What Counties Have Been Affected by the Sergeant Marc Dennis Case?
The state has accused Sergeant Marc Dennis, a former breath test coordinator instructor with the New Jersey Sate Police, of malfeasance in office for failing to do a step required to check the calibration of breath testing instruments used to create evidence in the prosecution of this charged with driving while under the influence of alcohol. He was responsible for checking the calibration of the Alcotest 7110 MKIII-C breath testing instruments in five counties in New Jersey–Monmouth, Ocean, Middlesex, Union, and Somerset. He was a coordinator for a period of about seven years. During that time, he performed calibration checks that supposedly affected approximately 20,000 to 21,000 cases.
Ironically, the Attorney General’s office has chosen to indict Marc Dennis in a criminal case while initiating a separate proceeding in a case called State vs. Eileen Cassidy. She was charged as a third offender DWI and her attorney, for whatever reason, chose to plead her guilty. As a result, she had to begin serving the mandatory six-month jail term that anybody convicted of a third offense is required to serve. A few days after that plea, the attorney found out about the charges against Marc Dennis and filed a motion to vacate Eileen Cassidy’s plea and get her released from jail. The attorney was successful. When the Attorney General’s office found out, they filed a motion directly with the State Supreme Court to ask the Court to appoint a special master, a special judge to consider a particular issue for the Supreme Court. This is a very unusual kind of proceeding. What makes it even more unusual is that this is the only time that I can think of where the state took a pending case in a municipal court and filed a motion directly with the State Supreme Court asking for relief. They skipped what would ordinarily entail an appeal to a Superior Court, Law Division, followed by an appeal to the Superior Court, Appellate Division, and then to the Supreme Court.
The fact that the Supreme Court granted the State’s motion is extraordinary. I suppose what persuaded them to do that was the number of cases that were potentially affected by this alleged failure of Marc Dennis to use the Control Company thermometer. The irony in Marc Dennis’ criminal case is that they are saying it was so bad that it compromised all these breath tests and, therefore, makes him guilty of judicial misconduct, but in the case State vs. Eileen Cassidy, they are basically asking the Supreme Court to say that the fact that he skipped a step is not meaningful. In other words, they are saying that a failure to check the temperature of the simulators has no effect on the scientific liability of readings given by the Alcotest instruments.
The Supreme Court now has appointed a special master, a retired appellate division judge named Joseph Lisa. He is currently managing the case and will be presiding over hearings which began December 14, 2017, and will continue between January 3 and February 1, 2018. In the meantime, Judge Lisa issued a special order staying any proceedings affected by the alleged failure of Marc Dennis to use the Control Company thermometer. This kind of order is good and bad. It’s good in that it will assure uniformity of results when people start making applications based on the failure to properly certify breath testing instruments as working properly. It’s bad because people who are currently suffering because of wrongful convictions may not be able to get sufficient timely relief. The state’s actions in indicting Marc Dennis on the one hand but then moving in State vs. Cassidy to say that the thing doesn’t matter just creates a lot of confusion. Hopefully, Judge Lisa can bring some order to that confusion. While those who are suffering the immediate effects may be able to avoid jail and other consequences for now, they will have suffered from not knowing what their rights will be ultimately.
How Are People Being Made Aware if Their Case Was Potentially Affected by Marc Dennis’ Acts?
The state took it upon itself after our initial meetings with Judge Lisa to direct the County Prosecutors in the affected counties to send out letters to people whose cases may have been affected, including cases that are pending and cases involving prior convictions. The principal attorneys in State vs. Cassidy are the Attorney General appearing for the state of New Jersey and Michael Hobbie, Cassidy’s attorney. When the Supreme Court was considering whether to appoint a special master, they requested more input by inviting the Association of Criminal Defense Lawyers [“ACDL], the New Jersey State Bar Association [“NJSBA”] and four individual attorneys, including myself, to weigh in on whether there should be a special master.
The Supreme Court granted the state’s motion even though all the other parties, including the invited parties, essentially opposed the appointment of a special master to consider that question about scientific liability. After the court appointed the special master, of the invited parties, the NJSBA and three of the invited attorneys, including me, remained in the case. We were all very concerned about people not knowing that their lives could be affected as a result of the alleged malfeasance by Trooper Dennis. I guess we struck a chord with the Attorney General, because they took it upon themselves to direct that notice to be given by mail to all those people. Judge Lisa would not order it, but I’m sure he was encouraged that they did, and the amicus and invited parties also felt the state did the right thing. This notice gave rise to a lot of questions, and that’s also what precipitated the state’s later motion to stay any proceedings involving this malfeasance.
As defense attorneys, we should be aware of how the State vs. Cassidy case unfolds. Its outcome will affect current prosecutions for driving while intoxicated in violation N.J.S. 39:4-50 and driving when driving privileges are revoked for driving while intoxicated in violation of N.J.S. 39:3-40 and N.J.S. 2C:40-29 as well as petitions for post-conviction relief from prior convictions.
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