On certification to the Superior Court, Law Division.
For reversal and remandment -- Chief Justice Wilentz, and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- none. The opinion of the Court was delivered by Pashman, J.
[84 NJ Page 4] In this case a number of law enforcement officers intentionally eavesdropped on two conversations between a man suspected
of murder and his attorney. The man now stands charged with the murder and other related crimes. In advance of even an indictment, he seeks dismissal of the charges and the prohibition of any future prosecution. The question presented is whether the flagrantly illegal conduct of the officers irreparably impaired defendant's rights to the effective assistance of counsel and to a trial uncorrupted by public prejudice.
As a result of an investigation into the disappearance of one Joan Sugar, officers of the Vineland, New Jersey, police department arrested defendant Dr. Harry D. Sugar, her husband, as a material witness to her homicide, see N.J.S.A. 2A:162-2,*fn1 shortly after midnight on August 7, 1979. Defendant was immediately advised of his custodial rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and was taken to the Vineland Police headquarters, where he again received Miranda warnings. During interrogation by city detectives and a Cumberland County investigator, defendant asked that he be allowed to consult with counsel. He contacted Jay H. Greenblatt, a Vineland attorney. At about 2:40 a.m., Rocco J. Tedesco, an attorney associated with Greenblatt's firm, came to the police station to interview Sugar. After obtaining permission from one of the officers present, Tedesco conducted the interview in one of the interrogation rooms near the detective bureau's offices.
In the room used by Tedesco and Sugar was a concealed microphone that was part of an electronic communication system. It had been installed during construction of the police headquarters. It was normally employed for paging, communication between officers and monitoring interrogations. On the morning of August 7, 1979, however, it twice served the most extraordinary of purposes.
Lieutenant Michael Joseph Tirelli of the Vineland police department was one of the officers who questioned Sugar before his attorney arrived. After Tedesco entered the interrogation room with defendant, Tirelli testified*fn2 that he went into his private office with Joseph Leon Soracco, Chief of Detectives in the Cumberland County Prosecutor's office. According to Tirelli, he remarked to Soracco that "it would be a good idea to know if we had a right guy or not." He then activated a monitor on his desk that was connected to the concealed microphone in the interrogation room. Tirelli and Soracco*fn3 listened to the conversation between Sugar and the attorney. While the record before us does not reveal the substance of the conversation,*fn4 Tirelli testified that he recorded at least a portion of what he overheard with a pocket tape recorder he kept in his desk. At the conclusion of the interview, Tedesco joined Tirelli and other officers for coffee and doughnuts and left police headquarters at about 3:00 a.m.
Later that morning, Tedesco returned with Greenblatt. The two lawyers received permission to use the same interrogation room to speak with defendant. After they began their discussion, Tirelli returned to his office. With Soracco and Lieutenant Guy Buscemi of the Vineland police present, he again activated the monitor, turned on his tape recorder, and listened to the conversation between defendant and his attorneys. During the conversation, Detective William L. Walters of the Vineland
police, who was preparing an affidavit for a warrant to search defendant's home, briefly entered and exited Tirelli's office.*fn5 Detective John Mazzeo, another Vineland officer, also entered the office during the eavesdropping. At Tirelli's direction, Mazzeo took notes of the attorneys' interview.
The record contains a transcript of the tape Tirelli made of this second conversation. We decline to describe the discussion in detail. Our present concern is the outrageous character of the illegal eavesdropping. However, it is important to note that during the conversation Greenblatt made three statements reflecting an awareness of possible decisions about trial strategy.
Before the conclusion of the interview, Tirelli shut off the monitor and tape recorder. He then instructed Mazzeo to prepare criminal complaints against defendant. Tirelli also summarized the eavesdropped conversation for Walters, who together with Mazzeo drafted affidavits in support of a search warrant.
