STATE OF NEW JERSEY VS. GREGORY A. MARTINEZ (17-05-0586, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3479-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
October 29, 2019
v.
APPELLATE DIVISION
GREGORY A. MARTINEZ,
Defendant-Appellant.
____________________________
Argued October 2, 2019 – Decided October 29, 2019
Before Judges Sabatino, Sumners and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 17-05-
0586.
Jeffrey S. Farmer argued the cause for appellant
(Mazraani & Liguori LLP, attorneys; Jeffrey S. Farmer
and Joseph M. Mazraani, on the briefs).
Joie D. Piderit, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Christopher L.C. Kuberiet, Acting
Middlesex County Prosecutor, attorney; Joie D. Piderit,
of counsel and on the briefs).
Valeria Dominguez, Deputy Attorney General, argued
the cause for amicus curiae State of New Jersey Office
of the Attorney General (Gurbir S. Grewal, Attorney
General, attorney; Valeria Dominguez, of counsel and
on the briefs).
Joseph J. Russo, Deputy Public Defender, argued the
cause for amicus curiae State of New Jersey Office of
the Public Defender (Joseph E. Krakora, Public
Defender, attorney; Joseph J. Russo, of counsel and on
the briefs).
John J. O'Reilly argued the cause for amicus curiae
Association of Criminal Defense Lawyers (McElroy,
Deutsch, Mulvaney & Carpenter, LLP, attorneys; John
J. O'Reilly, of counsel and on the briefs; Courtney A.
Johnson, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
This novel case concerns a prosecutor's office's use of body wires on a
paid informant, an anticipated trial witness for the State in a narcotics case, to
secretly monitor and record a criminal defense attorney's pre-trial interview of
that informant.
An assistant prosecutor authorized the surreptitious taping based upon
information – which turned out to be untrue – that the attorney might offer the
witness a bribe. When the prosecutor's office supplied the recording and a
transcript of it to the attorney in discovery three days before his client's trial, he
moved to dismiss the indictment, or, alternatively, to bar the witness's testimony
for the State.
In its oral ruling, the trial court remarked that the secret recording in this
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case "should send a chill down the spine of any criminal defense attorney or
prosecutor [who] has ever interviewed a witness." The court found the
prosecutor's office lacked reasonable suspicion that "evidence of criminal
conduct would be derived from [the] interception." Nonetheless, the court
concluded the defense's trial strategy had not been sufficiently divulged during
the taped interview "to the extent that would justify" the dismissal of indictment
or preclusion of the witness's testimony. The court adopted a more limited
remedy, barring the State from using the taped interview as evidence at trial.
Defendant moved for leave to appeal, which we granted.
For the reasons that follow, we affirm the trial court's decision in part,
modify it in part, and remand it in part. As conceded by defendant and related
amici, the informant's secret taping of the interview with his one-party consent
did not violate the New Jersey Wiretapping and Electronic Surveillance Control
Act ("the Wiretap Act"), N.J.S.A. 2A:156A-1 to -34. However, we hold that
mere compliance with the Wiretap Act does not mean that the secret taping is
permissible, particularly in the manner in which it was conducted in this case.
Specifically, without appropriate limitations, such recording can have the
capacity to infringe upon a criminal defendant's constitutional right to fair and
unimpeded access by his counsel to interview government witnesses, and the
capacity to reveal attorney work product. The surveillance of attorney
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interviews also can implicate ethical norms, particularly those governing
prosecutors.
Based on the record developed thus far, we conclude the prosecutor's
office erred in allowing detectives in the State's narcotics case and the attorney
misconduct case to work jointly in the efforts to record the witness interview.
The prosecutor's office further erred in allowing the assistant prosecutor who
was handling the narcotics case to have access to the fruits of the surreptitious
taping.
Under the circumstances presented, the prosecutor's office instead was
obligated to create two screened "taint teams" to proceed independently in: (1)
the attorney conduct investigation and (2) the narcotics case. Because of that
failure, and because attorney work product from the recorded interview was
prejudicially divulged to the narcotics prosecutor and staff, the narcotics case
must be transferred for handling by either the Attorney General or by another
designated county prosecutor's office.
Further, we remand the case for the trial court to conduct a plenary hearing
to determine the extent to which the informant-witness may have been unfairly
coached or influenced by the manner in which he was prepared by the State for
the taped interview and the manner in which he was debriefed afterwards.
Depending upon the results of that plenary hearing, a possible appropriate
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prophylactic remedy may be to disallow the informant-witness from testifying
for the State at the narcotics trial. On remand, the trial court also shall determine
if other prosecutorial witnesses were tainted because of their involvement in or
exposure to the recording or its transcript.
Lastly, we recommend that the Attorney General consider promulgating
statewide guidelines and procedures addressing any future surreptitious
prosecutorial taping of witness interviews by defense counsel.
TABLE OF CONTENTS
I. Factual and Procedural Background ............................................................. 6
The Indictment and the Alleged Cocaine Sales ............................................ 6
Defense Counsel's Interview of Cruz ........................................................... 7
The State Turns Over the Interview Recording and Transcript on the Eve of
Trial ............................................................................................................ 8
Defendant's Motions ................................................................................... 8
The Present Interlocutory Appeal ................................................................ 9
More Details Concerning the Recorded Interview ....................................... 9
Cruz Meets with Detectives on March 11 and Consents to the Wire .......... 12
The Recorded March 12, 2019 Defense Interview ..................................... 13
Charges Lodged Against Policastro ........................................................... 15
The April 11 Motion Hearing .................................................................... 15
The Motion Judge's Ruling ....................................................................... 16
Proceedings Before the Presiding Criminal Judge ..................................... 18
II. The Wiretap Act ....................................................................................... 18
Requirements of the Wiretap Act .............................................................. 19
The 1999 Amendment Eliminating the Reasonable Suspicion Standard ..... 21
The "Indispensable Protection" of Supervisory Review ............................. 22
Special Considerations in Authorizing Intercepts of Attorneys .................. 24
Judicial Reviewability of Wiretap Authorizations ..................................... 26
Comparative Discussion of the Federal Wiretap Act and the Justice Manual
................................................................................................................. 28
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The "Relevance" Standard ......................................................................... 31
III. Infringement Upon Defendant's Constitutional Rights and Work Product
Disclosure .................................................................................................... 33
Constitutional Provisions and Principles ................................................... 33
State v. Blazas .......................................................................................... 34
Gregory v. United States ........................................................................... 37
Other Cases............................................................................................... 38
The State's Pre-Wire Preparation of Cruz .................................................. 40
The Attorney Work Product Privilege ....................................................... 42
At Least Some Work Product Was Revealed Here ..................................... 50
IV. Ethical Rules Addressing Clandestine Recording By Attorneys and the
Special Duties of Prosecutors ....................................................................... 51
ABA Opinion 337 ..................................................................................... 51
ABA Formal Opinion 01-422 .................................................................... 52
The New Jersey RPCs ............................................................................... 54
Special Ethical Restrictions Imposed on Prosecutors ................................. 54
The Need for "Fire-walls" or "Taint Teams" .............................................. 57
Summary .................................................................................................. 58
V. Implications and Remedies ...................................................................... 59
VI. Conclusion ............................................................................................. 69
I.
(Factual and Procedural Background)
The Indictment and the Alleged Cocaine Sales
In July 2016, a Middlesex County grand jury returned Indictment No. 17-
05-0586, charging defendant Gregory A. Martinez with:
 three counts of third-degree possession of a
controlled dangerous substance, N.J.S.A. 2C:35-
10(a)(1) (counts 1, 5, and 8);
 three counts of second-degree distribution of a
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controlled dangerous substance, N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (counts 2, 6,
and 9);
 two counts of third-degree distribution of a
controlled dangerous substance near or on school
property, N.J.S.A. 2C:35-5(a) and N.J.S.A.
2C:35-7(a) (counts 3 and 7); and
 one count of second-degree distribution of a
controlled dangerous substance within 500 feet
of certain public property, N.J.S.A. 2C:35-5(a)
and N.J.S.A. 2C:35-7.1(a) (count 4).
The charges resulted from three instances between March 22 and July 8, 2016,
during which defendant allegedly sold cocaine to Delvi Cruz. Cruz was then
cooperating with the county prosecutor's office as a confidential informant
("CI"), pursuant to a plea agreement. 1
Defense Counsel's Interview of Cruz
After learning the identity of the CI, defense counsel for Martinez, Joseph
M. Mazraani, requested, through Cruz's counsel Michael A. Policastro, to
conduct a pretrial interview with Cruz.
On March 12, 2019, Mazraani and his investigator Dave Gamble met with
1
The record indicates Cruz is no longer serving as a CI, and his identity has
been revealed in open trial court proceedings and in records that were not filed
under seal. Accordingly, with the consent of all counsel, we refer to Cruz by
his actual name in this opinion. In some documents, Cruz is referred to as Cruz-
Santos or Santos. For consistency, this opinion refers to him as Cruz.
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2
Cruz in Policastro's office (the "Mazraani interview"). Policastro, who
apparently was in court on another matter that day, was not present for the
Mazraani interview. Nor was anyone there in person from the prosecutor's
office.
Unbeknownst to the defense or to Policastro, Cruz wore two listening
devices at the interview: one on his waist and another in his pocket. Cruz wore
the devices at the request of detectives from the prosecutor's office, whose
personnel recorded the Mazraani interview as it occurred.
The State Turns Over the Interview Recording and Transcript on the Eve
of Trial
Just three days before the scheduled trial date the State turned over certain
discovery to the defense, including a recording and the rough transcrip t of the
Mazraani interview, as captured on the device Cruz had worn at his waist.
Defendant's Motions
After receiving the recording and rough transcript, defendant immediately
2
The record contains three separate transcripts of the Mazraani interview. The
one provided to the trial court which was made by the prosecutor's office from
the less clear of two recordings, contains many "inaudible" designations . The
court found that rough transcript largely "unintelligible." In connection with
this appeal, both the State and defendant had a transcript made of the clearer
recording. A third transcript was made and certified by a professional
transcriber, which is the one defendant had made. The State does not dispute
this third version is the most accurate transcription of the recording of
Mazraani's interview with Cruz, and the Attorney General cites to it in his
amicus brief rather than the rough transcript.
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moved to dismiss the indictment or, in the alternative, to bar Cruz's testimony.
On April 11, 2019, the trial court denied the motion to dismiss and the
defense's application for a stay of the trial. However, the court held that: (1) the
State could not use the Mazraani interview recording at trial, (2) the defense
could use the recording, if it desired, to impeach Cruz, and (3) jury selection
would be briefly adjourned.
