Thursday, August 6, 2020

New Jersey Supreme Court Sanctions Judge Over Impassioned Dissent

The New Jersey Supreme Court rejected the proposed removal of a judge made by the Advisory Committee on Judicial Conduct in favor of the three-month suspension.

The allegations involved harboring a fugitive.

The case began when the judge reported that her car was missing.

The investigating officers of Woodbridge Township found two warrants against her live-in boyfriend. 

The majority conclusions on the misconduct

In short, clear and convincing evidence supports the Presenter’s contention that respondent disclosed very little of what she knew about Prontnicki’s location, activities, and plans to the police. The evidence supports the inference that respondent acted not at the direction of the police or because she feared harm, but in the hope that she could assist Prontnicki and preserve their relationship while maintaining her judicial career...

Relying only on clear and convincing evidence, we view respondent’s communications with the WTPD on June 10 and 11, 2013 to fall short of the high standards imposed by the Code. Respondent clearly understood that the charges against Prontnicki were serious and that the police viewed public safety to be at risk while he remained at large. Yet she disclosed only minimal information about her extensive contacts with Prontnicki. Based on her conversations with Prontnicki, her texts to her friends, and her communications with the WTPD, it is apparent that respondent’s priorities were her personal concerns -- particularly her relationship with Prontnicki --  not her duty to the public.

Respondent was undoubtedly in a difficult situation during the two days at issue here. Alarmed by the disappearance of her car and exhausted from searching for it, and believing that she might be pregnant with a child fathered by Prontnicki, she was shocked by the officers’ revelation of his outstanding warrants and suspended driver’s license. It is understandable that respondent was upset as those disturbing events unfolded.

As a judge, however, respondent was not at liberty to address her circumstances with only herself and her personal relationships in mind. The WTPD was searching for an individual who allegedly robbed a pharmacy by threatening a pharmacist with a crowbar. A judge had found probable cause and issued a warrant for his arrest, and WTPD officers were charged to execute that warrant in the interest of public safety. It was incumbent on respondent to fully cooperate with law enforcement in their search for Prontnicki, notwithstanding her distressing personal circumstances.

As the evidence makes clear, respondent did not do so.

Dissenting Justice Albin concludes that

a fair reading of the record reveals that Judge Brady was the victim of a police investigation run amok -- an investigation that was built on an unfounded assumption and that cast aside inconvenient facts...

Judge Brady was a judicial officer, not a deputized member of the Woodbridge Township Police Department. She did not harbor a criminal, and she did not obstruct an investigation. She did not have the reporting duties of a law enforcement official. That is a line blurred in the majority opinion.

From the court's headnote

Respondent was sworn in as a Judge on April 5, 2013. On June 11, 2013, officers of the Woodbridge Township Police Department (WTPD) arrested respondent at her home for “knowingly harboring Jason Prontnicki, a known fugitive,” in her residence. The Court suspended respondent from her judicial duties without pay and referred the matter to the ACJC. The three criminal charges against respondent were eventually dropped, and the Court reinstated respondent to her judicial duties in March 2018.

In May 2018, the ACJC issued a Complaint charging respondent with conduct that violated Canon 1, Rule 1.1; Canon 2, Rules 2.1 and 2.3(A); and Canon 5, Rule 5.1(A) of the Code. At the ACJC hearing, the following facts emerged.

On June 10, 2013, respondent had been a Superior Court judge for approximately two months. She and Prontnicki had been involved in a romantic relationship for about six months, and Prontnicki was living in respondent’s home.

On that morning, respondent appeared at WTPD headquarters to report her car missing. She met with two police sergeants and Officer Robert Bartko. Respondent told the officers that Prontnicki, her boyfriend, had taken one of her cars without permission. The officers explained the procedure to file a criminal complaint against Prontnicki, but respondent declined to do so. While respondent was at the station, officers learned there were two open warrants for Prontnicki’s arrest, one for a violent crime, and that his driver’s license had been suspended. The officers told respondent about Prontnicki’s open warrants and suspended license. The police report reflects that the officers told respondent that as “an officer of the court,” she was required to report to them “if and when” Prontnicki returned with the car, so they could arrest him.

Shortly after respondent returned home, Prontnicki called her. Respondent testified that Prontnicki told her he would return her car, that he denied knowing of any warrants or a suspended license, and that she told him that he needed to “go to the police and take care of it right away.” It is undisputed that -- after speaking with Prontnicki -- respondent did not call the police to advise them Prontnicki would be at her home.

Respondent testified that, when Prontnicki arrived, he walked past her father into the house. Respondent said she was “a little surprised and shocked and then fearful,” and that she told Prontnicki to leave. Nonetheless, she and Prontnicki talked in her garage for about an hour, joined by her father for the final fifteen minutes of their conversation.

Approximately fifteen minutes after Prontnicki left her home, respondent called the WTPD, asked to speak with Bartko, and left a message on Bartko’s voicemail. Respondent notified police that her car had been returned, but other contents of that message are disputed. Respondent contended before the ACJC and the Court that the WTPD tampered with the voicemail to delete part of her message.

The next morning, on June 11, 2013, Prontnicki called respondent, and they spoke for more than two and a half hours. Respondent testified that during that call, Prontnicki confirmed he would be staying with his brother and said he needed to retrieve belongings from her home. They made an appointment for that afternoon, and Prontnicki called later to confirm their appointment. Respondent did not notify the police after either call.

