Northjersey.com reports that a New Jersey appeals court has thrown out ex-Hackensack Police Chief Ken Zisa’s convictions for insurance fraud and official misconduct, citing misconduct on the part of the Bergen County Prosecutor’s Office at Zisa’sis 2012 trial.
Prosecutors alleged that Zisa removed his girlfriend from the scene of a 2008 car accident when she had been driving drunk and later filed a fraudulent insurance claim for $11,000 in damages. On Friday, a three-judge appellate panel said the prosecutor on the case, who is reportedly assistant prosecutor Daniel Keitel, gave an opening statement at Zisa’s trial that was “riddled with impropriety” and irreparably “tainted” the rest of the proceedings. The state made numerous improper and predudicial statements, many of which regarded Zisa’s politically-connected family rather than the incident at issue. Northjersey.com recounted the details of the court’s opinion:
The trial judge — Joseph Conte, who also was not identified by name in the decision — denied defense requests for a mistrial and gave instructions to the jury that were “weak and inadequate to cleanse the taint the prosecutor created in his opening,” the appellate court said.
“The prosecutor’s comments aimed at bolstering the credibility of the state’s witnesses, and inferring that defendant must be guilty of the charged crimes because of his propensity to abuse his office, were clearly and unmistakably improper and had the clear capacity to produce an unjust result,” the panel said.
“To make matters worse, the prosecutor persisted in presenting the same type of prejudicial and improper evidence during the trial, requiring defense counsel to respond to it by attempting to show that no witness tampering had occurred,” the court said. “The judge acknowledged that the trial was going off course, but failed to take effective corrective action.”
As the defense presented its case, three retired Prosecutor’s Office detectives testified that the lead investigator had directed them to destroy their handwritten investigation notes after defense counsel had filed a demand that all notes be preserved, the opinion noted. The lead investigator denied that allegation.
The case was remanded for retrial on the official misconduct count only, but the court explicitly left the door open to arguments that a retrial is barred by double-jeopardy principles. It concluded with an admonition:
Lastly, we remind all concerned that “the primary duty of a prosecutor is not to obtain convictions, but to see that justice is done.” Frost, supra, 158 N.J. at 83 (1999) (citations and internal quotation marks omitted). We trust that the improprieties noted herein will not recur on remand.
Read the opinion in full here.