Leadership In Law Podcast

S02E71 High Profile Cases from Prosecutor to Trial Attorney with James Porfido

• Marilyn Jenkins • Season 2 • Episode 71

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What happens when a seasoned prosecutor crosses the aisle to become a defense attorney? James Porfido's remarkable 35-year legal journey reveals troubling truths about our justice system that every attorney and citizen needs to hear.

With his book "Unequal Justice" as a backdrop, James shares how a devastating 1994 vehicular homicide case changed not only his career trajectory but also New Jersey law. When a drunk driver killed a mother of three, James pursued the highest possible charges, while the victim's husband, an attorney, successfully campaigned for stricter mandatory minimums for DUI fatalities. In a heartbreaking twist, this same husband was later killed in an accident near where his wife died, leading James to carry on his advocacy work by speaking to over 75,000 students about drinking and driving.

The conversation takes a provocative turn when James describes switching sides to become a defense attorney. "I saw how the system seemed to be somewhat skewed in favor of the state," he reveals, noting how the presumption of innocence often feels like mere lip service. This bias became even more pronounced during COVID, when algorithmic risk assessments began determining pretrial detention, keeping defendants jailed while judges treated numerical scores as "gospel truth" rather than one factor among many.

Beyond the courtroom, James discusses his work in helping craft New Jersey's Good Samaritan Law for overdose cases, his representation of families of crime victims in high-profile murders, and his 18-year career as a legal analyst, which has included cases such as those involving O.J. Simpson and Michael Jackson. Now teaching Persuasion and Advocacy at Seton Hall Law School, he emphasizes to students that experiencing both sides of the courtroom develops crucial objectivity.

Reach James here: 

Unequal Justice book on Amazon: https://amzn.to/4jMHbwB
www.unequal-justice.com
https://www.porfidolaw.com

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Speaker 1:

Welcome to the Leadership in Law podcast with host Marilyn Jenkins. Cut through the noise, get actionable insights and inspiring stories delivered straight to your ears your ultimate podcast for navigating the ever-changing world of law firm ownership. In each episode, we dive deep into the critical topics that matter most to you, from unlocking explosive growth to building a thriving team. We connect you with successful firm leaders and industry experts who share their proven strategies and hard-won wisdom. So, whether you're a seasoned leader or just starting your journey as a law firm owner, the Leadership in Law podcast is here to equip you with the knowledge and tools you need to build a successful and fulfilling legal practice.

Speaker 2:

Welcome to another episode of the Leadership in Law podcast. I'm your host, marilyn Jenkins. Please join me in welcoming my guest, james Porfito, to the show today. James is an attorney with 35 years experience, former prosecutor, head of sex crimes and child abuse and vehicular homicide, a certified criminal trial attorney by Supreme Court of New Jersey since 1995, a legal analyst for 18 years, law professor and a victim advocate and let's not forget, a published author. I'm excited to have you here, james Welcome.

Speaker 3:

Thank you so much, Marilyn. Thank you for having me on Appreciate it.

Speaker 2:

Absolutely. It's very interesting you seeing both sides of the criminal justice system and both sides of the courtroom. Can you tell us a bit about your journey?

Speaker 3:

Sure, sure. So I started out as a young prosecutor and worked in our local prosecutors office in the county New Jersey, morris County, new Jersey, and it kind of rose up through the ranks through the years being there and eventually I was trying jury trials and it was something I really enjoyed doing and the cases just kind of found their way to me and they were high profile cases. After a period of time and people ask me about the book and they say, well, you know how did you write the book? And I said really the people in the book wrote the book really was me the vehicle to get it out there, the message. And you know the book is about unequal justice, the search for truth, about the scales, and it can be really talked about in so many different contexts in the book and the different stories and the cases that I capture, both from the prosecution side and the defense side, and eventually I left the prosecutor's office after about eight years and there was one case in particular that caused me to leave the prosecutor's office.

Speaker 3:

It was a vehicular homicide case that I was prosecuting in 1994, 1995.

Speaker 3:

And the laws that existed in New Jersey at that time under death by auto was and people, just so the listeners understand driving drunk and having someone die as a result of your driving conduct, getting involved in a vehicular crash involving fatalities as the death by auto, at least under the traditional laws in New Jersey and that faced consequences of 270 days in jail county jail or 270 days in duty service, depending upon if you had a record or not.

