The opinion of the court was delivered by: Stein, J.
On certification to the Superior Court, Appellate Division.
This appeal requires us to determine whether it is an abuse of discretion for a trial court in a murder trial to declare a mistrial after discovering that defendant's counsel previously represented a significant State witness. We hold that in the context of this prosecution for a drug-related homicide and other offenses defense counsel's recent representation on drug charges of a material, recanting State's witness constituted an appearance of impropriety that justified the trial court's declaration of a mistrial. In the absence of prejudice to the defendant, or bad faith or inexcusable neglect by the prosecutor, we further hold that defendant's retrial on charges of purposeful-or-knowing murder, aggravated assault and weapons offenses was permissible under the federal and state constitutions' prohibitions against double jeopardy.
On February 7, 1996, Amedeo Delacruz drove Wanda Colon and Carl Watson to Prince Street in Newark to purchase heroin. Watson had recently ingested methadone to reduce his craving for heroin, but his need continued. Because Watson was violently ill in the car and was apprehensive about the neighborhood, Colon volunteered to purchase heroin for him in an apartment building on Prince Street.
Colon saw Rahnzzan Johnson, Sharonda Posey and John Loyal in the hallway of that building. Colon did not know any of them prior to this encounter. Johnson asked Colon what she wanted and Colon told him that she wanted "a bag of dope." Colon paid ten dollars for the bag of heroin. The transaction took place quickly and Colon left the building without looking in the bag.
Colon returned to the car and Delacruz drove away. After Colon handed the bag to Watson, he opened it and discovered that it was empty. Watson convinced Colon and Delacruz that they should return to the building. Delacruz parked the car near the entrance to the building and Colon and Watson went inside. The same three individuals were present. Colon identified Johnson as the person who sold her the empty bag of heroin. After a brief argument between Loyal and Watson, Loyal gave Watson another bag that contained heroin. Watson then told Colon to leave the building.
As Colon exited the building, she heard Watson and Johnson talking to each other as they followed her towards the car. Loyal exited the building directly behind the two men. At that point, Johnson ordered Loyal to shoot Watson. Loyal took a gun out of his jacket and shot Watson several times, causing his death. Loyal then pointed the gun in Colon's direction and warned her to leave before he "blew [her] head off." Colon was shocked and immobilized until Johnson pushed her towards the street. Colon returned to the car to find Delacruz terrified and unable to drive. Colon managed to drive the car away from the scene although she was in the passenger seat. When Delacruz began to react, he drove to a nearby police station after Colon told him to do so.
Colon explained what had occurred to a lieutenant at the police station before going to a back room to calm down. After waiting about one-half hour, Detective Ronald Soto of the Newark Police Department interviewed Colon. Soto asked her what had happened and then asked her to look at two photo books to try to identify the shooter. Colon looked through the first book without success. On the first page of the second book, she misidentified a photo of Omar Smalls as the man who sold her the heroin. Soto, based on his street knowledge, knew that Smalls was connected to an individual nicknamed "Tank," whose name was John Loyal. Soto had been actively investigating Loyal on drug-related charges and had two warrants for his arrest. Soto decided to prepare a photographic array for Colon and took a picture of Loyal from the file on his desk relating to the drug investigation.
Colon completed her review of the second book without identifying the shooter. When Colon finished looking through the books, she stood up and walked over to Detective Soto's desk. Colon saw the picture of Loyal on Soto's desk and immediately identified Loyal as the shooter. When Soto asked her if she might be confused or still in shock, Colon insisted that Loyal was the shooter and said that she was sure.
Following jury selection, defendant's trial for murder and other lesser charges commenced on April 16, 1997. Colon testified that she "can't confuse [Loyal's] face with nobody's face," and stated that she "would never forget that face" when she identified defendant as the shooter. On the following day, Colon finished her testimony and the State then called Sharonda Posey, the other woman present at the scene, as a witness. She testified differently from the description of the incident she had provided in her sworn statement to the police. Posey then testified that her police statement was false. The trial court stopped the proceedings and excused the jury to conduct a Gross hearing, see State v. Gross, 121 N.J. 1, 17 (1990), a procedure designed to determine whether a sworn statement given to the police is reliable and can be introduced substantively into evidence if the witness later recants the statement during his or her testimony.
