When You See 'Loophole,' You Know It's Bad Reporting

Former Hackettstown, New Jersey Patrolman Kevin Barbera committed a foolish crime.

Barbera stole two police radios valued at more than $500 from the trash at police headquarters and gave them to a Forks Township man now convicted of drug and weapons offenses and facing a murder charge.

Barbera entered a guilty plea to charges of official misconduct and theft. A judge put him on probation for two years. Sounds about right for a property crime of small value, even with the teaser that the recipient of the stolen property is now charged with murder (a crime that appears to be unrelated to Barbera's misconduct).

The reporter who authored the linked article writes that Barbera avoided imprisonment due to "loopholes" in a recently enacted New Jersey law that applies a mandatory minimum prison sentence to public officials convicted of certain kinds of misconduct. [more ...]

The reporter appears troubled that the law doesn't apply to Barbera because he stole the radios before the law took effect. The reporter seems to think a loophole kept the court from imposing a mandatory prison sentence upon Barbera that didn't exist when the crime was committed. That loophole has a more technical name: the ex post facto clause of the U.S. Constitution.

The reporter then laments that "even if the theft occurred on or after the April 14, 2007 effective date, Barbera would still have avoided the new minimum prison sentences." True, because mandatory minimum sentences apply only to official misconduct that involves the commission of specifically listed felonies, most of which involve a serious breach of the public trust (bribery, perjury, false claims, improper influence in official matters, etc.). Among them is theft of more than $10,000. Barbera's theft of radios worth $500 doesn't come close to a predicate offense that would expose him to a mandatory prison sentence.

Barbera did not benefit from a loophole. The law was not written to apply to Barbera's misconduct. Barbera did not commit the kind of serious crime that (in the judgment of the New Jersey legislature) warranted a mandatory minimum sentence.

It's unfortunate that many members of the public believe a "loophole" must exist whenever an accused doesn't receive the harshest possible treatment by the criminal justice system. The "loophole" myth is perpetuated by lousy reporting. Had the reporter bothered to run his story idea past a criminal defense lawyer (or pretty much any lawyer or even a halfway knowledgeable editor), he would not have used the word "loophole" in his story about Barbera.

Had the reporter been a bit creative, he might have asked why a mandatory minimum sentence should apply to this crime (or any other) at all? Suppose Barbera had taken $10,000 worth of radios out of the trash. Then suppose that, as a first offender, he is remorseful and has paid restitution and only took the radios because his dog needed a hip replacement. Should Barbera get a mandatory year in prison? Who will feed Barbera's dog?

Kidding aside, sentences should always be individualized to the offender. One-size-fits-all mandatory minimums are bad policy. That would have been a more interesting topic for the reporter to address.

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    Pandering (5.00 / 1) (#1)
    by squeaky on Mon Nov 10, 2008 at 09:18:24 PM EST
    Newspapers do it too. Sensationalism is good for selling ads.

    I have family in H-town. (5.00 / 1) (#11)
    by sarcastic unnamed one on Tue Nov 11, 2008 at 12:42:57 PM EST
    TChris, I think you're right on the button with this one, it's not a loophole. Silly to call it such.

    Is it legally possible to steal from the trash? (none / 0) (#3)
    by Mitch Guthman on Mon Nov 10, 2008 at 09:23:21 PM EST
    Here is a question for NJ lawyers:  Is it legally possible to steal something from the trash or am I missing something?  This isn't snark, I'm actually curious (but to lazy to do actual research) because normally I don't think you could classify taking trash (which is, almost by definition, abandoned property)as a theft crime.  There must be more to this case---perhaps something about how the radios got into the trash?

    Who calls it trash? (none / 0) (#5)
    by cpa1 on Mon Nov 10, 2008 at 10:38:49 PM EST
    That could be the question.  Significantly depleted plutonium is still dangerous at the time it is ready for it's careful disposal.  It does not go into the public trash and perhaps for many reasons, police trash is not public trash.

    Did anyone see Boston Legal tonight where Shirley Schmidt turned on a 15 year old Chinese client who was seeking a bypass from parental consent to have an abortion.  Schmidt decided, without evidence, that her client wanted the abortion because the baby was a girl and in China they allow infanticide for gender reasons, in other words, China only wants male babies.  I want her  vitually disbarred for that!


    i think it's only (none / 0) (#6)
    by cpinva on Mon Nov 10, 2008 at 11:09:26 PM EST
    abandoned when it leaves the dwelling. in this case, the police station. the article wasn't at all clear on where it was actually located, at the time the radios were taken.

    Reporters (none / 0) (#4)
    by cal1942 on Mon Nov 10, 2008 at 10:34:01 PM EST
    actually bothering to read the Constitution, perish the thought.  Can't have that.  Taking courses in civics is so yesterday.

    Local newspaper, major national news publication, no diference.

