Application for Protective Order, Matter of
| Decision Date | 23 June 1995 |
| Citation | 659 A.2d 955,282 N.J.Super. 244 |
| Parties | In the Matter of an APPLICATION FOR A PROTECTIVE ORDER 1 |
| Court | New Jersey Superior Court — Appellate Division |
James C. Patton and Michael Querques, for appellant (Mr. Patton and Mr. Querques, on the brief).
Deborah T. Poritz, Atty. Gen., for respondent, State of N.J. (Donald C. Campolo, Deputy Atty. Gen., of counsel, and on the brief).
Before Judges SHEBELL, SKILLMAN and KLEINER.
The opinion of the court was delivered by
SHEBELL, P.J.A.D.
In August 1992, appellant learned that he was about to be indicted on State murder and racketeering charges. Appellant through his attorney pursued a pre-indictment plea agreement with the State and agreed to make a statement outlining his criminal conduct. Appellant contends that before he made his statement, State officials agreed that his statements would not be used against him in any criminal proceeding as long as he told the truth, and that his statements would remain confidential. Defendant feared retaliation from others involved in the criminal conduct. A summary of the agreement is contained in an October 8, 1992 letter from the State, which provides:
[T]he State of New Jersey and the Federal Government will not use any answers provided by [appellant] during the course of his interview by members of the New Jersey State Police and/or the Division of Criminal Justice in any subsequent prosecutions of [appellant] for criminal activity within the State of New Jersey or any other jurisdiction. [Appellant] is obligated to provide complete and truthful answers during the course of his interview. Should it be determined that [appellant] deliberately provided false or misleading information to the New Jersey State Police and/or the Division of Criminal Justice during the course of said interview, it is understood that any and all information provided during the course of said interview can and will be used by the State of New Jersey as it sees fit in any subsequent prosecution involving [appellant].
Appellant alleges that the two State attorneys dealt with "assured us that the information disclosed during the proffer would not be disclosed to anyone in discovery in any subsequent prosecutions." Appellant's attorney stated in his certification in support of an application for a protective order:
A necessary promise that the State made to induce [appellant] to waive his Fifth Amendment right against self-incrimination and to make and continue to make a proffer was the promise made by State officials to [appellant] and to me that the fact of the proffer and the substance of the proffer would never be disclosed to anyone. Without that promise, [appellant], who feared for the safety of his family and himself, would never have made a proffer.
[ (Emphasis added.) ]
The certification also states that appellant and his attorney were told that a written record of appellant's statements would not be created and used in subsequent prosecutions.
The State contends that, "[w]hile it is true that [appellant] was assured that the process of his debriefing would remain confidential as long as he brought integrity to that process, it is also true that he chose to initiate events which led to the revelation of his having chosen to offer his information and cooperation to the State." The State acknowledges that "[a]ppellant was promised use immunity if he was completely truthful," and that appellant was debriefed "in confidence," but asserts that appellant violated the terms of the debriefing agreement and that the State made "[n]o representations of unconditional or permanent secrecy as to the debriefing results * * *."
Following the statement to State officials, appellant is alleged by State officials to have made contradictory statements to Federal prosecutors, in that he admitted to State officials that he had fired the gun shot that killed the victim, but then told Federal officials that another person fired the gun. Prior to entering into a plea agreement with appellant, the State had taken the position that it was free to use appellant's statements because of his untruthfulness, even though it acknowledged that it believed that appellant had originally told the truth to State officials. Eventually, appellant pleaded guilty in State court to first-degree racketeering and first-degree aggravated manslaughter. He has been incarcerated ever since, and is presently in Federal custody. Under the plea agreement, the State agreed it would not subpoena or compel appellant to testify as a witness in any grand jury or trial proceeding against any person and that it would not use appellant's guilty plea or its factual basis as evidence against anyone in any proceeding unless appellant testified as a defense witness.
