Justice Barry Albin asked if Brame was available at the time the PCR petition was filed and at present.
“As of Friday Ms. Brame was ready, willing and able to go to court,” De Julio said.
Albin asked why the PCR attorney did not file a certification.
“I would have done it differently,” De Julio said. “But the attorney was relying on the statement. She was a central witness who should have been presented at trial.”
There is no requirement in the court rules, she added, that requires a certification to be filed.
Brame’s testimony, De Julio said, “would be a devastating attack on the testimony of the complaining victim.
“All you need is a prima facie case to get a hearing?” Albin asked.
“Correct,” De Julio said.
Deputy Attorney General Jenny Hsu said there was no reason to disturb the lower court decisions.
“The defendant failed to meet his procedural burden,” Hsu said. “This is not a she said-he said case. There is physical evidence” linking Jones to the sexual assaults.
Justice Jaynee LaVecchia asked whether it was the defendant’s obligation to “connect all the dots.”
“At the PCR level the defendant has the burden of showing he is entitled to a hearing,” Hsu said.
Albin asked why the trial attorney did not present Brame’s testimony.
“The defense attorney knew of the alibi and investigated the matter,” Hsu said. “It was a strategic decision” to not call her as a witness.
Responding to another question from Albin, Hsu said Jones failed to make a prima facie case in his PCR application because the second attorney failed to include Brame’s certification.
Judge Ariel Rodriguez said that seemed to be a “very mechanistic approach” and questions whether a PCR application should be rejected just because the wrong document was filed.
“The judge knew what [Brame] would have said” and still found the evidence lacking, Hsu said.