The Present Interlocutory Appeal
Defendant filed an application for emergent appellate relief and also
moved for leave to appeal. The Association of Criminal Defense Lawyers of
New Jersey ("ACDL-NJ") moved to appear as amicus curiae in support of
defendant's position.
We granted defendant's motion for leave to appeal, and the ACDL-NJ's
amicus motion. We also invited the Attorney General and the Office of the
Public Defender to participate as amici, and ordered a stay of defendant's trial.
Both the Attorney General and the Office of the Public Defender accepted our
invitation to appear as amicus curiae. 3
More Details Concerning the Recorded Interview
The record reveals this additional background concerning Cruz's
3
We are grateful for the helpful participation of all three amici in this
accelerated matter.
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surreptitious recording of his interview with Martinez's counsel.
In early March 2019, Cruz received a call from Policastro stating that
Mazraani "wanted to communicate with" him. Cruz also received an Instagram
"friend request" from defendant. Cruz reported these contacts to both a
Detective and Sergeant from the prosecutor's office. The Sergeant was heavily
involved in the narcotics case, and the record shows the Detective was involved
in the attorney investigation. At the very least, they both took part in recruiting
Cruz for the wiretap and in carrying out the recording. Both officers are
identified on the interview transcript as being "present" when the body wire was
active. The Sergeant is the first and last voice on the recording. The State has
announced it plans to call him as a witness at defendant's narcotics trial.
Cruz recounted the events leading to the Mazraani interview in a
transcribed statement he gave to detectives on March 14, 2019, two days after
the interview occurred (the "March 14 statement"). Cruz explained his initial
reaction to the interview request:
And um. I was surprised. I asked my attorney what's
going, what these people want from us? He said he
don't know, he probably, my attorney tell me that he
probably want to talk about a case. And I asked my
attorney why you don't talk to them? That way I don't
have to be involved with any conversation. He said no
he want to talk to you directly. If you'll be able to talk
to him let me know and I, we make a meeting in my
office and you meet over there . . .
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Referring to the Detective, Cruz "notified the detective in the prosecutor office"
that Mazraani wanted to meet with him. In his March 14 statement, Cruz
explained:
[Cruz:] I called Michael Policastro again to tell him
that we gonna have the meeting and I ask him again
what exactly they want from us and the answer was he
don't know exactly what they want from us. They
probably want to talk about a case or they might want
to offer something. I ask him . . .
Q. They want to offer what exactly . . .
A. I asked, I asked my attorney what exactly they, he
believe they probably gonna ask or offer. (inaudible)
and he said I'm not sure but they probably could ask can
[sic] offer money another offer [sic]. I don't know
exactly what they want. They probably want to talk
about a case, but I don't know anything about this. They
just, I just give an idea what could happen [sic].
Q. Did he say how much money if anything?
A. No.
Q. No[?]
A. He just assuming what they, what they could offer
[sic].
Q. Okay.
A. Just give an idea.
[(Emphasis added).]
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After reporting his conversation with Policastro to the Sergeant on Friday,
March 8, 2019, Cruz "called Policastro . . . to set up a meeting" with Mazraani
in Policastro's office.
That same day, March 8, a Deputy First Assistant Prosecutor signed a
"Consensual Interception Authorization" allowing the detectives to intercept
Cruz's communications during the following ten days. The wire authorization
form identified Mazraani and Policastro as the two "Target(s)," and listed
"Witness Tampering" under "Initial Crimes or Offenses."
The record does not reveal what other information, if any, the Deputy First
Assistant possessed before signing the wire authorization. In particular, there is
nothing to indicate whether the Deputy First Assistant was aware that the named
"targets" were attorneys, that the recording would take place at a law firm, or
that the recording would be of a pre-trial defense interview.
Cruz Meets with Detectives on March 11 and Consents to the Wire
On Monday evening, March 11, Cruz met at a diner with the Detective,
Sergeant, and another officer. Cruz discussed, as he put it, "everything," and
gave consent to wear a wire and record his meeting with Mazraani in Policastro's
office.
In his report about the March 11 meeting, the Detective wrote that Cruz
had stated that Policastro "indicated to [him] that Mazaraani [sic] wanted to
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speak about the case, and that typically in those meetings they offer him money."
According to this report, Cruz "stated that he told Policastro that he intended on
notifying the Prosecutor's Office of this meeting."
The Recorded March 12, 2019 Defense Interview
The Mazraani interview took place on the afternoon of Tuesday, March
12, 2019. According to a report by the Detective, Cruz was functioning during
the interview "in an undercover capacity . . . for the purpose of determining if
witness tampering would be occurring inside of The Policastro Law Firm[.]"
Cruz was paid what were characterized on an expense voucher as lost "wages"
of $180 for performing this function.
Cruz did not tell Policastro or Mazraani that he recorded the meeting.
Cruz had expected Policastro would attend the meeting, but was told that
Policastro had a trial and could not be there.
At the start of the interview, Cruz said he "[j]ust got out of work early"
when Mazraani thanked him for taking the time to meet.
Mazraani told Cruz that he and Policastro "go way back." When asked if
Policastro had told him what Mazraani wanted to talk about, Cruz answered,
"Not exactly." Mazraani then explained:
MAZRAANI: I represent a guy who the police are
saying sold you drugs.
CRUZ: Okay.
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MAZRAANI: Okay? And we're going to trial soon.
CRUZ: Okay.
MAZRAANI: And I just wanted to talk to you a little
bit about that and just ask you some questions about
that. You got nothing to worry about. This has nothing
to do with you. This has to do with–same thing that
Mike [Policastro] did for you, I got to–you know, I got
to do my job.
Cruz asked the name of Mazraani's client and said he spoke to someone at
the prosecutor's office about the Martinez case "[l]ast week." Mazraani
explained to Cruz that he wanted Cruz to "just answer some very basic
questions" and it was up to Cruz to decide if he wanted to answer them.
Cruz remarked that he had asked Policastro why Mazraani would want to
talk to him, and Mazraani answered that "it's witness preparation." After Cruz
agreed to answer the queries, Gamble, the defense investigator, asked, "Are we
going to record this?" Mazraani answered, "No, not right now, unless he [Cruz]
tells me later that he wants to."
Mazraani then proceeded to ask Cruz about the three alleged drug
transactions.4
4
To avoid any revelations that could affect the future handling of the narcotics
case by a different prosecutor, we will not discuss in this opinion the substance
of those discussions.
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When he finished the interview, Mazraani asked if Cruz would give the
defense a taped statement, but Cruz declined. Cruz did not reveal that the State
had already made a recording of the entire interview up to that point.
Charges Lodged Against Policastro
On April 4, 2019, three complaint warrants were issued against Policastro,
charging him with witness tampering in cases unrelated to Mazraani or
defendant.5
The April 11 Motion Hearing
At the April 11, 2019, hearing on defendant's dismissal motion, Mazraani
argued the issue was not then suitable for disposition because he had not
received discovery he requested from the State about the circumstances of the
interview. Mazraani also stated the ACDL-NJ wanted to join the case as amicus.
The prosecutor argued the motion could be decided without a need for
discovery into the recording arrangements. He asserted that asking Cruz to
record the Mazraani interview had "nothing to do with" defendant. Instead, it
"[h]ad to do with the fact that a target [Policastro] who is now being charged
with three different counts of witness tampering told a CI that if he met with
5
According to the State's supplemental brief, Policastro was indicted on these
charges on September 11, 2019. At oral argument on appeal, the prosecutor
represented that Mazraani is not named or implicated in any of the counts in the
Policastro indictment.
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[defense] counsel, there might be money involved."
The trial court asked the prosecutor if Mazraani was "a target of this
investigation." The prosecutor responded, "Judge, I don't know. As far as I
know, he was not. But I don't know." The prosecutor further stated that he had
"no particular knowledge," when the court asked why the interview was
recorded6 even though Policastro had not been present. The prosecutor stated
that Cruz was paid $180 "because he missed a day of work."
The prosecutor insisted that the recording issue concerned only the
Policastro case and "whether it was reasonable for the prosecutor's office" to
record the meeting as part of its ongoing investigation of that case. The
prosecutor explained the recording was made after "hearing from [the] CI who
was represented by Mr. Policastro being told that if he went to this meeting,
there's usually money involved with this meeting." The court responded that the
prosecutor's representation was "a very wide reading of the evidence, of even
what Mr. Policastro supposedly said[.]"
The Motion Judge's Ruling
Addressing the recording issue, the motion judge stated:
6
The judge noted that he could not determine initially whether trial strategy
was discussed at the Mazraani interview "because the [first] transcript that I
have is all unintelligible." The judge was ultimately supplied with a more
accurate transcript.
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First, this [c]ourt recognizes that this is an
extraordinary measure. That an attorney is recorded by
law enforcement while interviewing a witness in a
pending criminal charge should send a chill down the
spine of any criminal defense attorney or prosecutor
that has ever interviewed a witness.
[(Emphasis added).]
The court then added:
. . . I find that at least what has been provided to me,
that a reasonable suspicion that evidence of criminal
conduct would be derived from such interception, does
not exist as to Mr. Mazraani that would justify these
actions.
[(Emphasis added).]
The court nevertheless denied the defense motion to dismiss the
indictment or, in the alternative, to bar Cruz's testimony, stating:
However, none of this is relevant to this matter. I do
not find that a trial . . . strategy was divulged to the
State to the extent that would justify the dismissal of
the indictment or barring the testimony of Del[vi] Cruz.
The court then turned to the subject of remedy:
Further, even if a reasonable suspicion did not exist to
justify a consensual interception, the remedy is not to
dismiss the indictment or bar the witness in this matter.
The State will not use any portion of the consensual
recording of Del[vi] Cruz, and that's an order of this
Court. The defense may use it for purposes of cross and
for credibility purposes.
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Mazraani requested a stay and for an adjournment of the trial to allow his
client to consult with independent counsel. The court denied the stay motion,
but ruled that jury selection would be deferred to Tuesday, April 16.
Proceedings Before the Presiding Criminal Judge
Later that day, Mazraani wrote to the presiding judge of the Criminal Part
(Middlesex County) seeking relief. In response, the presiding judge held a
hearing and conducted a voir dire examination of defendant on April 12. The
presiding judge asked defendant at that hearing if he was aware that the
Mazraani interview had been recorded and that Mazraani's representation of him
"could be compromised." The judge advised defendant could opt to "continue
with [Mazraani], consider whether [Mazraani's] representation was
compromised, request that another attorney represent him or have a Public
Defender appointed." Defendant asked for additional time to hire new counsel. 7
The presiding judge "requested that the parties come back" the morning that trial
was set to begin.
We then granted defendant's motion for leave to appeal, staying the trial.
II.
