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.