In the Matter of Louis M.J. DiLeo, A Former Judge of the Municipal Court __ NJ __ (D-66-12; 1-27-14

Municipal court judges are not permitted to deprive defendants of right to counsel and prosecute defendants

In the Matter of Louis M.J. DiLeo, A Former Judge of the Municipal Court __ NJ __ (D-66-12; 1-27-14

The undisputed facts clearly and convincingly demonstrate that former Judge Louis M.J. DiLeo committed egregious legal errors in conducting the proceedings involving Anthony Kirkland and Wendell Kirkland. Judge DiLeo’s conduct violated Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. Respondent is reprimanded.

1. Every judge is duty bound to abide by and enforce the standards in the Code of Judicial Conduct. There are two determinations to be made in connection with the imposition of judicial discipline: (1) has a violation of the Code been proven by clear and convincing evidence, and (2) does that violation amount to unethical behavior warranting discipline. Generally, discipline is warranted “ ‘when conduct is marked with moral turpitude and thus reveals a shortage in integrity and character.’ ” Id. at 102. The Court also has acknowledged that a single violation of the Code that was “willful” or “typical of the judge’s work” may constitute judicial misconduct. (pp. 19-21)

2. Legal error has provided the foundational basis in this state for charging judges with violations of Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. A case-by-case approach has been used when analyzing charges of legal error to discern judicial misconduct under these canons. Where willful abuse of judicial power or inability to follow the law has been found, demonstrating judicial misconduct in the extreme, the Court has not hesitated to impose the harshest of sanctions and has removed a sitting jurist on the basis of incompetence and unfitness for judicial office. The overriding concern is the capacity of judicial behavior, objectively viewed, to undermine public confidence in the integrity and impartiality of the judicial process. 

3. The appropriate standard – most consistent with Rule 2:15-8(a), the Code, and the Court’s general approach to judicial discipline – is the objective “reasonably prudent and competent judge” standard of Benoit with a “plus,” as a majority of jurisdictions require. To be subject to judicial discipline under the Code, there must be clear and convincing proof of objective legal error under the test described in Benoit, that the error must be “made contrary to clear and determined law about which there is no confusion or question as to its interpretation,” and that the error must be “egregious, made in bad faith, or made as part of a pattern or practice of legal error.” This standard protects judicial independence and preserves public confidence in the judiciary. 

4. The undisputed facts clearly and convincingly demonstrate that Judge DiLeo committed egregious legal errors in his conduct of the proceedings involving the Kirkland defendants. Respondent’s manner of conducting this trial deprived the defendants of their fundamental due process rights and eliminated all indicia of impartiality by the judge -- and fact-finder -- in this bench trial. The egregiousness of these errors had the clear capacity to undermine public confidence in the dignity, integrity, and impartiality of the judicial system of this state. Judge DiLeo violated Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. He committed legal errors of the degree and kind that call into question judicial competence and cast a pall over the judiciary as a whole, and that constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute. R. 2:15-8. 

However, our case law clearly requires a searching inquiry by the court before the right to counsel can be knowingly and voluntarily relinquished. See State v. DuBois, 189 N.J. 454, 468 (2007). As was noted by the Law Division when reviewing these proceedings, “[t]he fact that [the defendants] tried to secure private counsel . . . does not amount to a knowing, voluntary waiver of their right to have a lawyer represent them in a trial that resulted in county jail sentences for each defendant.”

Objectively viewed, Judge DiLeo egregiously mishandled the routine and regular task of appointing public defenders to represent indigent defendants. His conduct forced the defendants to go to trial pro se, which, as the Law Division noted, placed the defendants at “an obvious disadvantage.” “The importance of counsel in an accusatorial system such as ours is well recognized.” Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) (noting also that “[if the matter has any complexities the untrained defendant is in no position to defend himself and, even where there are no complexities, his lack of legal representation may place him at a disadvantage”). 

The Law Division catalogued well the disadvantages that the deprivation of the right to counsel visited on defendants. The court’s description bears repeating: These two pro se defendants (1) “did not know enough to object to the hearsay testimony offered by the arresting officer” regarding the on-scene identifications made by the victims who were brought to the location where the defendants were arrested; (2) “were not in a position to explore the viability of a motion to suppress evidence of a warrantless search or to suppress the identifications made at the arrest location”; (3) “did not know to make a motion to dismiss the marijuana charge because a lab report was never even mentioned much less entered into evidence [and because] the officer [never] testified] that he had training and/or experience in the identification of narcotics”; (4) “did not know how to try to secure the testimony of Jesus Gonzalez”; and (5) “did not know how to investigate Anthony’s claim that Gonzalez told the arresting officer that the marijuana was his.” Those disadvantages were serious as was the magnitude of their consequences. As we have made abundantly plain as a basic precept of municipal court practice,

as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.