(The Wiretap Act)
7
Defendant nonetheless has continued to be represented by Mazraani's office
in this interlocutory appeal.
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The prosecutor's office surreptitiously monitored and recorded Mazraani's
interview of Cruz pursuant to the statutory authority of the Wiretap Act.
Defendant does not argue that the recording of the Mazraani interview violated
the Wiretap Act, and neither do the ACDL-NJ or the Public Defender.
Nevertheless, the provisions of the Wiretap Act are germane to this appeal
because the trial court held that reasonable suspicion was "still a standard that
ha[d] to be met" under the Wiretap Act. The court found the State did not have
reasonable suspicion to believe that evidence of criminal conduct would be
derived from recording the Mazraani interview. In effect, the trial court held
the State had violated the Wiretap Act and granted defendant the limited
exclusionary relief expressly afforded under that statute, although it did not
phrase its ruling in that way.
Requirements of the Wiretap Act
The Wiretap Act "regulates the electronic interception of communications
in New Jersey. . . . Its purpose is to protect citizens' privacy from unauthorized
intrusions." State v. Toth, 354 N.J. Super. 13, 21 (App. Div. 2002) (citing State
v. Minter, 116 N.J. 269, 275 (1989)). The Act provides that, with certain
exceptions, "any person who . . . [p]urposely intercepts, endeavors to intercept,
or procures any other person to intercept or endeavor to intercept any wire,
electronic or oral communication . . . shall be guilty of a crime of the third
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degree." N.J.S.A. 2A:156A-3.
Detailing its exceptions, the Act states, in pertinent part, "[i]t shall not be
unlawful" for:
c. Any person acting at the direction of an investigative
or law enforcement officer to intercept a wire,
electronic or oral communication, where such person is
a party to the communication or one of the parties to the
communication has given prior consent to such
interception; provided, however, that no such
interception shall be made without the prior approval of
the Attorney General or his designee or a county
prosecutor or his designee.
[N.J.S.A. 2A:156A-4(c) (emphasis added).]
The Attorney General and county prosecutors must "maintain records of
all interceptions authorized pursuant to [the consent provision of N.J.S.A.
2A:156A-4(c)] . . . on forms prescribed by the Attorney General." N.J.S.A.
2A:156A-23. "Such records shall include the name of the person requesting the
authorization, the reasons for the request, and the results of any authorized
interception." Ibid. Copies of the records must be "periodically" filed with the
Attorney General, who "shall report annually to the Governor and Legislature
on the operation of" the consent provision. Ibid.
The Wiretap Act "is closely modeled after the federal statute," 18 U.S.C.
§ 2510 to § 2523 (the "federal Wiretap Act"), although the New Jersey version
has some "additional requirements which are not found in the federal statute."
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State v. Sanchez, 149 N.J. Super. 381, 394-96 (Law. Div. 1977).
Before the New Jersey statute was amended in 1999, one such "additional
requirement" was that the State was precluded from intercepting a
communication in which one party consented "unless the Attorney General or
his designee or a county prosecutor within his authority determines that there
exists a reasonable suspicion that evidence of criminal conduct will be derived
from such interception." Toth, 354 N.J. Super. at 18-19 (emphasis added).
In contrast, the federal Wiretap Act requires only that at least one party to
a conversation give prior consent to its interception by the government, without
any additional authorization requirement. 18 U.S.C. § 2511(2)(c). 8 See also
United States v. Caceres, 440 U.S. 741, 744 (1979) (noting that Internal Revenue
Service regulations required prior authorization for a consensual recording, but
"[n]either the Constitution nor any Act of Congress" had this requirement).
The 1999 Amendment Eliminating the Reasonable Suspicion Standard
The consent provision of our Wiretap Act was amended in 1999,
eliminating the "reasonable suspicion" element. Toth, 354 N.J. Super. at 18-19.
The Legislature retained the need for prior authorization, but it allowed for that
approval to be granted by the county prosecutor, Attorney General, or a
8
However, as we discuss, infra, the United States Department of Justice has
established guidelines for consensual wiretaps, which include seeking prior
authorization in every case.
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designee. Ibid.
The "Indispensable Protection" of Supervisory Review
Even before the reasonable suspicion standard was excised from the
Wiretap Act, our Supreme Court acknowledged that "the conditions for
authorization of consensual wiretaps [we]re not as strict as those applicable to
non-consensual wiretaps." State v. Worthy, 141 N.J. 368, 381 (1995). The
Court nevertheless considered the prior authorization requirement to be vital,
noting that, in cases of consensual interceptions, it was the "sole protection"
citizens had "from overly zealous and completely discretionary law-enforcement
practices." Ibid. As the Court explained:
Although the statutory condition for the interception of
a consensual wiretap is less onerous than, and hence not
as protective of privacy as, the conditions that surround
the nonconsensual interception of conversations, it
cannot be doubted that the Legislature viewed the
requirement of supervisory approval as an
indispensable protection for the privacy interests
implicated even in consensual telephone wiretaps.
[Id. at 381-82 (emphasis added).]
The Court accordingly held in Worthy that a recording obtained at the direction
of a prosecutor's investigator without prior authorization violated the Wiretap
Act and had to be suppressed, notwithstanding an absence of intentional
wrongdoing. Id. at 386.
The attorney approval requirement serves an important function in
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overseeing covert recordings by police and other law enforcement personnel,
who may not as readily recognize the legal risks of recording that may encroach
upon a defendant's rights.
The importance of strict adherence to the prior authorization requirement
was not affected by the amendment to the Wiretap Act eliminating the
reasonable suspicion element. That point was illustrated in State v. K.W., 214
N.J. 499, 503-04 (2013). In K.W., the State failed to obtain authorization for a
consensual wiretap due to an inadvertent failure of communication. Ibid. The
Court rejected the State's argument that "the removal of the requirement that the
designated prosecutor find 'reasonable suspicion' before authorizing a
consensual intercept 'strongly suggests that approval of consensual interceptions
is now essentially [only] an administrative, procedural function of the
prosecutor.'" Id. at 506. The Court held the principles of Worthy still required
the strict interpretation and application of the prior authorization requirement.
Id. at 509-10.
Here, the trial court made a factual finding that the State lacked reasonable
suspicion to believe evidence of a crime could be obtained by recording the
Mazraani interview. As the parties agree, however, the trial court's finding is
not dispositive or relevant under the statute, because a showing of reasonable
suspicion is not required under the amended Wiretap Act. In order for the
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recording to be permissible under the Act, the only express statutory
requirements were: (1) consent by Cruz, and (2) prior approval by an authorized
person, both of which the State obtained in this case.
Special Considerations in Authorizing Intercepts of Attorneys
That said, two additional queries are implicated by the Wiretap Act.
Specifically: (1) Does N.J.S.A. 2A:156A-11, which imposes special
requirements for approval of non-consensual wiretaps taking place in an
attorney's office, impact the analysis here?; and (2) Given that reasonable
suspicion is no longer required under the Act, what standard, if any, applies to
the prior authorization process, and is the authorization judicially reviewable?
As to the first question, the Public Defender contends that N.J.S.A.
2A:156A-11 reflects a policy-based intent by the Legislature to subject
consensual intercepts involving lawyers to "greater scrutiny than other
consensual intercepts." In response, the State and the Attorney General argue
that N.J.S.A. 2A:156A-11, which applies to non-consensual wiretaps, is wholly
irrelevant to consensual wiretaps.
The provisions codified in N.J.S.A. 2A:156A-8 to -9 detail the
circumstances under which the Attorney General or a county prosecutor can
apply for a court order authorizing a non-consensual wiretap and the
requirements for making such an application. N.J.S.A. 2A:156A-10 sets forth
24
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the required grounds for issuing such an order, including, in pertinent part, that
"there is or was probable cause for belief that" three elements are satisfied:
(1) the target of the wiretap engaged in or was about to engage in a criminal
offense, (2) the wiretap would provide "[p]articular communications concerning
such offense," and (3) "[n]ormal investigative procedures with respect to such
offense have been tried and have failed or reasonably appear to be unlikely to
succeed if tried or to be too dangerous to employ."
N.J.S.A. 2A:156A-11 specifies "additional grounds" that must exist to
authorize non-consensual wiretaps of public facilities or "facilities of persons
entitled to privileged communications." As to the latter locations, the statute
provides:
If the facilities from which, or the place where, the
wire, electronic or oral communications are to be
intercepted are being used, or are about to be used, or
are leased to, listed in the name of, or commonly used
by, a licensed physician, a licensed practicing
psychologist, an attorney-at-law, a practicing
clergyman, or a newspaperman, or is a place used
primarily for habitation by a husband and wife, no order
shall be issued unless the court, in addition to the
matters provided in section 10 of P.L.1968, c. 409 (C.
2A:156A-10), determines that there is a special need to
intercept wire, electronic or oral communications over
such facilities or in such places.
[(Emphasis added).]
If the wiretap under Section 11 is to occur at the facilities of an attorney,
25
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the "special need" intercept requirement obliges the applicant to show that the
attorney "is personally engaging in or was engaged in over a period of time as a
part of a continuing criminal activity or is committing, has or had committed or
is about to commit an offense as provided in" N.J.S.A. 2A:156A-8. Notably,
Section 8 sets forth a list of offenses that does not include witness tampering. 9
The plain language and structure of the statute show the "special need"
requirement in Section 11 applies only to non-consensual wiretaps. That said,
the statute at least reflects that the Legislature was concerned about
indiscriminate recording of conversations in the offices of attorneys, where
confidential discussions and work product communications commonly occur.
Judicial Reviewability of Wiretap Authorizations
We next consider what standard applies to the authorization of consensual
wiretaps. Section 4 of the Wiretap Act literally requires only prior approval for
such consensual wiretaps. The provision does not specify any grounds or
standards for granting such approval. Moreover, the Legislature's 1999
amendment of the Wiretap Act to remove the reasonable suspicion standard
arguably signals an intention to allow consensual wiretaps to occur more often
9
The federal Wiretap Act does not provide "comparable special protection" for
wiretaps occurring at attorney premises. State v. Ates, 426 N.J. Super. 614, 626
(Law. Div. 2009) (quoting Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, cmt. 1 on N.J.R.E. 504 (2009)), aff'd, 426 N.J. Super. 521 (App. Div.
2012), aff'd, 217 N.J. 253 (2014).
26
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and under less restrictive circumstances. This could be interpreted to mean, at
least as far as the Wiretap Act is concerned, that the Attorney General,
prosecutor, or relevant designee has unfettered discretion to authorize
consensual wiretaps under any circumstances and for any reason.
