A ‘perversion of justice’

Linden courts are under scrutiny

LINDEN, NJ — The latest chapter in a civil rights lawsuit filed against the city of Linden and former Linden Municipal Court Judge Louis DiLeo involves a request to enforce subpoenas upon the state’s Administrative Office of the Courts for refusing to produce emails directly related to the case of Kirkland v. City of Linden and Louis DiLeo.

The request, addressed to Magistrate Judge James Clark, was filed at U.S. District Court last week by attorney Michael Rubas on behalf of his clients, Wendell and Anthony Kirkland, and seeks the court’s permission to file a motion to enforce a subpoena pursuant to the lawsuit.

“The municipal court in Linden engaged in civil rights violations,” said Rubas, who alleges that it was the court’s policy and practice to deny litigants the right to counsel and Due Process by allowing its municipal court judge to act as prosecutor, as well as permitting police officers to cross-examine witnesses. “Plaintiffs are seeking compensation for their wrongful incarceration, which was approximately 124 days each in the Union County Correction Facility.”

As of press time, Clark was unavailable for comment.
Co-defendant Linden Municipal Court Judge DiLeo admitted before an advisory committee in 2012 that he had developed a practice of trying cases without a prosecutor. DiLeo reasoned at the time that because then- municipal prosecutor Nicholas Scutari developed “a practice of leaving court,” he began prosecuting cases himself, allowing police officers to cross-examine unrepresented litigants. DiLeo testified that during court sessions he “would call for the prosecutor. At some point sometimes he was there, at some point in the night he was gone… The officer would come back in saying the prosecutor is gone.”

As of press time, Scutari was unavailable for comment.
The allegations occurred during the 2010 criminal trial of Wendell and Anthony Kirkland, who allege that DiLeo played an inappropriately active role in the procedures. The plaintiffs assert that DiLeo allowed the trial to proceed without a prosecutor or defense counsel present, conducting the direct examination of the arresting officer and questioning Anthony Kirkland.

According to court papers, the officer informed the court that there was no physical evidence to present — despite the fact that the crimes charged were possession offenses and theft. The plaintiffs were ostensibly given the opportunity to present witnesses — witnesses who were not present that day. Despite this, DiLeo did not adjourn the case until witnesses were available, instead determining there to be no witnesses other than the Kirklands for the defense.

At the conclusion of trial, DiLeo found the Kirklands guilty of theft, possession of burglary tools, and possession of marijuana — although the charges were later downgraded to a disorderly persons charge. Wendell Kirkland was sentenced to 180 days of imprisonment, and Anthony Kirkland to two consecutive 180-day terms of imprisonment.

According to court documents, the arresting officer failed to enter into evidence the substance seized from the plaintiffs that served as a basis for the charges, as well as failing to produce laboratory test results confirming that the substance was, in fact, marijuana.
After sentencing, the plaintiffs were immediately remanded and incarcerated but appealed to Union County Superior Court Judge Moynihan, who reversed their convictions, stating that their trial before Judge DiLeo was a “perversion of justice.”
LocalSource’s attempts to reach DiLeo were unsuccessful, as the website for his Linden law practice seems to have been permanently removed and his office phone number is no longer in service.

Inappropriate conduct within the Linden municipal courts was common practice, according to court papers. An April 13, 2011 email from Linden Court Administrator Elizabeth Gavigan to Union County Superior Court Municipal Division Manager — first produced in late 2015 — supports allegations that it was, indeed, practice and policy to routinely engage in Sixth Amendment and Due Process violations. The email was forwarded to Linden mayor aide Renee Banks. In that email, Gavigan claims that Scutari, who is now a state senator, routinely left court sessions, only returning hours later.
“Linden’s Municipal Prosecutor/State Senator, Nick Scutari, frequently leaves before the court session is finished,” reads court documents. This “happened last week and it happened again yesterday. About 1:00 p.m. yesterday he left, telling one of the court staff that he was taking lunch hour… All of the cases he leaves unresolved need to be rescheduled.”

Gavigan went on to state that “the public defender also leaves whenever he feels like it, regardless of whether he has met with all his scheduled clients.”

Because the city of Linden had only produced a few emails, and the one email in the plaintiff’s possession supported their claims of civil rights violations, Rubas seeks emails similar to this one in order to help establish a pattern of civil rights and Due Process violations within the Linden municipal court.

In order to obtain these emails, Rubas filed a subpoena on behalf of his clients for the Production of Documents in the State of New Jersey.

The subpoena sought emails from Gavigan, Banks, Union County Superior Court Municipal Division Manager Michael D’Ecclessis, Union County court employee Delsy Buseo, and Linden deputy court administrator Carole Friedman.

Winnie Comfort, Communications Director for the statewide judiciary, said that because the case is in litigation, no comments could be offered by court employees.

According to Rubas, several attempts to obtain these emails were unsuccessful. In his letter to Clark, Rubas states that, “On April 1, 2016—one week after the return date of the subpoena, I received a response from the state of New Jersey advising me that they had located 1,098 emails responsive to my narrowed request,” wrote Rubas. “However, they were only going to produce 6 emails that specifically concerned the Kirkland case. In doing so, the State of New Jersey said it could not ‘fathom’ how non-Kirkland emails would be relevant to plaintiff’s claims.”

Rubas’s letter goes on to say that, “Now, for the
first time and the passage of more than three weeks, the State of New Jersey raised the fact that the emails are “excluded from public access”…as such, the State of New Jersey would not produce the other 1092 emails because it deemed them “‘confidential.’”

Rubas says that the State has failed to file a timely Motion to Quash. In addition, he maintains that, “the State cannot argue that the document request was overbroad or burdensome when said request was previously narrowed and the documents sought have been located — 1098 emails.”

Rubas concludes the letter, stating that “There is no question that the emails sought concerning the operation of the Municipal Court are directly relevant to Plaintiffs’ practice and policy claims…There were disturbing constitutional deficiencies in the operation of the City of Linden’s Municipal Court known to all both City of Linden and State of Jersey. One can only surmise what the State of New Jersey has located — and doesn’t want to produce — the other emails concerning the operations of the City of Linden Municipal Court.”

As of press time, Linden Mayor Derek Armstead was unavailable for comment.

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