    Newsweek's Richard Wolffe said that the US President had the power to go to war but that the Congress had 'some' wartime powers as well.

    Apparently it's OK for a major national publication to assign a reporter to cover the White House, feature him as a political analyst and feature his commentary on MSNBC without determining whether he has even the slightest grasp of American civics. Apparently it's just fine that his editors also lack fundamental knowledge of civics.

    It shouldn't come as a surprise that the reporter for a local newspaper is ignorant of American civics.

    Since this was a plea deal, (none / 0) (#7)
    by ding7777 on Mon Nov 10, 2008 at 11:19:08 PM EST
    the crystal methamphetamine charge (this is the tie-in to Atwell; radios for drugs) was probably dropped to allow a time servered/probation sentence

    TChris - you make valid points. (none / 0) (#8)
    by scribe on Tue Nov 11, 2008 at 06:36:18 AM EST
    But - and not to diminish them - they would be better made if directed to the Reporter.

    His publication provides at the end of the article the following helpful information on how to direct educational efforts at him:

    Reporter Tom Quigley can be reached at 908-475-8184 or by e-mail at tquigley at express-times dot com.

    Please note I changed the email address by removing the "at" symbol and the "dot" before dot com and replacing them with words, so as to avoid skewing the site.

    Growing up, the paper he writes for (actually, it was two papers then, since merged) was a competitor of the paper I delivered.  Somewhere along the line it became part of the Newhouse empire, along with a lot of the other Jersey papers.  Given that one of that empire's leaders, the Newark Star-Ledger, is layng off a substantial portion of its reportorial force, I'm not surprised this reporter (probably a cub) just spouted the usual mindless tough-on-crime line the Newhouse papers follow.  It's what the bosses want, and what the editors demand, if you want to keep your job.  Half his story was probably already written and saved to his laptop and he just plugged names, dates, and a couple quotes into his template.

    way off base (none / 0) (#9)
    by thatguy on Tue Nov 11, 2008 at 11:53:45 AM EST
    Speaking strictly for me:

    Tom is a good guy, good reporter, and has been covering this beat for years.  Many readers were wondering why this officer got what amounted to a gift considering the charges that could have been brought and the normal hammering that occurs in this reddest of all NJ counties.

    That's a story he could have written (5.00 / 1) (#12)
    by TChris on Tue Nov 11, 2008 at 12:58:51 PM EST
    but it isn't the story he chose to write.

    took the radios because... (none / 0) (#10)
    by Abdul Abulbul Amir on Tue Nov 11, 2008 at 12:18:12 PM EST

    ...took the radios because his dog needed a hip replacement...

    A new dog would have been far less costly.  In more ways than one.

    You've never loved a dog, I see. (none / 0) (#17)
    by sj on Tue Nov 11, 2008 at 04:25:03 PM EST
    It's just like loving anything else.  Because you know, it's cheaper to just have another child than to treat this one for leukemia with no insurance.

    Speaking hypothetically, of course.


    Thats true if (none / 0) (#19)
    by Abdul Abulbul Amir on Tue Nov 11, 2008 at 11:57:58 PM EST

    you don't know the difference between a dog and a child.

    Love is love (none / 0) (#20)
    by sj on Wed Nov 12, 2008 at 02:40:21 PM EST
    Clearly you've never loved a dog.  It's not a matter of value.  It's a matter of love.

    Your original statement was ludicrous.  This one is less so, but it still clearly lacks understanding.


    How is taking stuff from the trash a theft crime? (none / 0) (#13)
    by Mitch Guthman on Tue Nov 11, 2008 at 01:17:55 PM EST
    I don't think it's correct that the "stolen" goods need to leave the victim's property.   That might be true for 4th amendment analysis but probably not for any sort of theft crime.

    I still don't see how taking the radios from the trash would qualify as theft in the first place since according, to the article, the defendant would seem to lack the necessary mental state or mens rea to satisfy that element of the charged crime.   Here, it seems doubtful whether a person taking radios from a trash can intends to permanently deprive the owner of those radios.  

    Also, setting aside for the moment, the question of legal impossibility, and assuming that a crime was committed, it still seems clear that the defendant should have been able to assert mistake of fact as a complete defense.  

    There must be more to this case than is being reported.  This is the case that no lawyer would ever plead out to----except maybe for unsupervised probation, no fine or court costs, and the conviction gets expunged in a year.   This is the kind of case that lawyers would actually pay to take to trial----I know I would've.  Plus, even if you lose, this would be a really great appellate case.  Again, unless the DA simply gave my client a great deal just to save face by getting a "conviction", this is the appeal of a lifetime.  Almost guaranteed a published opinion and probably the defendant's lawyer could get a couple of articles out of it, too.

    Or am I missing something?

