A proposed class action suit accuses New Jersey's courts of giving scheduling priority to criminal cases from after the 2017 enactment of the Criminal Justice Reform Act and putting off trials in older cases.

The suit asserts that Glenn Grant, acting administrative director of the New Jersey courts,  issued a confidential directive requiring judges to schedule trials for post-Criminal Justice Reform Act cases before cases that predate the CJRA.

Grant's alleged directive violates the rights of pre-CJRA defendants to a speedy trial under the Sixth Amendment of the U.S. Constitution and their equal protection rights under the Fourteenth Amendment, according to the suit, Brown v. Grewal.

New Jersey Attorney General Gurbir Grewal, Grant and Mercer County Superior Court Judge Peter Warshaw are named as defendants in the suit, which seeks to enjoin the state judiciary from enforcing Grant's alleged directive by giving post-CJRA defendants priority in scheduling trials. Warshaw is named because he is the presiding criminal judge in Mercer County and is in charge of scheduling of criminal trials in that county, the suit said.

The suit also seeks damages and legal expenses. The suit seeks certification of one class for injunctive relief and another for damages.

The named plaintiff in the case is Shaheed Brown, who was arrested in August 2014 and charged with first-degree murder in the shooting death of Enrico Smalley Jr. outside a Trenton bar. Since his arrest, Brown has been held in lieu of $1 million in bail. Unable to post bail, Brown has remained incarcerated, most recently in the Camden County Jail under an agreement with Mercer County officials.

Brown has been tried twice, and each trial ended in a hung jury.

Brown's bail was set at $1 million based on the state's representation that it had an eyewitness identifying Brown as the killer of Smalley, said Edward Harrington Heyburn, the East Windsor attorney who represents him in the criminal case and the class action.

In the first trial, extending over three weeks before Judge Andrew Smithson in October 2015, the state had no eyewitness testimony to identify Brown as the shooter, Heyburn said. The state did not produce a weapon, or a confession, or physical evidence linking Brown to the shooting, Heyburn said. The state's only evidence was a video showing Brown and Smalley talking, Heyburn said. The case ended with Smithson declaring a hung jury.

After the first trial, Brown remained in the Mercer County Jail, and Smithson refused to reduce his $1 million bail, said Heyburn. The second trial, held before Smithson in May 2016, with the same limited evidence, also ended in a mistrial.

After the second mistrial, Brown moved to dismiss the indictment, claiming the state was unlikely to convict him in a subsequent trial, but Judge Anthony Massi denied the motion in August 2017. At a September 2017 appearance before Massi, Brown expected to hear a new trial date, but Massi did not set a trial date, advising that there is a directive requiring judges to take post-CJRA cases before cases such as his, according to Heyburn.

No such directive is posted on the judiciary's website, and the Mercer County Criminal Case Management would not release the memo, according to Heyburn.

The judiciary provided a copy of Grant's memo to the Law Journal when a reporter inquired about it. The memo calls for all criminal defendants who are incarcerated to receive equal priority toward trial dates, whether the defendants were arrested before or after the Jan. 1, 2017, effective date of the CJA.

Judiciary spokesman Pete McAleer said in a statement, “An August, 23, 2017 memo from Judge Glenn A. Grant, acting administrative director of the courts, to all assignment judges and criminal presiding judges outlines the statewide protocol for prioritizing cases pre- and post-criminal justice reform. It states that 'All cases where a defendant is incarcerated need to be prioritized; therefore, the highest priority or the first category has been allocated to defendants who are incarcerated both pre- and post-January 1, 2017.'”

The memo further notes that the “statutory speedy trial requirement applicable to detained eligible defendants does not lessen the concerns for the deprivation of liberty interests for defendants incarcerated prior to January 1, 2017,” McAleer said.

“In addition, the memo notes that as part of an effort to prioritize pre-January 1, 2017 cases 'the Judicial Council continues to conduct monthly reviews of each county's ten oldest cases and cases over 700 days old where the defendant is also incarcerated. In weighing these cases, the length of time that the defendant is incarcerated should be taken into account as well as the age of the case,'” McAleer said.

The Attorney General's Office had no comment about the suit.

Heyburn did not respond to calls requesting comment.