Botched Essex County bust shows need for better police misconduct disclosure, advocates say

Five plainclothes Newark cops were hunting for illegal guns in November 2022 when they spotted a man outside his East Orange home with a bag they deemed suspicious.

They sprang into action, kicking in his door, chasing him into his mother’s bedroom, and warning him to “stop moving, I’m going to f— you up!” as they handcuffed him, according to records obtained by the New Jersey Monitor.

But an internal affairs investigator later determined the cops broke so many rules — including that they had no legal justification to stop the man, enter and search his home, or confiscate a gun he was legally permitted to own — that each officer got a 30-day suspension, records confirm.

Under a pair of U.S. Supreme Court rulings decided more than a half-century ago known as Brady and Giglio, prosecutors must disclose to defense attorneys exculpatory evidence and any information that could taint the credibility of a witness, such as prosecutorial deals with cooperating witnesses or a history of misconduct by officers involved in a case. The goal is to ensure people get their constitutional right to a fair trial, by empowering jurors to judge a witness’ credibility for themselves as they weigh trial testimony.

But prosecutors haven’t disclosed the disciplinary histories of officers involved in the East Orange incident, even though defense attorneys say the five have made subsequent arrests both in their roles as Newark cops and in a violent crime initiative run by the U.S. Attorney’s Office.

Such secrecy isn’t unusual, defense attorneys say.

They say prosecutors at every level in New Jersey flout Brady and Giglio disclosure requirements, risking wrongful convictions, costly claims of malicious prosecution, and appeals that can lead to overturned convictions. The National Registry of Exonerations found that withheld exculpatory evidence and officer misconduct contributed to most of the 153 exonerations it tracked last year.

State Public Defender Jennifer Sellitti said she spent more than seven years handling cases in Essex County — her office’s busiest trial region statewide — and never received a single Brady/Giglio disclosure from prosecutors.

“Right now, if there’s a violation, everybody shrugs their shoulders, they throw up their hands, they say: ‘I’m sorry, I didn’t know about it,’ and we all kind of move on our way,” Sellitti said.

Some places, like Philadelphia and Iowa, track officers who have histories of misconduct and credibility issues in databases or on lists. But while the New Jersey Attorney General’s Office reminded prosecutors of their disclosure obligations and set guidelines in a 2019 directive, the office also gives prosecutors discretion in how they track and share such material, meaning there’s no uniform approach nor statewide tracking. Compliance essentially is self-regulated by prosecutors.

As a result, it’s impossible to know whether prosecutors are following their constitutional obligation — and that must change, say Sellitti and advocates from the American Civil Liberties Union of New Jersey.

Policymakers must expand defense attorneys’ access to police disciplinary records especially during discovery and a case’s earliest stages, adopt policies to measure compliance, and impose sanctions on prosecutors who ignore disclosure obligations, critics say.

“We’re finding really variable compliance with the attorney general’s Brady/Giglio directive, which, of course, only codifies what their constitutional obligations are. There needs to be consequences for prosecutors who flout these rules. But here, there isn’t,” said Alex Shalom, the ACLU-NJ’s senior supervising attorney. “It’s really not good for a society that wants to see accountable policing.”

Denis M. deVlaming is a former prosecutor and current defense attorney in Florida, where he teaches a state-mandated course to both prosecutors and defense attorneys on Brady-Giglio obligations.

This is a national problem, he said.

“Some lawyers think that the prosecutors, they’re ethical, they’ll do their job. If they have Brady material, they’ll turn it over,” deVlaming said. “That’s so naive. What prosecutor wants to hand a defense lawyer reasonable doubt?”

Prosecutors perturbed

Bergen County Prosecutor Mark Musella heads the County Prosecutors Association of New Jersey. He declined to answer the New Jersey Monitor’s questions about prosecutors’ Brady/Giglio compliance, saying only: “All County Prosecutor’s Offices are required to comply with the Attorney General’s Directive and all Federal and State case law pertaining to Brady/Giglio material.”

