Thursday, November 17, 2016

Appellate Division remands "Brady letter" case. Seeks more detailed findings from trial judge.

Update:  Judge Johnson, in response to the remand, issued a December 20, 2016 Order and Decision.

Update:  Transcript of  December 19, 2016 hearing contains testimony by former Wildwood Crest Police Lieutenant Michael Hawthorne that he was a whistleblower who was punished for "saving the information that force Captain [David] Mayer to retire." Hawthorne's January 1, 2017 pro se brief is also on-line.  Important Note: Late this afternoon (01/16/17), I erroneously posted at the link above a draft, rather than the final version, of a brief that was filed with the Appellate Division by Michael Hawthorne.  I have since corrected the link so that it leads to the final, filed version of the brief.
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On November 17, 2016, a two-judge panel of an appeals court directed Atlantic/Cape May County Judge Nelson C. Johnson for "clarification" on why he ordered disclosure of four letters from Cape May County Prosecutor regarding "major problems with [two Wildwood Crest police officers] ever testifying in a criminal proceeding."

At issue are four letters through which Prosecutor Robert J. Taylor advised Wildwood Crest Mayor Carl Groon that he would issue "Brady letters" if either Captain David Mayer or Lieutenant Michael Hawthorne  were to be witnesses in any criminal proceeding.   Brady letters, named after the 1963 Supreme Court case of Brady v. Maryland, are typically issued to criminal defendants to alert them when a police officer who will be a witness against them has a sustained record for having been untruthful in an official capacity.

Johnson found that the four letters were exempt from disclosure under the Open Public Records Act (OPRA).  In a May 8, 2015 decision, however, he found the four letters were disclosable under the common law right of access.  In a subsequent July 10, 2015 order, Johnson awarded the plaintiff's lawyer $45,690.76 in costs and attorney fees. 

A determination under the common law right of access involves a balancing of the requestor's (or the public's) interest in disclosure of the records against the government's need for confidentiality.  In making their common law right disclosure determinations, courts are guided by six factors set forth in the Supreme Court case of Loigman v. Kimmelman.

In today's decision, Appellate Judges Richard S. Hoffman and Amy O'Connor found that Judge Johnson did not give sufficiently detailed reasons supporting his rulings on each of the Loigman factors.  They gave him forty-five days to issue a supplemental opinion.

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