City Judge Is Reprimanded for Doubling as Prosecutor in Case Court adopts new standard for disciplining judges for their bench rulings Michael Booth, New Jersey Law Journal The New Jersey Supreme Court on Monday reprimanded a former judge for denying two men public defenders in a criminal trial while at the same time stepping into the role of prosecutor. In disciplining former Linden Municipal Court Judge Louis DiLeo, the unanimous court adopted a new standard for imposing punishment on judges when their conduct on the bench runs awry: where a “reasonably prudent and competent judge” would consider the conduct “obviously and seriously wrong in all circumstances.” And the error must be “made contrary to clear and determined law about which there is no confusion or question as to its interpretation,” and that the error must be “egregious, made in bad faith, or made as part of a pattern or practice of legal error.” DiLeo had denied requests by two defendants to be represented by public defenders in a theft case and also conducted the case without prosecutor present. Instead, he took on the prosecutor’s role, examining the arresting officer, cross-examining the defendants and using the testimony he elicited to find the defendants not credible. The court agreed with the Advisory Committee on Judicial Conduct that reprimand was in order, even though the ACJC conceded that the case is one of first impression, as the Code of Judicial Conduct and New Jersey case law do not delineate a standard for when a judge’s evidentiary or procedural rulings rise to the level of ethics violations. Ultimately, the court found DiLeo violated Code of Judicial Conduct Canon 1: A judge should observe high standards of conduct so the integrity and independence of the judiciary may be preserved; Canon 2A: A judge should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary; and Canon 3A(1): A judge should be faithful to the law and maintain professional competence in it. Bruce McMoran, who has represented other judges in disciplinary cases, including former Justice Roberto Rivera-Soto, says the clarification is welcome. “The court has established a standard in cases in which there are legal errors by judges, rather than the case-by-case basis as had been the standard before,” says McMoran, of McMoran, O’Connor & Bramley in Wall. “The ruling protects judicial independence, preserves public confidence in the judiciary, sets a standard for the ACJC and provides guidance for judges.” DiLeo’s lawyer, Anthony Vignuolo, of North Brunswick’s Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, says, “It’s clear they adopted a new standard. The question is: Why did they decide to apply it retroactively?” In the underlying case, cousins Anthony and Wendell Kirkland were arrested in Linden in October 2009 and charged with trying to steal tires from a car. They first told DiLeo they wanted to retain private counsel but later sought to be represented by public defenders. DiLeo found they had waived that right and tried the case without defense lawyers. Also absent was Linden’s municipal prosecutor, Nicholas Scutari, the Senate Judiciary Committee chairman, who had gone home for the day. DiLeo conducted direct examination of the arresting officer and then invited the Kirklands to question him. They did not, and DiLeo asked the Kirklands if they had any witnesses. They said they did, but none were in the courtroom. DiLeo found there to be no defense witnesses. DiLeo advised the Kirklands of their Fifth Amendment privilege against self-incrimination, but then invited the arresting officer to cross-examine them. After cross-examination, DiLeo questioned Anthony Kirkland about his conduct on the night of the arrest. The judge found the defendants guilty of theft of movable property, possession of burglary tools and possession of less than 50 grams of marijuana. Both received jail sentences. The Kirklands appealed to the Superior Court Law Division and the Union County Prosecutor’s Office took the unusual step of joining in. In March 2011, Superior Court Judge Scott Moynihan dismissed the drug charges and remanded to a different municipal court for trial on the remaining ones. By that time, the Kirklands had spent 124 days in jail. In Elizabeth Municipal Court, both Kirklands entered guilty pleas to disorderly persons offenses and the remaining charges were dropped. In January 2012, the Linden City Council declined to reappoint DiLeo, who had been the judge since 2003. “The undisputed facts clearly and convincingly demonstrate that Judge DiLeo committed egregious legal errors in his conduct of the proceedings involving the Kirkland brothers. The Committee on Judicial Conduct, and the Law Division in its de novo review of the Kirkland brothers’ convictions, both also concluded as much,” the court said Monday. “Each expressed that the obvious — indeed outrageous — errors committed by the judge denied the Kirkland brothers not only their constitutional right to have the publicly appointed counsel they had requested, but also their right to due process of law. The justices adopted the objective standard set by Maine in In re Benoit, 487 A.2d 1158 (Me. 1985), namely, that there must be clear and convincing proof of objective legal error of the type that a “reasonably prudent and competent judge” considers the conduct “obviously and seriously wrong in all circumstances.” Plus, the error must be ‘made contrary to clear and determined law about which there is no confusion or question as to its interpretation,’ and that the error must be ‘egregious, made in bad faith, or made as part of a pattern or practice of legal error,’” the court said, quoting the Louisiana Supreme Court in In re Boothe, 110 So. 3d 1002 (La. 2013). “The ‘plus’ requirement ensures that not every legal error, even if clear and unmistakable to a competent jurist, constitutes a violation of the Code, which necessarily leads to a determination of whether the judge should be sanctioned,” the court said in In the Matter of Louis M.J. DiLeo, D-66-12. Read more: njlawjournal/id=1202640127492/City-Judge-Is-Reprimanded-for-Doubling-as-Prosecutor-in-Case#ixzz2reiawpoc
Posted on: Tue, 28 Jan 2014 02:22:31 +0000
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