For disbarment -- Chief Justice Weintraub, Justices Jacobs, Proctor, Hall and Mountain, and Judges Conford and Sullivan. Opposed -- None.
Respondent, H. Albert Hyett, was indicted for bribery of a police officer. Respondent offered the defense of insanity and the jury acquitted him on that basis. The jury having found that his insanity continued, respondent was committed to the New Jersey State Hospital to be held "until such time as he may be restored to reason" pursuant to the mandate of N.J.S.A. 2A:163-3. Upon his admission, the hospital staff found no indication of mental illness, whereupon respondent applied immediately to the trial court for an order adjudging that he was "restored to reason" and directing his release accordingly. See State v. Maik, 60 N.J. 203 (1972). At that hearing the testimony was unanimous that respondent was not then ill. His release was ordered.
Upon receiving a report of the jury's verdict and the order committing respondent to the State Hospital, we suspended him from the practice of law until further order. When he was adjudged "restored to reason," we continued the suspension and ordered him to show cause why he should
not be disbarred or otherwise disciplined, the record to consist of (1) the transcript of the criminal trial, (2) the transcript of the proceedings which led to his release from the State Hospital, and (3) such further evidence with respect to any issue in the criminal case which the respondent or the prosecutor may present before a trial judge designated for that purpose. Additional testimony was presented by the respondent and returned to us.
An acquittal in a criminal prosecution does not foreclose a disciplinary proceeding based upon the same misconduct. In re Pennica, 36 N.J. 401, 418-419 (1962). Respondent does not question this proposition. Nor does respondent question the jury's finding that he did commit the forbidden act. Rather he contends he was legally insane when he did so, as the jury found, and the further testimony he offered in these disciplinary proceedings was addressed to that issue. Since the claim of insanity can be weighed only in the context of the criminal event, we will state the facts at some length even though they are not disputed before us.
On August 20, 1970 a young lady complained to Officer Friel of the Atlantic City police department and Trooper Crawford of the New Jersey State Police that a resident in her apartment house took her pocketbook. She identified Orson Leb Moses as the culprit. The officers found Moses outside the apartment house. He denied the theft and according to the officers consented to and indeed invited a search of his apartment. The search failed to disclose the pocketbook but did reveal prescription legend drugs and some pipes apparently used to smoke marijuana. The trooper testified that Moses' eyes were glassy and the pupils appeared dilated. Moses was arrested for possession of the drugs and paraphernalia. We gather that although he continued
to deny the theft, Moses gave the girl the small sum she said was in the pocketbook, whereupon she lost interest in her complaint.
Moses, a citizen of Canada, was a student in the United States. He apparently had a summer job in Atlantic City. Respondent was retained to represent him. Bail was fixed at $1,000. Moses failed to appear on August 26, 1970, and his bail was forfeited. Apparently the father of Moses thereafter pressed respondent for a disposition of the charges.
Officer Friel said that on August 26, 1970 (the date Moses failed to appear), respondent commented that the case did not involve much, and asked Friel if there was anything Friel could do to help him with the case. Friel made no response. On a number of later occasions when Friel saw respondent around the courts, respondent repeated his inquiry as to whether Friel could help him dispose of the matter. Respondent also talked with Friel about a charge against another man (Polillo) whom Friel and Crawford had arrested. Friel kept his superiors informed of what he considered to be approaches for attempted bribery. After thus probing Friel over a period of time, respondent asked Friel to telephone him at his office about the Moses case. This led to the first of four taped conversations between Friel and respondent.
The first tape was of the telephone call Friel made on January 8, 1971 in response to the respondent's request we just mentioned. The conversation was brief and to the point. Friel asked "Do you want to stop here, or do you want me to meet you somewhere?" Told Friel was at home, respondent took his address and said he would be there in 20 minutes and blow his horn. Friel mentioned "Moses" and respondent said "Yeah. There's nothing to the damn thing and it's laying around and a damn nuisance." Respondent drove to Friel's house. Friel joined respondent in the car, and according to Friel:
"* * * Mr. Hyett stated that if I could steal the case from Sergeant Mucci's office that he would give me a half yard [$50] and to get rid of the pills also. And I was to bring the evidence to his house and that he also had a bottle for me. He also stated that it was up to me to take care of Perone [the judge of the municipal court]. He stated that the kid was away at college and that if I stuck with him, we would have many more cases together and that we would get a big score."
