Javier Velez with his mom and dad.
A grieving mother is using her own frustration in the justice system to try to fight for others.
Kaylah Smith testified before a state Senate Judiciary committee Thursday afternoon in support of a bill that would change New Jersey’s bail reform to add reckless vehicular homicide and strict-liability vehicular homicide to the short list of crimes that presume pretrial detention.
The little boy who turned 8 earlier that month died at the hospital.
The 25-year-old driver already had been picked up and was home, Smith said.
“The same three hours I spent suffering, trying to wake a dead child up. The same three hours it took for my baby’s body to get stiff on me is the same three hours it took for (Johnston) to be fingerprinted and sent home,” she said.
It would be four months before Edward Johnston was criminally charged. A week later, he was released from jail.
“Can you imagine how it felt to finally see the man who took your child away from you in jail after waiting four months just for him to be released a week later?” she asked Thursday. “Imagine what a slap in the face that was to our family.”
Now, she has made it her mission to make sure that does not happen in the future.
While she waits for her son’s case to go through the court system, Smith is doing everything she can to change the way these cases are handled.
Under New Jersey’s bail reform, the presumption is that a defendant is not held pretrial. If the state does make a motion for detention, they must overcome the presumption, with the defendant’s criminal history and the safety of others contributing to their argument.
But Johnston has no criminal history.
“The criminal record started that night,” Smith testified. “The night he took an innocent child’s life. The night that he decided to drink at bars and casinos, and then get in his vehicle and speed 107 mph in a 50-mph zone.”
The Atlantic County Prosecutor’s Office tried to fight the judge’s decision to release Johnston, but lost the appeal.
Javi with his little brother, Jerry.The public safety assessment, which is used to help determine whether a defendant is held pretrial, recommended Johnston be detained.
That was because the belief was that the presumption was to detain in such cases, BreakingAC later confirmed.
But that is not the case — at least for now.
Senate Bill 2295 sponsored by Sens. Vince Polistina, R-Atlantic, and Brian Stack, D-Hudson, would add reckless vehicular homicide and strict-liability vehicular homicide to the short list of charges that presume a defendant’s detention pretrial.
Currently, only murder and any case where the defendant faces possible life imprisonment carry the presumption of detention.
“Pretrial detention cannot constitutionally be designed to punish, and that includes deterring people who have not been convicted of a crime,” said ACLU Deputy Policy Director Jim Sullivan, who testified against the proposal.
“We thus far have no data that suggests that people charged with reckless vehicular homicide or strict-liability vehicular homicide are routinely being released pretrial,” he said. “More over and, more critically, we do not have data suggesting that, if released, people being charged with those offenses either committing new crimes or failing to show up in court when required.”
But at least one state senator said she did not need the numbers.
“As you were speaking, it kept going through my head: This is our data. This is the metrics,” Sen. Kristin Corrado, R-Bergen, told Smith. “I don’t need numbers. I don’t need statistic. What happened to your family should not happen to anyone.”
“Your story is more powerful than any number or data or metrics could possibly be,” Corrado said, adding that she wants to be added as a co-sponsor to the bill.
“You have my commitment that I’ll make sure it’s up for a vote at the next committee meeting and we’ll move it to the full Senate vote,” said Stack, who heads the Judiciary Committee.
LISTEN TO THE FULL TESTIMONY (begins at about 2:30 mark)
Sen. Mike Testa, R-Camden, said he looked up the numbers when the ACLU’s Sullivan asked about data.
Fatal crashes in the first part of this year are up 12.3 percent over the same time last year, he said.
“We know they’re going up, and something needs to be done as a deterrent for doing this,” Testa told Smith. “I want to commend you, your family and friends for being here today. No amount of what we do in this building under the gold dome will bring Javier back, but he deserves justice as does your family.”
While Thursday was just a presentation of the proposed change, Testa predicted a unanimous approval when a vote does come.
"Quite frankly I think we should be voting on today," he said.
Until then, Smith said she will continue to fight.
She has talked to reporters, done podcasts, made videos and put together a petition to change the law that has 11,000 signatures, with more still coming each day, she said.
“Daddy, wake me when we’re home,” were her son’s last words, she told the committee. “But my son never got to wake back up and my son never got to make it back home.”
Smith told BreakingAC after her testimony that she “was definitely nervous, but I’ve been preparing for this day since my son’s life was taken and the driver was home that night. I knew that very night that I was going to do everything in my power to get the laws changed so that doesn’t happen to someone else.”
