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State v. Kavanaugh

Decided: May 29, 1968.


For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None.

Per Curiam

[52 NJ Page 8] This is an appeal from an order revoking permission theretofore extended under R.R. 1:12-8 to F. Lee Bailey, a member of the Massachusetts bar, to appear pro hac vice for defendants Harold Matzner and Dorothe Krueger in the first captioned matter and for defendant Harold Matzner in the second captioned matter. After the trial court entered the order, the defendants instituted a proceeding in the United States District Court for the District of New Jersey directly against the trial judge to restrain him from enforcing that order. The Federal Court concluded that defendants should exhaust their State remedy. Thereupon defendants sought leave to appeal which we

granted. The other defendants to the indictments were permitted to intervene.

The indictments are for murder. Two homicides are involved and the State contends they are related. The homicides themselves attracted an unusual amount of public attention. Interest was added when the defendants retained Mr. Bailey, a highly publicized lawyer. The problem of a fair trial emerged rather early. With that problem in mind, the trial court dealt with certain motions in camera so that there might not appear in the press matters which could interfere with the trial. Despite such precautions, the trial court found it necessary to order that a jury be selected from residents of another county.

In this setting Mr. Bailey circulated a letter which led to the termination of his privilege to appear pro hac vice in these cases. The letter, mailed from Boston, is dated April 24, 1968. The timing is significant. A special jury panel was to be drawn on May 10, 1968, the trial itself to begin on May 20 or June 3 (for present purposes it is not important which was the designated date when the letter of April 24 was mailed). Mr. Bailey's letter, addressed to the Governor of our State, reads:

"I am writing to call to your attention a matter which I consider to be of most serious consequence to the man I represent and to the State of New Jersey. I am about to commence a trial wherein the prosecutor presenting the case is fully aware that the only witness he has intends to lie and give a fully fictional account of a murder allegedly committed by my client.

Harold Matzner of Denville, New Jersey, was indicted in June, 1967 for the murder of Judy Kavanaugh and in October, 1967, for the murder of Gabriel DeFranco. I have represented him since the first indictment. I have never, in any state or federal court, seen abuses of justice, legal ethics, and constitutional rights such as this case has involved. It was apparent from the start that the 'witnesses' to each murder were persons utterly without human value. Both are convicts and both have been pressured or bribed by the prosecution to give their stories and thus knowingly jeopardize the lives of five completely innocent people, all of whom have been cleared by polygraph tests administered by nationally recognized experts.

One trial involves three defendants and one involves four: two, including my client, are defendants in both cases.

It was my original intent that the trial itself be the medium of exposing this disgraceful situation. However, some weeks ago, there suddenly appeared a special prosecutor in the person of James Dowd. It was apparent from our first encounter that this man was a very competent and also a very ethical lawyer. The DeFranco trial was scheduled for April 22 as a day certain. A week prior to its commencement, Mr. Dowd attempted to obtain a continuance to 'further investigate' the case with which he had become recently acquainted. I objected, and his motion was denied. Sensing that Mr. Dowd's purpose might serve some more noble value than the purposes of his predecessors, I conferred with him privately in the presence of his equally honest and competent assistant, Richard McGlynn. Upon his representation that, (1) he was in charge of the case, and (2) he had a sincere desire to determine whether or not his chief witness was a perjurer, I reversed my original stand and assented to a continuance.

Mr. Dowd was as good as his word. He did determine that Edward Lenney, the alleged eye-witness, had in fact offered a completely perjured story, and that he had been assisted in its concoction by officials of the State of New Jersey. Mr. Dowd wished that the indictment immediately be dismissed and the defendants be cleared of all suspicion. The defendants agreed. Before this could be done, however, representatives of the office of the prosecutor, John Thevos, made contact with Edward Lenney as a result of which he turned around once again and reverted to his false story. The State of New Jersey now proposes to go forward with this trial in order that those officials guilty of felonious conduct may be to some degree protected. My client, therefore, is offered the opportunity to fall into the classic American syndrome of the damnation of an acquittal. I do not propose that this should be allowed.