Along these lines, the State contended in its supplemental brief that the
prosecutor's authorization of a consensual wiretap is "not subject to judicial
review." However, at oral argument on this appeal, the County Prosecutor and
the Attorney General both acknowledged that prosecutors who review proposed
consensual interceptions under Section 4 typically apply a baseline standard of
"relevance."
Interpreting the Wiretap Act to enable unfettered and unreviewable
discretion by prosecutors could render the prior authorization requirement
merely a perfunctory task. If an official can review a request for a consensual
wiretap and approve it based on any reason – including, hypothetically, a whim,
bias, or personal animus – then the approval process would serve no real
purpose. This is particularly so if, as the State contends, the approval is never
subject to judicial review. We decline to adopt that categorical legal position.
As we have already noted, the Legislature opted to retain the prior
authorization requirement in 1999 when it removed the reasonable suspicion
standard. In 2013, the Court in K.W. reiterated that prior authorization was more
27
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than simply an administrative or procedural nicety, but was intended by the
Legislature as an "indispensable protection" to "safeguard personal privacy."
K.W., 214 N.J. at 509-10 (quoting Worthy, 141 N.J. at 379). Hence, the prior-
authorization review by the relevant official must operate in some way to strike
a balance between investigative and privacy concerns, even without a need for
reasonable suspicion. That, in turn, signifies that the approval process must
satisfy some standard other than unfettered discretion.
Comparative Discussion of the Federal Wiretap Act and the Justice
Manual
A comparative discussion of the system implemented under the federal
Wiretap Act is useful. Although the federal statute itself imposes no
requirement on law enforcement for a consensual wiretap other than obtaining
the consent of at least one party, in the Justice Manual ("JM"),10 the Department
of Justice ("DOJ") has promulgated highly detailed guidelines for executing
both consensual and non-consensual wiretaps. U. S. Dep't of Justice, Justice
Manual, Title 9, §§ 7.010 to 7.302 (2018).
The JM advises that consensual wiretaps, as well as warrantless
interceptions of oral communications in places where the parties have no
10
The JM, previously known as The United States Attorney's Manual, was
comprehensively revised and renamed in 2018. The full text of the current
manual is available at https://www.justice.gov/jm/justice-manual.
28
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justifiable expectation of privacy, "are particularly effective and reliable"
techniques. Id. at § 7.301. Nevertheless, the JM cautions: "While these
techniques are lawful and helpful, their use is frequently sensitive, so they must
remain the subject of careful self-regulation by the agencies employing them."
Ibid. Thus, the DOJ "developed guidelines for the investigative use of
consensual monitoring, which were promulgated most recently by the [United
States] Attorney General on May 30, 2002." Ibid.
Unless every party to a communication has consented to its monitoring,
the JM procedures require some form of prior authorization of all consensual
wiretaps. Id. at § 7.302. A written approval at a higher level by a Deputy
Assistant Attorney General in the Criminal Division of the United States
Department of Justice is required when "the monitoring concerns an
investigation into an allegation of misconduct committed by" certain specified
officials, including members of Congress, federal judges, or executives above a
designated level. Id. at § 7.302(II).
Where written authorization is required, the federal wiretap request must
contain certain information, including but not limited to: (1) the anticipated
location of the monitoring, (2) "the length of time needed for the monitoring,"
(3) the names of the persons to be monitored and "the relation of such persons
to the matter under investigation or to the need for the monitoring," (4) "a
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reasonably detailed statement of the background and need for the monitoring,"
and (5) "a citation to the principal criminal statute involved" if the monitoring
is for investigative purposes. Id. at § 7.302(III).
The prior approval for federal consensual wiretaps can be in oral form
where the monitoring "do[es] not involve the sensitive circumstances" inherent
in wiretaps of the designated officials, but that approval "must come from the
head of the agency or his or her designee." Id. at § 7.302(V). Further, all federal
departments or agencies engaging in consensual monitoring must "maintain
internal procedures for supervising, monitoring, and approving all consensual
monitoring of oral communications," and must maintain records that include the
monitoring details "for each consensual monitoring that they have conducted."
Ibid.11
The consensual wiretap guidelines in the JM reflect the DOJ's concerns
11
We are mindful that, although the procedures in the JM are set out in
mandatory terms, the manual cautions that it "provides internal DOJ guidance"
and "is not intended to, does not, and may not be relied upon to create any rights,
substantive or procedural, enforceable at law by any party in any matter civil or
criminal." U. S. Dep't of Justice, Justice Manual, Title 1, § 1.200 (2018). Courts
have confirmed that the manual guidelines do not confer substantive rights. See,
e.g., United States v. Lopez-Matias, 522 F.3d 150, 155-56 (1st Cir. 2008)
(holding that the government's failure to follow "death penalty protocols" in
manual did not, alone, create a basis to dismiss its notice of intent to seek death
sentence); United States v. Myers, 123 F.3d 350, 355-56 (6th Cir. 1997) (holding
that the government's violation of its internal operating procedures did not create
a basis for suppressing grand jury testimony). Hence, we look to the JM only
for comparative guidance.
30
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about the possibility of lack of uniformity, abuse, unjustifi ed monitoring, and
invasion of privacy. To create an appropriate balance between the various
competing interests, the DOJ has developed procedures in the JM to assure
fairness and adherence to uniform standards.
The "Relevance" Standard
Here in New Jersey, the Wiretap Act similarly requires law enforcement
officers to obtain the prior approval of the Attorney General, prosecutor, or
designee. That sign-off requirement presumably exists because an attorney will
be in a better position than, say, a police officer to balance issues of
constitutional rights, attorney ethics, or the possible disclosure of privileged
communications or work product against the legitimate needs of an ongoing
criminal investigation.
Presently, New Jersey does not have procedures or guidelines similar to
those in the JM. A designated attorney for the state must approve the request
under Section 4. But there is no guidance as to what information must be
provided to the decision-maker before approval, when and under what
circumstances approval is appropriate, or how the reviewing official should
balance the legitimate need for investigation against the competing concerns of
privacy, work product, and constitutional rights.
31
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As we noted, the Attorney General and the prosecutor represented to us at
oral argument that an operational standard of "relevance" is customarily
observed before consensual intercepts are approved under Section 4. We agree
that such intercepts should not be pursued unless they are expected to yield
relevant information. See N.J.R.E. 401 (articulating the general standard for
relevant evidence). At a minimum, relevance should be required. Even so, we
can conceive of situations in which a planned intercept of an attorney interview
is pursued with mixed objectives; e.g., where it is nominally sought to obtain
relevant evidence, but principally based upon animus against a defense attorney
or defendant.
Defendant and the defense amici argue such animus was present here. In
this regard, they point to a February 16, 2016 memorandum issued within the
prosecutor's office, advising assistant prosecutors to not engage in off -the-
record communications with Mazraani. They also note the prosecutor's office
has moved to disqualify Mazraani as counsel in four cases unrelated to the
present one.12
We will not adjudicate the animus claim in this interlocutory appeal. For
one thing, the record is not adequately developed on the point. The State
12
We are not informed of the bases or outcomes of those disqualification
motions.
32
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maintains that its past motions to disqualify Mazraani were justified, as was the
internal office memorandum.
The trial court made no findings concerning the animus claim. Moreover,
the Supreme Court has not spoken to the issue. Nor is there any existing written
Attorney General policy on the subject. We need not decide today whether
proven animus could nullify an authorization likely to yield relevant evidence.
As we will discuss, infra, there are other sufficient grounds to provide defendant
in this case with relief.
III.
(Infringement Upon Defendant's Constitutional Rights and Work Product
Disclosure)
We turn to whether the prosecutor's clandestine recording of the Mazraani
interview, despite its compliance with the Wiretap Act, infringed upon
defendant's constitutional rights. As a related matter, we examine whether the
interview prejudicially revealed defense counsel's privileged work product to
the Middlesex County assistant prosecutor and staff who were assigned to
handle defendant's narcotics case.
Constitutional Provisions and Principles
"The Sixth Amendment of the United States Constitution and Article I,
paragraph 10 of the New Jersey Constitution establish a defendant's right to the
assistance of counsel in criminal prosecutions." State v. Sugar, 84 N.J. 1, 15-16
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(1980). The right to a "thorough defense investigation is also part of the right
to counsel." State v. Nunez, 436 N.J. Super. 70, 74-75 (App. Div. 2014). See
also State v. Mingo, 77 N.J. 576, 582 (1978) (holding that, to safeguard the right
to counsel, "it is essential that [defense counsel] be permitted full invest igative
latitude in developing a meritorious defense"). Accord Coppolino v. Helpern,
266 F. Supp. 930, 933 (S.D.N.Y. 1967) (holding that the Sixth Amendment
grants a criminal defendant the right "to gather evidence which may be useful to
him in his defense, including the right to interview willing witnesses, free from
state interference").
The briefs of counsel and our own research have not identified any
reported cases directly addressing the constitutionality of a prosecutor's act of
sending a witness into a criminal defense interview wearing a recording device.
However, case law applying general constitutional principles informs our
analysis in this factually novel scenario.
State v. Blazas
An especially instructive case is our opinion in State v. Blazas, 432 N.J.
Super. 326 (App. Div. 2013). In Blazas, a defense investigator sought to
interview the defendant's ex-fiancée and five police officers. The investigator
alleged he was told by a police detective that the ex-fiancée had been instructed
not to speak with him, and by a police captain that a prosecutor had "advised
34
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against giving a 'go ahead' for interviews" with the five police officers because
the prosecutor "did not feel that it would necessarily be beneficial for the
prosecution." Id. at 332-33. The prosecutor contended the detective "denied
having any conversation with the defense investigator," and objected to the court
"taking the word" of the defense investigator. Ibid.
The trial court in Blazas acknowledged that, if the defense investigator's
allegations were true, the detective did not "understand his obligation" under the
law and the captain may not have had a "right not to tell people not to speak to
folks." Id. at 333. Nevertheless, the trial court noted that witnesses "don't have
an obligation to speak to anyone," and it held that the defense's "best remedy"
for any impropriety was through cross-examining the affected witnesses at trial.
Ibid.
We reversed that decision. Id. at 346. We underscored that both the
United States and New Jersey Constitutions guarantee a criminal defendant a
meaningful opportunity to present a complete defense, including access to
evidence. We held that "access to witness testimony falls within this
constitutional guarantee." Id. at 339 (citing Crane v. Kentucky, 476 U.S. 683,
690 (1986), and State v. Garron, 177 N.J. 147, 168 (2003)).