The New Jersey Monitor asked the Attorney General’s Office and all 21 county prosecutor’s offices if they maintain lists or databases of officers with potential Brady/Giglio concerns and how many officers are on it.

Only a few answered. Most dodged the question, offering some variation of Musella’s statement. None would quantify how many officers they avoid calling to the stand due to credibility concerns or past misconduct, either saying they don’t count them in any official way or citing the confidentiality of police and personnel records.

A few took offense to claims that prosecutors flout disclosure requirements.

“We here at the Cumberland County Prosecutor’s Office take our Brady/Giglio obligations very seriously,” Cumberland County Prosecutor Jennifer Webb-McRae said.

Dan Prochilo, a spokesman for the Attorney General’s Office, said the office “is committed to conducting full and fair investigations, following the evidence where it leads, presenting relevant information to defense counsel and jurors, and ensuring that justice is done.”

He did not respond to questions about defense attorneys’ demands for wider disclosure, sanctions for violations, and data on disclosures and the number of officers statewide with Brady/Giglio issues.

Few prosecutors would talk on the record about it, with one complaining that any response they offer would prompt the New Jersey Monitor to file a public records request and possibly initiate a court fight to learn who’s on their Brady/Giglio list.

Prosecutors and others on the prosecutorial end of criminal justice insist they don’t frequently encounter officers with disciplinary histories that warrant Brady/Giglio disclosure — and if they do, they build their case so they can avoid calling that officer to testify.

Christopher Gramiccioni spent almost a decade as Monmouth County’s prosecutor, leaving in 2021 to start a law firm. He has represented the County Prosecutors Association of New Jersey in that group’s court battle with the ACLU-NJ over records access.

During his tenure in Monmouth, he said, his office’s professional responsibility unit kept a list of officers determined by a court to have Giglio disclosures. “Only a handful” of officers were on it, he added.

“It is my belief based on my past personal and professional experiences, both as a former prosecutor and currently a criminal defense attorney, that the vast majority of prosecuting attorneys carry out their ethical duties and obligations honestly and faithfully,” Gramiccioni said. “It is also my experience that when a Brady or Giglio violation does occur, it is most often an inadvertent oversight, and without any intent to withhold.”

Yet earlier this month, Brady/Giglio failures came up in a report on a state probe into allegations that higher-ups in the Warren County Prosecutor’s Office misused state funds meant for fraud investigations.

An investigator with the Attorney General’s Office noted that the Warren County Prosecutor’s Office failed to alert defendants they were prosecuting about the investigation, and noted a lieutenant’s concern that “the defendants in those matters would likely appeal based on the nature of this investigation.”

That investigator also noted that a judge recently dismissed an indictment in a sexual assault case involving a child because of a Warren County prosecutor’s failure to divulge exculpatory evidence to the defense. He recommended that the Attorney General’s Office review both matters.

Conflicting accounts in Essex

Police disciplinary records are secret in New Jersey, despite critics’ calls for access. Legislation that would make them public is stalled, and is now on its third go-round in the Statehouse.

But the cops who busted through the door in East Orange in 2022 outed themselves when they sued the city of Newark in July to overturn their discipline.

In the lawsuit filed in state Superior Court, Lt. Stephen Dellavalle Jr. and detectives Jaime Rivera, Rodny Severe, Carlos Bernard, and Sean Lake said they were patrolling Newark near the East Orange border in unmarked cars when they ordered “a suspect carrying a suspicious bag” to stop.

He refused and a “hot pursuit” ensued, according to the complaint. The hot pursuit doctrine allows police to chase fleeing felony suspects into another jurisdiction — and into their home without a warrant, although officers still need probable cause.

The complaint says nothing about how the officers entered the man’s home but notes they “observed the bag in the immediate vicinity (within a few feet) of the suspect.” Inside was a handgun and “illegal hollow point ammunition,” and the man didn’t have a carry permit to take the gun outside his home, the complaint states.