    "Or am I missing something?" (none / 0) (#14)
    by sarcastic unnamed one on Tue Nov 11, 2008 at 01:49:35 PM EST
    Maybe, did you see this?
    A suspended Hackettstown police officer was charged today with using crystal methamphetamine over a six-month period and giving two police radios to a Forks Township man now jailed on drug and weapons charges.

    Hackettstown Patrolman Kevin M. Barbera, 26, of Washington, is charged with second-degree official misconduct for the alleged drug use and third-degree theft in connection with the police radios.

    The charges lodged today stem from a June 5 search of Joseph and Dawn Atwell's home in Forks Township which yielded a cache of drugs and weapons. Police were at the home as part of a homicide investigation.

    I just don't know (none / 0) (#16)
    by TChris on Tue Nov 11, 2008 at 03:37:52 PM EST
    all the facts of the case, particularly how the radios ended up in the trash or where the trash was located when he grabbed them. Maybe Barbera put them in there. Maybe he knew they didn't belong there. It's a puzzle.

    I am aware, however, of people being prosecuted for stealing from dumpsters on the theory that the garbage in a dumpster belongs to the business with which it is associated until it gets hauled away. It would seem abandonment would be a good defense to the charge, but the abandonment defense tends to be fact-specific and it isn't always clear when property has been "abandoned" by its owner.

    I can say that I wouldn't be keen on someone coming into my office and taking things out of my trash, because I don't regard my trash to have been abandoned until it gets bagged up and tossed into one of the garbage cans outside.  There's just a lot about this case that we don't know -- but those unknown facts, while interesting, don't really bear on the larger point of the post.


    Point out the original arrest changes nothing. (none / 0) (#15)
    by Mitch Guthman on Tue Nov 11, 2008 at 02:33:15 PM EST
    Yes, I looked up the original arrest but that surely does not qualify as the "something more" I was speculating about because it does not answer the legal question about whether there was actually a chargeable theft crime in the first place or the factual question about why anybody would plead guilty given these facts.

    I still think there is something more to this case that didn't get reported.  The drug charge went away.  Why?   Don't forget the radios were apparently found in the same search.

    I think the questions about this case have absolutely nothing to do with any kind of sentencing loophole. Partly because of TChris's point about the value of the radios not fitting the language of the statute in the first place.

    Also because either the defendant plead into a prosecution case that was very weak in order to avoid the risk of a felony conviction and hard time (in which case his light sentence was the product of the state's weak case and not due to any quirk of NJ's laws on sentencing or official misconduct) or he plead into a strong case (maybe avoiding 10 years + in slam) and got a great deal.  Same issue with the "sentencing loophole", though if the narcotics charge was the hammer that forced the plea.   If that's true,  then I would surmise that the lenient sentence had nothing to do with the supposed "loophole" but is related to something more.    The question is why plead to the very weak theft if the narcotics charge isn't hanging over your head?   That's the real question.

    I was more into the legal question. Sorry. (none / 0) (#18)
    by Mitch Guthman on Tue Nov 11, 2008 at 09:05:52 PM EST

    Only the issue of legal impossibility is related to whether the radios were abandoned or still the property of the true owner.  Obviously, if placing things in the trash divests the owner of "ownership," this would be determinative since it is impossible to steal such property. (Assuming that it was the owner who put them in the trash). This does not turn on what either the victim or the defendant thinks about whether property is abandoned when it's put in the trash.  It only matters what the law thinks.  If the law thinks you lose ownership when you trash stuff, it's impossible to steal it (even if the defendant actually thinks he is stealing it).  

    But let's say that under NJ law, its your property until you specifically say it's not.  I don't think that's right, but let's say it is.  I don't see how a guy taking stuff from a trash can forms the necessary intent to support a theft charge.  No mens rea,  no crime.  A related issue is whether the defendant get an instruction on mistake (an instruction to which I think he's clearly entitled).   Any defense lawyer who can mumble "reasonable doubt" ought to be able to walk this guy.

    In a way, you're right that I am digressing from the point of your post, for which I apologize.   Now, I certainly think you're correct that he avoided the mandatory minimum sentence not because of a "loophole" but because the stolen property was under the threshold for the statute and because of the timing of the arrest.  But it's also true that he may have avoided the minimum for other reasons altogether, and I can think of three possibilities which don't involve loopholes:  (1)  He got a deal because the state's case was weak and the state wouldn't have dared pursue a charge if it carried the mandatory minimum because the defendant wouldn't have plead out  (2) he got a deal because nobody wanted to send a police officer to jail and so, again,  he wouldn't have been charged with a crime that was covered by the statute no matter what or (3) he got a deal because of some other reason.  My money is on a combination of all three, with #3 having the most entertainment potential.

    I still would've paid real money for the privilege of trying this case and I bet I'm not the only person who feels this way.  What a great fact pattern!  Like a first-year exam question come to life!