New Jersey Posecutorial Misconduct

A study of criminal appeals from 1970 to the present revealed 178 New Jersey cases in which the defendant alleged prosecutorial error or misconduct. In 42, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In 15, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant. Out of all the defendants who alleged misconduct, one later proved his innocence.

Of the 42 cases in which judges ruled a prosecutor’s conduct prejudiced the defendant, 28 involved improper trial arguments or examination, seven involved the prosecution withholding evidence from the defense, two involved pre-trial tactics, two involved conduct in grand jury proceedings, one involved vindictiveness, one involved destruction of evidence and one involved a breach of secrecy in jury deliberations.

In December 1994, the state Supreme Court reversed Thomas Gregg’s first-degree aggravated manslaughter conviction because Middlesex County assistant prosecutor Nicholas Sewitch made improper comments at trial. A jury had convicted Gregg of manslaughter after he struck and killed another motorist. Gregg was intoxicated at the time.

During trial, Sewitch characterized Gregg’s conduct as that of a person who was “wasted, trashed, rip-roaring drunk, grossly, outrageously intoxicated, ossified, dead drunk, falling down until violently drunk.”

The state Supreme Court ruled these characterizations prejudiced Gregg and granted him a new trial.

“Our problem with the verdict is that the prosecutor was not content to present and argue the relevant facts that proved his case,” wrote Justice Sylvia Pressler. “He was, rather, intent upon portraying defendant as an utterly and thoroughly worthless and depraved human being.”

Sewitch told the Center he was not trying to show the jury that Gregg was “some animal,” he was instead trying to show the jury that Gregg was acting like an animal because he was “falling down drunk.”

“I used just about every word you could to describe that,” he said. “You want to communicate with jurors in words they understand.”

Sewitch said he is sometimes frustrated by what he characterizes as a blurry line between proper and improper argument.

“There are some things you clearly cannot say, but for some things, the line is blurred,” he said. “I’m not criticizing the appellate courts, I’m just saying in New Jersey we have to be extremely careful about what we say in opening and closing statements.”

Essex County prosecutor Leslie Mann’s conduct prompted the state Superior Court to reverse two defendants’ convictions. In another case, Mann’s conduct prompted the trial court judge to declare a mistrial.

In 1995, the state Superior Court reversed Curtis Knight’s first-degree murder conviction in part because Mann withheld exculpatory evidence that “raises a reasonable probability that the jury would have reached a different verdict.”

Eleven days after a man was beaten to death, a woman named Marie Robinson came forward with information. Robinson, who had recently pleaded guilty to drug possession and was awaiting sentencing, said she witnessed Knight hit the victim on the head with a metal pipe.

There were at least two other witnesses, neither of whom identified Knight as the assailant.

At trial, there were substantial discrepancies between Robinson’s testimony and the statement she originally gave to police. There were also discrepancies between her direct testimony and her testimony on cross-examination. Additionally, the medical evidence concerning the nature and location of the victim’s wounds did not correspond to Robinson’s version of the assault.

The jury convicted Knight and sentenced him to life in prison.

At trial, Robinson told the jury she did not expect to receive any benefits on her pending drug charges in exchange for testifying. Mann knew that was not true. As the Superior Court noted in its opinion reversing Knight’s conviction, “the simple fact is that she did appear to receive a benefit.” Mann did not disclose this to the defense.

Second, two eyewitness did not place Robinson at the scene and their statements differed greatly from Robinson’s version of events. Mann did not disclose either of their statements to the defense.

“We have a strong sense that in all probability, the jury would have rejected Robinson’s credibility,” wrote the court. “Without her, the State had very little else.”

In 1991, the state Superior Court reversed Byron Lockett’s conviction for aggravated manslaughter because of Mann’s improper argument.

The charges against Lockett arose from a police chase, during which Lockett ran a red light and killed a pedestrian. During trial when Lockett took the stand, Mann asked him two questions about facts he knew to be untrue. For instance, knowing it to be untrue, he asked Lockett if he had a drug possession conviction. During closing argument, he also said Lockett smiled after he hit the pedestrian.

“There is no evidence of this baseless accusation,” wrote the court in the decision that reversed Lockett’s conviction.  ¶ 9:53 AM