Sunday, August 24, 2014

Judge grants access to Cape Prosecutor's letters regarding Wildwood Crest police officials, ruling that they "contain findings of public official misconduct."

Update: 11/11/14

The transcript of the October 24, 2014 hearing is on-line here.   The next hearing has been scheduled for Friday, December 12, 2014 at 10:30 a.m.


Update: 09/26/14
In response to the prosecutor's 09/15/14 filing, my attorney, Richard Gutman, has filed a motion to strike Prosecutor Taylor's certification and argues against the CMCPO's motion for reconsideration.  My response, together with the CMCPO's filing, is on-line here.
Update: 09/15/14
On September 15, 2014, the Cape May County Prosecutor's Office has filed a motion for reconsideration of Judge Johnson's August 21, 2014 order that granted me access to "Brady" letters regarding Wildwood Crest police officials.  The motion, which is on-line here, will be heard on Friday, October 24, 2014 at 9 a.m. in Atlantic City.

In a certification that accompanied the motion, Prosecutor Robert L. Taylor claimed that disclosure of the "Brady" letters "will impede [his] duties to supervise local police departments in consultation with local civilian authorities in Wildwood Crest."  
The Prosecutor's Office also asked the court, if it denies its motion for reconsideration, to stay disclosure of the letters so that it can file an appeal in the matter. 
In his August 21, 2014 Order and Decision (on-line here), Superior Court Judge Nelson C. Johnson ruled that the public is entitled to see unredacted versions of four letters written "by the Cape May County Prosecutors's Office [containing] exculpatory or favorable information to [criminal] defendants concerning" two Wildwood Crest Police officials.  In his ruling, Johnson held that the letters "contain findings of public official misconduct, which the public certainly has a heightened interest in knowing."

Such exculpatory letters from a prosecutor are referred to as "Brady letters" and are named after the United States Supreme Court's 1963 decision in the case of Brady v. Maryland.  That decision, among other things, requires law enforcement officials to notify criminal defendants and their lawyers whenever the government receives information that a police officer involved in the defendants' cases has been untruthful.

Johnson, who characterized the Prosecutor's defense to my lawsuit as being "akin to a mantra," had reviewed the four letters in camera (privately in his chambers).  He found that while not "technically 'Brady letters,'" two of the letters "written by Prosecutor Taylor very pointedly address the legal and public policy concerns enunciated by the Brady Court."  He went on to say that those two letters are "harbingers of Brady Letters which will be written by [Taylor's] office in the future should either Captain [David] Mayer or Lieutenant [Michael] Hawthorne be called to testify as witnesses in a criminal case."

Importantly, Judge Johnson found that all four letters were exempt under the Open Public Records Act's advisory, consultative and deliberative exemption.  Thus, recovery of my attorney's fees for bringing this case is unclear.  But, even though I lost on OPRA, Judge Johnson found that "the public interest in said letters far outweighs any government interest in confidentiality."  Accordingly, he found that apart from OPRA, I had a common law right to disclosure of the letters.

Johnson gave the Prosecutor's Office 21 days within which to either disclose the letters or appeal his ruling.  I was represented in the case by Richard M. Gutman of Montclair.

Background on this case are available in my blog articles written on June 20, 2014 and July 22, 2014.

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