State v. Berisha, 458 N.J. Super. 105 (App. Div. 2019).  None of us likes to admit our mistakes.  That includes judges, of course, though judges sometimes do change their minds, as discussed here.

Yesterday, Judge Fisher issued a panel opinion in this post-conviction relief appeal involving a claim of ineffective assistance of counsel.  He unabashedly confessed error by a prior panel, on which he sat (with two other, now-retired judges), on defendant’s direct appeal.

In the very first paragraph of his opinion, Judge Fisher noted that the prior opinion had been “clouded by our inconsistent reasoning when rejecting defendant’s arguments in his direct appeal.”  He went on to say that defendant “is right” in his assertion that the prior panel was “not even consistent when discussing the self-defense issues in our direct appeal opinion.”  Declining to “ignore nor attempt to parse our way through what we previously held,” as the instinct of most of us when confronted with our own errors, the panel here instead “acknowledge[d] that we were inconsistent in our holdings about the part self-defense played at trial when we affirmed defendant’s conviction.”

Judge Fisher went on to discuss the prior ruling in detail.  He noted that that panel first indicated that defendant presented a claim of self-defense, and that “the jury to some degree bought into that defense.”  Later in its opinion, however, the panel stated that defendant was not entitled to a self-defense jury charge because “the defense of self-defense would likely have been unsuccessful.”

Judge Fisher concluded that the prior panel was “right the first time … [and] wrong when we concluded elsewhere in the same opinion that the omission of an instruction on self-defense had no capacity to produce an unjust result.”  He referred to his statement in that regard as a “confession of error.”  Since “the evidence fairly suggested the applicability of self-defense … and counsel’s failure to request a jury instruction on this defense prejudiced defendant’s right to a fair trial,” the panel reversed the order denying post-conviction relief and remanded for a new trial.

New Jersey has a remarkably gifted bench of appellate judges, who usually get things right.  But no one is perfect, and it is refreshing to see that appellate judges can frankly admit error.