On an Order to Show Cause why respondent should not be publicly reprimanded or otherwise disciplined.
For dismissal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
This proceeding arises out of the trial and conviction in Westfield Municipal Court of Jeffrey B. Darby. Shortly after Darby's trial, presided over by respondent, former Municipal Court Judge Robert C. Thomson,*fn1 Darby hanged himself in the Westfield jail. The incident was brought to the attention of the Supreme Court Advisory Committee on Judicial Conduct (Committee) by the publicity regarding Mr. Darby's suicide. Following a preliminary investigation, the Committee issued a formal complaint charging Judge Thomson with violations of Canons 1, 2A, and 3A(1), (2) and (4) of the Code of Judicial Conduct (Code).
After respondent filed an answer, the Committee held a formal hearing at which respondent appeared with counsel and
testified. As a result of these proceedings, the Committee issued a presentment recommending that respondent be publicly reprimanded for having violated Canon 1 (a judge should uphold the integrity of the judiciary); 2A (a judge should respect and comply with the law and conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary); 3A(1) (a judge should be faithful to the law and maintain professional competency in it and be unswayed by public clamor); 3A(2) (a judge should maintain order and decorum in proceedings before him); and 3A(4) (a judge should accord to every person who is legally interested in the proceeding the full right to be heard according to law). One member of the Committee recommended that a private letter of reprimand be issued to respondent.
Pursuant to Rule 2:15-13, respondent moved before this Court for an order rejecting the Committee's recommendation. We issued an order to show cause why he should not be publicly reprimanded or otherwise disciplined. Based on our independent review of the record, we are convinced that while respondent's judgment in handling the Darby case was substantially flawed, his actions did not constitute judicial misconduct. Accordingly, we dismiss the presentment of the Committee.
Respondent was admitted to practice law in New York in 1937 and in New Jersey in 1947. At the time of his retirement on December 31, 1984, he had served as the municipal judge for the Township of Westfield for nine years. Prior to his appointment, he had served on the Westfield Juvenile Conference Committee, chairing that body for approximately twelve years. Until this unfortunate incident, respondent had an unblemished professional record, both as a judicial officer and as a practicing attorney.
This proceeding arises out of respondent's handling of the trial of State v. Jeffrey B. Darby. On December 15, 1983, respondent presided at the trial of Darby, who was charged with shoplifting cigarettes from a supermarket and with possession of stolen property (54 cans of tuna) from a Quick Chek store. Darby appeared at the trial pursuant to a bench warrant, issued because of his failure to appear on a previously scheduled date.
Typically, the more serious matters before the Westfield Municipal Court were heard on Tuesdays, and a municipal prosecutor and public defender were routinely present. Neither was customarily present on Thursday sessions, a day usually reserved for minor matters. December 15, 1983, the date State v. Darby came before the court, was a Thursday, and neither the municipal prosecutor nor the public defender was present.
Since the case was set for Thursday, respondent assumed it was a minor matter. It was respondent's practice not to prejudice a prior offender by reviewing his criminal record before a hearing. If respondent had known of Darby's extensive criminal record, he would have adjourned the case until a Tuesday so that the municipal prosecutor and public defender would be present. To compound the confusion on the 15th, the regular court clerk was on vacation and the deputy court clerk, who attends court only five or six times a year, acted as clerk during this hearing.
Respondent opened the court session on that day with the following remarks addressed to all persons in the courtroom:
The Municipal Court of Westfield desires that you receive a full and fair hearing. In order to do so you should be aware of the following facts: You are presumed to be innocent until proven guilty beyond a reasonable doubt; you have the right to be represented by an attorney selected by you and retained at your own expense. If you want to be represented by an attorney and do not have one when your case is called you can request a reasonable adjournment for the purpose of obtaining legal counsel. You do not have to testify or make any statement, you may remain silent and any statement made by you may be
used against you. On the other hand you have a right to testify in your own defense and to call witnesses to support your defense.
You have a right to plead guilty or not guilty to any charge against you except an indictable offense. You have a right to appeal if you are not satisfied with the judgment of this Court.
Respondent stated that a more complete explanation of these rights was contained in a pamphlet prepared by the Administrative Office of the Courts, which was posted outside of the Violations Bureau. He did not distribute copies of the pamphlet to people in the courtroom. After these opening remarks, respondent explained the procedures that would be followed in the court. Unbeknownst to ...