But the man, who declined the New Jersey Monitor’s request for an interview, did have a purchase permit for his Glock 9mm handgun and told officers he didn’t take it outside his home. State law allows gun owners to possess hollow-point bullets in their home and use them during hunting or target practice.

The man also denied there was a chase, telling an internal affairs officer that he was sitting in his car parked on his block when he “saw a vehicle (approach) with a male with a ski mask and blacked out windows” and ran inside his house because he didn’t know they were cops, and they didn’t identify themselves as such. He told the investigator he’d been shot at in front of his home before — an incident he’d reported.

Prosecutors declined to charge him with anything.

The internal affairs investigator flagged other concerns, according to disciplinary records the New Jersey Monitor obtained.

The investigator found that the officers broke body camera rules by turning the cameras on too late, switching them off too early, shutting off the audio, or blocking their view.

What the cameras did catch was “significantly inconsistent” with what officers wrote on incident reports, the investigator added. One detective wrote in his report that he requested a marked police car to take him to turn in the man’s gun because a “hostile crowd of people” was forming, but no such crowd was seen on body camera footage, the investigator wrote. The officers also failed to mention on incident reports that they had kicked in the front door and searched the home — omissions one detective later called “an oversight.”

And the investigator found that the detectives submitted the weapon in Newark even though they seized it in East Orange and recoded it from “recovery of a weapon” to “found property.”

The man told an internal affairs investigator he had so much trouble getting his gun back that he considered reporting it stolen.

“It is not clear why the weapon was seized from the actor’s dwelling, considering he was within his own dwelling and appeared within curtilage outside prior to and he possesses a permit,” the investigator wrote. “None of the police reports indicate anything to the contrary.”

No disclosure

The five officers were charged internally last summer for violating police department rules pertaining to knowledge of laws and regulations and disobedience to orders, with an additional charge of inefficiency or incompetence of superior officers for Dellavalle.

The Essex County Prosecutor’s Office, which did not respond to a request for comment, did not disclose the case to defense attorneys, said Diane Carl, the deputy public defender in charge of the Public Defender’s Essex County office. Carl learned about the case from records circulated by an anonymous tipster and asked prosecutors about it.

“Although I believe there was major discipline, I do not believe that the case falls under the Brady/Giglio disclosure requirements as it did not involve an allegation of untruthfulness, false reporting etc.,” Deputy Chief Assistant Prosecutor Alexander Albu wrote in an email to Carl obtained by the New Jersey Monitor.

Carl told the New Jersey Monitor that such a narrow interpretation by prosecutors of their Brady/Giglio obligations ensures disclosures will remain few and far between.

“How does a report that fails to mention that a search of a home was conducted to locate a bag not amount to untruthfulness? How does not including in that report that the door to a person’s home was kicked in not amount to false reporting? Those are pretty critical parts of that incident,” Carl said.

Sellitti seconded that sentiment, saying Giglio disclosures are about “so much more than lying. It’s anything that can be used to impeach the credibility of the police officers.”

Carl has worked in the Essex County office since 2003 and said she’s received “maybe two” Giglio letters in that time. More than 1,000 officers statewide have faced major discipline since 2020, when the attorney general’s office began publicly reporting such data.

“It’s becoming more clear to me that we have a different interpretation than the prosecution of either the attorney general’s guidelines or what Brady/Giglio stands for. They have such a narrow view of what we’re entitled to that it seems to me there needs to be some type of litigation over how this is to be interpreted,” Carl said. “They seem to think defense would take these disclosures and try to make mountains out of molehills in every case, but that’s what a judge is for, to determine what’s relevant, what’s admissible, and what can be used to impeach credibility.”

An ongoing fight

Attorney Steven A. Varano represents the officers in their lawsuit against the city, its police department, and Newark public safety director Fritz Fragé.

Varano told the New Jersey Monitor that their discipline didn’t fall under Giglio obligations because it’s not final. The officers waived their disciplinary hearing in Newark and await a fact-finding hearing at the state Office of Administrative Law, he said.

