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Disqualifying an entire county prosecutor’s office because of alleged misconduct by one of its lawyers would interfere with the operation of the courts, the New Jersey Supreme Court ruled Jan. 15. “A rule that requires us to disqualify an entire prosecutor’s office because of allegations against one or two of its members likely would lead to significant disruptions within the criminal justice system,” Justice Peter Verniero wrote for the unanimous court in State v. Harvey, A-89-01. “The negative effects of such a rule would be far in excess of its positive consequences to this or future defendants,” Verniero added, noting that defendants in post-conviction relief proceedings routinely allege one or more forms of prosecutorial misconduct. The ruling came in an interlocutory appeal from a capital case. Nathaniel Harvey has twice been sentenced to death for the murder of a Plainsboro, N.J., woman, Irene Schnaps. His original sentence was overturned by the court in State v. Harvey, 121 N.J. 407 (1990). After a retrial, the court upheld the death sentence in State v. Harvey (Harvey II), 151 N.J. 117 (1997). The allegation is that Assistant Middlesex County Prosecutor Thomas Kapsak, who worked on Harvey’s first trial, purposefully mishandled evidence by returning to a previous suspect a blood-soaked quilt and blanket. The defense said that because of Kapsak’s actions, it had lost the ability to test a crucial piece of evidence. In the meantime, the state attorney general’s office had superseded in the case because Glenn Berman, who was the judge in Harvey’s second trial and during the direct appeal of the second death sentence, had since been appointed Middlesex County prosecutor. The case was transferred to Union County Superior Court Judge John Malone, who granted a defense request to have the attorney general’s office retain control over the case because of the misconduct allegation. But in removing Kapsak from the case, the attorney general appointed First Assistant Middlesex County Prosecutor Julia McClure a special deputy attorney general and gave her the assignment. Harvey’s attorney, Hackensack, N.J., solo Eric Kleiner, objected on the ground that regardless of her new title, McClure, in effect, still worked for the Middlesex County prosecutor’s office. Last week, the New Jersey Supreme Court disagreed. “[W]e are satisfied that the bare allegation of prosecutorial misconduct is insufficient to disqualify McClure and all other assistant prosecutors from representing the State,” Verniero wrote. “Defendant makes no specific claim of misconduct against McClure [and] we anticipate that McClure, as a senior member of the prosecutor’s staff, will have an unencumbered ability to investigate all allegations thoroughly.” Verniero also noted that as of last November, 47 attorneys worked in the office. “The office is large enough to permit McClure, if she deems it necessary, to ‘wall off’ Kapsak and other potential witnesses as she investigates defendant’s petition with assistance from other county personnel. “In view of Berman’s change in position, the high-level ranking of McClure within the prosecutor’s office, and the lack of any suggestion of misconduct on her part, we find no compelling rationale to require defendant’s requested disposition.” Reached after the ruling, Kleiner said, “Given the fact that this is in the interlocutory phase and that the merits have not been addressed, it would be improvident of me to comment.” McClure, who will represent the office in the post-conviction relief proceedings, did not return a telephone message left with her office.

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