As we noted in Blazas, the New Jersey Supreme Court has made clear that
"a 'defendant's due process rights are violated when there is substantial
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government interference with a defense witness'[s] free and unhampered choice
to testify[.]'" Ibid. (quoting State v. Feaster, 184 N.J. 235, 251 (2005)). The
holdings in other New Jersey cases "mirror those in federal cases where
government action has thrown roadblocks to the testimony of witnesses who
would be favorable to the defendant." Id. at 340. Accord State v. Marshall, 148
N.J. 89, 284 (1997) (holding that law enforcement officials had no duty to
consent to defense interviews, but adding, "Of course, if the State wer e to
interfere with a defendant's ability to answer criminal charges by using its
influence to discourage witnesses from speaking to counsel or counsel's agents,
a very different case would be presented").
That said, we acknowledged in Blazas that "[n]ot every action by the
prosecution coupled with a witness's refusal to be interviewed will constitute
substantial interference with a witness's choice in deciding whether to speak to
the defense." 432 N.J. Super. at 343. However, if the defense investigator's
allegations in Blazas about government interference were true, then "it was the
State, and not the witness, who made the decision to deny defendant access" to
the interviews. Id. at 345. As we reasoned:
Therefore, just as substantial interference with a
witness's decision to testify constitutes a violation of a
defendant's constitutional rights, such interference with
a witness's decision to grant or deny an interview to the
defense also deprives a defendant of his right to present
a complete defense. We note that the protected right is
36
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the opportunity for pretrial access; it is not a guarantee
of pretrial access.
[Id. at 343 (emphasis added).]
The trial court's proposed remedy in Blazas of allowing cross-examination
of affected witnesses at trial "d[id] not resolve the [constitutional] due process
issue," because "[t]he right to present a complete defense encompasses access
to adverse witnesses during the investigation phase of the defense." Id. at 340.
We rejected the trial court's belief that "there was nothing he could do" to
remedy the situation because he "could not compel witnesses to speak to the
defense against their will." Id. at 346. We did not specify what the appropriate
remedy might be. Instead, we remanded the case for an evidentiary hearing, to
determine whether the witnesses, as claimed, had been instructed not to submit
to defense interviews. Id. at 345-46.
Gregory v. United States
The watershed federal case we mainly relied upon in Blazas was the
District of Columbia Circuit Court's opinion in Gregory v. United States, 369
F.2d 185 (D.C. Cir. 1966). Gregory was a capital murder case in which the
eyewitness testimony of several witnesses was critical. Id. at 187. Before trial,
"[t]he prosecutor embarrassed and confounded the accused in the preparation of
his defense by advising the witnesses to the robberies and murder not to speak
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to anyone unless he were present." Ibid. The Circuit Court in Gregory held that
this was prejudicial error, explaining:
Witnesses, particularly eye witnesses, to a crime are the
property of neither the prosecution nor the defense.
Both sides have an equal right, and should have an
equal opportunity, to interview them. Here the
defendant was denied that opportunity which, not only
the statute, but elemental fairness and due process
required that he have.
[Id. at 188 (emphasis added).]
"A criminal trial, like its civil counterpart, is a quest for truth. That quest
will more often be successful if both sides have an equal opportunity to
interview the persons who have the information from which the truth may be
determined." Ibid. Although the Gregory court acknowledged that there had
been no "direct suppression of evidence" by the government, it noted that "there
was unquestionably a suppression of the means by which the defense could
obtain evidence." Id. at 189. In the court's judgment, "the prosecutor's advice
to these eye witnesses frustrated" the defense's right to "a fair opportunity" to
interview them and, thus, "denied appellant a fair trial." Ibid.
Other Cases
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Consistent with the holdings in Blazas and Gregory, it is unquestionably
improper for a prosecutor to tell a witness not to speak with defense counsel. 13
However, it is permissible for a prosecutor to inform witnesses, in a
neutral manner, that they can choose whether or not to speak with defense
counsel. 14
13
See, e.g., United States v. Peter Kiewit Sons' Co., 655 F. Supp. 73, 75-78 (D.
Colo. 1986) (holding that a prosecutor's advice to a witness that he "probably
shouldn't" talk to the defense because "there would be two stories" and defense
counsel might "turn it around and make a fool of him in court" was improper,
because it "substantially chilled [the] witnesses' previously expressed
willingness to discuss the facts with the defense."); State v. Williams, 485
S.E.2d 99, 101-02 (S.C. 1997) (holding that it was not harmless error for a
prosecutor to tell a witness it was not in his "best interest" to talk to the
defendant's attorney); State v. Hofstetter, 878 P.2d 474, 481 (Wash. Ct. App.
1994) (holding it was improper for a prosecutor to advise witness not to speak
with defense counsel without a prosecutor present, even though State was
prosecuting a case against the witness); People v. Jackson, 253 N.E.2d 527, 533
(Ill. App. Ct. 1969) ("The prosecuting attorney cannot direct witnesses not to
speak to the defendant or his counsel or otherwise deprive them of a fair
opportunity for an interview."); See also 31 N.J. Practice, Criminal Practice &
Procedure § 13:46, at 692-93 (Leonard N. Arnold) (2018 ed.) (noting that "[i]t
is improper for the prosecutor to advise witnesses not to talk to anyone unless a
prosecutor is present," but the prosecutor may "merely advise a witness of the
witness's right not to submit to an interview with defense counsel").
14
See, e.g., United States v. Black, 767 F.2d 1334, 1338 (9th Cir. 1985) (no
interference found where a prosecutor sent letter to witnesses with subpoena
explaining pretrial and trial procedures and correctly stating, "At some point
prior to trial you may be contacted by an attorney on behalf of the defendant.
You may speak to this person if you choose, but have no obligation to do so.");
Corbett v. Patterson, 272 F. Supp. 602, 610 (D. Colo. 1967) (finding no
impropriety where "[a]t the most, the record indicates that the district attorney
told his witnesses that they did not have to speak to anyone"); State v. Guzman,
71 P.3d 468, 469-71 (Idaho Ct. App. 2003) (prosecutor "merely informed"
39
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The cases involving government interference with defense witness
interviews show that acting to block or discourage the interview from taking
place is unconstitutional conduct. The cases stress, in this regard, that witnesses
do not belong to either side. The exertion of control by the government that
restrains a witness's free choice to grant a private interview to the defense is
improper. That includes attempts to interfere with the witness's free choice to
attend the interview without a government representative present, to decline to
have a record of the conversation made, and to decide what details of the
interview, if any at all, should be shared with the government afterwards.
The State's Pre-Wire Preparation of Cruz
In the present case, we do not know fully from the record what the
prosecutor's office or its detectives told Cruz before he agreed to wear a wire for
the interview. For instance, we do not know whether Cruz had expressed any
reluctance to secretly record the conversation, or whether he was told he would
violate his cooperation duties under his plea agreement if he refused to cooperate
in that manner.
witness that speaking with defense counsel "was his choice," without
discouraging communication); State v. Wilson, 316 S.E.2d 46, 48 (N.C. 1984)
(finding that a prosecutor's statement to a witness that she did not have to speak
with defense counsel, unless she wanted to, did not obstruct defense attempts to
conduct interviews).
40
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We also do not know how the $180 payment Cruz received for taking part
in the recorded interview was calculated or negotiated. The expense voucher is
uninformative. The State characterizes the $180 sum as lost "wages," although
the record does not reflect how much time Cruz actually missed from work and
his normal rate of compensation. The transcript includes a comment by Cruz
that he left work "early," but does not quantify the time he missed. We therefore
cannot evaluate whether the $180 payment was reasonable.
Nor do we know whether the prosecutor's office and detectives
consistently and appropriately advised Cruz that he had the right to refuse to
wear the wire, and that it was entirely his choice as to whether he submitted to
the interview and, if so, on what terms. We also do not know whether Cruz was
advised, in preparing for the interview, whether he should raise certain topics
that might provide insights about defense counsel's possible trial strategy. The
trial court declined to allow discovery into these matters. 15
The State and the Attorney General argue the recording of the defense
interview was innocuous. They correctly assert the defense did not "own" Cruz
as a witness. They also correctly point out that Cruz had the right to
15
Although we have no reason to presume that improper coaching occurred, as
we note in Part V, the record should be explored to confirm that.
41
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communicate with the prosecutor's office after the interview was over, and
divulge from recollection what had been discussed.
But the State and the Attorney General also contend Mazraani and
defendant therefore could have no expectation of privacy about the interview.
They further maintain that no privileged work product was revealed during the
interview, and that the trial court erred in finding that some work product was
disclosed. We disagree on these points for several reasons.
The Attorney Work Product Privilege
"The attorney work product privilege prohibits disclosure of certain
materials prepared by an attorney in anticipation of litigation, and thereby
'creates a zone of privacy in which an attorney can investigate, prepare, and
analyze a case.'" State v. DeMarco, 275 N.J. Super. 311, 316 (App. Div. 1994)
(quoting In re Grand Jury Subpoena Dated Nov. 8, 1979, 622 F.2d 933, 935 (6th
Cir.1980)). "The development of the attorney's work product privilege was
mainly designed 'to afford a measure of protection to the attorney's privacy
against pretrial disclosure of his litigation strategies, his mental processes and
the like.'" Mingo, 77 N.J. at 584 (quoting State v. Montague, 55 N.J. 387, 401
(1970)).
The work product privilege was recognized by the United States Supreme
Court in the seminal case of Hickman v. Taylor, 329 U.S. 495, 510-11 (1947),
42
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where the Court observed:
[I]t is essential that a lawyer work with a certain degree
of privacy, free from unnecessary intrusion by opposing
parties and their counsel. Proper presentation of a
client's case demands that he assemble information, sift
what he considers to be the relevant from the irrelevant
facts, prepare his legal theories and plan his strategy
without undue and needless interference.
In discussing the scope of this protection, the Supreme Court stated that
attorney work product "is reflected, of course, in interviews, statements,
memoranda," and other things. Id. at 511. In United States v. Nobles, 422 U.S.
225, 238 (1975), the Court made clear that the work product doctrine applies in
criminal cases, explaining that "[a]t its core, the work product doctrine shelters
the mental processes of the attorney, providing a privileged area within which
he can analyze and prepare his client's case."
The work product privilege is recognized in our Rules of Court. Under
those rules, the defense is obliged to provide the State with certain reciprocal
discovery. R. 3:13-3(b). In pertinent part, the defense must provide
written statements, if any, including any memoranda
reporting or summarizing the oral statements, made by
any witnesses whom the State may call as a witness at
trial. The defendant also shall provide the State with
transcripts of all electronically recorded witness
statements by a date to be determined by the trial judge,
except in no event later than 30 days before the trial
date set at the pretrial conference.
[R. 3:13-3(b)(2)(D).]
