On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Brody, Stern and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
We granted the State's motion for leave to appeal an interlocutory order of the Law Division in this capital murder case to decide the following questions:
I. DOES PROTECTION OF DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION REQUIRE DISQUALIFICATION OF THE ENTIRE ESSEX COUNTY PROSECUTOR'S OFFICE?
II. DOES THE FACT THAT A DEFENDANT MAY CALL A MEMBER OF THE PROSECUTOR'S OFFICE AS A DEFENSE WITNESS DURING A PENALTY PHASE PROCEEDING CREATE AN ETHICAL BAR TO THE PROSECUTOR'S OFFICE REPRESENTATION OF THE STATE?
III. DID THE TRIAL COURT EXCEED ITS AUTHORITY IN MANDATING THAT THE ATTORNEY GENERAL SUPERSEDE THE COUNTY PROSECUTOR AND ASSUME RESPONSIBILITY FOR PROSECUTING THIS CAPITAL MURDER CASE?
Defendant Richard Irizarry was charged with capital murder, and other lesser offenses, for his part in the February 7, 1990 killing of Angel Laboy (Laboy). On March 2, 1990, defendant
provided a statement to the police. In that statement, defendant asserted that on February 7, 1990, he was approached by co-defendant Julius Boeglin, who told defendant that he wanted Laboy killed because Laboy was talking too much about Boeglin's drug business, and owed Boeglin $1,800. Boeglin offered defendant $1,000 if he would perform the killing.
Renee Taylor (Boeglin's girlfriend), Boeglin and defendant drove to a pizzeria, where, while they were still in the car, Boeglin pointed Laboy out to defendant. Boeglin gave defendant a gun and told him to "get him now." Defendant stated that, before he hesitantly got out of the car, Boeglin, with another gun in his hand, told him that he would be watching him. Defendant asserted: "The way [Boeglin] told me, he made me feel like he was gonna shoot me. . . ."
Defendant got out of the car and called out Laboy's name. Laboy turned and, when he saw what defendant was about to do, told defendant that Boeglin would kill him as well. At that point, defendant stated that he pulled the gun out from his coat pocket and shot Laboy five or six times.
The trials of defendant and Boeglin were severed because both provided statements that the State intended to use at trial. Defendant's trial was scheduled to take place first. However, before the commencement of his trial, defendant's attorney, First Assistant Deputy Public Defender Joseph Krakora (Krakora), approached Assistant Prosecutor Leslie J. Mann (Mann), the attorney assigned to try the case for the State, and stated that defendant was willing to testify on behalf of the State against Boeglin if given use immunity. Mann discussed this proposal with the Director of the Prosecutor's Homicide Squad, Norman W. Menz, Jr. (Menz). Based on that Discussion, Mann advised Krakora that the State would not offer defendant any consideration in exchange for his testimony, and that the State intended to fully prosecute defendant for capital murder. Krakora indicated to Mann that he understood the State's position. However, both Krakora and Mann agreed that defendant's cooperation would be
evidence that could be used to establish the mitigating factor set forth in N.J.S.A. 2C:11-3c5(g) should defendant be convicted of capital murder.
Because of defendant's willingness to testify, the order of trials was switched, with Boeglin's trial now scheduled first. The trial court granted the State's petition for immunity, pursuant to N.J.S.A. 2A:81-17.3, and defendant testified at Boeglin's trial. Boeglin was convicted of non-capital murder.
After the completion of Boeglin's trial, Krakora sought to negotiate a plea on behalf of defendant. Krakora offered to have defendant plead guilty to aggravated manslaughter. Mann discussed the offer with Menz, who rejected it because it was too lenient for a "hired killer." However, Mann was authorized to convey a counter-offer to Krakora; namely, a plea to non-capital murder with the understanding that such a plea would have to be approved by Essex County Prosecutor Clifford Minor (Minor).
