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State v. Harvey

January 15, 2003


On appeal from the Superior Court, Law Division, Union County.


This appeal raises a narrow question related to Harvey's petition for post-conviction relief (PCR). The petition stems from a previous murder conviction for which Harvey received a death sentence. It alleges, among other things, that the prosecutor's office in Middlesex County had engaged in misconduct by destroying evidence that might have aided the defense. The merit of that allegation is not before the Court. The sole issue at this juncture is whether the bare assertion of prosecutorial misconduct is sufficient to disqualify the entire prosecutor's office from representing the State in connection with Harvey's petition.

The prosecutor's office in Middlesex County represented the State in Harvey's two capital murder trials. The Supreme Court reversed Harvey's first conviction and death sentence. Judge Glenn Berman presided over the retrial that resulted in Harvey being convicted again and also receiving the death sentence. The Supreme Court thereafter affirmed that conviction and sentence.

While Harvey's direct appeal from his second death sentence was pending, Judge Berman resigned from the bench to become prosecutor of Middlesex County. The Attorney General superseded then-Prosecutor Berman and assigned two deputy attorneys general to handle Harvey's present PCR petition, which was filed in 1999. Because the attorney who had served as Harvey's retrial counsel is now a Superior Court judge sitting in Middlesex County, the matter was transferred to Union County.

After discovery directives, Harvey amended his petition to add a claim that the State mishandled a bloody quilt and blanket that it had confiscated from a previous suspect. Harvey asserts that the State turned over those articles to their owner before the defense had the opportunity to conduct certain tests.

At some point, the State notified the PCR court and defense counsel that an assistant prosecutor from Middlesex County, Thomas Kapsak, would replace one of the deputy attorneys general as co-counsel. Kapsak had worked on Harvey's first trial. Harvey's counsel objected, arguing that it was improper to designate an attorney from the prosecutor's office when that office was the focal point of charges of misconduct. Counsel also suggested that Kapsak was the official responsible for returning the quilt and blanket.

Although expressing the belief that no basis existed for the objections, the Attorney General removed Kapsak from the case. In his place, the Attorney General appointed Janet McClure, Middlesex County's deputy first assistant prosecutor as special deputy to represent the State. In deputizing McClure, the Attorney General's office indicated that she would answer directly to it and not to anyone within the prosecutor's office. Defense counsel objected to McClure's involvement, noting that she is a subordinate of the former Judge Berman, and also that she is in the same office as those who are the subject of Harvey's claims of misconduct. The trial court granted Harvey's motion to disqualify McClure. The judge explained that the basis for the disqualification was the status of Judge Berman as the prosecutor of Middlesex County, and that the participation of prosecutors from that office created an appearance of impropriety.

The Supreme Court granted the State's motion for leave to appeal and stayed the PCR proceeding. In July 2002, Glenn Berman ceased serving as Middlesex County Prosecutor and returned to the bench of the Superior Court.

HELD: Harvey's allegation of prosecutorial misconduct does not require the disqualification of attorneys from the Middlesex County prosecutor's office.

1. Judge Berman's return to the bench removes the factual underpinning to much, if not all, of the trial court's determination. That change in position has rendered moot any conflict that might have arisen because of Berman's prior status as prosecutor. The Court expresses no opinion concerning that aspect of the PCR court's decision. (pp. 8-9)

2. Harvey argues that Berman's change in position does not eliminate the broader conflict question. He asks that the Court give heightened scrutiny to any potential conflict within the context of this capital proceeding. The Court reaffirms its belief that the responsibilities of prosecutors include faithful adherence to all protections accorded defendants. And, prosecutors must be particularly careful to fulfill their responsibilities in capital cases. However, the evaluation of an actual or apparent conflict is highly fact specific. The asserted conflict must have some reasonable basis, and must be something more than a fanciful possibility. (pp. 9-10)

3. The Court notes that there is no specific claim of misconduct against McClure. Nor has there been any finding of impropriety against any other attorney within the prosecutor's or Attorney General's office who may have worked on Harvey's petition thus far. At bottom, Harvey seeks to disqualify a whole agency by asking us to presume that neither McClure nor any person working under her is capable of independently evaluating his petition. In view of Berman's change in position, the high-level ranking of McClure within the prosecutor's office, and the lack of any suggestion of misconduct on her part, the Court finds no compelling rationale to require the disposition requested by Harvey. (pp. 10-14)

3. Defendants frequently allege one or more forms of prosecutorial misconduct in these circumstances. A rule that required the disqualification of an entire prosecutor's office because of allegations against one or two of its members likely would lead to significant disruptions within the criminal justice system. The negative effects of such a rule would be far in excess of its positive consequences to this or future defendants. Nor is it mandated under existing jurisprudence. (pp. 14-16)

The PCR court's disqualification order is VACATED and the matter is REMANDED to the Law Division for further proceedings consistent with this opinion.

The opinion of the court was delivered by: Verniero, J.


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