Speaker 3:

If you had no prior criminal record, you would face a maximum of 270 days county jail. Well, I encountered a particular case involving the death of a mom who was driving with her three children and her husband was an attorney, and the driver in that case was more than two times the legal limit and at that time in New Jersey it was a .10 and he was clearly intoxicated. It was a .25. And he had been traveling along a highway, a local highway for several miles in a very reckless manner. Many people had called in 911 calls about his driving conduct, driving on the shoulder of the median, going through red lights and really just waiting for an impact to happen at some point. And ultimately that did happen and he struck the vehicle driven by this mom.

Speaker 3:

Well, I explained the laws and she was medevaced out by helicopter to the local hospital and eventually she was on life support for a short time, then eventually was removed from life support and died as a result of the injury sustained. And I spoke to the husband, who was in an attorney, and explained the laws that existed in New Jersey and he said look the result. The outcome is the same my wife were shot and killed or stabbed. How can it be different? Under the vehicular homicide statute, the death by auto laws? And I explained to him that that was the legislation that was in place. But I felt that in this case, based on the egregious conduct, the extreme indifference to the value of human life, the driving conduct anticipating even a crash, and the blood alcohol factored in.

Speaker 3:

This was a case of an aggravated manslaughter, which was the highest degree allowed. So it faced the consequence of 20 years state prison versus the county jail outcome. So we went forward, we had a jury trial and ultimately he was convicted. Well, this husband, as I said, who was an attorney, went about changing. The laws in the state of New Jersey, wife are that any driver that kills someone, driving drunk or recklessly and facing that outcome, faces a mandatory minimum three-year state prison. Now, no lower county jail, that's off the table and that's mandatory, regardless of whether you have a prior criminal history or not. Well, to fast forward, the husband had started a foundation to speak about the case, about his wife and his family, the impact and really trying to invite all students speaking to them about the dangers of drinking and driving. Well, he himself was driving near the site where his wife was killed about three years later, 1997. And he was struck and killed himself.

Speaker 2:

Oh no.

Speaker 3:

He had started a speaking board about doing this, getting this message out, so I left the prosecutor's office at that time and I joined the board and I I basically took on his responsibilities and role and I spoke to about 75,000 high school students over two years in New Jersey about the dangers of drinking and driving and talking about this case in particular.

Speaker 2:

Wow, that's incredible. And for you to be at the beginning of that, driving and talking about this case in particular Wow, that's incredible. And for you to be at the beginning of that when the laws were being changed, that's pretty incredible.

Speaker 3:

Yeah, I found myself in a lot of situations like that. I talk about that in the book. Many cases that had impacts really were vehicles to change the laws. They were very unique cases in a lot of ways and and I talked about them and many of them are reported decisions in the New Jersey courts. You know, if you were to Google the names of the case and, by the way, I didn't put any names of cases in, I'm very intentional about that I didn't put the names of prosecutors, they put the names of judges. I didn't want to, you know, have to get into all the legal issues involved with naming people and having people identify themselves in a case or a story. But anyway, after that case that happened, I left the prosecution, I became a criminal defense attorney and I took on the role of representing crime victims as well in some pretty noteworthy cases they were significant that were very impactful, involving the death of a young girl who was shot and killed at a fraternity party. She was coming to Seton Hall University to play basketball and she was at a fraternity party and there was a gang initiation, a gang member who went in and shot at the party and she was struck and killed and I represented the family through the criminal justice process, explaining to them about the criminal justice system and sitting by them next to the family throughout the trial.

Speaker 3:

Then I became involved in another case involving the death of a brother and sister and it was another the Hickory Homicide case involving fatality, where the brother had been out drinking. He was a law student at Segal University School of Law and you know, sadly he was. He contacted his sister and he had done all the right things. He was too drunk to drive. He contacted his sister to pick him up. She was a designated driver to go get him. She went, came up and they were struck by a drunk driver on the on the highway and both of them were killed and she was graduating college and she was going to be a special ed teacher. And I apologize for the background noise if that's too loud.

Speaker 2:

It happens. No, it happens. That's super sad that they had, they did the right thing and still were victims of DUI.

Speaker 3:

Exactly, exactly, and so I became involved with the family in the search for justice to bring the killer to justice, and it took some doing. There was a lot of press brought to the case and the local prosecutor had realized, I think, that they had dropped the ball, so to speak. There was a delay, and there's that old expression justice delayed is justice denied, and that certainly was the case here, and we were able to bring the killer to justice and he ultimately was sentenced to five years for each death of each child, and I'm still in touch with the mom and dad. I still keep in contact with them. So it was a very sad case involving the loss of their children. So these are some of the things that I talk about in the book, but I also talk about some of the high-profile cases that I prosecuted and defended, and I gave them some interesting names and titles to make them a little more interesting to a reader.