Sometime later, a meeting was held between Mann, Menz, Deputy First Assistant Prosecutor John Redden, Minor, First Assistant Prosecutor Peter J. Francese, Krakora and Deputy Public Defender Michael Marucci. The purpose of the meeting was to discuss a negotiated plea for defendant. Krakora urged Minor to accept the offer of a plea to aggravated manslaughter in recognition of defendant's cooperation. The offer was rejected. However, Mann was later authorized by Minor to offer a plea to non-capital murder to defendant. Krakora rejected the offer, and, after doing so, filed this motion to disqualify the Essex County Prosecutor's Office.
At the hearing on the motion, defendant alleged that the prosecutor's office had used the immunized testimony to prepare its trial strategy and in its plea bargain negotiations. He asserted that the supervisors of the prosecutor's office were all aware of defendant's immunized testimony before they decided on what plea to offer. Defendant further asserted that an attempt to build a "Chinese wall" around a new assistant prosecutor would be ineffective because it would be unrealistic to think that the new
prosecutor would not be exposed in some way to the immunized testimony, especially in light of the fact that this was a capital case. Moreover, defendant maintained that if approval was necessary for any decisions concerning the trial, the new assistant prosecutor would be receiving that approval from a supervisor who had been exposed to the immunized testimony.
The defendant also argued that a conflict of interests would exist if an Assistant Essex County Prosecutor, presumably the one who prosecuted Boeglin, testified in the penalty phase concerning the substantial nature of defendant's cooperation while the office itself maintained that defendant was guilty of capital murder. Finally, defendant argued that the State would in no way be prejudiced if a different prosecutor's office handled the case, especially in light of the Fifth Amendment implications resulting from his immunized testimony.
The State countered by arguing that this case did not require disqualification because defendant's statement, which took place before his immunized testimony, contained all the information necessary to prosecute defendant. The State noted that while the testimony given at Boeglin's trial was substantially greater in length than the three page statement defendant gave to the police, the substance of the testimony was not materially different.
The State discounted defendant's argument that the immunized testimony was used by the prosecutor's office in its plea negotiations, noting that defendant's offer to testify was met by the State's assertion that, if he did, no consideration would be given in view of defendant's status as a hired killer. The State further asserted that there was no case law to support the disqualification of an entire prosecutor's office under the circumstances of this case.
Regarding the conflict issue, the State argued that Mann, who was no longer assigned to the case, would be available to testify at the penalty phase, and that the petition presented to the court seeking immunity for the defendant could speak for itself in the unlikely event that Mann would try to "color" his testimony. The
State also argued that determining whether defendant's testimony at the earlier trial amounted to "substantial" cooperation did not depend on someone from the prosecutor's office taking the stand, but could be testified to by, for example, an expert in criminal law.
The motion Judge rejected defendant's primary argument that the prosecutor's office must be disqualified as a matter of law on the theory that defendant's immunized testimony necessarily had to be used by the prosecutor in refusing defendant's plea offer. However, the Judge recognized that the problem was not solved simply because a new assistant prosecutor, without any knowledge of defendant's immunized testimony, was selected to try the case.
While the Prosecutor, as I've indicated asserts in their brief that there appears to be no Kastigar problems, because of the removal of Prosecutor Mann and the appointment of a new prosecutor, this Court at this posture does not find that there is any clear and convincing evidence that would require -- or that would allow the prosecutor to continue without a Kastigar hearing. Certainly the affidavit from the new assistant prosecutor does indicate clearly that he had no involvement, but there are other issues that will have to be addressed in this Court's opinion at a Kastigar hearing if the Prosecutor's Office is to remain in this case.
However, the Judge accepted defendant's alternate theory that the Essex County Prosecutor's Office should be disqualified based on the conflict of interest issue. Citing Rules of Professional Conduct 3.7, 1.7, 1.9 and 1.10, as well as In re Petition for Review of Opinion Number 569 of the Advisory Committee on Professional Ethics, 103 N.J. 325, 511 A.2d 119 (1986), Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 536 A.2d 243 (1988), Lawler v. Isaac, 249 N.J. Super. 11, 592 A.2d 1 (1991), and State v. Bey, 112 N.J. 45, 548 A.2d 846 (1988), the motion Judge said the following:
This Court is satisfied that because of the nature of this case, that is it's a capital murder case, that because of the fact that the defendant did testify in a previous proceeding prosecuted by the Essex County Prosecutor's Office resulting in a conviction of the co-defendant, Boeglin, that there is potentially an appearance of conflict for the Prosecutor's Office to remain as the prosecuting authority of this case.