Three days later (January 11) Friel telephoned respondent. This conversation too was recorded. Friel told respondent that he arranged to be transferred to the night shift, saying "That way I can get into the office. It is impossible to go in in the daytime," to which respondent commented "Yes, right." Friel continued, "So they leave around 3:00 A.M. and I work until six. I will get them sometime this morning." Friel asked when he should call and where they would meet. Respondent said, "Give me a call and I will see you personally. All right?"
Two days later (January 13), Friel called respondent. The recorded conversation was brief. As soon as Friel identified himself, respondent said "Oh yeah. I am going to leave now, Mike. I can only stay for a second. My daughter is rehearsing. I'm late. All right?" Respondent said he would meet Friel outside Friel's house. "I'll blow the horn."
When respondent reached Friel's home and came to the door, Friel induced him to come in. The ensuing conversation was recorded. The tape opens with the barking of dogs. There were two, one a German shepherd Friel used in his police work. Respondent was concerned about the police dog. After ordering the dog back, Officer Friel addressed respondent:
"OFFICER FRIEL: He won't bother you. He is used to everybody being here.
MR. HYETT: I left my motor running.
OFFICER FRIEL: All right. How about a little --
MR. HYETT: Give me a fast one. Just a shot, Mike.
OFFICER FRIEL: What do you want, brandy?
MR. HYETT: No, just a little scotch. Did you take care of it all right?
MR. HYETT: Just a little shot, Mike. Here is your Christmas present."
The "Christmas present" was a Christmas envelope containing the promised $50.
The conversation turned briefly to the dog, his origin and training. Respondent explained that he had to get home because his daughter was in a play and rehearsed every night at the high school. Friel said "All right. I got the case. I didn't get the pills, though," saying they were at the laboratory. Respondent asked, "Well, suppose they come back?" Friel answered "It doesn't matter because the file is not here." Friel noticed "Jacob Green" written on the Christmas envelope and respondent explained that "I took it in a hurry." Respondent struck the name "Jacob Green" and wrote "Mike."
Friel then asked respondent if the possession of prescription legend drugs was an indictable offense. Respondent said it was not, and that he could get a doctor's certificate to account for the possession but "This kid is going to school and I don't want to bring him back if I don't have to."
Friel then asked "Is this coming out of your pocket?" Respondent replied, "Where else? That's right." Friel said "What the hell, why don't you get it from him and --" Respondent interrupted, saying "I can't get it from him. His old man called me and asked why the kid's case has been kicked around and all that shit."
Friel then mentioned that the State Trooper is involved in the case. Respondent asked, "How's he in it?" Friel said "He went in on the search with me." Respondent answered "Yeah, but you had no warrant." Friel pointed out that "the guy told me it was okay for me to come in the apartment. That's what he told the trooper." Friel then left respondent momentarily to get the reports he had obtained
from Sergeant Mucci. When he returned respondent asked a few questions about the dogs and inquired also about Friel's family. Friel returned the conversation to Trooper Crawford and wanted to know what to do "if he starts bugging me about the case." Respondent suggested "You don't know. The file got lost" and added that Crawford would have no interest in the case. At this point, Friel pretended to be reluctant:
"OFFICER FRIEL: I just don't want to get fucked up in this thing.
MR HYETT: If it's going to fuck you up, bring it in, that's all. And let's try this thing. I don't want to get you fucked up, Mike.
OFFICER FRIEL: No, it's not that, it's . . . ah --
MR. HYETT: It's a petty thing. For Christ sake, look. I can beat it on a search warrant.
OFFICER FRIEL: Yeah, it's petty, but what the fuck, he ain't comin' up with nothin' and he wants to get off with everything.
MR. HYETT: I could have done something this summer, but the son of a bitch went to Florida afterwards and the (word inaudible) took him away.
OFFICER FRIEL: You'll wind up taking it out of your own pocket and --
MR. HYETT: That's okay. We'll wind up making it back on something else. You'll have some other stuff coming up, won't you? We'll ...