Diner

A (now former) prosecutor has been censured by the New Jersey Supreme Court for his interactions with a criminal defendant.

From the report of the Disciplinary Review Board

As of December 17, 2018, A.E. had been enrolled in drug court for two years, and respondent had been assigned to the program for six months. On that date, A.E. met with probation officers, to whom she reported her concerns about respondent. Specifically, A.E. reported that, on three separate occasions, beginning on October 31, 2018, respondent (1) left the courtroom during her mandatory, weekly drug court appearance, (2) waited for her in the courthouse hallway, and (3) after the conclusion of her court appearance, engaged her in a conversation outside of the courtroom. More concerning, A.E. also reported that respondent twice visited the diner where she worked. On his first visit, respondent provided A.E. with his telephone number along with a tip. Prior to his second visit, respondent called A.E.’s place of employment to confirm that she would be working before visiting.

A.E. asked the probation officers not to take any action taken against respondent as a result of the information she reported. The probation officers, however, advised A.E. of their obligation to report her concerns. Later that day, one of the officers prepared a formal memorandum memorializing A.E.’s statements about respondent, and forwarded the memorandum to the PCPO. The next day, on December 18, 2018, the PCPO both notified respondent that they had received an internal affairs complaint against him and interviewed the probation officers.

The following day, on December 19, 2018, the PCPO also interviewed A.E.1 In that interview, A.E. elaborated upon the information previously provided to the probation officers. Specifically, A.E. stated that, on three occasions, respondent left the Superior Court, Passaic County courtroom during her drug court appearance and waited in the hallway to speak with her after the conclusion of her matter. During their conversations, respondent questioned A.E. about her progress in drug court, the days she reported, and when her matter would conclude.

A.E. described respondent’s efforts to start a conversation with her as awkward. A.E. would reply to respondent’s questions, while continuing to walk, so that she could leave the courthouse. To avoid prolonged conversations with respondent, she elected to take the stairs to exit the courthouse, instead of waiting for the elevator. A.E. referred to her actions as trying to “escape” and “avoid” respondent. She described feeling “uncomfortable and intimidated” by respondent’s behavior. A.E. also observed that respondent did not leave the courtroom and wait in the courthouse hallway for any other defendants.

The drug court program required that A.E. provide personal information, such as her place of employment, her residence, and social contacts. A.E. stated that, during their courthouse conversations, respondent asked her whether she still worked at the diner, when she worked, and for the location of the diner.

Respondent first visited A.E.’s place of employment between October and November 2018, at which time he wore a suit. A.E. initially believed that respondent requested to sit in her assigned section at the diner, because he sat alone in a four-person booth, a placement the hostess would not ordinarily make absent an express request. At the diner, respondent engaged A.E. in a conversation about her tattoos. In particular, he complimented her hand tattoos, calling them “hot,” and inquired whether she had others. Respondent also inquired regarding who A.E. spent time with and what she enjoyed doing in her free time, which she perceived as his indirect inquiry into whether she was in a relationship. A.E. briefly answered respondent’s questions, but then walked away. Prior to leaving the diner, respondent left A.E. a $10 tip, in addition to a piece of paper with his telephone number and the name “Joshua” written on it. A.E. threw out the piece of paper and did not call respondent.

A.E. later confirmed her initial belief that respondent had requested to sit in her assigned section at the diner. Specifically, the diner’s owner subsequently informed A.E. that a male had called the diner and inquired whether she would be working that day. A.E. recalled overhearing the diner’s owner and respondent speaking when respondent arrived at the diner, at which time the owner stated to respondent “oh you are the one who called,” to which respondent replied in the affirmative and asked to sit in A.E.’s assigned section. Although A.E. reported that respondent had called the diner prior to his second visit to her place of employment, respondent’s county-issued cellphone records demonstrated that he actually called her place of employment on November 2, 2018, prior to his first visit.

The following month, on a weekend in December 2018, respondent made a second visit to A.E. at her place of employment, and again sat in her assigned section. Respondent commented “[o]h wow, this place is really busy. I have to start coming here more often.” A.E. described respondent as “watching [her] the whole time” and stated that a co-worker also noticed respondent “staring at her up and down.” A.E.’s co-workers referred to respondent as her boyfriend, but A.E. told them that he was her teacher, because not all her co-workers knew about her enrollment in the drug court program.

A.E. again described respondent’s behavior as “intimidating” and “uncomfortable.” She added that it “creeps [her] out” that respondent called her place of employment to see if she would be there and, subsequently, visited her place of employment, alone, and requested to sit in her assigned section. A.E. expressed fear for her safety, generally stating that she had reported the incident to her probation officer in case something happened to her.

There was an investigation

Respondent admitted that he spoke with A.E. outside of the courtroom but maintained that they merely exchanged pleasantries. He also admitted that, during these conversations, A.E.’s public defender was not present. Notwithstanding, respondent rationalized that A.E. had enrolled in drug court prior to him becoming the assigned prosecutor and that he had never participated in her matter before the court.

In the bar proceeding, he admitted a conflict of interest and unauthorized communications with a represented person as well as discriminatory conduct.

The DRB

In the instant matter, respondent held a position of power over A.E. He was a prosecutor in the drug court that required her regular reporting and, ultimately, would decide whether she remained on probation or would be incarcerated. Their association is comparable to that of a detention officer and a detainee.

Sanction

On balance, we determine that the aggravating factors outweigh the mitigating factors, and that a censure is the quantum of discipline necessary to protect the public and preserve confidence in the bar.

(Mike Frisch)