Daniels, Matter of

• Citation: 530 A.2d 1260,219 N.J.Super. 550
• Parties: In the Matter of James B. DANIELS, an attorney-at-law of the State of New Jersey, Defendant-Appellant.
• Decision Date: 30 July 1987
• Court: New Jersey Superior Court — Appellate Division

Page 550

219 N.J.Super. 550

530 A.2d 1260

In the Matter of James B. DANIELS, an attorney-at-law of the

State of New Jersey, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued March 24, 1987.

Decided July 30, 1987.

Louis S. Raveson, Asst. Public Advocate, for defendant-appellant James B. Daniels (Alfred A. Slocum, Public Advocate, attorney; Louis S. Raveson and Lance D. Cassak, Asst. Deputy Public Advocate, of counsel and on brief).

Richard W. Berg, Deputy Atty. Gen., for respondent The Superior Court of New Jersey, State of N.J. (W. Cary Edwards, Atty. Gen., attorney; Richard W. Berg, of counsel and on brief).

Poplar & Florio, Cherry Hill, submitted a brief on behalf of amicus curiae Trial Attorneys of New Jersey (Carl D. Poplar, of counsel and on brief).

Ruhnke & Barrett, West Orange, submitted a brief on behalf of amicus curiae The Ass'n of Criminal Defense Lawyers of New Jersey (David A. Ruhnke, of counsel and on brief).

Before Judges MICHELS, O'BRIEN and SKILLMAN.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

On March 19, 1986, following a summary hearing, the Honorable Alfred J. Lechner, Jr. found defendant James B. Daniels, an attorney-at-law of the State of New Jersey, guilty of contempt in the presence of the court, sentenced him to two days in the Union County Jail and fined him $500. Defendant appealed.

The events giving rise to the contempt conviction occurred during defendant's representation of Michael McMahon, whose trial for first degree robbery commenced on March 18, 1986. Defendant was employed by the Union County Region of the Office of the Public Defender and assigned as trial counsel for McMahon. Although defendant was held in contempt on March 19, 1986, the second day of pretrial hearings, a review of the proceedings on both March 18 and 19, 1986 and of certain events leading up to trial is necessary to establish the context in which the allegedly contemptuous behavior occurred.

On January 14, 1986, Investigator John Stanton, an expert polygraphist in the Public Defender's Office, administered a polygraph examination to McMahon. Stanton informed defendant that McMahon passed the test "with flying colors," and, that in the ten years in which he had been involved in polygraph testing, no one who passed so convincingly had ever failed a subsequent examination. Based upon this assessment, defendant contacted the Prosecutor's Office to see if they would be willing to allow McMahon to take their polygraph test on a stipulated basis. Initially, the State was not amenable to this request; however, after persisting for several weeks and filing a formal motion to attempt to compel the State to give a stipulated polygraph, defendant was able to convince the State to allow McMahon to be tested. Thus, knowingly, voluntarily and, at all times represented by counsel, McMahon entered into an agreement with the State which provided, among other things, that: (1) irrespective of the outcome, the results of the polygraph test to be administered by Investigator Peter Brannon, a polygraph expert employed by the State, would be admissible on behalf of either side; (2) the results of any other polygraph examination would not be admissible unless covered by a separate stipulation, and (3) although the opposing party [McMahon] could cross-examine Brannon as to his personal qualifications or the details of the test which he administered McMahon could not introduce another polygraphist to refute Brannon's expert testimony.

After conducting an examination, Brannon concluded that McMahon was not telling the truth when he denied his involvement in the robbery with which he was charged. Brannon and Stanton then compared the tests that each had administered to McMahon. Although reaching opposite results concerning McMahon's complicity in the crime, they had used virtually identical equipment and questions, and both tests were conducted properly. Neither polygrapher could explain the divergence in the results.

At the March 18, 1986 hearing, the trial court heard argument on the defense motion to have the State's polygraph evidence excluded or, alternatively, to permit the results of Investigator Stanton's test to be admitted into evidence. Preliminarily, defendant requested a Rule 8 hearing so that the trial court might reconsider the reliability of polygraph results in light of the information which had become available since the Supreme Court's decision in State v. McDavitt, 62 N.J. 36, 297 A.2d 849 (1972). Defendant maintained that the plethora of research since McDavitt has established the unreliability of polygraph examinations. In support of his position, defendant presented certain literature and was prepared to offer the testimony of Dr. Leonard Saxe, a Boston University professor who authored a 1983 congressionally commissioned study which concluded that there was no scientific basis for the validity or use of the polygraph test. Nonetheless, the trial court denied the defense request for a Rule 8 hearing. Because McDavitt established that "polygraph results are admissible if they are the subject of a knowing, voluntary, unequivocal and reciprocal stipulation" and in the instant case the parties had such a stipulation, the trial court concluded that a Rule 8 hearing would serve no purpose.