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The attorney work product privilege applicable to criminal cases in our
State is governed by subsection (d) of Rule 3:13-3, which provides:
Documents Not Subject to Discovery. This rule does
not require discovery of a party's work product
consisting of internal reports, memoranda or documents
made by that party or the party's attorney or agents, in
connection with the investigation, prosecution or
defense of the matter nor does it require discovery by
the State of records or statements, signed or unsigned,
of defendant made to defendant's attorney or agents.
[(Emphasis added).]
In State v. Williams, 80 N.J. 472, 478 (1979), the Supreme Court
addressed whether the defense obligation to supply prosecutors with any
statements "made by any witnesses whom the State may call as a witness at trial"
required the defense to disclose photographs shown to the victim during a
defense interview and a summary of her statements during the interview
identifying the defendant. The Court held that the defense's discovery obligation
"does not give the State access to statements or summaries of statements made
by its witnesses to defense counsel during defense preparation for trial if defense
counsel does not intend to use them at trial." Id. at 478. The Court observed
that "[t]o hold otherwise would infringe on a defendant's constitutional right to
the effective assistance of counsel because of the chilling effect it would have
on defense investigation." Ibid.
No case has specifically addressed the requirement of Rule 3:13-
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3(b)(2)(D), which was adopted after the Court decided Williams, that the
defense provide "transcripts of all electronically recorded witness statements"
as well as written statements. However, the rationale of Williams applies with
equal force to recorded witness statements. Obligating the defense to produce
such materials when it does not intend to use them at trial would potentially have
a chilling effect on its investigation, thus interfering with a defendant's rights.
Moreover, it would be illogical to conclude that Rule 3:13-3(d) would protect a
written transcript of an interview the defense did not intend to use at trial, but
not protect an electronic recording.
In State v. Tier, 228 N.J. 555, 559-60 (2017), the Court held that the
defense's obligation under Rule 3:13-3(b)(2)(C) to provide the State with
statements of its own witnesses did not permit the trial court to order the defense
to create written synopses of their anticipated testimony where none had existed.
The Court ruled that written statements "need only be produced if they exist,"
and "if the defense has not memorialized the witness statement in some form of
writing there is nothing to produce." Id. at 564.
The Court based its holding in Tier on the plain language of the rule, as
well as "the confidentiality concerns raised by disclosure of work product." The
Court stressed "one of the underlying principles on which our criminal justice
system is based," namely that "a defendant 'has an absolute, unqualified right to
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compel the State to investigate its own case, find its own witnesses, prove its
own facts, and convince the jury through its own resources.'" Id. at 563 (quoting
Williams v. Florida, 399 U.S. 78, 112 (1970) (Black, J. concurring in part and
dissenting in part)).
In the oft-cited federal case of International Business Machines Corp. v.
Edelstein, 526 F.2d 37, 40 (2d Cir. 1975) ("IBM"), in which the parties
anticipated there would be hundreds of witnesses, a dispute arose regarding
access to witnesses for interviews. At a pretrial conference, the district court
ordered "that if any one of you seeks to interview a witness in the absence of
opposite counsel, that you do it with a stenographer present and so that it can be
available to the [c]ourt, for the [c]ourt to see it, and I think that is the kind of
condition that I would ask you to live up to." Id. at 41.
The Second Circuit granted IBM's petition for a writ of mandamus and
held that the district court exceeded its authority in issuing the pretrial order.
Id. at 41-42. The Circuit held that the district court's conditions were "contrary
to time-honored and decision-honored principles, namely, that counsel for all
parties have a right to interview an adverse party's witnesses (the witness
willing) in private, without the presence or consent of opposing counsel and
without a transcript being made." Id. at 42 (emphasis added). As the Second
Circuit aptly observed in IBM:
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The trial judge apparently looked upon an interview as
the taking of a deposition. In fact, there is little relation
between them. A lawyer talks to a witness to ascertain
what, if any, information the witness may have relevant
to his theory of the case, and to explore the witness'[s]
knowledge, memory and opinion--frequently in light of
information counsel may have developed from other
sources. This is part of an attorney's so-called work
product.
[Id. at 41.]
The IBM court expressed concern that having all interviews transcribed could
interfere with counsel's preparation of the case, in part because "a potential
witness, upon reflection, will often change, modify or expand upon his original
statement," so a witness understandably might "not wish to have his initial
thoughts taken down by a court reporter as if it were sworn testimony in court."
Ibid.
These principles are further illustrated in Washington v. State, 856 S.W.2d
184, 186 (Tex. Crim. App. 1993), in which a criminal defense investigator taped
a pre-trial interview with one of the State's witnesses. At trial, defense counsel
cross-examined the witness on statements he had made during the interview,
without relying on or referencing the tape. Id. at 186. Over a defense objection,
the trial court allowed the State to hear it and ultimately allowed the recording
to be played for the jury and admitted into evidence. Ibid. The Texas appellate
court found this was error, holding that "because the interview at issue . . . was
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conducted to prepare [the defendant's] case for trial, the recording was protected
work-product." Id. at 189.
Applying the unifying principles from these cases and court rules, we
conclude that certain details and aspects of the recorded Mazraani interview of
Cruz indeed fall under the umbrella of protected work product. In particular,
the qualitative aspects of such verbatim recording can be especially revealing.
The State argues that Cruz "was free to discuss the entirety of his
conversation with Mr. Mazraani with State investigators[,] regardless of whether
the conversation was recorded[,] as he is a State's witness who agreed to speak
to defense counsel at counsel's request." Both the State and the Attorney
General assert that Cruz could have reported "verbatim" to the detectives
everything that was said at the Mazraani interview. This argument fails to
persuade us for several reasons.
First, as the ACDL-NJ correctly points out, any after-the-fact account
given by Cruz "would not have been verbatim." Very few witnesses would be
able to recall an interview with the detail even approaching a verbatim
recording. As a practical matter, if a witness simply reports back to detectives
about what took place in an interview, the State will normally obtain only a
generalized overview, rather than the precise questions posed and answers
supplied. The unlimited ability of the prosecutor to play back the verbatim
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recording – repeatedly – also is a vast improvement over notating a witness's
mere recollection of what was asked and said.
For instance, if the witness had experienced difficulty recalling
information or expressing himself with clarity during the defense interview, he
would be unlikely to volunteer such problems to the prosecutor's office. An
astute defense attorney would surely take note of the witness's memory lapses
or communication problems as potential fodder for cross-examination at trial.
Those first-hand subjective impressions by the defense attorney comprise work
product.
Second, there are striking qualitative differences between a witness
interview that is contemporaneously recorded, as opposed to an after-the-fact
debriefing. The witness's awareness that government agents may be listening to
the interview at that very moment could easily have a chilling effect on the
witness. The witness may be afraid that his or her taped performance during the
interview will be evaluated by the prosecutor's office, and that he or she might
forfeit sentencing benefits if he or she does something to displease the
prosecutor. This "observer effect" might cause the witness to be less open and
forthcoming with the defense lawyer.
Third, a taped recording of the interviews could reveal the tenor of the
discussion – and the witness's rapport with defense counsel – much more vividly
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than could be discerned through an after-the-fact debriefing. For instance,
prosecutors could learn from the recording whether the witness spoke in a
friendly tone with defense counsel, whether he answered questions promptly and
cooperatively without pausing or hesitating, and if he exhibited any empathy for
the defense attorney's client. These intangibles about a witness can be of great
tactical value to an experienced trial attorney.
At Least Some Work Product Was Revealed Here
We have listened to the recording of the interview and closely reviewed
the transcript of it. As we have already noted, no bribe was offered or suggested
by Mazraani during the interview. The recording also does not contain any
explicit recitation by Mazraani of his intended strategy at trial.
Nevertheless, the recording does clearly reveal to the prosecution several
facets of work product. They include, among other things, the precise questions
Mazraani posed to Cruz (and what counsel did not ask about), the subjects on
which Cruz might have appeared forgetful or less forthcoming, Cruz's apparent
views about the case and the parties, his rapport with defense counsel, and other
insights. These revelations have the capacity to give the prosecutor an unfair
advantage at the narcotics trial. The defense attorney's interview may as well
have been conducted with the narcotics prosecutor hiding in the closet.
If the roles were reversed and the defense had surreptitiously recorded a
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prosecutor's pretrial interview of an anticipated trial witness, the State would
surely be sounding the alarm, and contending its work product had been unfairly
obtained. Both sides of a case plainly can be prejudiced by such secret taping.
In sum, we agree with the trial court the taping in this case revealed a
degree of work product, the actual extent of which is not yet fully known.
IV.
(Ethical Rules Addressing Clandestine Recording By Attorneys and the
Special Duties of Prosecutors)
We next consider the guidance of legal ethics rules and principles. Those
authorities do not specifically address the propriety of prosecutors using
informants to surreptitiously record witness interviews by opposing defense
attorneys. However, they contain a number of important general ethical
principles worth mentioning.
ABA Opinion 337
The question of whether it is inherently unethical for an attorney to record
any conversation without the knowledge of all parties has been addressed many
times, and has evolved over the years. In 1974, the Committee on Professional
Responsibility ("Committee") of the American Bar Association ("ABA") issued
a formal ethics opinion addressing the propriety of an attorney making a
surreptitious recording of a conversation. ABA Committee on Professional
Responsibility, Formal Opinions, No. 337 (1974) ("Opinion 337"). Opinion 337
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"is the genesis of the tape recording issue as far as ethics opinions are
concerned." Ward v. Maritz, Inc., 156 F.R.D. 592, 597 (D.N.J. 1994).
Opinion 337 determined that, except in certain "extraordinary"
circumstances, "no lawyer should record any conversation whether by tapes or
other electronic device, without the consent or prior knowledge of all parties to
the conversation." Opinion 337. The Committee noted that an informal opinion,
issued in 1967, had already concluded that a lawyer could not ethically make a
surreptitious recording of his or her own conversation with an attorney for the
opposing party. Ibid. The Committee opined that the proscription "clearly
encompasses the making of recordings without the consent of all parties."
(Emphasis added).
Opinion 337 recognized that an exception to the prohibition on
surreptitious recording by an attorney could apply in some investigative
contexts, stating that "[t]here may be extraordinary circumstances" where
attorneys in law enforcement "might ethically make and use secret recordings if
acting within strict statutory limitations conforming to constitutional
requirements." The Opinion recommended that any such exceptions be
examined on a case-by-case basis.
ABA Formal Opinion 01-422
The ABA reversed the broad proscription of Opinion 337 in June 2001.
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In Formal Opinion 01-422, the ABA's Standing Committee on Ethics and
Professional Responsibility opined that "the mere act of secretly but lawfully
recording a conversation" was not "inherently" deceitful, but was improper
"only where it is accompanied by other circumstances that make it unethical."
