A municipal judge who denied public defenders to two criminal defendants, and tried them without a prosecutor while stepping into that role himself, is facing a Supreme Court reprimand.

The state Supreme Court on Monday issued an order to show cause to Louis DiLeo, Linden’s former judge, based on the Advisory Committee on Judicial Conduct’s findings that he failed to be impartial, to be faithful to the law, and to uphold the judiciary’s integrity and independence, violating canons of ethics.

In a presentment issued in January, the ACJC said 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.

The ACJC applied 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.” 

The ACJC said DiLeo failed that test, quoting the opinion of the Superior Court judge who reversed him: that DiLeo “transformed the role of the court from a neutral and detached magistrate and evoked the specter of the backwater ‘judge, jury and executioner’ figure that has never had any place in American jurisprudence.”

Cousins Anthony and Wendell Kirkland were arrested and charged with trying to steal tires from a car in Linden.

The Kirklands initially told DiLeo they wanted to retain private counsel but later changed their minds and sought to be represented by public defenders.

DiLeo said they had waived that right and scheduled the case for a May 12, 2010, trial, which he conducted without defense lawyers. He also went ahead in the absence of  Municipal Prosecutor Nicholas Scutari. 

DiLeo conducted direct examination of the arresting officer and then invited the Kirklands to question him.

After the officer’s testimony, DiLeo asked the Kirklands if they had any witnesses. They said they did but none were in the courtroom, so 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. He sentenced Wendell Kirkland to six months and Anthony Kirkland to a year.

On appeal, Superior Court Judge Scott Moynihan threw out the marijuana possession charge and ordered a new trial on the other counts, this time in Elizabeth Municipal Court.

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.

In recommending a reprimand for DiLeo, the ACJC said he had crossed a fine line “and became an advocate for the state” in the case.

It rejected DiLeo’s reliance on a heavy court docket as justification.

In addition, the ACJC said it was “perplexed” by DiLeo’s “seemingly divergent positions” in the case. In written submissions, he said he appreciated the impropriety of his actions, as set forth in Moynihan’s ruling, and assured the committee such a situation would not reoccur. Yet during the ACJC hearing, he attacked the accuracy of Moynihan’s ruling and said he had not read it.

Such a response suggests “a lack of appreciation for his judicial obligations” and “an inability to conform his conduct to the high standards of conduct expected of judges,” the ACJC said in treating that response as an aggravating factor.

DiLeo’s lawyer, Anthony Vignuolo of Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl in North Brunswick,  says he disagrees with that treatment.

He also says that because the ACJC is proposing for the first time that judicial error can be the basis for discipline, the court should not apply it retroactively to his client.

Nevertheless, Vignuolo says, DiLeo has resigned himself to a reprimand.

A hearing is set for April 30.