During the three-day Gross hearing, both Johnson and Posey recanted the sworn statements that they gave to the police implicating Loyal as the shooter. Johnson's description of the events leading up to the shooting was similar to the facts recounted in Colon's testimony. Johnson, however, recognized the shooter as an "individual that comes in the neighborhood robbing, sticking up individuals, drug dealers." Johnson testified that he decided to tell the police "what they wanted to hear" to avoid a charge of conspiracy to commit murder because Watson had been killed after purchasing drugs from Johnson. Johnson admitted that everything else in his sworn statement was true except for the identity of the shooter. Detective Manuel Garcia, the officer who took Johnson's statement, refuted Johnson's testimony and testified that he did not threaten Johnson or promise him anything in return for his sworn statement.
Posey testified that she was selling drugs with her boyfriend, Johnson, at the time of the shooting. Posey stated that Johnson and Watson were exiting the building together when someone came from the side of the building and shot Watson approximately ten times. Posey alleged that the police threatened her with life imprisonment if she did not identify Loyal as the shooter from a photo array. Posey testified that she implicated Loyal as the shooter because she thought she otherwise would go to jail and lose her children. Kirk Schwindel, an employee of the Essex County Prosecutor's Office who was present when Posey made her statement, testified that Posey voluntarily identified Loyal as the shooter and that she was not threatened in any way.
Defense counsel argued that the Johnson and Posey statements were unreliable because they were induced by police officers who threatened potential criminal prosecutions. The State argued that Johnson and Posey testified voluntarily and that the specific testimony about the incident was substantially similar to Colon's, except for the detailed description of the shooting. The court was satisfied that the statements were sufficiently reliable to be admitted into evidence.
After making that ruling, and before the jury returned to the courtroom, the court asked Posey whether she had ever been represented previously by defendant's counsel, William Cucco, who was employed as an attorney for the Essex County Public Defender's office. Posey replied that Cucco never represented her in any prior criminal matter. The prosecutor reminded Posey about her prior guilty plea on January 23, 1995 for possession with intent to distribute a controlled dangerous substance within one thousand feet of school property, and her sentencing hearing on February 14, 1995 for that offense. She replied that she did not think that Cucco was her lawyer and recalled only that she was represented by the Public Defender's office.
The prosecutor had investigated Posey's prior convictions earlier that morning and learned that Cucco previously had represented Posey in his capacity as public defender. Cucco did not remember that representation but acknowledged that, because those events occurred over two years ago, he did not know for certain whether he had represented Posey. While investigating the Loyal case, Cucco interviewed Posey in prison and did not recognize her. Posey, likewise, did not recognize Cucco.
The trial court considered whether it should disqualify Cucco from representing Loyal. Cucco argued that the prosecutor had provided him with Posey's Judgment of Conviction on the drug charges and that that document did not indicate that Cucco had represented Posey. Cucco also noted that Posey's drug case was unrelated to the Loyal case, had been resolved years ago, and that neither party remembered the prior representation. The court ordered an independent attorney to advise Posey of her rights under RPC 1.7, the general rule governing conflicts of interest. Posey continued to insist that she had not been represented previously by Cucco, but agreed to waive any potential conflict of interest. After consulting with Cucco, Loyal also waived any potential conflict of interest that might arise during the cross- examination of Posey.
