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State v. Orecchio

Decided: June 28, 1954.


For affirmance -- Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt, and Justice Heher. The opinion of the court was delivered by Jacobs, J.


The Appellate Division, without dissent, directed that the defendant be granted a new trial because of the many legal errors during his first trial which resulted in judgment of conviction. See 27 N.J. Super. 484 (1953). We granted certification on the State's application. See 14 N.J. 352 (1954).

The sound administration of criminal justice in our democracy requires that both the end and the means be just. The accused, no matter how abhorrent the offense charged nor how seemingly evident the guilt, is entitled to a fair trial surrounded by the substantive and procedural safeguards which have stood for centuries as bulwarks of liberty in English speaking countries. This, of course, does not mean that the incidental legal errors, which creep into the trial but do not prejudice the rights of the accused or make the proceedings unfair, may be invoked to upset an otherwise valid conviction; under these circumstances it would be grossly unjust to the State and its people to grant a new trial, and in recent days this court has not hesitated to deny such relief to the defendant. See State v. LeFante, 14 N.J. 584 (1954); State v. Witte, 13 N.J. 598 (1953), certiorari denied 347 U.S. 675, 74 S. Ct. 675; State v. Vaszorich, 13 N.J. 99 (1953), certiorari denied 346 U.S. 900, 74 S. Ct. 219, 98 L. Ed. 400 (1953). But cf. Knowlton, Criminal Law and Procedure, 8 Rutgers L. Rev. 78, 87 (1953). Where, however, the legal errors are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury. We are satisfied, as was the Appellate Division, that the present case falls within the latter category; and this being so, our own views as to whether the evidence established the defendant's guilt are no longer material. See Weiler v. United States, 323 U.S. 606, 611, 65 S. Ct. 548, 551, 89 L. Ed. 495, 499 (1945), where Justice Black in an opinion delivered for a unanimous court said:

"We are not authorized to look at the printed record, resolve conflicting evidence, and reach the conclusion that the error was harmless because we think the defendant was guilty. That would be to substitute our judgment for that of the jury and, under our system of justice, juries alone have been entrusted with that responsibility."

The defendant Michael Orecchio was Chief of County Detectives in Bergen County and, as such, was charged with the duty of using proper and diligent means to detect law violations, gather evidence, make arrests and submit appropriate reports to his superiors empowered to seek indictments and obtain convictions. State v. Winne, 12 N.J. 152 (1953); State v. Marchese, 14 N.J. 16 (1953). The indictment against him charged, in 35 counts, that he had willfully failed to use and exercise all proper, reasonable, effective and diligent means for the detection, apprehension, arrest and conviction of persons who maintained gambling establishments at designated premises within the county. There were dismissals or acquittals on all counts except the first three upon which the jury returned verdicts of guilty; the first count related to 2075 Lemoine Avenue, Fort Lee, the second related to Costa's Barn on Route 6 in Lodi, and the third related to 1010 Palisade Avenue, Fort Lee. The trial court sentenced the defendant to a period of not less than two nor more than three years in the New Jersey State Prison and thereafter the defendant took his appeal to the Appellate Division. He alleged numerous trial errors, some of which were discussed in the opinion of Judge Bigelow below. See 27 N.J. Super. 484.


Shortly before March 3, 1952, the date set for trial, the defendant moved that his trial be delayed to permit "the public excitement to subside and the mind of the community to become tranquilized." In support of his request he referred to several items calculated to prejudice his opportunity for an impartial trial. On January 31, 1952 a large sign had been erected near the Bergen County Court House

and was observable from the jury room; it bore statements by public officials that law enforcement in Bergen County was a "sorry spectacle" and that the county was a province of the underworld protected by "corrupt public officials." On February 7, 1952 the Bergen County grand jury issued a public presentment which charged that the "bookmaking racket could not have existed without the active co-operation of officialdom at all levels." And on February 20, 1952 a Deputy Attorney-General participated in a television broadcast which discussed the "widespread and syndicated gambling" in the county and the failure of the public officials to stop it. The defendant's motion was denied and the Appellate Division found that this action did not constitute an abuse of its discretion. It stressed, however, that the described incidents had occurred but shortly before the date set for trial and that the situation was such as to call specially upon "counsel for the State, as well as the trial court, to avoid adding to any prejudice against the defendant that might interfere with a fair trial"; the legal errors are to be considered in the light of this admonition. See Commonwealth v. Balles, 160 Pa. Super. 148, 50 A. 2 d 729 (Super. Ct. 1947); Delaney v. United States, 199 F.2d 107 (C.C.A. 1 1952).


During the trial the state offered in evidence 56 separate gambling indictments which had been returned by the Bergen County grand jury. The defendant Orecchio was not named in any of them and many related to alleged offenses at premises other than those listed in the Orecchio indictment and to offenses allegedly committed when Orecchio was no longer in office. Some of the indictments were later nolle prossed, others were never brought to trial, still others resulted in convictions which were reversed on appeal, and upon retrials there were acquittals by direction of the court. The defendant objected to the admission of the indictments, but the State urged that it was entitled "to show arrests and

indictments" and the trial court sustained its position. Before the Appellate Division the State contended that "the indictments are evidential to indicate the persons named in the indictments were transgressors of the law during the times charged in the defendant's indictment" and that the indictments were introduced "to evidence that crime, in the form of gambling, did exist at the time when defendant should have performed his duty." Apparently, however, the State has abandoned this position and now contends that the indictments were admitted "as proof tending to show defendant's willful failure to detect available evidence on the basis of which indictments could have been found."

An indictment is evidence only of the fact that a charge has been made; it in no wise establishes the truth of the charge or the presence of sufficient legal proof thereof. As expressed by Justice Case in State v. Ellenstein, 121 N.J.L. 304, 312 (Sup. Ct. 1938), the indictment "proves nothing," "carries no element of guilt" and does not in any degree "take from the accused his presumption of innocence." Similarly, in Coyne v. United States, 246 F. 120, 121 (C.C.A. 5 1917), the court stated that it was "not uncommon for entirely innocent persons" to be indicted and that the indicted person was to be presumed innocent until his guilt was established "by legal evidence beyond a reasonable doubt, in a court of competent jurisdiction." See 3 Wigmore on Evidence (3 rd ed. 1940), ยง 980(a). Although Orecchio's duties included detection, investigation, arrests and reports, they did not include the formal legal steps incident to obtaining indictments and convictions; those steps were the responsibilities of his superiors. It seems clear to us that the 56 indictments, which were obtained well after Orecchio's duties had ended, were not admissible either on the theory advanced in the Appellate Division or the different theory advanced in this court. Indeed, the State's brief makes little effort to support the admissibility of the indictments but devotes itself largely to the contention that, assuming there was legal error, it was non-prejudicial.

When the indictments were received in evidence there were no restrictions imposed as to their use nor were any limitations imposed by the trial court in its charge. On the contrary, the trial court's charge instructed the jury to consider the relevant testimony "as well as the documentary exhibits" (which included the 56 indictments) and to conclude therefrom whether the defendant had knowledge of gambling in the county between the dates charged in his indictment. In State v. Costa, 11 N.J. 239, 252 (1953), this court recently held that the admission there of gambling ...

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