State officials also required as a condition of the plea agreement that appellant make a statement outlining the criminal activities of others involved in the homicide. It was agreed that those statements would only be admitted in evidence if appellant testified at trial and that the statements would be sealed until disclosure was required to fulfill the State's discovery obligations. The affidavits are under seal pursuant to a protective order.
The first paragraph of each of appellant's affidavits in support of the plea agreement state:
I make this affidavit pursuant to and in accordance with the terms of the plea agreement made between myself and the State of New Jersey. It is agreed that the State of New Jersey will petition the Court for a protective order to seal this affidavit until further Order of the Court. It is further my understanding that, pursuant to my plea agreement with the State of New Jersey, while I am not precluded from testifying on behalf of a criminal defendant, that this truthful affidavit would be unsealed and could only be introduced into evidence in the event that I do testify. I also understand that the State of New Jersey must, at some point, disclose this affidavit, in whole or in part, in fulfillment of the State's discovery obligations and in accordance with obligations imposed by the State and Federal Constitution.
[ (Emphasis added.) ]
The State appears to have released portions of appellant's preliminary statement that directly relate to a September 1994 grand jury indictment charging other defendants in connection with the homicide. State officials have expressed an intent to release to the defendants the remainder of the statements made by appellant, on the grounds that the material must be released to completely fulfill the State's discovery obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Appellant requested a conference with the trial judge assigned to the pending indictment to ask for a protective order. The judge denied the request, noting that R. 3:13-3(d)(1) provides that the court on motion may consider an application for a protective order, and that if a hearing was held without counsel for defendants, they would never be aware of the hearing or the ruling. The judge also expressed concern with respect to whether a non-party has standing to seek a protective order in a criminal matter. He further noted that consideration of the protective order application without notice to defendants may be inappropriate under Canon 3A(6) of the Code of Judicial Conduct. 2 Therefore, he required that a motion be filed with notice to the defendants charged in the pending indictment in order to hear the application for a protective order. We granted appellant's motion to stay disclosure pending appeal.
We will not at this time consider the merits of the State's argument that it is obligated to disclose the material in response to defendants' request for discovery and that the prosecution of the case might be compromised by non-disclosure. We note that although appellant was aware at the time he gave his statements as required by the plea agreement that the information he supplied might be examined for Brady material in related prosecutions, he nonetheless makes the assertion that the material in the preliminary statement is cumulative and immaterial, and therefore is not discoverable as the State has already released the relevant portions of the statement to the defendants.
We first address the judge's concerns as to appellant's standing to be heard in a matter relating to a criminal indictment in which he is not named. We are convinced that there is no compelling reason to deny appellant standing to challenge release of the allegedly confidential statements. Other courts have recognized a third party's right to intervene in a criminal trial to challenge the production of assertedly privileged information. United States v. RMI Co., 599 F.2d 1183, 1186 (3d Cir.1979); United States v. Cuthbertson, 651 F.2d 189 (3d Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 604, 70 L.Ed.2d 594 (1981); In re Grand Jury, 541 F.2d 373, 376-77 (3d Cir.1976); see Viruet v. Sylvester, 131 N.J.Super. 599, 603, 331 A.2d 286 (App.Div.), certif. denied, 68 N.J. 138, 343 A.2d 426 (1975). Additionally, there are numerous cases in which the party from whom discovery is sought asserts a privilege held by a third party. See e.g., In re Maraziti, 233 N.J.Super. 488, 559 A.2d 447 (App.Div.1989) (); Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987), appeal denied, 518 Pa. 617, 541 A.2d 744 (1988) (); People v. Foggy, 121 Ill.2d 337, 118 Ill.Dec. 18, 521 N.E.2d 86, cert. denied, 486 U.S. 1047, 108 S.Ct. 2044, 100 L.Ed.2d 628 (1988) (). We see no significant difference where the third party directly intervenes in order to protect privileged information. See People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557,...
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