The prosecutor then requested a mistrial because Cucco had represented Posey in the past. The prosecutor noted that, if convicted, defendant would be able to argue that he received ineffective assistance of counsel because there was a conflict between Cucco's current representation of the defendant and his prior representation of the State's witness. The court pointed out that both sides had waived any potential conflict, but the prosecutor did not believe that the Rules of Professional Conduct permitted the conflict to be waived. The prosecutor also contended that the jury needed to be informed of the prior representation, because it might be germane to the inconsistency between Posey's testimony and her prior sworn statement. Desiring to research the issue independently, the court reserved decision on the motion for a mistrial. The jury then reentered the courtroom, and the prosecutor conducted his direct examination of Posey for the remainder of the morning.
That afternoon the prosecution withdrew its motion for a mistrial, noting that the record indicated that defendant made an intelligent and knowledgeable waiver of any potential conflict and that Cucco did not possess any confidential information about Posey. However, the court declared a mistrial sua sponte over defendant's objection and despite the prosecutor's election not to seek a mistrial. The court determined that State v. Needham, 298 N.J. Super. 100 (Law Div. 1996), mandated a mistrial, stating that that decision did not permit either party to waive a possible conflict. The court reasoned:
When an attorney's former client is the State's chief witness, it is beyond dispute that an appearance of impropriety is created requiring the attorney be disqualified. There is an appearance of impropriety.
Even though I don't think Miss Posey could be classified as the - - as the State's chief witness, she clearly is a key witness in the fact that she indicates in a statement that the State is seeking to introduce that the defendant is the shooter. She says that. She is a key witness, though not the only key witness.
After discharging the jury, the court restated its reasons for declaring a mistrial:
First of all, as the Court stated in Needham, this Court does not take lightly its decision to disqualify Mr. Cucco, Mr. Loyal's attorney. I do not and will not suggest or imply that Mr. Cucco did anything wrong or will do anything improper or unethical.
However, because of the very strong possibilities of the appearance of impropriety of a recanting eyewitness to a homicide being represented by defense counsel, I am satisfied that I must disqualify Mr. Cucco from continued representation of Mr. Loyal.
Cucco asked that the mistrial be declared with prejudice because Loyal's right to a speedy trial had been compromised. The court informed Cucco of the necessity of filing a motion seeking that relief.
In May 1997, the trial court held a hearing on defendant's motion for dismissal of the indictment based on a double jeopardy violation. The trial court again stated its reason for declaring the mistrial:
I did not find that Mr. Cucco was in [possession] of some specified, specific information that he learned from his representation of Miss Posey that would, one, lead him to a cross-examination based on information garnered while he was representing Miss Posey. I did not disqualify Mr. Cucco because I felt that because of that representation of Miss Posey, the cross-examination of Miss Posey while representing Mr. Loyal would be less than adequate. Less than vigorous. I specifically disqualified Mr. Cucco because of the appearance of impropriety.
Let's remember what was happening: Miss Posey was on the stand recanting, indicating that this defendant was not the shooter. Her boyfriend had already recanted and clearly, there was a jury question established as to who this jury was going to believe; or, what part of the testimony they were gonna believe. Were they going to believe Miss Colon, who identified Mr. Loyal as the shooter? Were they going to believe Miss Posey? And if so, were they going to believe the sworn statement given? Were they going to believe the testimony that she was about to proffer as to why she gave the sworn statement? That is, that she was forced to.
. . . I don't sit here in a vacuum. I'm well aware of the family of the deceased sitting in the courtroom. The justice system does not need a not guilty verdict when, in fact, there are grounds that - - I mean, yes, I do not know what the jury was going to say. I do not know what the jury was going to believe. But what the State and - - does not need, what the court system does not need is a not guilty verdict. Because, perhaps, the family of the victim believes that Mr. Cucco or Mr. Loyal got some special advantage because Mr. Cucco had represented both Mr. Loyal and the recanting witness.
The appearance of impropriety was such that in the interest of justice, once it was determined that the recanting witness was represented by Mr. Cucco, I was satisfied that I must declare a mistrial. So that when a jury makes a determination as to the guilt or innocence of Mr. Loyal, there is not the specter of Mr. Loyal getting an advantage if he's found not guilty because defense attorney also represented an eyewitness.