“There’s been no adjudication on the discipline. These are all just allegations,” Varano said. “I don’t think these officers did anything wrong. They followed proper police procedure, which is why they’re challenging the discipline.”

But under the attorney general’s directive, allegations of misconduct involving truthfulness, bias, or integrity in pending investigations are subject to disclosure too, not just final or sustained charges or judicial findings.

In their lawsuit, the officers disputed their disciplinary charges by challenging the process, arguing that the city’s police chief — Emanuel Miranda — has sole authority to discipline staff, not Fragé, who signed off on their discipline.

They further objected to being suspended without pay, unable to use vacation days in lieu of a suspension, disarmed during their suspension, and placed on the attorney general’s major discipline report. The officers were permitted to each use five days of vacation to shorten their official suspension, records show.

“Given the units in which plaintiffs serve and the cases in which they are called to testify on a regular basis, their credibility and disciplinary records are of utmost importance,” an amended complaint filed in September states. “Moreover, if the discipline is imposed, they would likely be prevented from having their federal deputization renewed and the work of the various task forces in which they serve would be essentially crippled.”

Dellavalle, Rivera, and Severe work on a Newark violent crime initiative out of the U.S. Attorney’s Office, and Rivera and Severe are deputized by the U.S. Marshals Service.

A U.S. Marshals Service spokesman directed questions to the U.S. Attorney’s Office in Newark, and a spokesman there, Matthew Reilly, said he couldn’t comment on personnel matters.

All five still work in an investigative capacity for the Newark Police Department, where Lake is now a sergeant, spokeswoman Catherine Adams said. The East Orange incident was Lake’s second major discipline in the past four years. In 2020, he was suspended for 15 days for a car stop in which he “acted unprofessional and issued the driver five” summonses, according to the attorney general’s 2020 major discipline report. The other four officers do not appear on the attorney general’s major discipline reports; the 2023 report hasn’t yet been issued.

In February, a state judge issued a preliminary ruling not in the officers’ favor, writing that they already served their suspensions and Newark municipal ordinance gives the public safety director authority to enforce disciplinary actions.

Reforms needed

Sellitti, who took over the top job in the state Public Defender’s Office in February, plans to start a Brady/Giglio database in her office to track officers with histories of dishonesty and ethics concerns. She likes the idea of a database that also tracks prosecutors’ Brady/Giglio compliance and is accessible to trial courts, so judges can see if prosecutors involved in a case have any history of Brady misconduct and can heighten scrutiny accordingly.

Prosecutors who fail to comply with their Brady/Giglio obligations should face consequences, whether that’s a judge barring a witness from the stand, giving special instructions to jurors about the witness’ problematic past, or disciplining a prosecutor who knowingly withheld Brady/Giglio material, she added.

Courts can already order sanctions against prosecutors who violate their Brady/Giglio obligations. But spokespeople for the state courts and the New Jersey State Bar Association said they don’t track such sanctions.

Police departments should face consequences for disclosure failures, too, deVlaming said.

“As far as disclosure, cops sometimes leave it out of their reports — they hang the prosecutors out to dry or else they think they’re helping the prosecutors so prosecutors can say, ‘I didn’t know about this, the cops had it, and they didn’t tell me about it.’ So I think there has to be some ramifications when the cops hide stuff,” deVlaming said.

A bill Sen. Joe Cryan (D-Union) has twice introduced in the Statehouse would eliminate immunity for prosecutors who fail to disclose exculpatory evidence in criminal cases, but it remains stalled. Selliti applauded the spirit of that bill, because “it puts the onus on prosecutors who knowingly violate Brady, and that’s where it should be.”

“Any other professional, when they get on the witness stand, I can access their employment records, I can access their disciplinary record, and if it’s relevant to the case, I can bring it in,” Sellitti said. “We should all know whether an officer comes to the courtroom clean or whether an officer comes with baggage, and their baggage is fair game. We should be able to ask them about it in a courtroom when they’re pointing at our clients and saying: ‘You’re the one who should be in jail.’”