Speaker 2:

Oh nice, absolutely, yeah, definitely pick up a copy of Unequal Justice, so do you feel like it's given you a lot more insight in the nuances of the law by being on both sides of the courtroom?

Speaker 3:

Most definitely, marilyn. I mean, just the fact of moving from one counsel table to the other counsel table in the courtroom made a tremendous impact and I saw how the system seemed to be somewhat skewed in favor of the state in a lot of situations. And representing the accused or someone charged with a crime, you became, you know, automatically guilty. Your client was guilty, and that's not what our constitutional principles espouse. We are innocent until proven guilty and the state always maintains the burden of proof beyond a reasonable doubt. And I found that it kind of shifted, you know, as I went from one side of the courtroom to the other side of the courtroom, there were a lot more I will say a little bit more favoritism to the prosecution and to the defense, and it became an uphill battle and many times it felt like it was an unfair fight two against one, the judge and the prosecutor against me as the defense attorney.

Speaker 2:

And do you feel that the degree of that changes depending on the crime?

Speaker 3:

Most definitely yeah. If it were a high-profile crime, I think the general consensus was let's keep this individual behind bars. It's a safer place in the community if we keep this person locked up, even if they haven't been convicted. And that was happening time and time again where I was seeing that, particularly during COVID. When COVID happened, I think there was a lot of compromises being made and a lot of sacrifice to the constitutional rights of the accused and it was really in the name of just keeping the system moving, keeping cases moving through the system, and people were not really getting their days in court and it wasn't face-to-face. This whole virtual thing that took over, which still exists, quite frankly, in New Jersey Municipal court level. They're still doing municipal court virtually so that you don't have to appear in person and really the only way you get your day in court is to say I want my day in court and I want it to be in person. I don't want this to be on a camera. So I saw a lot of changes happening. People were being held in jail a much longer period of time and there was something called the Criminal Justice Reform Act in New Jersey that came about, which basically eliminated cash bails, and what it did was it kept people in jail longer, were almost indefinitely, until they got their day in court.

Speaker 3:

What it became was an algorithm where the judges would get a numerical calculation based on a risk assessment involving the degree of the crime and what the exposure is. In other words, if they were convicted, what would be the outcome? Would they go to prison? Would that be a likely outcome? And what was the degree of the crime? And then they would look at the individual Do they have a likely outcome and what was the degree of the crime? And then they would look at the individual Do they have a criminal history?

Speaker 3:

Back in the old days, we simply did a risk of flight Are you a risk of flight and a danger to the community? And that was the prerequisites or the requirements that the court would look at. Now it became controlled through an algorithm, this numerical calculation, and many judges that, quite frankly, were not experienced in criminal law were looking at this algorithm as it was the gospel truth. So they would be married to that number and they would say this is what the numbers are. This is what the public safety, psa, public safety assessment is. This is what the number is and that's what it is your client's going to stay in jail.

Speaker 3:

I had that more and more, and it was a very challenging time, I have to say. I appealed many judges' decisions throughout this time and the appellate courts were very reluctant to step in and say the judge was wrong.

Speaker 2:

That is so interesting I didn't realize they had an algorithm that said innocent until proven guilty is thrown out the window. If you've got, are going to be convicted without looking at the evidence.

Speaker 3:

Well, it didn't really evaluate. I mean, that was one of the factors to consider was what is the evidence in the case and you would get like a preliminary. You had to request it, but the prosecutor had an obligation to turn over to you the preliminary discovery, the discoverable materials, and that happened and you would have an opportunity to look at that and challenge it early on. But nine times out of ten, if the prosecutor wanted your point behind bars until they got their date, they were staying there and the judge bought into that.

Speaker 2:

Wow, that had to be definitely a challenge for you Most definitely Having seen the other side, absolutely.

Speaker 3:

Most definitely.

Speaker 2:

So you're a victim addict, you do victim representation. Now Can you explain kind of what you're doing in that aspect?

Speaker 3:

Yeah, well, that was kind of like in the past life as well. I mean, I've been active as a criminal defense attorney for 35 years and you know I did a lot of crime victim representation and throughout the years I talked about a couple of the cases, but another involved a robbery an armed robbery where a young man was shot and killed. I represent the mom in getting funding through the state for his funeral expenses. I'm involved in that organization primarily because of my connection to one of the founders of the New Jersey Crime Victim Law Center. Rick Pompilio is his name. He started the foundation in honor of his son who was murdered many years ago, and Rich became a very big, active advocate on behalf of crime victims. To get, in fact, the crime victims amendment to the Constitution in New Jersey was largely the result of Rich's efforts and I talk about his involvement in one case in particular.