The only issue that concerned the court at the hearing was whether Cucco was provided a complete copy of Posey's Judgment of Conviction by the prosecutor. The court reserved decision on whether or not there was prosecutorial misconduct that would require defendant's indictment to be dismissed because double jeopardy had attached.
The court subsequently denied defendant's motion for dismissal of the indictment based on double jeopardy. The court again explained the reasons for declaring a mistrial:
I made a determination that the appearance of having a recanting witness now testifying in favor of defendant - - in a way favorable to the defendant, who is represented by a defense attorney, gave the appearance that if, in fact, there was a not guilty verdict, I can see something - - somebody saying, boy, something smelly there; something is fishy with this thing. She's now recanting. I felt that it was appropriate to declare the mistrial and have a new attorney appointed.
The court relied primarily on State v. Nappo, 185 N.J. Super. 600 (Law Div. 1982), and State v. Laganella, 144 N.J. Super. 268 (App. Div.), appeal dismissed, 74 N.J. 256 (1976), in holding that the prosecutor's actions or inactions did not rise to the level of bad faith or inexcusable neglect, and that the inadvertent failure to notify Cucco that he had previously represented a State's witness did not warrant the extreme sanction of dismissal of the indictment.
Loyal's second trial began in July 1997. Johnson testified that parts of his sworn statement were false and that Loyal did not shoot Watson. Johnson's testimony mirrored the testimony he gave during the Gross hearing at Loyal's initial trial. Detective Garcia testified about the investigation and the procedures used to acquire Johnson's voluntary sworn statement. Colon's testimony at the second trial described the incident and implicated Loyal as the shooter. Posey did not testify at defendant's second trial.
The jury convicted defendant of murder, aggravated assault, and related weapons offenses. Prior to being sentenced, defendant renewed his motion for dismissal of the indictment and argued that double jeopardy barred the convictions because prosecutorial misconduct created an opportunity for a mistrial, or alternatively, because there was not a manifest necessity to declare a mistrial based on the potential conflict. The trial court denied the motion and sentenced defendant to life imprisonment with a thirty-year parole ineligibility period on the murder charge, and to concurrent sentences on the remaining charges. The Appellate Division affirmed defendant's convictions and sentence in an unreported opinion. We granted certification. 162 N.J. 198 (1999).
Attorneys who practice law in New Jersey are required to comply with strict ethical rules concerning actual or possible conflicts of interests. Bruce A. Green, Conflicts of Interest in Legal Representation: Should the Appearance of Impropriety Rule Be Elmininated in New Jersey -- Or Revived Everywhere Else?, 28 Seton Hall L. Rev. 315, 318-19 (1997). In the case of a former client, attorneys must comply with RPC 1.9:
(a) A lawyer who has represented a client in a matter shall not thereafter:
(1) represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation with the former client; or (2) use information relating to the representation to the disadvantage of the former client except as RPC 1.6 would permit with respect to a client or when the information has become generally known.
(b) The provisions of RPC 1.7(c) are applicable as well to situations covered by this rule. [Emphasis added.]
RPC 1.7(c) is part of the general rule that prohibits an attorney from representing a client when that representation would create a conflict of interest. RPC 1.7 forbids an attorney from representing a client in a situation that would create an appearance of impropriety, even if there were no actual conflict:
(c) This rule shall not alter the effect of case law or ethics opinions to the effect that:
(1) in certain cases or categories of cases involving conflicts or apparent conflicts, consent to continued representation is immaterial, and
(2) in certain cases or situations creating an appearance of impropriety rather than an actual conflict, multiple representation is not permissible, that is, in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the multiple representation poses substantial risk of disservice to either the public interest or the interest of one of the clients. [Emphasis added.]
