On an order to show cause why respondent should not be disbarred or otherwise disciplined
Wilentz, Clifford, Handler, Pollock, O'Hern, Garibaldi, Stein
Respondent, Samuel Asbell, is a former Camden County Prosecutor who staged an assassination attempt on his own life. He pleaded guilty to knowingly filing a false police report contrary to N.J.S.A. 2C:28-4a. In this proceeding, respondent, notwithstanding his guilty plea and admitted violation of several ethical rules, asserted the defense of insanity. He voluntarily withdrew from the practice of law until psychiatrists could evaluate his mental capacity. We permitted him to resume practicing law under the supervision of a proctor, provided that he not practice in the public sector. The District XIV Ethics Committee (Committee) recommended a public reprimand, and the Disciplinary Review Board (DRB) recommended a suspended two-year suspension. A minority of the DRB recommended an unqualified one-year suspension.
In light of respondent's serious ethical misconduct, we conclude that the appropriate discipline is a two-year suspension from the practice of law. Contrary to the recommendation of the DRB, the suspension is not to be suspended.
Our reading of the record is substantially similar to that of the DRB. Respondent was admitted as a member of the New Jersey Bar in 1969. On December 17, 1984, he was appointed Camden County Prosecutor, a position in which he served until his resignation on January 5, 1990.
During his tenure as county prosecutor, respondent developed a reputation as a colorful prosecutor who enjoyed his position. Basking in the media limelight, respondent deeply enjoyed his job.
At the time of the relevant events, December 1989 and January 1990, respondent was a holdover prosecutor, his term of office having expired. A Republican, respondent hoped that he might be reappointed by then Governor-elect Jim Florio, a Democrat. In the alternative, respondent hoped that a new statewide position might be created for him as a "drug czar" -- an official in charge of overseeing all narcotics operations in New Jersey. His hopes were unfounded: respondent conceded that he had never been told that he would either be reappointed as prosecutor or appointed as drug czar.
For one week during the December 1989 holidays, respondent and his family vacationed in Vail, Colorado. Throughout that vacation, respondent experienced considerable stress and anxiety for having absented himself from New Jersey at such a crucial time in his career. According to respondent, those feelings lasted "from the day I left until the day I got back." He explained that he "was afraid to leave for fear somebody -- something would come up that would have something to do with my position and that I wanted to be there." Asked at the ethics hearing how much he had thought about his future while in Vail, respondent replied: "I would -- I was calling the office, I was calling various people, I was calling the freeholders, I was constantly on the phone, whenever I would come to a place where there was a phone I was making telephone calls."
On December 30, 1989, respondent and his family returned to New Jersey. The next day, December 31, 1989, respondent and his wife attended a New Year's Eve party at a friend's home in Cherry Hill. Respondent knew that Governor-elect Florio, whom respondent had met when both practiced law in Camden County, would be one of the guests. According to respondent, he "perceived that this would be an opportunity for the Governor elect and I to talk and get my future straightened out." Nevertheless, despite respondent's hopes and expectations, his contact with Florio on that night did not extend beyond salutations and congratulatory remarks on the election.
Florio left the party shortly after midnight. Respondent stayed on until 3:00 a.m. He then went home, slept until 7:00 a.m., and at 8:00 a.m. went jogging with two of his friends. Thereafter, respondent and his wife attended a brunch at a friend's house. After the brunch, respondent took his wife home and drove to his Camden office to inspect his mail. Respondent explained, "whenever I was out of the office for any period of time I always wanted to go through my mail and I knew I had to be places that week so I planned to go to do my mail and then I wouldn't have to worry about it." Arriving at his office at 3:00 or 3:30 p.m., respondent opened his mail and dictated several letters to his secretary.
Respondent left the office between 4:00 and 4:30 p.m., carrying two service weapons: a .380-caliber automatic pistol and a .12-gauge shotgun. In addition, he had placed in his briefcase an unregistered .45-caliber pistol with two clips containing six shots each. He left another, registered, .45-caliber pistol at his office. The pistols were part of respondent's extensive private collection of firearms. Respondent had removed the unregistered pistol from a cardboard box located in the crawl space of the basement in his house, where he also kept eight other pistols.
Once in his automobile, respondent telephoned his wife to let her know that he would be home in ten or fifteen minutes. Respondent then drove to a deserted area in South Camden on Front Street, near the intersection of Kaighn Avenue. According to respondent, he had driven impulsively to that area, after having made a right turn on Route 676 instead of his customary left turn. He explained that he had "just [driven] down there" and said "gee, this looks like a nice spot." He then grabbed the .45-caliber pistol from his briefcase, left the car, walked across the street until he was standing fifteen or twenty feet from his car, and fired seven rounds into the county-owned Lincoln Town car. The incident caused $6,500 in damages.
After shooting his automobile, respondent re-entered the car, grabbed his .380-caliber service pistol and fired it into the ground. He then drove for approximately one mile, stopped the car for a moment on a main street, took out the .12-gauge shotgun from the car trunk and fired it into the ground. He returned the shotgun to the trunk, drove to the Camden City Police Station, and sat in the parking lot for an indeterminate period of time. After knocking on the back door, he was admitted into the police station. He was clutching his briefcase, in which he had placed the .45-caliber pistol. He refused offers of the police officers to hold the briefcase for him.
Over the next three days, respondent gave the police misleading accounts of the shooting incident. In his statements, respondent recounted how, on leaving the Parkade Building where his office was located, he had noticed a green Toyota station wagon parked nearby with two occupants. When respondent approached the intersection of Federal and Fifth Streets, the Toyota accelerated toward respondent's car and proceeded to chase it to the Camden waterfront at a high rate of speed. When respondent neared Second Street, the assailants shot out the rear window of the car, sending flying glass onto the dashboard. At that point, respondent entered Front Street and accelerated, but slid on the ice on the railroad tracks. It was then that he
heard the burst of the automatic weapon which just sounded like a burp and all hell broke loose in my car and glass was flying all over the place and the car pulled up along side and I saw the passenger raise his weapon; I just stuck the sawed off shotgun out the window and let go. I saw the passenger go forward and it appeared to me as if a mellon [sic] was exploding. I thought I saw glass shatter * * * but it was possible that there was not glass shattering it was just the charge of the 12 gauge shotgun hitting the passenger. I couldn't get my finger into my rear trigger to take another shot and the car was beginning to accelerate towards Kaighn Avenue. I pulled my 380, I remember hitting the door with my shoulder and glass coming on top of my arm and then I opened the door and began and continued to fire as the car proceeded around Front and Kaighn and I must have gone back because I remember running up to the corner and firing a shot at the corner, pulling the trigger and my slide was back and I saw the car driving eastbound on Kaighn Avenue way up passed [sic] Second * * *.
Respondent also told police that, in the course of the prior several years, he had received numerous death threats and that a mere ten days before, on December 21, 1989, an attempt had been made on his life when he was driving out of the Parkade Building and turning left onto Fifth Street. That incident had left two bullet holes in his car.
Based on respondent's version of the events, the New Jersey State Police, Camden City Police, and investigators from the Camden County Prosecutor's Office began a massive investigation. According to the testimony of several of those officers and investigators, however, respondent's tale rang false from the start. Police investigators uncovered physical evidence of the position of the .45-caliber shell casings at the scene of the incident that were inconsistent with respondent's description. Police investigators also obtained a statement by an eyewitness, Ronald Moorer, who had seen a large, dark automobile -- not two cars -- operated by a white male drive up at a normal speed onto ...