Speaker 3:

I had an attempted murder case I was prosecuting. A woman's throat was slit, ear to ear, she literally had a box cutter and her husband had left her to die outside of a supermarket. Somehow she made it into the supermarket and they were pre-paper towels into her neck to save her and get her medical attention. Thankfully she was saved and we ended up going to trial. The husband claimed that he suffered from some form of diminished capacity. Through the investigation we learned that he was having an affair and he tried to murder his wife, the mother of his two children and I have to say, one of the britches involved in that case was when I tried to show a photograph of how she appeared prior to the incident to the jury, so they could, you know, look at how she looked before, how she looks now, if she testified, because she had suture marks all through her neck.

Speaker 2:

Of course.

Speaker 3:

It was pretty gruesome and I wanted them to see how she looked before the defense attorney objected and we had to go through a series of motions, let's say, to get that picture admitted and Rich was involved in that process a little bit. So we got to know each other much better and that's how I got really affiliated with the crime victims movement, the representation of crime victims over the years. But you know, rich had a tremendous impact on a lot of cases and then actually asked me to become involved in many cases over the years. But Rich had a tremendous impact on a lot of cases and actually asked me to become involved in many cases over the years and certainly I recognized and appreciated his experience.

Speaker 2:

So it sounds like working on both sides of the courtroom has put you in the position of being in some high-profile cases and actually being very close to rewriting the laws in certain areas profile cases and actually being very close to rewriting the laws in certain areas.

Speaker 3:

Well, to some extent, yes, because I also was a legislative aide for some of the local state senators. That did that also, where I had the opportunity to draft some potential legislation. One of the laws in particular that came into was signed legislation or law was the Good Samaritan law, where and I worked with a family who lost their son due to a heroin overdose and the bystanders there that they were, all you know, doing heroin together. They were reluctant to call the police because they were afraid they would be charged with the points for the possession. You know that the heroine was there and they were reluctant to call the police and he died. So now, and actually it got a lot of attention because Jon Bon Jovi's daughter had the same situation happen to her in college and he got behind this legislation it passed into law in New Jersey the Good Samaritan Law which allows for these people to call the police without repercussion to have immunity.

Speaker 3:

So yeah, I've had some involvement in some pretty high-profile situations which actually had impacts and changed the laws. So it's been significant. You know I'm grateful for the career I've had, experiences I've had. I didn't talk about the continuation of that case, the woman that had her throat. So the jury was out for less than 15 minutes. They found the husband guilty. He was sentenced to 20 years, 10 years without parole.

Speaker 3:

And ultimately that was my introduction to TV, becoming a TV legal analyst. Because I was contacted by the Geraldo Rivera show. At that time it was 1995 or 1996. And they wanted to do a show on spouses that are abused you know, domestic violence cases and I contacted her about it. I said, hey, they want you to be guests on the show, they want to talk about the experience and what happened. And she said, jim, I'm not going to go on the show unless you're sitting next to me. So I contacted them. I said, look, she wants me to be with her, I'm happy to do it with her. If she wants me to be there, I will be there. But they came to me, asked me questions on the show and that was kind of my introduction to get involved with Court TV and CNN and I did a lot of high-profile cases over the years, like OJ Simpson, the Menendez brothers you name it.

Speaker 3:

I mean one case after another, and they were all in the national media. They got a lot of media attention and they seem to have all come around to what the cases seem to have. You turn on Netflix and these are active cases today Scott Peterson that was another case I was heavily involved in and Robert Blake, phil Spector and Michael Jackson number two, oj, number one and number two. So these were cases that really were getting the media attention at the time and I had the opportunity to talk about them and critique them or criticize, let's say, or give an overview of my thoughts regarding the prosecution and defense in those cases.

Speaker 2:

That's very. That's interesting. I'm dying to read your book now, so let me. If we're going to talk to a young attorney that's just getting out of college, would you suggest they try both sides of the aisle? You work in a restaurant.

Speaker 3:

Oh, I think so. Yeah, and I teach a law class called persuasionocacy at Seton Hall Law School, Seton Hall University Law School in Newark, New Jersey, and you know, I impress upon the students that it's good to be well-rounded, have the opportunity to see both sides. In general, going to law school teaches you how to think like a lawyer, to be analytical, so that you can take on both sides and argue both sides either the defendant and the plaintiff or the state and the defense. But it doesn't really teach you how to practice law. I mean, that's a different thing that you acquire, but it teaches you how to think like a lawyer.