The Judge ended the hearing by concluding that the Essex County Prosecutor's Office should be disqualified, and signed an order to that effect on August 6, 1993. We granted the State's motion for leave to appeal.
N.J.S.A. 2A:81-17.3 prohibits the prosecutor from using
testimony or evidence, or any information directly or indirectly derived from such testimony or evidence, . . . against the 0 person in any proceeding or prosecution for a crime or offense concerning which he gave answer or produced evidence under court order.
The statute affords "use and derivative use" immunity which was sanctioned by the United States Supreme Court in Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212, reh'g denied, 408 U.S. 931, 92 S. Ct. 2478, 33 L. Ed. 2d 345 (1972). In Kastigar, the Court determined that a statute which offered use and derivative use immunity was coextensive with the Fifth Amendment privilege against self-incrimination, and, as such, was sufficient to compel testimony over a claim of privilege. Id. 406 U.S. at 453, 92 S. Ct. at 1661, 32 L. Ed. 2d at 222. The purpose of the Fifth Amendment bar against the use of immunized testimony is to "'leave[ ] the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege' in the absence of the grant of immunity." Id. at 458-59, 92 S. Ct. at 1664, 32 L. Ed. 2d at 225 1 (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 79, 84 S. Ct. 1594, 1609, 12 L. Ed. 2d 678, 694 (1964)). That purpose is not automatically frustrated simply because the government has been exposed to immunized testimony. United States v. Serrano, 870 F. 2d 1, 17 (1st Cir.1989); United States v. Crowson, 828 F. 2d 1427, 1430 (9th Cir.1987), cert. denied, 488 U.S. 831, 109 S. Ct. 87, 102 L. Ed. 2d 63 (1988); United States v. Pantone, 634 F. 2d 716, 720 (3d Cir.1980). But cf. United States v. McDaniel, 482 F. 2d 305, 311 (8th Cir.1973) (where Assistant United States Attorney read defendant's testimony well in advance of trial without knowing that it was immunized, "the government is confronted with an insurmountable task in discharging the heavy burden of proof imposed by Kastigar ").
However, a person afforded use and derivative use immunity "is not dependent for the preservation of his rights upon the integrity and 2 good faith of the prosecuting authorities." United States v. Kastigar, supra, 406 U.S. at 460, 92 S. Ct. at 1665, 32
L. Ed. 2d at 226. The prosecution has the burden of establishing that its evidence is not tainted by information derived from immunized testimony. More specifically,
[t]his burden of proof . . . is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.
Our Supreme Court adopted the principles of Kastigar in State v. Strong, 110 N.J. 583, 542 A.2d 866 (1988). In doing so, the Court noted that the emphasis of Kastigar "was that a subsequent prosecution may be constitutionally allowed as long as it 'insures that the testimony cannot lead to the infliction of criminal penalties on the witness.'" Id. at 590, 542 A.2d 866 (quoting United States v. Kastigar, supra, 406 U.S. at 453, 92 S. Ct. at 1661, 32 L. Ed. 2d at 222). 3 The Strong Court also observed, however, that the general standards of Kastigar did not provide specific guidance for determining applications stemming from use and derivative use immunity, and, thus, the Court set out to "consider the factors that should govern a determination of whether evidence used in a subsequent prosecution is sufficiently untainted by earlier compelled testimony." Id. 110 N.J. at 593, 542 A.2d 866. See also United States v. Pantone, supra, 634 F. 2d at 719 ("It has been left to the lower courts to define the exact contours of the standards that the government must meet in varying contexts before evidence will be deemed untainted by association with compelled testimony.").
With this in mind, the Strong Court stated that
the burden of proof imposed on the State must be by "clear and convincing" evidence. No less a burden of proof will suffice to entitle the State to engage in a prosecution of a witness who has given earlier compelled testimony under a government grant of immunity.
The Court went on to note that prosecutorial use of immunized 4 testimony "may take a variety of forms." Id. at 606, 542 A.2d 866.
Quoting an Eighth Circuit case, the Court ...