At the state Supreme Court on Tuesday, a former municipal judge facing a reprimand for denying a public defender in a criminal trial while stepping into the role of the absent prosecutor raised a poignant defense:

To err is reversible, but it’s not necessarily sanctionable.

The court heard a litany of criticism of Louis DiLeo, formerly Linden’s municipal judge, for his actions and rulings in the case. "This was an egregious deprivation of the defendants’ constitutional rights," said Advisory Committee on Judicial Conduct counsel Tracie Gelbstein. "Respondent denied defendants their right to counsel, and compounded his error when he prosecuted the matter."

But DiLeo’s lawyer, Anthony Vignuolo, pointed out that any deprivation of the defendants’ legal or constitutional rights had been corrected on appeal. The justice system had worked as it should, he said, and to discipline DiLeo in addition to that is untoward.

The ACJC, in seeking the reprimand, conceded that the case is one of first impression, as the Code of Judicial Conduct and New Jersey case law do not delineate a standard for when a judge’s evidentiary or procedural rulings rise to the level of ethics violations.

In fact, the ACJC could cite only one out-of-state precedent as authority for disciplining a judge for such conduct.

In the underlying criminal case, cousins Anthony and Wendell Kirkland were arrested in Linden in October 2009 and charged with trying to steal tires from a car. The Kirklands initially told DiLeo they wanted to retain private counsel but later sought to be represented by public defenders.

DiLeo found they had waived that right and tried the case on May 12, 2010, without defense lawyers. Also absent was Linden’s municipal prosecutor, Nicholas Scutari, who had gone home for the day. DiLeo conducted direct examination of the arresting officer and then invited the Kirklands to question him. They did not, and DiLeo asked the Kirklands if they had any witnesses. They said they did but none were in the courtroom. DiLeo found there to be no defense witnesses.

DiLeo advised the Kirklands of their Fifth Amendment privilege against self-incrimination, then invited the arresting officer to cross-examine them. After cross-examination, DiLeo questioned Anthony Kirkland about his conduct on the night of the arrest.

The judge found the defendants guilty of theft of movable property, possession of burglary tools and possession of less than 50 grams of marijuana. Both received jail sentences.

The Kirklands appealed to the Superior Court Law Division and the Union County Prosecutor’s Office took the unusual step of joining in. In March 2011, Superior Court Judge Scott Moynihan dismissed the drug charges and remanded to a different municipal court for trial on the remaining ones. By that time, the Kirklands had spent 124 days in jail. In Elizabeth Municipal Court, both Kirklands entered guilty pleas to disorderly persons offenses and the remaining charges were dropped.

Moynihan found that DiLeo "pointedly cross-examined witnesses" and, in doing so, behaved like a prosecutor, "especially since he then used the testimony which he elicited" to find the defendants not credible.

DiLeo’s actions "deviated from the standards of impartiality," he said.

In January 2012, the Linden City Council declined to reappoint DiLeo, who had been the judge since 2003, and replaced him with Daniel Roberts.

The ACJC urged the court to follow the Supreme Judicial Court of Maine’s dictate in In Re Benoit, 487 A.2d 1158 (Me. 1985), that conduct violates judicial canons if a reasonably prudent judge would consider it "seriously wrong."

Justice Barry Albin asked Gelbstein if the absence of a prosecutor in Linden had happened in other cases.

Gelbstein said she had not looked into that. "He [DiLeo] did not try to find him," she said.

Albin asked whether she thought judges in other municipal courts might be handling motor vehicle cases the same way in an effort to clear dockets.

"I’m sure that’s going on," Gelbstein said. "But these were disorderly persons offenses and they required counsel."

DiLeo’s attorney Vignuolo, of North Brunswick’s Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, asked the court not to adopt the Maine standard, saying it would be unworkable and unfair.

Appellate courts exist, he said, to correct lower court errors, and that is what occurred here. "I don’t see wrongdoing in judicial error," he said.

DiLeo was "overworked and understaffed" when he tried the cases against the Kirklands and was following the practice of the judge who preceded him when DiLeo was Linden prosecutor.

"The cases needed to be moved," Vignuolo said. "Can a judge ask questions? Yes. Did he cross the line? I submit he did not do that."

Chief Justice Stuart Rabner asked Vignuolo if he believed there was a limit to the mistakes a judge could make before there is a disciplinary issue.

"Incompetence … should not rise to that level," Vignuolo replied.

Albin asked if there was incompetence in this case.

"This should have been handled in a totally different fashion," Vignuolo said.