On an order to show cause why respondent should not be disbarred or otherwise disciplined.
For disbarment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
[108 NJ Page 464] The disciplinary infractions charged in these proceedings grow out of a calculated course of reprehensible conduct. The evidence in support thereof is devastating and largely irrefutable. No judicial response short of disbarment can be considered acceptable.
Respondent, George L. Edson, was charged by the District IIIB Ethics Committee (local committee or DEC) in a two-count complaint. Each count accused respondent of fabricating an extrapolation defense in a prosecution for violation of N.J.S.A. 39:4-50, driving while intoxicated (a defense since rendered invalid by State v. Tischio, 107 N.J. 504 (1987)). The first count concerned motor vehicle charges brought on August 18, 1984, against respondent's client Joseph P. Hoppe, Jr.; and the second count involved similar charges allegedly arising out of an incident of October 15, 1985, against one Army Major Frank Furillo, who in reality was Burlington County Detective Captain Neil Forte posing as a client.
The evidence before the DEC in the Hoppe matter revealed that when stopped at 5:30 a.m. by a state trooper, Hoppe stated that he had consumed four drinks of scotch and soda between 10:00 p.m. and 2:00 a.m. That information is included in the arresting officer's Alcohol Influence Report. Two breathalyzer tests conducted at 6:10 a.m. and 6:19 a.m. produced blood-alcohol readings of .14%. Hoppe retained respondent to defend him on the resultant driving-while-intoxicated (DWI) charge, told him about the four drinks, and said that he had consumed them at Kelly's bar in Wrightstown, after which he went to the Satellite Lounge in New Hanover, where he drank nothing alcoholic. Hoppe left the Satellite at about 5:30 a.m. and was arrested shortly thereafter.
According to Hoppe, respondent told him that the facts as related afforded no basis for an adequate defense. Although Hoppe wanted to tell the truth, Edson told him that "[t]he way the real world is, is that [the police] lie and you lie back." Respondent sought to implement that advice by counselling
Hoppe to manufacture a story that in addition to the four scotches at Kelly's, he "chugged" a Zombie (containing about three ounces of Puerto Rican rum, one ounce of apricot brandy, and one ounce of Jamaican rum) at the Satellite at about 5:15 a.m.
The purpose of this fabrication was to form the basis for an extrapolation defense, that is, to demonstrate that the .14% reading overstated the actual blood-alcohol level at the time of the arrest. That demonstration would require expert testimony to the effect that based on the "facts," Hoppe's blood alcohol at the time of arrest was actually between .06% and .09%. To fulfill that purpose respondent directed a letter, dated December 5, 1984, to an alcohol expert, in which the Zombie was added to the list of drinks included in Hoppe's factual recitation. The DEC concluded, and we agree, that the clear discrepancy between the four scotches reported to the arresting officer and the Zombie, which first appears in the letter to the alcohol expert, gives credence to Hoppe's assertion that this basis for an extrapolation defense originated with Edson.
Before the Hoppe DWI case went to trial, respondent was able, on the basis of the manufactured drinking pattern and the expert's report, to obtain the consent of the municipal prosecutor and the arresting officer and the acquiescence of the municipal court judge to a plea-bargained reduced charge of reckless driving.
Hoppe rejected the plea arrangement. The case therefore went to trial, with a full extrapolation defense being introduced both through defendant's version, which included the fictitious Zombie, and the expert's testimony. Defendant was convicted and the conviction was upheld in the Law Division. In his application for a new trial Hoppe filed a certification asserting that Edson manufactured the "Zombie-extrapolation"
defense and requested leave to re-enter his original defense based on his having consumed four drinks of scotch before 2:00 a.m.
Although respondent denied planting the "Zombie" business in Hoppe's story, the DEC concluded that "the entire set of facts and circumstances surrounding the Zombie and the extrapolation defense were created" by Edson. Moreover, the local committee characterized the letter to the alcohol expert as "a deliberate attempt by the Respondent to present false information in support of his client's defense."
Based on the information given by Hoppe in support of his application for a new trial the Burlington County Prosecutor's Office commenced an undercover investigation of the respondent.
On October 10, 1985, as part of that investigation, Captain Neil Forte, a Burlington County Detective, went to Edson's office purportedly to confer about a drunk-driving summons issued to him in Medford Township. Forte, who was equipped with a sound monitoring device, presented himself as Army Major Frank Furillo, for whom a DWI conviction would beget ruinous consequences for his military career.
Furillo told Edson that he had had a few "seven and sevens" at Nicklebees in Medford, stopped drinking for an hour or so, had a hamburger and some coffee, and then left the restaurant, immediately after which he was stopped by the Medford police. (The cognoscenti will appreciate the thought the prosecutor's office must have put into this drinking-and-eating pattern, inasmuch as it rendered impossible any sensible extrapolation defense.) Respondent's reaction to this recitation, within five minutes of his meeting this complete stranger, was to begin laying the groundwork for an extrapolation defense, necessary because according to Edson the "true" facts were "ruinous."
"That's gonna kill you. If you hadn't drank for an hour, you have no chance of winning this."
As disclosed by the taped conversation respondent first ascertained that Furillo had not told the arresting officer either when he had started or when he had stopped drinking, or that an hour before he was arrested he had stopped drinking liquor and drank some coffee. Edson's response, direct and to the point, albeit somewhat coarse, was
That's good. Because if you said you had waited an hour you would have been fucked. It's as simple as that. ...