On January 22, 1975 a motion was granted by this court to consolidate for trial the indictments pending against the five named defendants. The present pretrial motion was filed by defendant Anton Chaitkin on February 19, 1975 and scheduled for preliminary hearing on February 24, 1975. On the date of the hearing Chaitkin's four codefendants joined in his motion. Subsequently, a sixth defendant, not joined for trial, was permitted to join in the motion.
In this motion defendants seek four types of relief, as set forth in the notice of motion and the original brief in support thereof prepared by counsel for Chaitkin: (1) disclosure pursuant to 18 U.S.C.A. § 3504(a), by the Central Intelligence Agency, the Federal Bureau of Investigation
and the Attorney General of the United States of the existence or nonexistence of illegal wiretaps and electronic surveillance relating to these defendants; (2) the issuance by the court of a certificate under seal requiring the appearance in this State, before this court, of William Colby, Director of the C.I.A., and Edward Levi, Attorney General of the United States, or their legal representatives, pursuant to N.J.S.A. 2A:81-20, to affirm or deny the existence of electronic surveillance relating to the defendants; (3) staying Joseph P. Lordi, Essex County Prosecutor, from prosecuting defendants until such time as the above federal authorities affirm or deny the existence of electronic surveillance relating to defendants, and (4) dismissal of the indictments against defendants on the grounds of denial of equal protection of the laws with respect to them, in that the indictments were drawn and returned for the improper purpose of chilling the exercise of rights constitutionally guaranteed by the First Amendment and to further punish defendants for the articulation of their political beliefs, and to stifle their participation in constitutionally protected activities against both the policies of the City of Newark and the C.I.A.
The indictments returned against defendants charge them variously with violations of three statutes: (1) N.J.S.A. 2A:151-41, possession of a dangerous weapon; (2) N.J.S.A. 2A:90-4, assault and battery on law enforcement officer, and (3) N.J.S.A. 2A:119-1, larceny from the person. The charges arose from incidents which occurred during a rally conducted by the United States Labor Party at Newark City Hall on September 5, 1973.
Defendants first contended that the various agencies of the Federal Government, set forth above, must affirm or deny the existence of illegal wiretaps and electronic surveillance pursuant to the procedure established in 18 U.S.C.A. § 3504(a) which reads in relevant part as follows:
Sec. 3504. Litigation concerning sources of evidence
(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States --
(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act.
In deciding certain of the issues presented the court refers to the following federal and state authorities for purposes of guidance only. Additionally, the court holds for purposes of this motion that 18 U.S.C.A. § 3504 and the procedure enacted therein in no way binds a court of this State. At the preliminary hearing of the motion, counsel for the State, counsel for defendants and the Court were in agreement on this point.
However, this court's ruling that 18 U.S.C.A. § 3504 is not binding on a court of this State does not end the inquiry, the underlying problem relating to the means by which and under what circumstances a defendant in a criminal prosecution may discover the existence of electronic surveillance remains. To deny a defendant any procedure to discover the existence of unlawful electronic surveillance would render nugatory the protection of the Fourth Amendment in the area of electronic surveillance, rights granted by 18 U.S.C.A. § 2510 et seq. and the Federal and State Constitutions notwithstanding. For this reason an understanding of how federal and state courts have treated the problem is useful.
In enacting federal wiretap legislation, 18 U.S.C.A. § 2510 et seq., Congress provided no guidance therein as to the means by which an "aggrieved person" might discover the existence of his grievance, i.e., illegal electronic surveillance. The problem thus presented was perhaps best articulated by Judge Bazelon in In re Evans, 146 U.S. App. D.C. 310, 452 F. 2d ...