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State v. Demko

Decided: May 22, 1959.

STATE OF NEW JERSEY, PLAINTIFF,
v.
DOROTHY DEMKO, DEFENDANT



Chiaravalli, J.c.c.

Chiaravalli

This is a notice of a motion to adjourn this case from the June term to the next session of court because of the fact that certain newspaper articles attributable to the prosecutor's office are prejudicial to the defendant. I have read these articles affixed to the notice of motion and they relate to certain alleged statements made by the former and present prosecutors. I have read them in the light of placing myself in the category of a potential juror rather than the judge who may preside in the trial of this case, to ascertain whether or not this motion should be granted.

I cannot criticize or find fault in those articles which describe the proceedings in the municipal court in Bound Brook because they contain statements from witnesses under oath and a newspaper has a perfect right to describe any proceedings that take place in a court room, this being known as freedom of the press. However, the

articles that allude to certain alleged statements made by the prosecutor's office is another thing, and we must bear in mind that these statements, if true, refer to a defendant who has pleaded innocent and who, in the eyes of the law, is presumed to be innocent until proven guilty beyond a reasonable doubt.

The articles seem to indicate that defendant inflicted the alleged injuries and is the type of mother who should have her child taken away from her, but that the prosecutor is powerless to act because of the present laws. I am now quoting words allegedly used by the prosecutor in one of the articles:

"The laws we now have on the books are inadequate to have the baby forcibly removed from the custody of the parents unfortunately. The Prosecutor's office has been aware for several weeks that the baby might be discharged and has exercised every reasonable effort to have the baby placed in a foster home or some other institution. We have attempted to have the parents give up the baby voluntarily but they have refused. Under the circumstances and the laws as they now exist we have been unable to accomplish anything."

The prosecutor said he will press for the indictment of Mrs. Demko and will work to convict her on the evidence his office holds. Then below this article the papers quote that the baby was given a 50-50 chance for survival, and that when she was brought to the hospital the child had received round the clock loving care from doctors, nurses and aides alike.

The prosecutor should hereafter bear in mind that in any pending case no statements, directly or indirectly, should be given to the papers that may tend to prejudice the public. Because we are all human beings, articles we read may prejudice us, no matter how hard we may try not to become influenced.

There are the Canons of Professional Ethics that lawyers are all bound by, and in addition thereto there are many cases that define the duties of a prosecutor. I specifically refer to the case of State v. D'Ippolito , 19 N.J. 540

(1955), where the court (at page 549) said that "The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done." And there is no doubt in the court's mind that the prosecutor is subject, as are all members of the bar, to the dictates of Canon 15, and especially Canon 20 dealing with newspaper discussion of pending litigation and which reads:

"Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond the quotation from the ...


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