Respondent left a second message for Officer Bartko later that afternoon, confirming that her car had been returned. Respondent contends that the WTPD also tampered with and intentionally deleted parts of her second voicemail. Bartko did not retrieve either of respondent’s messages until after respondent was arrested.

Meanwhile, WTPD officers conducted surveillance of respondent’s residence during the afternoon of June 11, 2013. When Prontnicki left her house, a WTPD officer arrested Prontnicki. Shortly after his arrest, members of the WTPD went to respondent’s home and arrested her for hindering Prontnicki’s apprehension. One testified that when respondent was arrested, she said, “I’ve been vetted, take the cuffs off.” According to the police report, respondent directed officers to take the handcuffs off of her, then asked to be handcuffed with her hands in front of her rather than behind her. The officers refused.

Later that evening, officers and an assistant prosecutor presented a Superior Court judge a complaint warrant alleging that respondent had “harbor[ed]” Prontnicki in her residence “for approximately 1 hour and never ma[de] any attempt to contact law enforcement.” Although one officer was aware that respondent had left voicemails for Bartko, he did not disclose those voicemails to the judge. The judge signed the complaint warrant. Before the ACJC, an officer conceded that the statement in the complaint warrant that respondent never tried to contact law enforcement was inaccurate.

At the ACJC hearing, both respondent and the Presenter offered expert testimony by psychologists and audio engineering experts. The ACJC found by clear and convincing evidence that respondent violated the Code. With respect to contested facts and the two issues that the parties’ experts disputed, the ACJC made findings in the Presenter’s favor. The ACJC recommended respondent’s removal from judicial office.

Respondent moved before the Court to dismiss the Presentment, or, in the alternative, to modify the ACJC’s recommendation that she be removed from office. After oral argument on that motion, the Court entered an Order to Show Cause denying the motion to dismiss and requiring respondent to show cause “why she should not be publicly disciplined through the imposition of an appropriate sanction that is less than removal, the Court having determined on its review of the matter that the appropriate quantum of discipline shall not include removal.”

HELD: The Court concurs in substantial part with the ACJC’s factual findings and holds that clear and convincing evidence supports the ACJC’s determination that respondent committed the Code violations charged. The Court modifies the ACJC’s recommendation that respondent be removed from judicial office, however, and instead imposes on respondent a three-month suspension from judicial duties...

JUSTICE ALBIN, dissenting, is of the view that, based on the record, Judge Brady did not harbor a fugitive or obstruct a police investigation. Nor did her conduct demean the judiciary. Justice Albin stresses that Judge Brady’s conduct should not be viewed from the sterile, twenty/twenty perspective of hindsight, but rather from that of a vulnerable human being, fatigued and frightened, in the grip of overwhelming stress, who, in the moment, made decisions that, even if flawed, do not rise to a level that warrants discipline. In Justice Albin’s view, Judge Brady is the victim of a misguided and failed criminal prosecution that has left her career as a judge in ruins and of a disciplinary review that has overlooked police malfeasance, her good-faith efforts, and the human element. Because he does not believe that the charges against Judge Brady have been sustained by clear and convincing evidence, Justice Albin finds that the imposition of discipline is not justified.

JUSTICE LaVECCHIA, dissenting, is not persuaded there is clear and convincing evidence in this record to sustain disciplinary charges.

Justice Fernandez-Vina

I would dissent from the majority’s determination that Carlia M. Brady’s conduct warrants only a three-month suspension. I agree with the ACJC’s well reasoned Presentment recommending removal from the bench.

I also find that the majority’s analysis today equally supports removal from the bench beyond a reasonable doubt. Since removal from the bench is not available as a sanction, I concur with the majority’s decision.

From the dissent of Justice Albin

Today’s majority decision is a sad epilogue to Judge Carlia Brady’s seven-year nightmare journey through the criminal justice system and the judicial disciplinary process. Seven years ago, Judge Brady was the quintessential American success story -- a Filipino-American immigrant, who became an accomplished lawyer and rose from the ranks of the Bar to become a Superior Court judge. Just several months after her judicial appointment, her career, her reputation, her health -- her life -- would be in ruins, the victim of overzealous Woodbridge Township police officers, who filed criminal charges that could not be sustained in court.

Those dismissed criminal charges and the current judicial disciplinary charges stem from a tumultuous, thirty-six-hour period in Judge Brady’s life. During that period, while reporting to the police the theft of her car, she learned that her live-in boyfriend, the father of her unborn child -- the man with whom she had planned a future -- was a potentially dangerous criminal and wanted for the robbery of a drugstore. In a state of shock -- with her reality shattered and her trust betrayed -- fatigued by twenty-four sleepless hours, and stressed about her pregnancy, Judge Brady should have been the object of at least a modicum of police solicitude. Instead, she became the target of a hapless police investigation designed to make the case that she was harboring a criminal.

Justice Albin tells the judge's story and the facts of the situation in exacting detail.

Northjersey.com profiled Justice Albin. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/08/the-new-jersey-supreme-court-rejected-the-proposed-removal-of-a-judge-in-favor-of-the-three-month-suspension-respondent-was.html

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