Thank you for the opportunity to assist you.
First, I'm very sorry you and your daughter are going through this. I have represented several mentally ill clients, a few so profoundly mentally ill that they were effectively unable to exist in society, and they were hospitalized, likely for the rest of their lives. As you are undoubtedly aware, BPD is a serious condition, are there few if any really good medications that treat the root causes of BPD. Some meds help relieve symptoms, but I don't know of any that really get to the heart of the problem, the same way other conditions (schizophrenia, bi-polar, etc.) can be treated.
Regarding the issues and questions you've raised, I'll address these one at a time.
Q) A few days later the police showed up at the hospital psych ward and arrested her for possession with intent to distribute
There are three main types of drug offenses. Simple possession, which is the least serious; distribution, which is much more serious; and possession with the intent to distribute (PWID) which is in between the first two. Simple possession means possessing drugs for one's own personal use; distribution means (usually) selling drugs to someone else, normally for profit.
With PWID, the person is simply possessing, so that's normally a less serious crime. BUT, the intent to distribute part means that the possessor intends to sell. So, that makes it more serious than just simple possession.
The key is that the possessor must have the PRESENT intent to sell. Think of a drug dealer standing on the street corner. He's in possession and ready to sell, he just hasn't made any sales at the time of possession.
My guess is that the cops did a search warrant for the hotel room after your daughter was removed and found LOTS of stuff in that room that points to drug distribution activity. Money, guns, packaging materials, a large or bulk quantity of drugs, scales, etc. This boyfriend was probably dealing, and he's just stupid enough to be a dealer AND a user. (I've represented a lot of drug dealers. The "best" ones are strictly business people and do NOT use their own product.)
Then, the boyfriend is questioned by the cops and says that he just uses now and then, but your daughter is the big time dealer, or something like that. So, the cops just arrested everyone. To arrest a person, the legal standard is probable cause
, which is a ridiculously low evidentiary standard. I know it sounds crazy, but it happens all the time.
In reality, a person who is so mentally ill that she attempted suicide is NOT a person who also had the present intent to distribute a controlled substance. I don't know what was going through this cop's mind, but it wasn't logic or common sense.
If a judge eventually finds that probable cause did not exist at the time of her arrest to charge her, the charges will be dismissed. Even if a judge decides her arrest passes the PC test, I have a hard time believing any judge or jury would convict her as charged, given the circumstances.
Q) She was told what the charges were and taken to county jail where she sat for six days in solitary before going before a judge who briefly explained her rights
This is a not-infrequent problem without much of a remedy. The U.S. Supreme Court has stated that people must be informed of the charges against them as soon as reasonably possible after arrest. But, if your daughter saw a magistrate who had the opportunity to conduct a bail hearing within a reasonable time (NJ law says within 12 hours), the requirement was satisfied.
The remedy for this sort of violation is actually a habeas corpus
petition. It challenges the legality under the federal constitution of a person's continued detention by the government. You might recall about a decade ago, under the GW Bush administration, where Guantanamo detainees ("enemy combatants") challenged their detention without being charged or given access to an attorney
? That was a habeas action.
I wouldn't waste your time with one at this point. Habeas can be a time consuming, complex and expensive civil lawsuit that will probably not really get underway until after your daughter is well through or has finished the process of dealing with her current charges. The benefit will be minimal, if any.
Q) No one asked her any questions and I don't know if arresting officers read her her rights
A Miranda warning
(recitation of the 5th amendment right to remain silent and to an attorney before or during questioning) is only required when police question someone who is in custody. It is not required "automatically" whenever a person is arrested. That only happens on TV shows.
The only way this might be an issue is if the cops later claim that your daughter made incriminating statements in response to police interrogation after she had been arrested. If so, the remedy is for her lawyer to move the court to suppress
(keep out of evidence) the statements if she was not read a Miranda
Q) When I asked court clerk about time limits for setting bail I was basically told that a superior court judge can do what he wants
All at once I'm stunned a clerk said this, and yet not surprised in the slightest.
Seriously, that's not right. The NJ constitution has long had a state constitutional provision for bail. So, it may be an abuse of power, or at least an abuse of discretion, for a judge to insist on hearing a particular request for bail and then essentially keep putting it off or just not scheduling a hearing.
Her attorney needs to file a motion to set bail on the failure to appear charge and get her in front of the judge. End of story. Once this mess has all been sorted out, you could look into filing a complaint about the judge's actions (or lack thereof) with the Advisory Committee on Judicial Conduct
. They regulate and punish judge's conduct the same way the NJ State Bar regulates and punishes improper conduct by lawyers.
Q) I would like to know what recourse my daughter has, if any? I can find court rules governing procedure but can not find anything about what can be done if courts don’t follow the rules, i.e. motions filed etc requesting that bail be set
I think I've answered this above. File a motion to have bail set. Her attorney can do this.
Q) Not being able to understand what’s going on or why this is happening has created severe emotional trauma for my daughter. She is almost 5 months pregnant, has gained no weight and may still be suicidal. I can only imagine what impact this is having on the unborn child
The issue of adequate medical care while incarcerated often comes up. In 2011, the U.S. Supreme Court ordered California to reduce its prison population because the conditions the prisoners were living in, including medical care (or lack thereof) was so horrible it violated prisoners' protection against cruel and unusual punishment. CA is still working on that.
Unfortunately, the legal standard is still the same: a prisoner is entitled to receive "adequate" medical care. In order to make a claim for an 8th amendment violation for not receiving adequate medical care, "...a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs
." Estelle v. Gamble
, 429 U.S. 97 (1976).
So, it's a factually based claim. The general rule is that the lack of care must be pretty profound. BotXXXXX XXXXXne: it's an uphill battle.
One issue that needs to be addressed if your daughter's comptency to stand trial
. Assuming that the prosecutors are not going to immediately recognize the huge mistake they've made by charging her, your daughter's attorney needs to file a motion for an evaluation to determine whether she is mentally healthy enough to go forward with trial. Try to get her out on bail, first, as an evaluation could take a month or two, and we don't want her sitting in jail any longer than necessary.
Q) Is it possible to file a complaint against the prosecutor and officers that filed the charges, arresting her, taking her out of the psychiatric facility without asking her any questions and total disregard to her physical and mental well being as well as that of the unborn baby
Probably not against the prosecutors, except under rare circumstances. Prosecutors generally have immunity from lawsuits, absent doing something out of this world extraordinary. (Although it does happen
from time to time.)
The police, maybe. The remedy your daughter might have is to file a civil rights suit under 42 USC 1983
. This is a federal lawsuit against state actors, like police, who violate someone's rights. The only problem is that if the police had probable cause to arrest her, that might severely limit her ability to sue. Seek out a civil rights attorney who is familiar with civil rights claims in federal court to determine whether this is an avenue that can be pursured.
I am sure this must be heart breaking for you. Your daughter is 19, and thus an adult, but she's not really a grown-up at 19. You as her parent want to help her, but she's not a "little girl" anymore, and there may not be much you can do, especially if she's not willing to accept help. Add to that the challenges of BPD, which generally includes a strong resistance to treatment, and you've got quite a combination. Thank goodness, if nothing else, she has a parent who hasn't given up and is still trying to help.
I wish you the very best with your daughter and her case. I also hope my response has been helpful. If you have follow-up questions or concerns on this topic, please ask. Otherwise, please rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.