Speaker 3:

But I think ultimately it's about life experience and I found that the more experience I got in life, you know, as time went on, I could see things a little bit more objectively. And I know, as a young prosecutor I was very aggressive, very wanted very much to do justice. And then I later, you know you look up the definition of what justice is and what is the role of a prosecutor. The prosecutor's role is to do justice, it's not to convict people. What is the role of a prosecutor? The prosecutor's role is to do justice, it's not to convict people, it's really to look at the case and evaluate and determine whether they have ample evidence, sufficient evidence to prove the case beyond reasonable doubt.

Speaker 3:

And then I looked at the role of judges in cases. You know, were they predisposed in some manner? Were they somewhat tainted, let's say, Could they be impartial, fair, objective, neutral, unbiased? These are the words, you know, these are important words and unfortunately that is not happening today. Judges are taking on cases where they clearly have an interest in the outcome of the cases and they're steering them in that direction and that should not happen. That should not happen. It shouldn't be for us in politics or anything like that, and we need to remove that.

Speaker 3:

And it's very difficult to do, Very, very difficult. I mean, I can tell you in New Jersey we appoint judges by the governor appoint judges and prosecutors and I discussed that in the book as I was up for prosecutor. The head prosecutor job twice in Morris County and I discussed that a little bit in the book. Prosecutor job twice in Morris County and I discussed that a little bit in the book. But that is a process that's done politically. The governor that is elected appoints the prosecutor, the attorney general, judges. They have the executive power to do that. That's part of their executive role. Now, in other states it's very different.

Speaker 2:

It's elected Exactly.

Speaker 3:

Judges and prosecutors are elected by the people. So what does that mean? That means you have to run a campaign, you have to raise money, you have to raise finances and it's expensive to run a campaign these days and that means you're going to have people donating money to you. Well, with the donation of money comes interest and there's going to be conflicts along the way. So it gets challenging. Definitely is challenging. I understand that.

Speaker 2:

Yeah, I think. I think in some instances we're running into frostbite when you, when you're talking about that, I absolutely agree. I know that my, my listeners would want to connect with you. Obviously, pick up a copy of your book. How do people reach out to you and connect with you? How do they best?

Speaker 3:

I'm easy to find. I mean they can just search my name on the internet and they'll find me. But I'm affiliated with a law firm. Right now I'm of counsel with Einhorn, barbarito, frost, botwinick, nunn and Mosmano. We're located right now in Denville, new Jersey. We're going to be moving soon but we have about 45 attorneys and I'm of counsel in the criminal section. But they can certainly look for my name and they'll find my affiliation with the firm. I have my own website, wwwporfidolawcom. I have a website dedicated to the book that I created with the publishers, wwwunequal-justicecom, and the book is available on Barnes, noble and amazoncom.

Speaker 2:

Okay, perfect, we'll make sure that those URLs are in the show notes and the link to the book is in the show notes as well, so that'll be excellent. It's been a pleasure having you here. Thank you so much for chatting with us today.

Speaker 3:

Thank you, Marilyn. There's so much to talk about. We could talk for hours and hours and I appreciate it.

Speaker 2:

it's so interesting, Absolutely.

Speaker 3:

Well, thank you, I appreciate the opportunity.

Speaker 4:

Thanks for joining me today for this episode. As we wrap up, I'd love for you to do two things. First, subscribe to this podcast so you don't miss an episode, and if you find value here, I'd love it if you would rate it and review it. That really does make a difference in helping other people to discover this podcast. Second, you can connect with me on LinkedIn to keep up with what I'm currently learning and thinking about. And if you're ready to take the next step with a digital strategist to help you grow your law firm, I'd be honored to help you. Just go to lawmarketingzonecom to book a call with me. Stay tuned for our next episode next week. Until then, as always, thanks for listening to Leadership in Law podcast and be sure to subscribe wherever you listen to podcasts so you don't miss the next episode.

Speaker 1:

Thanks for joining us on another episode of the Leadership in Law podcast. Remember you're not alone on this journey. There's a whole community of law firm owners out there facing similar challenges and striving for the same success. Head over to our website at lawmarketingzonecom. From there, connect with other listeners, access valuable resources and stay up to date on the latest episodes. Don't forget to subscribe and leave us a review on your favorite podcast platform. Until next time, keep leading with vision and keep growing your firm.

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Marilyn Jenkins

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