[Rodriguez, supra, 58 N.J. at 295.]

Moreover, it also is abundantly clear that Judge DiLeo’s manner of conducting this trial deprived the defendants of their fundamental due process rights. The judge himself took on the role of prosecutor in this matter by pointedly questioning witnesses and, ultimately, using evidence that he secured through his cross-examination of the defendants to convict them. His conduct eliminated all indicia of impartiality by the judge -- and fact-finder -- in this bench trial. See Ridgewood v. Sreel Inv. Corp., 28 N.J.121, 132 (1958) (stating that “[t]here is a point at which the judge may cross that fine line that separates advocacy from impartiality” and noting that questioning of a witness that crosses this line may cause “substantial prejudice to the rights of one of the litigants”); see also State v. Taffaro, 195 N.J. 442, 450-51 (2008) (cautioning trial courts to use “great restraint in questioning witnesses,” particularly in jury trials, while noting that N.J.R.E. 614 and case law allow judges to question witnesses in order “to clarify their testimony” or “to help elicit facts” “when a witness is in severe distress”). Moreover, compounding his injudicious actions in this matter, Judge DiLeo allowed a non-attorney -- the arresting officer -– to participate as the State’s sole representative in the trial. SeeR. 7:8-7(b) (authorizing municipal prosecutor, municipal attorney, Attorney General, county prosecutor, county counsel, or, in limited instances, a private attorney, to represent State in municipal court prosecutions); State v. Hishmeh, 266 N.J. Super. 162, 166 (App. Div. 1993) (disallowing police officer’s questioning of witness in absence of municipal prosecutor based on prior version of Rule 7:8-7(b)); see also R. 1:21-1(a) (prohibiting non-attorneys from practice of law in this state).

So, in effect, the defendants had the judge and the testifying police officer who had arrested them as their adversaries in their trial. These errors were “contrary to clear and determined law about which there is no confusion or question.” Boothe, supra, 110 So. 3d at 1019. That the defendants were pro se facilitated this miscarriage of justice, for we expect that no attorney would have stood silent in the face of such flagrant and obvious error in the basic delivery of justice in a courtroom in New Jersey. 

In sum, the conscious decisions of Judge DiLeo resulted in a perversion of the judicial process. This record is replete with legal error involving fundamental rights and basic court procedures that any competent jurist would recognize to be wrong. It cannot be defended or minimized. We specifically reject, as the Committee did, the judge’s “reliance on a heavy court docket as justification for his absolute disregard of appropriate procedures and the fundamental rights of defendants, especially when, as here, the defendants faced a consequence of magnitude.” A court’s concern about judicial “backlog” never trumps protection of a defendant’s constitutional rights. 

Judge DiLeo conducted this trial on his own terms. He denied the defendants’ request for counsel, forced them to go to trial pro se after refusing their request for a public defender, prosecuted the case with the help of the arresting police officer, personally cross-examined the defendants, and found the defendants guilty based on testimony that he himself had elicited during his cross-examination. Furthermore, at the conclusion of those proceedings, Judge DiLeo sent these two pro se defendants to jail where they remained for 124 days for non-violent disorderly persons offenses. Not only the defendants but also the judicial system were victims. The judge violated basic principles and procedures of our judicial system that people have a right to expect a municipal court to follow when prosecuting a citizen for a disorderly persons offense. 

The legal errors that took place in the municipal court proceedings conducted by Judge DiLeo were egregious. The egregiousness of these errors -- indeed, the judicial misconduct that occurred here -- had the clear capacity to undermine public confidence in the dignity, integrity, and impartiality of the judicial system of this state. Judge DiLeo violated the Code of Judicial Conduct, specifically Canons 1, 2A, and 3A(1). He committed legal errors of the degree and kind that call into question judicial competence and cast a pall over the judiciary as a whole, and that constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute. R. 2:15-8. We accept the Committee’s weighing of aggravating and mitigating factors in this matter and conclude that a reprimand is the proper quantum of punishment. 

Accordingly, for all the reasons expressed herein, we direct that Judge DiLeo be publicly reprimanded for his egregious legal error committed when presiding over the trial of the Kirkland brothers for disorderly persons offenses.