An appearance of impropriety must be "something more than a fanciful possibility" and "must have some reasonable basis." In re Opinion No. 653, 132 N.J. 124, 132 (1993) (quoting Higgins v. Advisory Comm. on Prof'l Ethics, 73 N.J. 123, 129 (1977)). The appearance of impropriety "alone may be sufficient to present an ethical problem even though no actual impropriety exists." Higgins, supra, 73 N.J. at 129. The doctrine's purpose is "to bolster the public confidence in the integrity of the legal profession." State v. Catanoso, 222 N.J. Super. 641, 648 (Law Div. 1987) (citing In re Cipriano, 68 N.J. 398, 403 (1975)). Although the doctrine's imprecision has provoked criticism and requests for its rescission as applied to private civil litigation, see Report of the Professional Responsibility Rules Committee, 158 N.J.L.J. 472 (1999), the doctrine's relevance in criminal matters and to issues of public-entity representation remains unchallenged. This Court recently declined to implement a recommendation to eliminate the appearance of impropriety standard from the Rules of Professional Conduct. See Notice to the Bar, 159 N.J.L.J. 843 (2000).
In determining whether there is a reasonable basis for finding an appearance of impropriety, we must view the conduct as would an "ordinary knowledgeable citizen acquainted with the facts." Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 216 (1988)(quoting RPC 1.7(c)(2)). That inquiry is highly fact-sensitive; it does not occur in a vacuum. In re Opinion No. 415, 81 N.J. 318, 325 (1979). Where there exists an appearance of impropriety in an attorney's representation of a client, that representation generally must cease. In re Petition for Review of Opinion No. 569, 103 N.J. 325, 334-35 (1986); Ross v. Canino, 93 N.J. 402, 409-10 (1983); Opinion No. 415, supra, 81 N.J. at 325. Once an appearance of impropriety is found, "only in extraordinary cases should a client's right to counsel of his or her choice outweigh the need to maintain the highest standards of the profession." Dewey, supra, 109 N.J. at 220.
When an appearance of impropriety is found in a criminal matter, disqualification of an attorney routinely is required. In State v. Morelli, 152 N.J. Super. 67, 74 (App. Div. 1977), defendant's counsel was disqualified because his firm represented an important prosecution witness and employed an attorney who had worked in the prosecutor's office while the defendant was being investigated. The Appellate Division, citing caselaw as well as opinions of the Advisory Committee on Professional Ethics, concluded that a defense attorney must be disqualified when there is a "risk of the unacceptable appearance of possible impropriety." Id. at 72 (citing State v. Lucarello, 135 N.J. Super. 347 (App. Div.), aff'd o.b., 69 N.J. 31 (1975); State v. Jaquindo, 138 N.J. Super. 62 (App. Div.), aff'd sub nom., State v. Rizzo, 69 N.J. 28 (1975); In re Opinion 361, 100 N.J.L.J. 1 (1977); In re Opinion 340, 99 N.J.L.J. 610 (1976); In re Opinion 276, 96 N.J.L.J. 1461 (1973); In re Opinion 207, 94 N.J.L.J. 451 (1971)). Defendant's waiver of his right to appeal a possible conviction based on a claim of ineffective assistance of counsel was found to be irrelevant. Morelli, supra, 152 N.J. Super. at 74.
In In re Garber, 95 N.J. 597, 598 (1984), this Court suspended an attorney from the practice of law for one year because he represented a murder witness who recanted a positive identification of the defendant, an individual whom the attorney had represented earlier in matters unrelated to the murder indictment. Id. at 605. The Court held that a "recanting witness is confronted by enormous legal pitfalls and thus is particularly in need of careful, objective and sound legal advice." Ibid. The Court found that the attorney's "intertwined connections" with both parties "presented an indelible appearance of impropriety that breaches ethical standards." Id. at 610. The Court also was concerned with "the attendant public perception that, as a consequence of respondent's compromised position, professional probity has been diluted and the administration of justice perverted." Id. at 611. See also In re Cohn, 46 N.J. 202, 213 (1966) (noting that public knowledge of attorney's dual representation of defendant and witness testifying against that defendant "would engender, at the least, a serious doubt about the integrity of the proceeding."). The Garber Court found that the witness's consent was immaterial and ineffective because "[t]here are certain conflicts that are so egregious that they cannot be cured by consent." Id. at 613-14.
