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Matter of Application for Protective Order

June 23, 1995

IN THE MATTER OF AN APPLICATION FOR A PROTECTIVE ORDER *FN1


On appeal from the Superior Court of New Jersey, Law Division, Ocean County.

Approved for Publication June 23, 1995

Before Judges Shebell, Skillman and Kleiner. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

SHEBELL, P.J.A.D.

In August 1992, appellant learned that he was about to be indicted on State murder and racketeering charges. Appellant through his attorney pursued a pre-indictment plea agreement with the State and agreed to make a statement outlining his criminal conduct. Appellant contends that before he made his statement, State officials agreed that his statements would not be used against him in any criminal proceeding as long as he told the truth, and that his statements would remain confidential. Defendant feared retaliation from others involved in the criminal conduct. A summary of the agreement is contained in an October 8, 1992 letter from the State, which provides:

The State of New Jersey and the Federal Government will not use any answers provided by [appellant] during the course of his interview by members of the New Jersey State Police and/or the Division of Criminal Justice in any subsequent prosecutions of [appellant] for criminal activity within the State of New Jersey or any other jurisdiction. [Appellant] is obligated to provide complete and truthful answers during the course of his interview. Should it be determined that [appellant] deliberately provided false or misleading information to the New Jersey State Police and/or the Division of Criminal Justice during the course of said interview, it is understood that any and all information provided during the course of said interview can and will be used by the State of New Jersey as it sees fit in any subsequent prosecution involving [appellant].

Appellant alleges that the two State attorneys dealt with "assured us that the information disclosed during the proffer would not be disclosed to anyone in discovery in any subsequent prosecutions." Appellant's attorney stated in his certification in support of an application for a protective order:

A necessary promise that the State made to induce [appellant] to waive his Fifth Amendment right against self-incrimination and to make and continue to make a proffer was the promise made by State officials to [appellant] and to me that the fact of the proffer and the substance of the proffer would never be disclosed to anyone. Without that promise, [appellant], who feared for the safety of his family and himself, would never have made a proffer.

[(Emphasis added.)]

The certification also states that appellant and his attorney were told that a written record of appellant's statements would not be created and used in subsequent prosecutions.

The State contends that, "while it is true that [appellant] was assured that the process of his debriefing would remain confidential as long as he brought integrity to that process, it is also true that he choose to initiate events which led to the revelation of his having chosen to offer his information and cooperation to the State." The State acknowledges that "appellant was promised use immunity if he was completely truthful," and that appellant was debriefed "in confidence," but asserts that appellant violated the terms of the debriefing agreement and that the State made "no representations of unconditional or permanent secrecy as to the debriefing results * * *."

Following the statement to State officials, appellant is alleged by State officials to have made contradictory statements to Federal prosecutors, in that he admitted to State officials that he had fired the gun shot that killed the victim, but then told Federal officials that another person fired the gun. Prior to entering into a plea agreement with appellant, the State had taken the position that it was free to use appellant's statements because of his untruthfulness, even though it acknowledged that it believed that appellant had originally told the truth to State officials. Eventually, appellant pleaded guilty in State court to first-degree racketeering and first-degree aggravated manslaughter. He has been incarcerated ever since, and is presently in Federal custody. Under the plea agreement, the State agreed it would not subpoena or compel appellant to testify as a witness in any grand jury or trial proceeding against any person and that it would not use appellant's guilty plea or its factual basis as evidence against anyone in any proceeding unless appellant testified as a defense witness.

State officials also required as a condition of the plea agreement that appellant make a statement outlining the criminal activities of others involved in the homicide. It was agreed that those statements would only be admitted in evidence if appellant testified at trial and that the statements would be sealed until disclosure was required to fulfill the ...


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