NJ Superior Court Remands Appeal On Wildwood Crest ‘Brady Letters’

WILDWOOD CREST – The matter of “Brady letters” in a Wildwood Crest police matter will be heard by a trial court, as ordered by the Appellate Division of Superior Court. 
The Appellate Division issued its opinion Nov. 17, 2016, written by Judges Richard Hoffman and Amy O’Connor, regarding an appeal from the Cape May County Prosecutor’s Office, represented by County Prosecutor Robert Taylor, of a May 8, 2015, order issued by Judge Nelson Johnson.
The Prosecutor’s Office was the defendant in action brought by plaintiff John Paff. He sought access to documents under “his common law right of access to public records.”
It also concerned another order, dated July 10, 2015, awarding him $514.76 in court costs and $45,176 in lawyer fees.
Paff made this decision public on his blog “NJ Open Government” Jan. 20. The Appellate Court remanded the case to the trial court for further clarification of findings.
The case brought by Paff requested from the Prosecutor’s Office “all letters or other forms of notification” it made that provided “exculpatory or favorable information to defendants concerning Wildwood Crest (police) officers Capt. [David] Mayer and Lt. (Michael D.) Hawthorne Sr.” under his OPRA (Open Public Records Act) rights.
Brady Letters
Taylor advised Wildwood Crest Mayor Carl Groon that he would issue so-called “Brady letters” if either Mayer or Hawthorne were to be witnesses in any criminal proceeding.
Brady letters are named after a 1963 U.S. Supreme Court case, Brady v. Maryland. Such letters are typically issued to criminal defendants to alert them when a police officer who will be a witness against them has a “sustained record for having been untruthful in an official capacity.”
Hawthorne, in comments made to the Herald, said, “My letter brief to the Appellate Court (Hawthorne submitted pro se, i.e. representing himself, a brief on the matter to the court) pretty much tells the story of how I feel about the issue. 
Public’s Need to See
“Regarding the release of the letters this is straight from the brief: I believe it is necessary for the public to see all four letters to judge for themselves if the outcome of this matter was correctly handled.
“It is also important for my friends and neighbors, the residents of Wildwood Crest, to know that I was punished for protecting their tax dollars and the integrity of the Wildwood Crest Police Department.
“The residents of Wildwood Crest deserve transparency and the ability to have faith in their police officers and elected officials.”
Hawthorne’s Brief
Hawthorne’s brief was submitted after the remand, and he testified before Johnson a few weeks ago. 
The Prosecutor’s Office argued that its records were “exempt from production because they were inter-agency or intra-agency advisory, consulting or deliberating materials; criminal investigating records; or records generated on behalf of a public employee concerning a grievance by or against an employee.”
The Prosecutor’s Office, as defendant, eventually submitted the requested documents to the court under seal for its “in camera” (private) review. 
The Appellate Court said it would “engage in a de novo (from the beginning) review of the trial court’s legal decisions concerning access to public records under the common law.” 
After lengthy legal reasoning, the court stated the issue at hand came down to whether Paff’s right to the documents outweighs the defendant’s interest in preventing disclosure.
The Appellate Court wrote that at the trial level the court provided some explanation of the facts surrounding making a decision on this point, but “did not fully address or make clear what its findings were” as guided by Loigman v. Kimmelman, another U.S. Supreme Court case on identifying relevant factors in similar circumstances.
Seeking Answers
For example, some of the questions the Appellate Court wanted answered by the trial court:”
* Will disclosure impede agency functions?
* Will disclosure have an effect on those who have provided information?
* Did they rely on remaining anonymous?
The trial court had 45 days to provide its fuller clarifications regarding its original holding.
County Counsel
County Counsel James Arsenault, who argued the issue before the Appellate Court, noted, “The county is still concerned that Judge Johnson failed to consider the impact his decision would have on law enforcement operations. As the chief law enforcement officer of the county and the ultimate oversight of local police departments, the County Prosecutor has to be able to provide candid advice to local governments. And as a matter of good policy, the Prosecutor should be able to commit that advice to writing; both so it’s memorialized for future purposes and to ensure it’s clear. We’re hopeful the Appellate Court will protect that significant governmental interest and find that a legitimate need for confidentiality outweighs the plaintiff’s desire to access the letters.”
Hawthorne’s View
Hawthorne concluded his observations about this latest phase of litigation, “Though my career was improperly and prematurely ended, I’m happy that the Wildwood Crest Police Department is now commanded by Chief (Joseph) McGrath. The alternative, had I succumbed to the threats and not come forward with my allegations against Capt. Mayer would have been far worse.
“Chief McGrath is very competent and has the desire, strength, and fortitude to restore the police department to the respected agency it once was.”
To contact Camille Sailer, email csailer@cmcherald.com.