Likewise, in Catanoso, supra, the Law Division found that if the defendant's counsel acted as a zealous advocate, he would have had to "breach the duty of loyalty that he owes to his former client," the State's main witness against the defendant. 222 N.J. Super. at 648. Therefore, although the defendant was willing to waive the right to cross-examine the State's witness so that he could maintain his choice of counsel, the Law Division observed that the defendant's counsel's prior representation of the witness may have permitted him to acquire confidential information that could be used favorably by the defendant. Id. at 645. See also Reardon v. Marlayne, Inc., 83 N.J. 460, 473 (1980) (holding that presumption of access to and knowledge of confidential information between attorney and former client, notwithstanding attorney's declarations to the contrary, may not be rebutted). The Law Division found that defendant's counsel created a "high risk of impropriety" when the State's witness "stands to be discredited, on cross-examination, by his former attorney." Catanoso, supra, 222 N.J. Super. at 648. The court concluded that "[i]f there is an `adequate factual basis' for an informed citizen to conclude that there would be a `high risk' of impropriety if [the] defendant's lawyer continued to represent his client, then the lawyer must be disqualified." Ibid. (citing In re Opinion No. 569, supra, 103 N.J. at 331). See also Reardon, supra, 83 N.J. at 471 (stating that "[i]f there be any doubt as to the propriety of an attorney's representation of a client, such doubt must be resolved in favor of disqualification.").
In Needham, supra, a case relied on by the trial court in the matter before us, the issue was "whether a defense attorney must be disqualified upon motion by the State when that attorney represented one of the chief prosecution witnesses in an entirely unrelated matter." 298 N.J. Super. at 102. The defendant was charged with multiple offenses and Officer Warner was expected to testify against the defendant. Ibid. The defendant's counsel had represented Warner in an indictable criminal matter seven years earlier and, more recently, in an internal affairs investigation that did not culminate in formal charges. Id. at 102-03. The Law Division held that that prior representation created an appearance of impropriety and warranted the disqualification of the defendant's counsel because "[w]hen an attorney's former client is the State's chief witness, it is beyond dispute that an appearance of impropriety is created." Id. at 103.
The Needham court found that "[i]f the defendant is acquitted as a result of the trial, an inference of wrongdoing is created by the perception that the acquittal was the result of the relationship or influence between [the defendant's counsel] and Officer Warner." Id. at 105. The court also was concerned that Warner could provide strategic information to assist his former attorney, that the defendant's counsel might not cross-examine his former client vigorously, or that the defendant's attorney might use confidential information from the prior attorney-client relationship to cross-examine his former client. Id. at 105-06. The court concluded that an adequate factual basis existed for an informed citizen to perceive an appearance of impropriety and that the defendant's attempt to waive the appearance of impropriety did not cure the disqualification of his attorney. Id. at 107. The court did not "intend to suggest or imply that [the defendant's counsel] has done, or will do, anything improper or unethical" but "because the possibilities of impropriety are so strong and because there is a risk that [the] defendant will not be adequately represented," the court disqualified the defendant's attorney. Ibid.
That defendant was prepared to waive any potential conflict of interest resulting from his counsel's prior representation of Posey does not absolve the trial court of the responsibility for assuring the fairness and reliability of the trial. In Wheat v. United States, 486 U.S. 153, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988), the defendant in a drug conspiracy prosecution requested that the attorney for two of his co-defendants represent him in place of his original counsel, informing the court of that request two days before trial. The prosecution objected because of the potential for conflict between counsel's obligations to the co-defendants and his proposed responsibility as defendant's trial counsel. Defendant and the co-defendants agreed to waive any conflict, and defendant emphasized his right to select his own counsel. The district court denied the requested substitution because of counsel's conflict of interest. Defendant was tried and convicted, represented by his original counsel. The Ninth ...