Plaintiffs filed an original complaint alleging against each of the defendants a wrongful participation in the prosecution of plaintiff John C. DeGroot who, with two codefendants, was tried for the murder of Gabriel DeFranco and acquitted.
Before the court is a motion brought by defendants John Thevos, Robert Kessler, Charles Carroll and Joe Muccio (so impleaded as "Joe") to dismiss the action on the grounds that the first three, as prosecutor and assistant prosecutors, respectively, are immune from civil liability; that Muccio, as confidential aide to the prosecutor, has derivative immunity, and that the complaint fails to state a claim for which relief can be granted.
The complaint initially was in seven counts. It is in the first of them that the main charge is made. The gist of it is that two professed eyewitnesses (defendants Edward Lenney and Jacqueline Natoli) "lied" when they implicated DeGroot; that they lied "in fact" because his guilt "was impossible," and that the prosecuting defendants "knew" this to be so but nevertheless used the perjury "to cover up" some investigational mistakes.
On the hearing of the motion to dismiss, the court determined that the complaint was defective in the first count because all allegations were stated in terms of conclusions. Conduct was described only in language such as the following:
"The * * * defendants refused to check * * * the statements," they "refused to bring before the court their knowledge," and "The various statements * * * were accepted as true."
R. 4:5-2 requires that a complaint "shall contain a statement of the facts on which the claim is based." Some outline of a structure within which plaintiffs' theory places defendants must appear so that conduct rather than successive states of mind is alleged. There ought to be a showing of "the constituent events of the offense and the actors involved or concerned in those events" (State v. Sullivan , 33 N.J. Super. 138, 143 (App. Div. 1954)) -- to use the criminal bill of particulars analogy, which seems to be appropriate in this special case.
An amended complaint has now been filed with the court.
Defendants have reacted with a demand that it should be stricken or impounded because it is "so grossly scandalous." R. 4:6-5 is invoked but it does not apply. The precise objection is that the allegations amount to "false and scurrilous vilification." The quality of plaintiffs' allegations cannot be tested by the pending motion wherein all well-pleaded facts must be accepted as true. No matter how the language may vilify defendants, it will not be "scandalous" within the meaning of the cited rule unless it is irrelevant. Chew v. Eagan , 87 N.J. Eq. 80, 81 (Ch. 1916). Everything that plaintiffs say in the amended complaint is relevant to the subject of their grievance. There is no justification for striking or impounding the complaint. In any event, it presents substantially the same material already publicized in the DeFranco and Kavanaugh murder trials, in the Bailey letter to Governor Hughes, as well as in the complaint filed against the movant defendants, and others, in the United States District Court. The motion to strike or to impound the amended complaint is denied.
The amended complaint presents an eighth count wherein there is further particularization which is expressly made referable to all of the first seven. Of relevance to the first
count are allegations which, with their implications, present subject matters as follows:
Muccio, after a threat to "frame" DeGroot, "provided" Lenney (who knew nothing directly about it before) with "information" concerning the DeFranco murder. Kessler and Carroll, with Muccio, promised money to Lenney and his release from prison in return for testimony he gave against DeGroot, as an alleged eyewitness, which testimony they knew was false.
Natoli "falsely and maliciously implicated" DeGroot in the murder of Judith Kavanaugh (an integral part of the DeFranco murder case, according to the State) and Muccio "supplied [her with] information concerning certain pornographic films" for testimony before the grand jury which he, Carroll, Kessler and Thevos knew was false.
Kessler "harassed, bullied and intimidated" witnesses able to prove that Lenney could not have been at the DeFranco murder scene.
In putting DeGroot at a place in the Kavanaugh case, Natoli lied to the "full knowledge" of Muccio, Thevos, Kessler and Carroll because he was at his police station "as the police log and witnesses corroborated."
Lenney recanted his false testimony, but when this "was brought to the attention of Muccio and Thevos, Lenney was forced to withdraw his recantation and Mr. Dowd [an attorney engaged specially by Thevos to try the case and to whom the recantation was allegedly made] was threatened with physical harm and disbarment."
The movant defendants rely upon the rule of judicial immunity and its application covering conduct in the realm of the public prosecutor. Although insisting that the amended complaint fails to state a claim for which relief can be granted, they contend that even if there is such a statement, they are immune "because the said alleged acts were not done clearly outside their authority or jurisdiction."
In an early decision, the Court of Errors and Appeals recognized the need to put the judge beyond the reach of "every malignant or disappointed suitor." It was said in Grove v. Van Duyn , 44 N.J.L. 654 (E. & A. 1882):
The doctrine that an action will not lie against a judge for a wrongful commitment, or for an erroneous judgment, or for any other act made or done by him in his judicial capacity, is as thoroughly established as are any other of the primary maxims of the law. * * * That it exists in this state in its fullest extent, has been repeatedly declared by our own courts. [at 656]
But it has been said that there is no authoritative extension of the shield to produce a comparable protection for officials in ...