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Matter of Whitmore

Decided: February 16, 1990.

IN THE MATTER OF GEORGE G. WHITMORE, AN ATTORNEY AT LAW


For reprimand -- Chief Justice Wilentz, and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

[117 NJ Page 472] This is an attorney-disciplinary proceeding in which the respondent, a municipal prosecutor, was found guilty of ethics violations for conduct indirectly contributing to the improper

dismissal of a drunk driving case. The trial court dismissed the case when the police officer who administered the breathalyzer test chose not to be present for trial. Respondent, apparently aware that the officer had an improper reason for not appearing, did not so inform the court. Following ethics charges against respondent, the District Ethics Committee ("DEC") found that respondent had violated the Rules of Professional Conduct, and recommended that he be given a private reprimand. The Disciplinary Review Board ("DRB") also concluded that respondent's conduct constituted a breach of ethics, but determined that it merited a public reprimand.

I.

On March 9, 1986, Officer Thomas Hennessey arrested eighteen-year-old Brian Volker in the Borough of Monmouth Beach, where respondent, George G. Whitmore, served as municipal prosecutor. Hennessey charged Volker with driving under the influence, in violation of N.J.S.A. 39:4-50 and having an open container of alcohol in a motor vehicle, in violation of N.J.S.A. 39:4-51a. Patrolman White conducted breathalyzer testing of Volker. The test results were .15 and .16.

Volker and his family were friendly with New Jersey State Trooper Gerald Barbado, with whom they spoke about this matter. As a result, Barbado called Officer Hennessey on March 10, 1986, in an effort to intercede on Volker's behalf. During this telephone conversation, Barbado asked Hennessey if he had finished his police report for the case. Hennessey told Barbado, whom he did not know, that he had already completed and filed his report, and suggested to Barbado that Volker retain a lawyer.

The municipal court originally scheduled the Volker case to be heard on April 14, 1986. On the evening of the 14th, Barbado went to the courthouse to discuss the case with Hennessey and White. White was receptive of Barbado's entreaties, and he agreed to speak with respondent. White told

respondent that Volker hoped to attend the State Police Academy and that a conviction in this case would prevent him from doing so. Respondent told White that a desire to enter the Police Academy was not a defense to a drunk driving ("DWI") charge. The case was not heard that night because White was called away from court to transport a juvenile offender; it was continued until April 28, 1986.

On April 28, Barbado again attempted to arrange a favorable disposition of the DWI charge. He traveled to the courthouse and spoke with White. At some point after White and Barbado had conversed, White asked respondent if the case could be prosecuted without the breathalyzer evidence; respondent told White that it could not. Later that evening, but before the case was called, White informed respondent that he was going to leave. Respondent again explained to White that he needed him to prosecute the case, and urged him to stay. Despite respondent's request, White left the courthouse before the case was called, informing a courthouse attendant that he was on "convention leave."

When the case was called for trial, the judge asked respondent if he was ready to proceed. Respondent informed the court that he was not ready because the testing officer was unavailable. When the court asked why the officer was unavailable, respondent did not reply. Defense counsel immediately requested that the judge dismiss the DWI charge because of the absence of the testing officer and accept a guilty plea from defendant on the open container charge. Because this was a peremptory date (i.e., "try or dismiss"), the court granted this motion.

Several days later, authorities began an investigation into the disposition of the DWI charge, apparently prompted by another police officer on the Monmouth Beach force who had not been involved. As a result of this investigation, the Monmouth County Prosecutor's Officer brought charges ...


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