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Public defenders who get into fights with their bosses are not necessarily compromising their clients’ interests, the Appellate Division has ruled. The court declined to remove from three homicide cases a defense lawyer who brought an unrelated whistleblower suit against the Office of the Public Defender. The Mercer County Prosecutor’s Office had sought to bounce Gerald Boswell from the cases — two of which involve the death penalty — in order to excise any appealable issues before trial. The defense lawyer’s advocacy might be crippled if his managers — angered or cowed by the suit — were overly cautious or vindictive when responding to his requests for litigation resources, Assistant Prosecutor Kimberly Lacken argued. Judge Edith Payne, however, found the state’s concerns were “speculative and thus insufficient” because all but one of the managers named in the suit had left the office and the remainder had no contact with Boswell. There was no evidence that the suit was interfering with the murder cases, Payne noted in State v. Davis, State v. Jones and State v. Gore, A-1288-03T5, decided Jan 16. Only if the suit produced “an actual conflict” within the murder cases would the attorney be forced out. The appeal was closely watched for two reasons. First, if the decision had gone the other way, it might have allowed prosecutors to force defense lawyers off cases whenever they found a workplace spat in their opposing counsel’s background. Second, the issue spawned from an internal dispute that occupied the Ocean County Office of the Public Defender in 2001 and 2002. The war ended after a secret examination by the Office of the Public Defender that enveloped 36 witnesses, including three judges, and the surreptitious monitoring of the Ocean County office’s e-mail, computers, telephone records, time sheets, calendars, message pads and vehicle logs. Boswell, a public defender pool attorney, was jubilant last week. He said the ruling potentially protects prosecutors as well, because it allows government lawyers who bring suits against their bosses to continue working. A ruling the other way could, in theory, have forced state lawyers of any stripe out of all litigation the moment they brought suits under the state Conscientious Employee Protection Act. Lacken will not appeal the decision, according to Casey DeBlasio, a spokeswoman for the Mercer County Prosecutor’s Office, who noted that the appeal sprung from a letter to three Mercer County judges from the Office of the Public Defender, telling them of Boswell’s suit, Boswell v. Office of the Public Defender, MER-L-1066-03. “Because of that letter, we thought it would be most prudent to file a motion to disqualify but we have no problem with the decision itself,” DeBlasio says. “The state as well as individual defendants are entitled to resolution now before capital prosecutions are well under way.” The Office of the Public Defender said it would abide by the decision, adding, “We are committed to ensuring that these three individuals, like all our clients, receive quality representation and have their rights protected.”

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