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In re Larsen

Supreme Court of New Jersey

June 20, 2018


          Argued: February 15, 2018

         District Docket No. XIV-2014-049QE

          Eugene A. Racz appeared on behalf of the Office of Attorney Ethics.

          Respondent waived appearance for oral argument.



         To the Honorable Chief Justice and Associate Justices of the Supreme Court of New Jersey.

         This matter was before us on a motion for reciprocal discipline filed by the Office of Attorney Ethics (OAE), following an order from the Supreme Court of the State of Utah (SCSU) suspending respondent for six months. Respondent was found guilty of violating the equivalent of New Jersey RPC 3, 8(d) (a prosecutor in a criminal case shall timely disclose exculpatory evidence to the defense).

         The OAE recommended that respondent "receive discipline of a reprimand or any more severe discipline that [we] might deem appropriate." At oral argument, the OAE requested the imposition of a reprimand. Respondent requests that we impose no more than a reprimand.

         For the reasons detailed below, we determine to impose the identical discipline that the SCSU imposed, a six-month prospective suspension.

         Respondent earned admission to the New Jersey bar in 2001, the Pennsylvania bar in 2004, the Idaho bar in 2006, and the Utah bar in 2007. in a letter to us, dated December 18, 2017, respondent represented that he received identical reciprocal discipline - six-month suspensions - in both Pennsylvania and Idaho, and that both terms ran concurrently with his Utah suspension.

         Following a disciplinary hearing in Utah's Third Judicial District, the Honorable Andrew H. Stone issued a written decision, dated June 19, 2014. Judge Stone found that respondent, a prosecutor in a criminal case, had failed to timely disclose to the defense that, a few weeks prior to trial, he had improperly shown a photograph of the defendant to the eyewitnesses scheduled to testify for the government. Judge Stone concluded that respondent had violated the Utah equivalents of RPC 3.3(a) (false statement of material fact or law to a tribunal) and RPC 3.8(d) (a prosecutor in a criminal case shall timely disclose exculpatory evidence to the defense). He recommended a six-month suspension for the RPC 3.8(d) violation and a one-month consecutive suspension for the RPC 3.3(a) violation.

         Respondent appealed both Judge Stone's decision and sanctions. Utah disciplinary authorities requested that respondent receive a three-year suspension; the amicus Utah Association of Criminal Defense Lawyers requested respondent's disbarment. The SCSU issued a June 16, 2016 opinion dismissing the charged violation of RPC 3.3(a), but affirming the finding that respondent violated RPC 3.8(d).[1] Thus, the SCSU affirmed the six-month term of suspension that Judge Stone had imposed for respondent's RFC 3.8(d) violation, but, having dismissed the RPC 3.3(a) charge, vacated the additional one-month consecutive suspension.

         The specific facts are as follows. Respondent was a prosecutor with the Davis County Attorney's Office, in Utah, from 2007 through 2010. In 2010, he was assigned, as trial counsel, to prosecute a defendant charged with first-degree armed robbery of two stores, Kim's Fashions and Baskin-Robbins, in 2006.[2] Because no physical evidence connected the defendant to the crimes, the crux of the trial was the identification of the defendant as the perpetrator by four eyewitnesses. If convicted, the defendant faced a sentence of five years to life in prison.

         Prior to the trial, respondent and a detective met with both the Kim's Fashions eyewitnesses and the Baskin-Robbins eyewitnesses. Respondent was aware that, in respect of the Baskin-Robbins robbery, law enforcement had conducted a photo array that did not include a photo of the defendant, and had conducted no photo array in the Kim's Fashions case. At the end of both meetings, respondent showed each eyewitness a single photograph of the defendant, asking whether they would be able to identify the defendant at trial. All four witnesses replied in the affirmative. Respondent did not show the witnesses pictures of any other individual.

         About a week before the trial, respondent informed the defendant's attorney that the prosecution's "[eye] witnesses had iD'd [the defendant]," but did not disclose that he had shown them a photograph of the defendant.

         At the trial, the (wife and husband) owners of Kim's Fashions testified as eyewitnesses. Testifying first, the husband denied, during cross-examination, that he was shown a photograph of the defendant as part of preparation for trial. On redirect, respondent made no effort to correct that testimony, despite knowing it was false. The wife truthfully testified, during cross-examination, that respondent had shown both her and her husband a photograph of the defendant during trial preparation. In response, the defense moved for a mistrial.

         The SCSU opinion noted the existence of competing versions of the events that occurred following the defense's motion for a mistrial. According to respondent, at a sidebar conference, the judge "inquired into the possibility of salvaging the Baskin-Robbins robbery charges if those witnesses had not been shown the photograph." Respondent asserted that, because he was not sure what the judge meant at the time, he did not disclose that he also had shown defendant's photograph to the Baskin-Robbins eyewitnesses. Respondent claimed that, following the sidebar, he made this disclosure to the defense attorney, who then notified the judge. The judge then declared a mistrial on all counts.

         According to the Utah disciplinary authorities, however, respondent knowingly allowed the Baskin-Robbins portion of the trial to proceed, despite his awareness that he had improperly tainted the eyewitnesses. The SCSU found that theory "plausible," based on the record, but determined that that portion of the trial did not go "forward in any meaningful sense" before respondent admitted to defense counsel that he had shown the photograph to all of the eyewitnesses. At the conclusion of the ethics hearing, Judge Stone found that, when the trial judge indicated, at sidebar, a willingness to proceed on the second robbery charge, respondent "did not volunteer at the time that ...

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