Scutari named as defendant in lawsuit

LINDEN, NJ — A civil rights lawsuit against the city of Linden and former Linden Municipal Court Judge Louis DiLeo has been amended to add another defendant to the suit — State Sen. Nicholas Scutari, who is also the municipal prosecutor for the city of Linden.

The suit stems from the trial of plaintiffs Anthony and Wendell Kirkland, who were arrested on charges of theft, marijuana possession and possession of burglary tools, although those charges were later downgraded.

The amended complaint now alleges that Scutari frequently missed court, or left court before proceedings were concluded.

The plaintiffs allege in their initial suit that during their 2010 trial, DiLeo played an inappropriately active role, conducted proceedings without a prosecutor or defense counsel present, and conducted a direct questioning of the arresting officer.

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

Wendell Kirkland was subsequently sentenced to 180 days of imprisonment, while Anthony Kirkland was sentenced to two consecutive 180-day terms of imprisonment. An appeal by the plaintiffs led to the reversal of their convictions, with Union County Superior Court Judge Scott Moynihan stating that their trial before DiLeo was a “perversion of justice.”

Michael Rubas, attorney for the Kirklands, now alleges that Scutari’s “actionable conduct” was discovered over the past two months.

According to the amended suit, Scutari allegedly stated that he was always in court during proceedings. The suit challenges this statement. “Despite not being present in court when the plaintiffs were wrongfully convicted and incarcerated, Scutari has stated publicly for years that he always fulfilled his prosecutorial duties as the city of Linden municipal prosecutor, including the night that plaintiffs’ ‘perversion of justice’ trial occurred,” states the suit.

According to the suit, Scutari allegedly told the Linden mayor that he had checked the date in question and was confirming his attendance in court. “I have reviewed the court date in question and I can assure you that I was in attendance in court on that session day,” Scutari allegedly told the mayor. “However, I was not in the courtroom during the proceeding in questions. I was either in my office, which you are aware is across the hall from court, or perhaps I had left for the evening as all matters regarding my involvement had been resolved.”

The suit calls out Scutari for this statement. “This charade continued for more than five years, with Scutari continuing to give false public statements to the New Jersey news media,” the lawsuit states. “As recently of April 15, 2016, Scutari was interviewed by Charles Toutant of the New Jersey Law Journal, and stated that he ‘always fulfilled every duty happily in the 13 years I’ve worked for Linden.’ On or about April 28, 2016, Scutari was interviewed by Tom Hayden of the Star Ledger and stated, ‘I always completely finished the prosecutor’s duties before I left. We never left until our duties were over.’”

As of press time, Scutari had not responded to LocalSource’s requests for comment.

According to the suit, the city of Linden handed over recordings of court proceedings, which included recordings of the Kirkland trial. “…Contained in those CDs was the court recording of May 12, 2010, the night of plaintiffs’ trial,” states the suit. “In listening and reviewing the court proceedings, it can be verified by both on-the-record and off-the-record statements by DiLeo, the public defender Anthony Palumbo, and the Court Bailiff Dennis Slotter, that Scutari had left for the night and purposefully relinquished his entire prosecutorial duties to DiLeo.”

According to the suit, Scutari’s absence from the courtroom was picked up by an off-the-record recording. “At approximately 8:10 p.m. the night of plaintiffs’ trial, the court microphone picks up an off-the-record conversation between Public Defender Anthony Palumbo — counsel for plaintiffs’ co-defendant Jesus Gonzalez — and the Court Bailiff Dennis Slotter.”

The conversation, transcribed in the suit, allegedly shows that Scutari had left the courtroom, when Palumbo asks Slotter if he is gone. “Dennis, is he gone?”
Slotter responded with, “Nick?” to which Palumbo repeats, “Is Nick gone?”

Slotter responds with, “Yeah,” and Palumbo then addresses DiLeo. “Judge, don’t think we have a prosecutor. No prosecutor.” There is no audible response from DiLeo. “Thus, at approximately 8:10 p.m. with numerous people in the courtroom and a trial on the verge of starting, Scutari was confirmed to have left for the night,” reads the suit.

According to the motion, “A further review of other court sessions made available for review at the Linden Municipal Court detail other court sessions and proceedings that occurred without Scutari,” it reads. “Importantly, Scutari is not entitled to immunity in the relinquishment and abandonment of his administrative prosecutorial duties due to the purposeful nature of the egregious violations.”

The suit states that on Aug. 22, 2016, the plaintiffs received emails from the New Jersey Judiciary, Administrative Office of Courts. “In those emails, the city of Linden’s court administrator repeatedly warns the Union County Court Municipal Division Manager’s Office that Scutari either leaves court early or simply doesn’t show up,” reads the suit, referring to Linden court administrator Elizabeth Gavigan. “Ms. Gavigan’s emails document Scutari’s absence or, better yet, ‘no show’ job from March 2009 through December 2011. Ms. Gavigan’s emails also provide instances of other gross misconduct by Scutari, DiLeo and Linden which bolster plaintiffs’ claims.”
A trial date has not yet been set.

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