As examples, Formal Opinion 01-422 stated that attorneys could not
(1) surreptitiously record conversations in those jurisdictions where the law
requires the consent of all parties, or (2) lie if asked or do anything to indicate
that no recording was being made.
Most states that have addressed the issue since 2001 have followed the
rationale and conclusion in Formal Opinion 01-422 and allowed secret recording
by attorneys in some circumstances. See Charles Doyle, Wiretapping, Tape
Recorders, and Legal Ethics: An Overview of Questions Posed by Attorney
Involvement in Secretly Recording Conversation, pp. 4-7 (Congressional
Research Service Aug. 9, 2012) (summarizing state ethics opinions on
clandestine recordings by attorneys in light of Formal Opinion 01-422),
http://www.fas.org/sgp/crs/misc/R42650.pdf. However, some states have not
revisited the issue since adopting Opinion 337. Others have not addressed the
issue at all. Ibid.
Assuming that our state would also follow the conclusion reached by
Formal Opinion 01-422 – that an attorney's clandestine recording only raises an
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ethical issue if it is accompanied by other dishonest or unethical behavior – then
a prosecutor's consensual intercept of defense counsel would not, without more,
be inherently unethical. As we will discuss, infra, the main problem here is an
operational one, stemming from the prosecutor's failure to screen the personne l
handling the narcotics case from the wiretapped recording made for the attorney
misconduct investigation.
The New Jersey RPCs
The ADCL-NJ and the Public Defender contend that, by surreptitiously
recording the Mazraani interview, the prosecutor violated several New Jersey
Rules of Professional Conduct (the "RPCs"). The ADCL-NJ asserts that the
prosecutor's conduct violated RPC 3.4 (fairness to opposing party and counsel),
RPC 4.4 (methods of obtaining evidence that violate the legal rights of a third
person), and RPC 8.4(d) (conduct that is prejudicial to the administration of
justice). Further, the Public Defender argues that "there is at least a prima facie
case that the Assistant Prosecutor violated Rules of Professional Conduct 3.4(c)
and 4.1." The Attorney General and the State maintain that the prosecutor
violated none of these rules and, instead acted properly to pursue a report of
anticipated witness bribery.
Special Ethical Restrictions Imposed on Prosecutors
The parties have also cited a few general ethics principles that are unique
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to prosecutors. We briefly canvass those instructive principles and associated
case law.
"[T]he primary duty of a prosecutor is not to obtain convictions but to see
that justice is done." State v. Timmendequas, 161 N.J. 515, 587 (1999) (citing
State v. Ramseur, 106 N.J. 123, 320 (1987)). In furtherance of that principle,
the ABA promulgates "Criminal Justice Standards for the Prosecution
Function," which are "intended to provide guidance for the professional conduct
and performance of prosecutors" ("the ABA Prosecution Standards"). ABA
Criminal Justice Standards for the Prosecution Function § 3-1.1(a), (b) (4th ed.
2015).16 These standards "are aspirational or describe 'best practices,' and are
not intended to serve as the basis for the imposition of professional discipline,
to create substantive or procedural rights for accused or convicted persons, to
create a standard of care for civil liability, or to serve as a predicate for a motion
to suppress evidence or dismiss a charge." Id. at § 3-1.1(b).
The ABA Prosecution Standards declare that "[t]he primary duty of the
prosecutor is to seek justice within the bounds of the law, not merely to convict,"
and they reflect general principles for prosecutorial conduct, including in part
that the prosecutor "should" (1) "respect the constitutional and legal rights of all
16
The ABA Prosecution Standards are available at:
https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFu
nctionFourthEdition-TableofContents/
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persons, including suspects and defendants," and (2) "know and abide by the
standards of professional conduct as expressed in applicable law and ethical
codes and opinions in the applicable jurisdiction." Id. at § 3-1.2(b) to (f).
With respect to the prosecutorial relationship with victims and witnesses,
the ABA Prosecution Standards prescribe that a prosecutor "should not act to
intimidate or unduly influence any witness," and "should not . . . use methods of
obtaining evidence that violate legal rights." Id. at § 3-3.4(b) to (d). As may be
pertinent to the State's monetary payment in this case to Cruz, a prosecutor is
"permitted to compensate a witness for reasonable expenses" so long as "[a]ll
benefits provided" are "documented and disclosed to the defense." Id. at § 3-
3.4(e) (emphasis added).
Mirroring the principles established by Gregory and its progeny, the ABA
Prosecution Standards instruct that a prosecutor should not "discourage or
obstruct communication between witnesses and the defense counsel." Nor
should prosecutors "advise any person, or cause any person to be advised, to
decline to provide defense counsel with information which such person has a
right to give." Id. at § 3-3.4(h).
The ABA further advises that "prosecutors should be familiar with and
follow Standards on Prosecutorial Investigations" ("the ABA Investigation
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Standards"). Id. at § 3-4.1(a).17 Among other things, the ABA Investigation
Standards instruct that: "[w]hen deciding whether to initiate or continue an
investigation, the prosecutor should not be influenced by: (i) partisan or other
improper political or personal considerations . . . ; or (ii) hostility or personal
animus towards a potential subject." Id. at § 2.1(d). The ABA Investigation
Standards list eleven factors prosecutors should consider in evaluating
investigatory techniques. They include, for example, "whether the investigative
means and resources to be utilized are appropriate to the seriousness of the
offense . . . ; means of avoiding unnecessary intrusions or invasions into
personal privacy . . . ; interference with privileged or confidential
communication . . . ; [and] interference with or intrusion upon constitutionally
protected rights." Id. at § 2.2(c).
The Need for "Fire-walls" or "Taint Teams"
The most relevant portion of the ABA Investigation Standards to the
present case is entitled "PROSECUTOR’S ROLE IN ADDRESSING
17
The ABA Investigation Standards, like the ABA Prosecution Standards, "are
not intended to serve as the basis for the imposition of professional discipline,
nor to create substantive or procedural rights for accused or convicted persons
regarding the prosecutor." American Bar Association, "ABA Standards for
Criminal Justice: Prosecutorial Investigations" § 1.1(b) (3d ed. 2014). The
Investigation standard are available at:
https://www.americanbar.org/groups/criminal_justice/publications/criminal_ju
stice_section_archive/crimjust_standards_pinvestigate/.
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SUSPECTED MISCONDUCT BY DEFENSE COUNSEL." Id. at § 3.3.
Among other things, these standards prescribe in subsection (f):
(f) The prosecutor's office should take reasonable
steps to assure the independence of any investigation
of a defense counsel [suspected of wrongdoing]
including, if appropriate, the appointment of a pro tem
or special prosecutor or use of a "fire-wall" within the
prosecutor’s office. At a minimum, an investigation
of defense counsel's conduct should be conducted by
a prosecutor who has not been involved in the initial
matter or in ongoing matters with that defense
counsel.
[(Emphasis added).]
As we will discuss, infra, the failure in this case to establish and maintain such
a "fire-wall" or "taint team" within the prosecutor's office was a critical omission
that requires remedial action.
Summary
The overall thrust of these ethical standards is that prosecutors should
exercise caution when using surreptitious means to investigate defense
attorneys. They must take care to balance legitimate investigative needs against
concerns of privacy violation, the potential for harassment and abuse, and the
need to keep an investigation of potential attorney misconduct wholly separate
from the underlying prosecution(s) being defended by that attorney.
We make no determination as to whether the prosecutor's office in this
novel situation violated any ethical standards, and there is no ethical ruling by
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the trial court for us to review. What we can say is that the general principles
underlying the ethical standards reinforce our concerns about the alleged
interference with defendant's constitutional rights of fair access to a witness.
They also punctuate our concerns about the revelation of attorney work product
to the prosecutorial employees involved in the underlying narcotics case .
V.
(Implications and Remedies)
Having detailed the known facts and various guiding principles, we
proceed to address their implications. The following aspects of the record are
most critical to our assessment:
 In compliance with the Wiretap Act, an assistant
county prosecutor authorized the consensual
intercept of defense counsel's interview of Cruz,
a paid confidential informant.
 Cruz wore two body wires during his interview
with defense counsel, devices which recorded
and apparently transmitted the interview
simultaneously to prosecutorial agents.
 The interview was transcribed, and the rough
transcript and the recording were not turned over
to defense counsel until three days before trial,
by the assistant prosecutor handling the Martinez
narcotics case.
 The recorded interview revealed, at least to some
extent not yet fully uncovered, the defense
counsel's work product, which could be
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advantageous to the prosecutors handling the
narcotics case.
 One or more detectives in the prosecutor's office
took part in both the investigation of alleged
attorney misconduct and the narcotics case,
without the office maintaining ethical screens
preventing such dual involvement.
 The assistant prosecutor handling the Martinez
case was evidently exposed to the contents of the
consensual intercept, and he was not screened
from that material.
 The trial court found that because some amount
of work product was divulged, the appropriate
remedy was to disallow the prosecutor from
affirmatively placing into the evidence the
contents of the Mazraani interview, although
defendant was free to use the interview contents
if he so desired.
 The trial court denied defendant's requests for
more stringent remedies, such as dismissal of the
indictment or preclusion of trial testimony by
Cruz in the State's case.
We conclude from these circumstances that the joint involvement of
prosecutorial representatives in both the confidential intercept conducted in the
attorney misconduct investigation and in the narcotics case, coupled with the
disclosure to the Martinez assistant prosecutor of Cruz's recorded interview,
infringed upon defendant's constitutional rights.
The attorney work product divulged from that interview through the
recording should not have been revealed to the persons in the prosecutor's office
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who were involved in the Martinez case. Instead, the recording and the
transcript of it should only have been made known to and used by appropriately-
screened staff members who had no involvement in the narcotics case. Once
Cruz reported that he might be offered a bribe at the upcoming interview, the
prosecutor's office should have used an independent team to take over the
recording process. That internal screening was not done here, and its omission
requires a remedy.
Our Supreme Court in Sugar, 84 N.J. at 1, pondered the appropriate
remedy to impose when inappropriate prosecutorial conduct occurs in the course
of an investigation. In Sugar, law enforcement officers unlawfully
eavesdropped on confidential conversations between a criminal defendant and
his attorney. The Court concluded that the circumstances did not call for the
"drastic remedy" of the dismissal of the indictment. Id. at 22. However, the
Court held that other measures were necessary to eliminate the taint caused b y
the improper actions. In particular, the Court required the State to assure that
the witnesses and evidence it intended to present at trial, through a different
team of prosecutors and staff who had not been involved in the eavesdropping,
would be untainted. Id. at 26-27.
