On appeal from the Superior Court, Appellate Division, whose opinion is reported at 150 N.J. Super. 500 (1977).
For reversal and remandment -- Chief Justice Hughes and Justices Sullivan, Pashman, Clifford, Schreiber and Handler. For affirmance -- Judge Conford. The opinion of the court was delivered by Schreiber, J. Conford, P.J.A.D. (temporarily assigned), dissenting.
[77 NJ Page 139] This is still another round in the litigation of Paul and Irene Cashen against three Morris County detectives, John Dunne, Robert Bickley and Frank Spann, for monetary redress arising out of an allegedly illegal search of the Cashen home. Cashen v. Spann, 66 N.J. 541, cert. den. 423 U.S. 829, 96 S. Ct. 48, 46 L. Ed. 2d 46 (1975); Dunne v. Fireman's Fund Am. Ins. Co., 69 N.J. 244 (1976).
The raid on the Cashen home was apparently an horrendous mistake. A search warrant had been issued on the basis of defendant Bickley's affidavit reciting that he had received information concerning a gambling operation being carried on at Picatinny Arsenal in June 1970 by the plaintiff Paul Cashen. Mr. Cashen had retired from his job at the Arsenal on October 31, 1969 and had not returned there except on one day in January 1970.
In the first round of this litigation plaintiffs sought to obtain the name of the informer referred to by defendant Bickley in his affidavit. The trial court rejected the request. The Appellate Division reversed and ordered disclosure. 125 N.J. Super. 386 (1973).
Upon review of that issue in this Court, we disagreed with the Appellate Division. 66 N.J. 541. Justice Pashman in a comprehensive opinion reviewed the scope and nature of the "informer's privilege." He expressed doubt that the trial court had "an adequate record to actually perform the delicate and difficult balancing of interests called for" and stated that "[i]f, on remand, plaintiffs choose to press their motion to compel discovery * * * the trial court will be required to consider all the facts bearing both on the possible unfairness to plaintiffs of denying disclosure of the identity of the informer and the possible harm which may be inflicted on State interests by disclosure." Id. at 555.
Justice Pashman then carefully delineated some of the factors to be considered: the nature of plaintiff's claims, the actual loss, the necessity of informant's testimony, the possible prejudice to future prosecutions, and the danger of harm to the informant. Id. He noted that the court should "give less weight to the interests of plaintiff if it appears that he has suffered only insubstantial damages." Id. at 556. He emphasized that in civil cases maintaining confidentiality of the informer's identity is "entitled to a greater degree of respect." Id. He advised that, although the identity of an informant may be disclosed in a civil suit under some circumstances, it was "a step to be taken
with caution and only with full appreciation of all the consequences." Id. at 557.
On the remand, plaintiffs' attorney moved for an order compelling disclosure of the informer's name. On the return day plaintiffs relied only upon argument. No affidavits or evidence were offered. The defendants produced two witnesses, Stephen Champi, Somerset County Prosecutor and president of the New Jersey County Prosecutors' Association, and defendant Dunne. Mr. Champi testified to the importance of informers to law enforcement officers in the investigation and apprehension of criminals in gambling. He said that if the informant in this case were identified, this informant would thereafter refuse to cooperate with the police and other informers would follow in those footsteps. Emphasizing that informers insist on remaining completely anonymous, he testified that all 21 county prosecutors had discussed this case and shared these opinions.
Defendant Dunne, who had been in the Morris County Prosecutor's Office since 1965, testified to the importance of informers in the Confidential Intelligence Unit which he headed. This Unit dealt with gambling, municipal corruption and organized crime. In about 90% of its investigations informants were used. Confidentiality of their identity was essential. Their arrangements provided that, if the informant's testimony were needed, the prosecution would be dropped. Dunne testified that divulging the informant's name in this case would be devastating to police enforcement because it would eliminate that individual source as well as other sources of information.
The defendants also offered into evidence the deposition of Paul Cashen. That deposition disclosed that when the three defendants, Dunne, Bickley and Spann, and a fourth detective came to his home on June 19, 1970, Mr. Cashen was cutting the grass. He was escorted into the house. None of the three defendants touched him. ...