On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 435-03-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Waugh.
The Rules of Professional Conduct provide in RPC 1.11(a)(1) and (2): Except as law may otherwise expressly permit, and subject to RPC 1.9, a lawyer who formerly has served as a government lawyer or public officer or employee of the government shall not represent a private client in connection with a matter:
(1) in which the lawyer participated personally and substantially as a public officer or employee, or
(2) for which the lawyer had substantial responsibility as a public officer or employee . . . .
By leave granted, attorney Donald Gardner appeals his disqualification, pursuant to these rules, as attorney for defendant, Elmo Rivadeneira, who has been indicted in a forty-one-count Hudson County indictment for the kidnapping and rape of three young females and for other related crimes. Gardner's disqualification was sought by the State as the result of his former employment as a Hudson County Assistant Prosecutor during a portion of the period of time when defendant's crimes were under investigation, but before defendant had been definitively identified as the target of that investigation.
As the result of factual disputes regarding the need for disqualification, a hearing was held on the State's disqualification motion, at which Kathleen Couglin, an Assistant Prosecutor in charge of Human Resources, George Domanski, a Lieutenant assigned to the Sexual Assault Victim's Assistance (SAVA) Unit of the Hudson County Prosecutor's Office, Genaro Rubino, an Assistant Prosecutor charged with obtaining communications data warrants for various units, including SAVA, and Gardner testified.
The hearing revealed the following: Commencing in July 2004, a series of kidnappings and rapes occurred in northern New Jersey and in New York. The first rape took place in Elizabeth, New Jersey, at which time the victim was also robbed of her cell phone. Thereafter, a kidnapping and rape of a sixteen-year-old girl occurred in North Bergen on December 16, 2004. A twenty-six year old woman was kidnapped and raped in Newark on January 12, 2005. Kidnappings and rapes of young women occurred in North Bergen on May 17, 2005, and in Jersey City on August 20, 2005. Two additional sexual assaults occurred in New York City in October 2004 and June 2005 that were similar to those taking place in New Jersey, and in September 2004, an attempted kidnapping in Manhattan was thwarted by the victim. A cell phone was left by the attacker after that September incident.
The rapes triggered an intensive investigation by the Federal Bureau of Investigation, the New York City Police Department, the New Jersey State Police, and the Hudson County Prosecutor's Office. Although defendant was not initially identified as the perpetrator, attention eventually began to focus on him as he was gradually linked to the cell phone belonging to the July 2004 victim, a stocking worn on the face of the person attacking the May 2005 victim, and jewelry stolen from the August 20, 2005 victim. However, defendant was not identified as the alleged perpetrator until October 2006. He was indicted by a Hudson County Grand Jury on February 28, 2007 for crimes arising from the January 12, 2005, May 17, 2005, and August 20, 2005 attacks. Additionally, he was charged in New York for the crimes committed there, and in Union County for the July 2004 crimes. All New Jersey matters are being tried in Hudson County.
The investigation and prosecution of sex crimes such as those with which defendant has been charged is assigned in Hudson County to the Prosecutor's SAVA unit. An updated resume, submitted by Gardner in 2002 in accordance with a directive of the Attorney General, indicates that, commencing in 1985, Gardner was given the position of Specialized Unit Supervisor, with supervisory responsibility for the SAVA unit. In that capacity, Gardner indicated that he managed and supervised the SAVA trial team and advised and directed SAVA detectives. According to the resume, commencing in 1992 and continuing thereafter, Gardner functioned as a Senior Staff Attorney, managing and supervising the SAVA trial team and detectives. Gardner retired from the Prosecutor's Office on January 31, 2006, and is now in practice with Milagros Camacho, whom he married in 2007. The two met in the Prosecutor's Office, where Camacho served as the direct supervisor of the SAVA Unit under Gardner's supervision. Camacho was replaced in that capacity by Assistant Prosecutor Al Iglesias in April or May 2004, prior to the incidents allegedly involving defendant. Camacho represented Gardner at the hearing in this case and remains his attorney on appeal.
Testimony by Lt. Domanski at the hearing disclosed that, during the period that the rapes at issue were being investigated, twice-monthly meetings occurred between the Prosecutor, his First Assistant, and senior staff of SAVA's legal and investigatory teams. According to Domanski, Gardner regularly attended such meetings unless he was ill, on vacation, or on trial. Domanski testified that a prime topic at the meetings was what could be done by the Prosecutor's Office to identify and apprehend the person named in the press as the "North Hudson Rapist" - a matter that, at some time before August 2005, had been made a priority by Hudson County Prosecutor Edward DeFazio. According to Domanski, apprehending the attacker was "a very very hot topic of discussion at that time." As Domanski described it, after the first victim was kidnapped and assaulted which I think was in December I believe from North Hudson and then you know when we started checking with other municipalities and other states and we became involved with New York, I mean things started to heat up and then you know as other victims were kidnapped and assaulted and then you know obviously the pressure gets more and more intense and so there was always, always a feeling of urgency to stopping this.
At the senior staff meetings, a presentation on the status of the investigation would be made, and then, according to Domanski, all the meeting attendees would make comments and suggestions.
[W]e would discuss the progress of the case.
We would discuss - we would compare the cases, I mean depending on which point in time we were at with the cases. Of course our concerns with the cases, how to go about obtaining maybe a search warrant if we needed to or other paperwork. I mean everything and anything possible. We would compare cases from other jurisdictions. We would discuss issues going on between us and the different agencies, the state police, Union County, New York City P.D., everything.
Domanski stated that, during the period of the investigation, the North Hudson Rapist "was just the number one topic of our discussions." Although he could not recall Gardner's particular comments, Domanski was confident that he had participated in the discussions. Additionally, Domanski testified that he had spoken to Gardner individually regarding each of the assaults that had taken place. Further, Gardner was the recipient of "Chief Sheets," addressed to the Chief of Investigations, John Hill, and his Deputy Chief that contained a summary of the facts of each case as it was reported to the Hudson County Prosecutor's ...