On appeal from the Appellate Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Burling, Jacobs and Brennan. For affirmance -- Justices Heher, Oliphant and Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J. (dissenting). Oliphant and Wachenfeld, JJ., join in this dissent.
Since January 2, 1951 successive grand juries have been investigating widespread gambling activities in Bergen County and the corruption of public officials in the county
by racketeers. In this connection on February 24, 1953 the grand jury subpoenaed Mr. John E. Selser, a member of the Bergen County bar, to appear before it and testify. He testified that one of his clients was Guarino Moretti, also known as Willie Moore, but more commonly referred to as Willie Moretti, a notorious racketeer who was murdered on October 4, 1951 in a crime which still remains unsolved. Moretti was one of the star witnesses before the Senate Crime Committee, Kefauver, Crime in America (1951), pp. 271-275. As early as 1931 Willie Moretti had been a client of Mr. Selser, who represented him on many occasions, most notably when he was indicted on the charge of murder. Mr. Selser testified that beginning in 1931 he represented a group of racketeers:
"Q. Now, you say that you first represented these so-called racketeers back in 1931?
A. Yes, sir. I represented two of the men. Of course there were other men at that time. There was, let's see, a guy named -- I remember him as Chicago Fat. I think his name was Sabio, or some such name. There was Kid Steech, S-t-e-e-c-h, as I remember the spelling of it. I can't think of his name at the moment. I think there were five of them altogether, including Willie and Solly Moretti * * * They are the clients that have been termed the racketeer element."
From 1944 to 1949 Mr. Selser was first assistant prosecutor of Bergen County. On more than one occasion he was approached by the Moretti brothers, who offered him $1,000 a month to refrain from investigating their criminal activities in the county:
"Q. Well, now, do you recall your testimony before the Grand Jury, where you were Assistant Prosecutor, or shortly after you had been appointed Prosecutor, when you were contacted with reference to a payoff?
Q. And you were offered $1,000 a month as First Assistant Prosecutor?
A. That's absolutely so * * * That was, I think, even before I was sworn in as First Assistant Prosecutor, and I went on in my testimony and said I reported this to Walter Winne [then county prosecutor of Bergen County].
Q. Just so that the jury would have the background on this, could you tell us how that came about, that you were offered this money?
A. Well, now I am thinking about it. I think it was Solly. I think you are right. Solly was the first one to come to see me. Solly came into my office and told me -- this was at 210 Main Street, my own private office -- told me they wanted to congratulate me for coming into office as First Assistant Prosecutor. He said: Of course you know that you are entitled to some money.' I said, 'Why, Solly?' He said, 'Well, you are. I mean, there's money being made, and you are entitled to $1,000 a month.' I said, 'I don't want it. I don't want a nickel with you, Solly. Back in the time I represented you, you got 100 per cent of loyalty. I am going to represent the State now, and the State will get 100 per cent of loyalty, so you cannot pay me a nickel, Solly, not a nickel.'
Q. Were you ever approached again during the time you were Assistant Prosecutor by anyone?
Q. Can you tell us who approached you the second time?
A. You were right a moment ago. It was Solly first and Willie came to me after I was sworn in. He said to me, 'Why are you so foolish? Why don't you be a good boy?' I said, 'I am being a good boy, Willie. Every gambling operation I hear anything about I report,' and he very clearly indicated to me that there was an accumulation of money if I wanted it. * * * He then asked me whether or not I would like to be United States Attorney? I said, 'Don't be foolish. You couldn't make me a United States Attorney. Let's not be funny about it, Willie.'"
The attitude of the Morettis toward the defendant, as narrated by him, is illuminating. In addition, there is no doubt that while serving as assistant prosecutor the defendant was aware that money was being paid to officials for the protection of gambling interests:
"Q. Well, Mr. Selser, you said in 1947 and 1948 you had become convinced although you might not have any definite evidence, but you were convinced that there was protection of gambling and that Orecchio was the man responsible?
A. Yes. Yes, I was satisfied money was being paid somewhere; what levels, I don't know, I couldn't prove it, and it is silly for me to make guesses where it was going or how it was going."
In 1949 Mr. Selser left the prosecutor's office and resumed the private practice of law. Whether he immediately became attorney for the Morettis is not disclosed. In any event, at 2 A.M. on October 31, 1950, after a complaint had been filed
against Joseph Doto (alias Joseph Adonis), James P. Lynch, Arthur Longano, Anthony Guarini, and Salvatore Moretti charging them with conspiracy to keep and maintain a place to which persons might resort for the purpose of gambling and a warrant had been issued against them, Mr. Selser received a telephone call from Willie Moretti retaining him as attorney in the matter. All of them except Anthony Guarini, who was at the time in prison, were produced by Selser, were arraigned, pleaded not guilty, and bail was fixed. Subsequently all five were indicted by the Bergen County Grand Jury. They entered pleas of not guilty but on May 21, 1951 they retracted these pleas and entered pleas of non vult, and on May 28, 1951 were sentenced to prison. Willie Moretti was not charged, arrested or indicted in Bergen County until November 7, 1952, more than two years later, when along with Harold John Adonis, Andrew Adonis and others, he was indicted for conspiracy to obstruct the due administration of the laws of the State. By that time Moretti had been dead more than a year. We refrain from comment here on the practice of indicting dead men.
Between October 31, 1950 and the date of Moretti's death less than a year later, the defendant testified he had some 200 conferences with Moretti. Although Moretti at no time was under indictment, he had been summoned to appear as a witness before the Kefauver Committee. In the course of these conversations the defendant learned of many instances in which Moretti and his associates had paid protection money to public officials and others in prominent positions at the state and county level:
"Q. Did Willie Moretti tell you that money had been paid to persons connected with Mr. Winne?
A. Yes. Yes, he told me so.
Q. Was this during a conference between yourself and your client?
Q. Then he did give you the names of people connected with Winne that he alleged were being paid off?
A. Yes, Willie gave me certain names."
Moretti also divulged to him the names of persons who had received political contributions from the "racketeer elements." He likewise discussed with the defendant a visit which he had paid, also at 2 A.M., to the home of Mr. John J. Dickerson, then chairman of the Republican State Committee and a member of the Board of Chosen Freeholders of Bergen County, 13 days after he had retained the defendant to represent him and his associates. Concerning this visit Mr. Dickerson testified before the grand jury:
"Well, Moretti said he couldn't understand why his people were being pushed around so, almost to use his language. I guess he was referring particularly to the proposed trials of the people that were tried, whereas he had always been very cooperative with the State administration. I asked him specifically what he meant by that and he told me that he had been paying for State protection; he had paid Harold Adonis $12,000 a month for State protection. * * * He evidently was trying, as I say, to put the heat on me to have me intercede to have the Grand Jury go easy on him in light of the fact that he had been ...