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A municipal judge should have recused himself when police asked for a warrant to search the home of a former client, an appeals court held in announcing a new, bright-line rule. The rule will apply where “a defendant makes a particularized and credible assertion of facts that objectively suggest an appearance of partiality on the part of the judge issuing a search warrant, based on a prior relationship or otherwise,” the Appellate Division held on March 23 in State v. McCann , A-0354-06. The question to be asked in such cases, the court said, is “whether, if defendant were a party to the warrant application, would he be entitled to recusal of the judge. If so, then the warrant proceeding is a nullity.” The appeals court found that Michael Diamond, a municipal judge in Winslow, created an appearance of impropriety when he signed the warrant to search the home of Alvin McCann for drugs. But the court said suppression was not appropriate because the case was one of first impression that should be applied only prospectively, there was no assertion of bias by Diamond and there was probable cause to issue the warrant. The panel therefore reversed a decision by Camden County Superior Court Judge Louis Meloni granting a motion to suppress the drugs and drug paraphernalia found by police when they executed the warrant. In allowing use of the evidence against McCann, the court explained it was not adopting a harmless error analysis, as urged by the prosecutor, because that approach would be “unworkable.” “A harmless error inquiry would presumably require evaluation of the strength of the warrant application, as well as whether the issuing judge was favorably inclined toward the defendant or biased against him as a result of the prior relationship, a finding that could only be made by taking testimony from the judge,” wrote Harvey Weissbard, joined by Howard Kestin and Ronald Graves. The Winslow police had been watching McCann’s home for months and had made several cocaine buys at the address when they went to court for a search warrant on April 20, 2005. Their supporting affidavit described the details of the investigation and “clearly established probable cause,” noted the appeals court. When police executed the warrant the next day, they seized 60 grams of powder cocaine, 100 grams of marijuana, drug packaging materials, a .22-caliber rifle and $2,461 in cash, according to the Camden County Prosecutor’s Office. McCann was indicted on several counts of drug possession and possession with an intent to distribute. He moved to suppress the seized materials based on his longstanding attorney-client relationship with Diamond. The two men had known each other for 20 to 30 years, during which McCann had consulted with Diamond on a variety of legal matters, and Diamond had represented McCann in a lawsuit about 10 years earlier. Diamond had also represented McCann’s mother and his two sisters, and McCann claimed he viewed Diamond as his “family attorney.” In finding that Diamond was “not a neutral and detached magistrate,” Meloni noted McCann had been to Diamond’s house at least a dozen times and “was so comfortable with him that he was able to approach him three weeks before” the search warrant was issued to ask about releasing a friend on his own recognizance. As the panel discussed, the neutral magistrate requirement is grounded in Fourth Amendment precedent governing search and seizure; in judicial Canon 2, which requires judges to avoid the appearance of impropriety; and in a New Jersey Court Rule, 1:21-1(f), which calls for recusal when there is a reason that “might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.” The judges assumed Diamond knew the warrant application concerned his former client and agreed with Meloni that the situation created an objectively reasonable appearance of impropriety. But they disagreed with Meloni on the remedy, finding the evidence should not be suppressed, for several reasons. McCann did not claim Diamond was prejudiced against him and “if anything,” it seemed more likely that their relationship would predispose him in McCann’s favor, said the panel. There was also no suggestion that Diamond ever received confidential information from McCann related to the drug charges. Most important, “no case until today has expressly condemned the practice in question, which likely occurs only infrequently,” wrote Weissbard. Diamond, a Berlin solo, could not be reached for comment. McCann’s lawyer, Haddon Heights solo Thomas Goss�, declines comment. Acting Camden County Prosecutor Joshua Ottenberg issued a statement saying “the Appellate Division is sending the message that judges are to be held to a higher standard than litigants’ attorneys when it comes to the appearance of impropriety. We’re gratified, however, that the court fashioned a remedy in this case that doesn’t penalize law enforcement or the public.” In an ethics matter involving similar issues, the Supreme Court admonished former Marlboro Township Judge James Newman on Dec. 11, 2006. In August 2003, Newman arraigned Michael Argen on charges of harassing his former wife, Dawn Sidoti, whom Newman represented in a related matrimonial proceeding. Newman argued that the arraignment was merely ministerial in nature and that he went through with it rather than recuse himself to spare Argen the bother of a return trip to court. In admonishing Newman, the Court warned it would impose harsher penalties in the future for similar infractions by lawyers.

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