The Court's decision in Sugar signifies that if either the attorney-client or
work product privilege has been invaded by a prosecutor, the extreme remedy
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of the dismissal of an indictment is appropriate only where no lesser remedy
could fully address the harm. The Court in Sugar considered a blatant and
unconstitutional intrusion into a privileged arena, yet it was willing to entertain
the possibility that a less severe remedy than dismissal could be achieved. Id.
at 21, 22-24 (noting that "dismissal of a prosecution is the appropriate remedy
for official intrusion upon attorney-client relationships only where it destroys
that relationship or reveals defendant's trial strategy"). 18
Similarly, the Court in Williams, when faced with the improper, forced
disclosure of work product to the State and the jury, ordered the remedy of a
new trial rather than dismissal of the indictment. Williams, 80 N.J. at 479. The
State's improper acquisition of work product does not, by itself, make a fair t rial
impossible and require dismissal. It is well-established that dismissing an
indictment is a "draconian remedy" and a "last resort because the public interest,
the rights of victims and the integrity of the criminal justice system are at stake."
State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004) (citation omitted).
Defendant cites to United States v. Levy, 577 F.2d 200, 202 (3d Cir.
1978), for the proposition that dismissal is the sole appropriate remedy in
circumstances where any defense strategy has been disclosed to the government,
18
Later, in "Sugar II," State v. Sugar, 100 N.J. 214, 226-28 (1985), the Court
reiterated that witnesses might be tainted and thus disqualified from testifying.
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because it would be too difficult for courts to "arrive at a certain conclusion as
to how the government's knowledge of any part of the defense strategy might
benefit the government." The Levy court's holding is not as broad as defendant
suggests.
In Levy, a government informant was represented by the same attorney as
the defendant, and the informant became privy to attorney-client-privileged
communications revealing that "the defense strategy would be to concentrate on
the credibility of two key government witnesses." Id. at 204. Government
representatives actively solicited this privileged information from the informant,
and the prosecutor "became privy to this strategy." Id. at 205. In those
circumstances, the Third Circuit Court of Appeals held that "the only
appropriate remedy" was dismissing the indictment.
Unlike in Levy, the acquisition of work product in the present case was
not through a knowing intrusion by the government into attorney-client
privileged communications where defense strategy had been expressly
discussed. To be sure, as we have already explained, the fact that this was a
witness interview rather than a confidential client meeting does not remove the
setting entirely from the realm of work product protection. However, the
imbedded trial strategy a prosecutor can obtain from eavesdropping on a defense
interview of a third party witness is not as extreme as what can be learned from
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monitoring a confidential discussion between a lawyer and a client.
Case law addressing unconstitutional interference with a defendant's right
of free access to witnesses teaches us that a remedy should be crafted to fit the
harm caused. The situation does not always require dismissal of the case. 19
We accordingly affirm the trial court's denial of defendant's motion to
dismiss the indictment. However, given the improper disclosure of attorney
work product that unfortunately has occurred, we find it necessary to strengthen
the mild remedy the court imposed.
We discern the harm caused to defendant in this case has at least two
dimensions. First, by intruding into defense counsel's work product, prosecutors
appear to have gained information and insights they could use to better prepare
19
For example, in United States v. Ebrahimi, 137 F. Supp. 3d 886, 889 (E.D.
Va. 2015), where the government advised people to report any contact by
defense counsel and to have a government representative present at any
interview, the court ordered that a detailed letter from the judge be provided to
the potential witnesses, informing them that "as a witness, you are equally
available to lawyers for the defense and the Government at your own discretion."
The letter further stated that the government's requests were "not in keeping"
with this principle, and that the witnesses had the option to agree or decline any
interview and were "not required to have a Government agent present at your
interview, if you decide to consent to an interview." Id. at 889-90. See also,
e.g., Kines v. Butterworth, 669 F.2d 6, 10 (1st Cir. 1981) (in which witnesses
who had been instructed not to speak with defense counsel were advised "on the
judge's authority, of their right to talk to defense counsel 'as they wish or not
wish'"); Peter Kiewit Sons' Co., 655 F. Supp. at 78 (ordering a remedy allowing
the defense to depose witnesses "in a neutral atmosphere," to which the parties
did not object).
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Cruz as a witness and to counter the defense. Second, the State's conduct created
a potential conflict of interest between defendant and Mazraani. That conflict
may compel defendant to retain new counsel, to the possible detriment of his
defense and his finances.
The State argues the trial court has already given defendant a sufficient
remedy, contending that "barring the State from introducing any evidence of the
recorded conversation" at defendant's trial effectively "ensure[d] that defendant
would be insulated from any harm." Similarly, the Attorney General contends
that "defendant cannot even claim prejudice because the State will not be
introducing the lawful consensual recording at defendant's trial."
However, simply precluding the State from using evidence that it does not
want to use – and likely would not be admissible in the State's case in any event
– does not remediate the harm to defendant. As aptly noted by the Public
Defender, the remedy provided by the court "does not address the State's
improper conduct and, practically, serves only to encourage such misconduct in
the future."
The Public Defender proposes that, if this court concludes that dismissal
of the indictment is not warranted, then, alternatively, the Middlesex County
Prosecutor's Office should be disqualified from continuing to handle this
narcotics case. Similarly, the ACDL-NJ contends that the prosecution "would
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have done well to implement" a "taint team."
In its brief on appeal, the State advises that it would accept, as an
alternative remedy to any finding of impropriety, the designation of "an
independent assistant prosecutor, unfamiliar with the exchange between Mr.
Mazraani and [Cruz] and not privy to any possible trial strategy that might have
been disclosed, handle defendant's matter." We adopt such a remedy, with
modification.
Specifically, this matter is remanded to the trial court on the condition
that, within forty-five days, the Attorney General either supersede the
indictment, to be handled exclusively by untainted attorneys and staff within the
Attorney General's Division of Criminal Justice, or refer the matter to a different
county prosecutor's office for handling by an untainted team. The Middlesex
County Prosecutor's Office shall immediately cease any further involvement in
prosecuting, investigating, or otherwise participating in this case.
This remedy of transferring defendant's case to a prosecutorial team that
has not been exposed to the recording and transcript of the Mazraani interview
removes the possibility that information gleaned from such a review could be
used to better prepare the State's case.
Due to the limitations of the existing record, we decline to go further and
resolve whether, as defendant requests, the State also should be barred from
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calling Cruz as a witness at trial as a prophylactic measure. Among other things,
the record does not fully reveal what discussions actually transpired between
prosecutor's office attorneys and detectives and Cruz before he agreed to wear
the body wires. As we have already noted, we do not know, for example, if Cruz
expressed any reluctance to wear the devices, whether the $180 payment
influenced his decision, and how that sum was calculated. We cannot determine
whether the prosecutorial team violated the principles of Blazas, 432 N.J. Super.
at 343 by substantially interfering with Cruz's independent decision to proceed
with the interview or choice to wear recording devices. We also cannot tell
what, if any, instructions Cruz was given before the interview. Further, it is
unclear, apart from the short transcribed March 14 discussion with the
detectives, whether Cruz had had any other relevant post-interview discussions
with prosecutorial representatives that might shed further light on how Cruz's
services were used.
The record also does not reveal the extent to which the Sergeant who led
the narcotics investigation, or any other potential witnesses for the prosecution,
might have been tainted by their involvement in or exposure to the covert
recording or transcript. Through such involvement or exposure, such witnesses
might now be privy to defense counsel's work product to a degree that might be
fundamentally unfair to defendant at trial. Depending upon the record
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developed on these matters, the trial court should consider whether the Sergeant
or any other anticipated State witnesses are impermissibly tainted to require
their exclusion at trial. Alternatively, whether or not sufficient taint exists, the
trial court shall consider whether other prophylactic remedies concerning such
witnesses are appropriate. At the very least, defendant is entitled to discovery
of a fuller record of the witness interactions, and an opportunity to use such
information as impeachment material on cross-examination a trial.
The shortcomings of the record in this regard are not the fault of the
defendant, given the abrupt notice he received of the recording's existence on
the brink of trial, and the trial court's denial of his ensuing request for discovery.
A remand to develop the record more fully on these remedial questions is
consistent with our approach in Blazas, 432 N.J. Super. at 345-46.
Consequently, we remand to the trial court for a plenary hearing the
question of whether Cruz or any other persons should be barred as a trial witness
for the State. At that hearing, testimony may be elicited from Cruz and
representatives of the Middlesex County Prosecutor's Office who interacted with
him. Defendant shall have a burden of establishing a prima facie basis showing
that Cruz was unfairly influenced or utilized to an extent that could warrant the
prophylactic remedy of his testimonial exclusion. Similarly, if he seeks to bar
other witnesses, defendant has a prima facie burden to show that any witnesses
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are tainted by their involvement in or exposure to the covert recordings, or
whether their testimony otherwise should be barred as a remedial measure. If
he meets that burden, the burden would then be shifted to the State to
demonstrate beyond a reasonable doubt that no such improper interference or
witness taint exists, and that the prosecution may continue without any adverse
effect upon defendant arising out of the circumstances. Sugar, 84 N.J. at 24-25.
Depending on the facts elicited in the remand hearing, the trial court is
authorized as a remedy to bar the State from calling Cruz or a tainted witness at
trial. The State would then need to decide if it wished to pursue the case at trial
through other unaffected proofs, if possible.
VI.
(Conclusion)
In concluding, we stress that nothing in this opinion is intended to deprive
law enforcement of appropriate tools to investigate attorney wrongdoing.
Indeed, as the result of the State’s investigation, a grand jury has charged an
attorney – but not Martinez's counsel – with criminal acts of witness tampering,
albeit for acts unrelated to the present narcotics case. That indicted attorney
surely deserves, like any other citizen, the presumption of innocence. But if
those charges are ultimately proven, the verdict will illustrate the importance of
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law enforcement's role in rooting out conduct that undermines the integrity of
our system of justice.
Even so, the prosecutor's investigatory role is not unfettered. Heightened
caution must be observed when the government seeks to intrude surreptitiously
into a defense attorney's discharge of professional obligations when he or she
conducts witness interviews in preparation for trial. The Sixth Amendment of
the Constitution, and our State Constitution, as well as principles of legal ethics,
demand that heightened caution.
Although, in authorized instances, relevance-based government
surveillance of attorney interviews of witnesses is permissible, appropriate
safeguards must be followed to protect the attorney's work product and fair
access to witnesses. We respectfully urge the Attorney General to promulgate
guidelines that address these concerns. Counsel have submitted prospective
suggestions for such guidelines in their supplemental post-argument briefs.
Although we do not endorse or reject them, they may prove useful for the
Attorney General's consideration.
Affirmed in part, modified in part, and remanded in part. We do not retain
jurisdiction.
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