Wednesday, May 7, 2008

President Nixon, IA Reports & Union Cops

May 6, 2008

Sgt. James Purcell
Police Department,
1976 Morris Ave.
Union, New Jersey 07081

Re: Summons # UNN638639 & UNN637580 my Request for Information under
OPRA pending since 11-29-07 & Your response dated 4-30-08 received 5-5-8

Dear Sir:

Please be advised initially the following request for Discoveries:

Number of summons issued & their copies under 38: 4-138G Loading Zone out side Union Theater & Blue Ribbon Bakery at 988 Stuyvesant Ave. on:

Oct. 23, 2007 from 11.00 AM to 11.55 AM.
Nov. 21, 2007 from 10.00 AM to 11.55 AM
Nov. 24, 2007 from 10.45 AM to 11.55 AM
Nov. 27, 2007 from 5.15 PM to 5.55 PM

was made to Union Municipal Court on 11-29-07 and the Court advised on 1-22-08 the same should be made to Municipal Prosecutor. The Defendant complied the orders of Hon. Judge Waters immediately and provided the copies of the request to Prosecutor Wittenberg in the Court. The Municipal Prosecutor Mark Cassidy wrote on 4-18-08 that this request be made to Union Twp Police Department; defendant complied to this demand also. Now you are writing on 4-30-8 that the Discovery request be made to the Municipal Court. The Defendant leave it to all the 3 Departments operating under Home Rule who are joining against a resident of the state to protect each other; to decide who is responsible for providing the discoveries requested by the Defendant on Nov. 29, 2007.

Coming to your writing that Chief Krammer on 10-15-05 and Pat. Cavaollo on 12-05-05 had the Racial Profiling Training does not give any comforts to the defendant. Sgt. Elliot made a statement on 12-18-07 that it has been a while the Union Police Dept. had any racial/cultural training and this particular officer (Cavaollo never had any such training. Then Chief Krammer on the floor of the Town Hall on 04-22-08 could not come up with specific dates on being asked for such training dates in specific. Moreover you yourself wrote to the defendant on 11-29-07 that, “the above request is being denied because the request is not an identifiable record as required by OPRA.” Now after almost 5 months you have come up with the dates; how convenient to misrepresent? Looking at the credibility of the department and its officers; the Defendant request that name of the instructor and the state department who provided such training; be provided to him.

Then your denial under NJSA 47:1A-10 to my request for Internal Affair Investigation report is not enough reasons for the denial. First it took your department more than 3 months to complete the investigations on 3-10-08 and then another month to mail me the decision based on cooked up investigations that officer has done nothing wrong on 04-11-08. Most disturbing was after rendering the decision on 03-10-08 in favor of Patrolman Cavaollo; why investigator Sgt Elliott came to my business on 03-25-08 to pick up the photographs I had taken on 11-21-07? Under these circumstances what ever credibility this report or investigating Officer Sgt Elliot and other officers involved has must be determined by the Court. For this reason alone this Report must be disclosed.

Most recently the right of a Defendant for IA investigations was upheld by Honorable Judge Joseph Hoffman of South Amboy Municipal Court on Feb. 13th, 2007 in the matters of State vs. Rajnikant Parikh under complaint # 06-00193001.

Then the right of a defendant to obtain Internal Affair investigation reports and other similar evidence is well established under both United States and New Jersey Law. State v. Harris, 316 N.J. Super 384 (App. Div. 1998) The right of confrontation requires disclosure of (police personnel records) where a defendant advances some factual predicate making it reasonably likely that information in the file could affect the officer’s credibility. Id 387. The Court noted that “[t]he Sixth Amendment of the United States Constitution and Article 1, section 10 of the New Jersey Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him” (citation omitted) and that “[t]he essential purpose of confrontation is to secure for the defendant the opportunity of cross examination. Cross examination is the principal means by which a witness’ credibility is tested.”

Thus, under New Jersey Law, so long as defendant shows “some factual predicate” that would make it reasonably likely that information in the desired file is relevant or could affect a witness’s credibility, disclosure shall be made. The review and release of such records is now fairly common. State v. Ewtushek, App. Div. 2005 WL 1802099 (7-1-05)

Likewise, the same principle has been established in Federal Law since at least UNITED STATES V. RICHARD NIXON, 418 U.S. 683 (1974) where a ‘generalized interest in confidentiality” by even the President of the United States was insufficient to prevail over the “fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Id at 713.

The defendant in the present case himself has provided statements to the Internal Investigation. Such statements are clearly discoverable to the defendant for use in cross examination. There is no rationale to withhold discovery. Under R. 3-313 (f) (1) and R. 7:7 (e) (1), a court, on a motion and for good cause, may consider an application for a protective order to withhold evidence from discovery under only certain circumstances.

In the instant case, the factual basis underlying the production of the Internal Affairs reports does not present sufficient confidentiality concerns to justify withholding them from discovery. The Union Police Department investigation has been concluded they have nothing to fear by releasing the contents of the report. Where a law enforcement investigation has been completed, the State’s interest in confidentiality of Internal records related to the investigation is substantially reduced. Shuttleworth V. Camden, 258 N.J. Super. 573, 585 (App. Div. 1992), certif. den., 133 N.J. 429 (1993).

Moreover in the instant case, the Union Police have completed their investigation. Any Police need for confidentiality pales in comparison for Defendant’s discovery needs under his constitutional rights to present an effective defense against an offense which he has not committed, a Parking violation in which he is being selectively cited, Racial Profiling and obscene gestures by a Uniformed officer all under racial bias and selective enforcement of Law to meet an illegal Twp Quota for Traffic Summons. There is a prima facie evidence that this Quota is primarily being used against individuals belonging to minorities & colored communities.

The Union Township, Police, Prosecutor and Court are indulging in Information Discrimination also and are knowingly denying Knowledge and Information to the defendant for which Defendant has constitutional rights. Since Nov. 2007 collectively and individually all of them are frustrating the Defendant by deliberately delaying and denying Knowledge and Information by sending him from post to pillar. Then they have hurt the defendant mentally, physically, emotionally and financially by issuing Arrest Warrants on fabricated charges and Notices of Failure to Appear with threat of Arrest on fabricated charges.

Defendant believes all the above reasons are more than enough for Union Police Department to release the IA investigation reports to the defendant. Union Municipal Court also must reconsider its earlier decision to Recuse itself from the above matters. This Court has lost its credibility by issuing Arrest Warrants & Notice of Failure to Appear all under fabricated charges and has failed to address the issue of Discoveries for more than 5 months; so it must Recuse itself in prosecuting the defendant and must transfer the matters to some other Courts.


Devendra Makkar

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