Pubdate: Tuesday, 17 Mar 1998 Source: Star-Ledger Author: Kathy Barrett Carter, Staff Writer Contact: http://www.nj.com/news/ SEIZURE LAW GOES BEFORE JUSTICES When the Monmouth County Prosecutor's Office took 67-year-old Lois McDermott's 1990 Honda after catching her son dealing drugs from the car in Highlands, she thought something was terribly wrong. She contested the seizure and asked for a jury trial. After all, she did not give her son permission to take the car, much less know he would use the Accord as a rolling drug dispensary, according to Elizabeth Macron, the Howell lawyer representing McDermott. But the trial judge turned down her request and ruled in favor of the county, forcing McDermott to forfeit her car. A three-judge panel of the Appellate Division, in a split decision, reversed the trial judge. That decision landed the case before the state's highest court yesterday. McDermott thinks a jury would be more sympathetic to her situation, but a deputy attorney general says the decision should be left in the hands of a judge. The court was not grappling with the constitutionality of New Jersey's tough forfeiture laws, which can be used to force someone suspected of criminal activity to surrender anything from a luxury home to petty cash. The laws allow the police to take anything used in an illegal drug activity or anything that was bought with money from such activities. The seven justices of the New Jersey Supreme Court were dealing with a simpler question: Is McDermott entitled to a jury trial under the New Jersey Constitution? But to answer that straightforward question, the justices were taken back to 1776, when New Jersey's first constitution was adopted. As it turns out, the fate of McDermott's car depends on whether the framers of New Jersey's first constitution adopted English common law, which would have provided for a jury trial in such cases. Answering that question is no easy task. The dialogue turned to historic legal theories that caused Justice Stewart Pollock to say, "I feel like we should all be wearing wigs." Richard W. Berg, deputy attorney general and confessed history buff, said the right to a jury trial in a forfeiture case "did not survive the Revolution." After the Revolutionary War it was not part of New Jersey law, he said. Consequently, he said McDermott's case should be decided by a judge. He said the practice in New Jersey was not to allow jury trials in forfeiture cases. Macron disputed that assertion, citing The Dolphin case of 1685, in which 12 jurors from Elizabethtown (now Elizabeth) were asked to determine whether the state could seize a ship. Although the justices tossed around archaic legal theories, the stakes are high for today's prosecutors and police officers. Law enforcement rakes in significant sums annually by seizing cars, cash, guns, jewelry, real estate and other assets. According to the latest statistics from the Attorney General's Office, in 1996 close to $13 million was collected by seizing property and cash. Berg said a survey of prosecutors' offices showed there were roughly 2,500 pending forfeiture cases. If even a faction of those had to be tried, it would defeat the purpose of the law because some of the property would be almost worthless by the time the case was resolved. He noted this case involves a car that is already eight years old. "The car is losing value," said Berg. "At a point it's not beneficial to pursue it if you're going to get tied up in a jury trial. I think the Legislature had this in mind when it said judges could decide these cases." The law was designed to take the financial incentive out of drug trafficking. Law enforcement officials are quick to point out that the money saves taxpayers millions. It is used to purchase equipment, provide training classes, build new facilities and to support anti-drug community activities. Opponents of the forfeiture laws say they are flawed because a person does not have to be convicted of a crime to have property confiscated. Others also point out that the law can sometimes harm innocent people and, in the worst case, can be abused by overzealous prosecutors. Just last week Attorney General Peter Verniero issued new guidelines described as "a blueprint designed to protect and enhance public trust" in how forfeiture programs are administered. Macron said McDermott's case is a prime example of an innocent third person being caught in the middle. She said McDermott has a heart condition and could not keep her 46-year-old son, John "Jackie" McDermott, from taking the car. The trial judge said McDermott should have done more to keep the car from her son, but Macron said she thinks a jury would understand that is not always easy. "What was she supposed to do? Put her son out of the house?" asked Macron, who said she thinks a jury of mothers would be more understanding than a judge. "Let this go to a jury," McDermott said. But Berg said, "She knew he was a drug dealer." Along with the Honda, Berg said $420 in cash was seized from the son, who pleaded guilty on June 24, 1996, to possession of drugs and other charges.