Defendant proceeded to argue that enforcement of certain provisions of the stipulation would be violative of due process public policy and principles of fundamental fairness. The thrust of defendant's argument was that precluding the defense from introducing the results of the first polygraph test through its own expert would serve no legitimate purpose and would conceal half the story from the jury. Given the overriding concern with the search for truth, defendant maintained that the trial court should repudiate those provisions of the stipulation which would result in a distortion of the evidence presented to the jury. After allowing a lengthy argument by defendant and the State's response thereto, the trial court explained in detail that the stipulation met the requirements of McDavitt, constituted a knowing and intelligent waiver of McMahon's Sixth Amendment rights to present evidence and expert testimony, and would therefore be enforced in its entirety in the interests of justice.

After the trial court rendered its decision, defendant inquired whether, in cross-examining the State's polygraphist, he would "be permitted to read the stipulation in its entirety, making reference to the fact [that] he [Brannon] was aware that another test had been conducted." The trial court denied defendant's request and specifically ordered him not to refer directly or indirectly to the other polygraph examination. Defendant's attempt to pursue the matter further precipitated the following exchange:

THE COURT: I don't want to hear any further argument on it. I will not permit further argument on it. I gave you your chance earlier. It's over.

MR. DANIELS: I have not been able to argue this point.

THE COURT: I'm sorry. I asked you any other point on the stipulation. You said no. No further argument.

MR. DANIELS: Judge--

THE COURT: Mr. Daniels, did you hear me?

MR. DANIELS: Yes, sir, I must insist--

THE COURT: You will not get it.

MR. DANIELS: I have not been given an opportunity to argue this.

THE COURT: You will not get this.

MR. DANIELS: I must have misunderstood the Court with reference to--

THE COURT: We've been doing this for two hours. This hearing is over.

Furthermore, the trial court denied defendant's application to stay the proceedings to allow for an interlocutory appeal of the ruling.

Later in the same proceedings, defendant argued that, by its terms, the parties' stipulation would allow him to question the State's polygraphist about the "critics of [the] polygraph and their concerns about [the] unreliability and invalidity of the test in general." To this end, defendant presented to the trial court numerous articles on the polygraph and requested, pursuant to Evid.R. 9(2)(e), that the court take judicial notice of those articles. Due to the controversy surrounding the reliability of the polygraph, the trial court opined that the writings were not the proper subject of judicial notice. However, the trial court agreed with the prosecutor that defendant could use these articles to cross-examine the State's expert if he recognized them as treatises or authorities in the field. Defendant presented additional argument on the matter which the trial court agreed to consider over the lunch recess. However, upon reconvening the hearing, the trial court ruled that it would not take judicial notice of the articles.

Defendant requested to be heard on that ruling, and the trial court afforded him five minutes to present his views. After defendant argued why he believed the articles on the polygraph satisfied the requirements of Evid. R. 9(2)(e), the following colloquy took place:

THE COURT: So what? So what on all of this?

MR. DANIELS: So what, Judge?

THE COURT: That's exactly what I said. So what?

MR. DANIELS: There couldn't be anything more important. I have been denied the opportunity to bring in my experts to talk about this.

THE COURT: No, you haven't been denied. You went into a stipulation agreeing not to do that. You weren't denied anything.

MR. DANIELS: I am denied that. Okay? The Court has ruled. I have said in spite of my stipulation I have asked to do this and the Court refused to allow me to.

THE COURT: The answer is no, unequivocally, unalterably, no.

Anything else on this point?

MR. DANIELS: I just want to make sure I understand the Court's ruling.

THE COURT: Oh, stop. Don't posture with me. Anything else on this point?

MR. DANIELS: No.

After the trial court reiterated that it would not take judicial notice of the articles and that defendant could refer to them only if the State's polygrapher recognized them as treatises, the trial...