After obtaining a warrant, Tirelli led several Vineland officers on a search of defendant's home. Tedesco accompanied them. He later remarked to Greenblatt that the police had demonstrated an uncanny ability to locate what they were seeking quickly. While the search was being conducted, Soracco contacted his superior, William H. Doherty, Cumberland County Prosecutor. Soracco informed Doherty of the illegal eavesdropping. Soon afterwards, about noon on August 7, the prosecutor arrived at police headquarters, and Tirelli returned from his search of the Sugar residence. Greenblatt then met with Doherty, Soracco and Tirelli in the latter's office. The attorney was informed that formal charges were being filed against defendant in Vineland Municipal Court. During the discussion, both Doherty and Tirelli advised Greenblatt to have his client plead guilty to the pending charges. No one -- not Prosecutor Doherty, not Chief Investigator Soracco, not Lieutenant Tirelli -- revealed to Greenblatt that the substance of his interview with
defendant was now common knowledge at the Vineland detective bureau.
The Vineland police obtained and executed additional search warrants during the next few days. Greenblatt soon harbored strong suspicions that his conversation with defendant had been overheard. An anonymous telephone call confirmed these suspicions. Greenblatt accordingly sought the advice of the Assignment Judge for Cumberland County, the Hon. George B. Francis. Judge Francis recommended he contact the State Division of Criminal Justice. Greenblatt did so on August 10, 1979. According to the record, this is the first time State officials were informed of any illegal eavesdropping.
When members of the State's Corruption Investigation Section confirmed that eavesdropping had occurred, the Attorney General removed the Vineland Police Department and the Cumberland County Prosecutor's office from the case and assumed the investigation and prosecution directly. See N.J.S.A. 52:17B-107, -108. The State Division of Criminal Justice then devised a scheme to assure the exclusion of tainted evidence gathered after the eavesdropping from a subsequent trial. A group of attorneys and investigators was assigned to continue the investigation into the illegal surveillance and to determine what information had been obtained independently from it. A second group would commence its own investigation based on any "untainted" evidence, present the case to a grand jury, and conduct the prosecution at any eventual trial.
The State's scheme contained elaborate precautions to prevent the "untainted" prosecuting team from learning of any illegally acquired information. The other investigative team took custody and controlled distribution of all files and reports prepared by the Vineland police concerning the disappearance and death of defendant's wife. Members of that team were instructed not to discuss the case with any one, particularly any member of the group which would prosecute defendant. The prosecuting team was not told why the Attorney General had superseded the county prosecutor. Members of that team instructed the subjects of their interviews to answer only questions put to them
and not to volunteer information. This procedure was adopted to prevent the prosecution team from learning of the illegal eavesdropping indirectly.
Despite the efforts of the State to prevent dissemination of what the Vineland police had learned, accounts of illegal electronic surveillance appeared in two newspapers in South Jersey. In Vineland itself detailed descriptions of defendant's conversations circulated with other rumors about Joan Sugar's death.
On August 22, 1979, defendant filed a notice of motion for dismissal of the municipal court complaints in the Superior Court, Law Division, Cumberland County. Defendant presented supporting affidavits to Judge Francis in chambers on August 27. The court also received an oral representation by the State regarding the eavesdropping and its aftermath; it then sealed the record and continued the matter without decision. After oral argument on the motion on August 31, the trial court ruled that the eavesdropping had occurred and was in violation of the Sixth Amendment of the federal Constitution. The court reserved its decision on the appropriate remedy, and ordered a plenary hearing on the extent to which the conversations between defendant and his attorneys had been publicly disseminated.
The court held the hearing on a remedy over seven days in October 1979. In a written opinion dated December 5, 1979, Judge Francis held that dismissal of the charges was the only appropriate remedy. Finding a "gross" intrusion into the attorney-client relationship, the court ruled that a showing of prejudice was not necessary to establish a denial of the effective assistance of counsel. The eavesdropping therefore violated the Sixth Amendment of the federal Constitution and Article I, paragraph 10 of the New Jersey Constitution.
The court next addressed the proper remedy for this constitutional ...