Should this trial proceed as is presently planned, the stench arising from it will hold the State of New Jersey up to ridicule such as has beset no organ of government since the abolition of Star Chamber. Although there would be a certain pleasure in bringing to book these officials in the spotlight of a murder trial, I believe it to be in the best interests of my client to urgently request that an immediate investigation be made to determine whether or not Mr. Dowd is being forced by orders from superiors to offer in an American courtroom a man he knows to be a complete and utter liar. The money and effort of which the taxpayers will be defrauded in such a trial could much better be spent in conducting the investigation that would lead to the disbarment and incarceration of those responsible for this travesty.

The press has been throttled in this case to the extent that the public is almost wholly unaware of what is being perpetrated. As of the day our trial jury is sequestered, I intend that the entire matter be aired. I hope that some action on your part will precede such an unfortunate event. Thank you very kindly for your attention to this matter."

The press had the letter even before it reached the Governor's office,*fn1 and it received press coverage beginning on the 25th. On the 26th, the Governor's office advised the Chief Justice of the receipt of the letter.

We considered Mr. Bailey's letter at our conference on April 30, in the exercise of our administrative responsibility. We thought it fair to infer that a letter on Mr. Bailey's letterhead, widely published and not disavowed by him during a period of five days, was probably written by him. At the hearing below Mr. Bailey sharply questioned our basis for that inference, but before us he conceded that our judgment in that regard was not rash. As to the content of the letter, it seemed to us, in the absence of some extraordinary explanation, to bespeak inescapably a purpose to reach the public domain. The professed object was to induce the Governor to intercept an imminent trial by conducting some kind of an inquiry wherein he would necessarily adjudge the very issue involved in the trial of the indictment. We could understand a layman laboring under some such misunderstanding of the processes of government, but every lawyer has to know the judiciary exists precisely to discharge that function of government, and indeed that no other process of government can match the judicial process in its capacity to resolve a disputed issue of fact.

Hence, barring some explanation beyond our power to anticipate, Mr. Bailey's purpose had to be to reach prospective jurors. Upon that view, it is hardly necessary to spell out the gross improprieties of that brash document. Yet the closing paragraph deserves special mention, for it tells the reader that more is to come. The prospective jurors are thus informed that while they, sequestered, are fed evidence the prosecution has concocted, the rest of the world will be receiving the untarnished truth from Mr. Bailey. If so to read the last paragraph should seem extravagant, still it had

to mean at a minimum that while the trial is on, Mr. Bailey will make releases to the public of things which cannot be shown in the courtroom. That promised spectacle of course would be intolerable.

For these reasons we concluded that, wholly apart from future disciplinary proceedings, Mr. Bailey's permission to try these particular cases had to be questioned. Absent some explanation, or some equity in the clients, we were satisfied the letter itself constituted a prima facie basis requiring the revocation of leave granted him. Rather than issue an order returnable before us, we sent the matter to the trial court, there to afford Mr. Bailey and his clients a hearing wherein they could show cause, whatever it might be, why the permission given to Mr. Bailey to appear in these cases should not be rescinded. We therefore sent the following directive on April 30 to Judge Gordon H. Brown, the judge to whom the indictments had been assigned for trial:

"The Court, on the basis of a published letter from F. Lee Bailey, Esquire, to Governor Hughes, dated April 24, 1968, directs that you revoke the permission heretofore given to Mr. Bailey to appear as counsel in the Kavanaugh and related matters unless the said Bailey or his client shows cause satisfactory to you to permit him to remain as counsel in said matters.

A hearing to that end is to be held by you forthwith. At such hearing, you shall make inquiry as to the extent of the distribution of said letter and counterparts thereof addressed to others. The foregoing is independent of such action as the Supreme Court may itself take with respect to a permanent bar of Mr. Bailey from appearing in the courts of New Jersey or other discipline."

Our directive was communicated by telephone to Judge Brown who on the same day wrote and wired Mr. Bailey:

"You are hereby directed to appear forthwith at my courtroom for an in camera hearing as to the authorship and distribution of a letter to Governor Hughes dated April 24, 1968. Your clients, Harold Matzner and ...

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