On an Order to Show Cause why respondent should not be disbarred or otherwise disciplined.
For suspension -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None.
This disciplinary proceeding involves two instances of attorney misconduct in the trial of criminal matters. The first involves failure to appear at a scheduled trial date in Hudson County; the second involves disruptive and insulting conduct during a criminal trial in Essex County. Each resulted in convictions of contempt under R. 1:10 and fines of $500 and $2500 respectively.
Respondent, Dennis D. S. McAlevy, represented one of ten defendants in a multiple defendant gambling conspiracy trial. This trial has required our attention before.
On April 28, 1978, following the five-week trial, the court issued an Order to Show Cause and Certification charging respondent with eight specifications of contemptuous conduct during the trial. The eight incidents were specifically alleged to have been part of "a continuous pattern of unprofessional conduct which was abusive and disrespectful of the Court, disruptive of the Court proceedings and prejudicial to the administration of justice."
The contempt proceedings were conducted by another judge in the county on July 6, 1978. Respondent pleaded guilty to four charges under a plea bargain and the court dismissed the remaining four charges. Respondent was fined a total of $2500. The essence of the charges to which respondent pleaded guilty is as follows (for convenience, they are listed alphabetically as they appear in the Certification):
(c) In response to the judge's sustaining of his objection to a question by the prosecutor on March 3, 1978, he exclaimed, "I cannot believe that." Although the judge ordered him to cease, his comments continued and when he was directed by the court to stop screaming he responded, "Let the record reflect that I am not the only one screaming."
(d) Respondent again made improper comments before the jury on March 3, 1978 when, after objecting to another of the prosecutor's questions he screamed in a loud voice, "He knows better than that." "After a reprimand by the court, respondent again screamed "We don't need another mistake by the prosecutor." He then characterized the prosecutor's questions as being "deliberately misleading" and requested that the court instruct the prosecutor as to how to ask the questions. All of this occurred in open court before the jury, respondent never asking for a side bar conference.
(f) On March 8, 1978 at a side bar conference which resulted in a ruling adverse to the respondent, he accused the court in a loud voice of making "insulting remarks" to him in front of the jury. The court warned respondent not to ask improper questions of the witness but he continued to do so. The Court then called respondent to side bar and cited him for contempt. He left the bench after a heated exchange at side bar in a manner indicating disgust with the court and disrespect with its ruling. As respondent left side bar on his way toward the witness stand to resume cross-examination of the state's witness, the court heard him say "I can't believe this." These words were followed by profane, obscene utterances not heard by the judge, who was turning back from side bar to the bench, but heard by four other persons in the courtroom. The prosecutor who was walking immediately in back of McAlevy heard the respondent say, "I don't believe this ." One of the defense counsel seated close to the side bar swore he heard respondent state, "This has gotta be nuts." Apparently as respondent moved further past the counsel tables on his return to the witness stand area another defense counsel heard McAlevy exclaim, "She's crazy." As demonstrated by Exhibit P-7, incorporated herein, as the respondent made these questionable remarks, he was actually approaching the witness and jurors, rather than returning to his seat at the opposite side of the courtroom. Indeed, a portion of his remarks were overheard by the prosecutor's investigator, who was at the prosecutor's table and closest to the jurors. He reported that he heard respondent say, "I don't believe this . . ." Thus, it appears that respondent made four separate obscene utterances, each one closer to the jury box than the last.*fn2
(h) On March 14, 1978 while the jury was deliberating respondent was reprimanded by the judge for switching name plates at counsel table. As the Judge left the bench respondent in a loud and abusive manner said "Let the record reflect that the Judge is getting up and gaveling and walking off the bench." During these comments respondent referred to the court's ...