On April 12, 2017, the City of Linden (Union County) quietly agreed to pay $575,000 to two Elizabeth men who claimed that the Linden Municipal Judge’s illegal sentences deprived them of due process and caused them to spend “approximately sixty (60) days more in jail than was permissible by law.”

In their lawsuit, Wendell and Anthony Kirkland said that on April 12, 2010 they appeared before Linden Municipal Court Judge Louis M. J. DiLeo to be arraigned on charges arising out of their 2009 arrest for possession of 50 grams or less of marijuana and for stealing five lug nuts as well as the wheel to which the lug nuts were attached.  During the arraignment, the cousins said that they wanted to retain a private counsel to represent them.  According to the lawsuit, DiLeo “erroneously advised [them] that by electing to retain private counsel, they had ‘waived’ their rights to to appointment of a public defender.”

At a May 3, 2010  court hearing, the Kirklands, who apparently were not able to secure private lawyers, said that they wanted to be represented by the public defender.  DiLeo allegedly told them that they were not permitted to be represented by the public defender because they had already “waived” that right.  DiLeo then allegedly told the pair that they needed to proceed to trial on May 12, 2010.

After waiting four hours for their trial on May 12, 2010, the Kirklands said that “there was no defense counsel or municipal prosecutor present” and that the only people participating in the trial were the Kirklands, the arresting police officer and Judge DiLeo.  DiLeo allegedly conducted the direct examination of the officer (who allegedly did not enter the marijuana or the lab reports into evidence) and the Kirklands were given an opportunity to cross-examine the officer.  DiLeo then asked the Kirklands if they had witnesses and the Kirklands said that they did have witnesses but that none of them were present.  DiLeo, who allegedly refused an adjournment so that the witnesses could be called in to testify, allowed the Kirklands to testify on their own behalf and then be cross-examined by the police officer.  After the officer’s cross-examination, DiLeo reportedly questioned both the Kirklands and the officer.

At the conclusion of the 52-minute trial, DiLeo found the Kirklands guilty of all charges, including the marijuana possessory charge for which no evidence was reportedly submitted.  DiLeo then immediately sentenced Wendell Kirkland to 180 days in the Union County Jail, three consecutive one-year probationary terms and a $2,700 fine exclusive of statutory penalties and costs.  He sentenced Anthony Kirkland to two consecutive 180-day jail terms, three consecutive one-year probationary terms and a $3,100 fine exclusive of statutory penalties and costs.

According to the complaint, the Kirklands’ sentences were illegal because N.J.S.A. 2C:43-2(b) only permits 90-day terms to be imposed as a condition of probation.  The men argue that the illegal sentences caused them to spend sixty days in jail beyond what the law allowed.

Union County Superior Court Judge Scott J. Moynihan heard the Kirklands’ appeal.  According to the lawsuit, Moynihan characterized DiLeo’s handling of the matter as a “‘perversion of justice’ and cited multiple instances in which DiLeo violated the [Kirkland’s] constitutional rights” including the “most glaring error” of denying the Kirklands’ request for a public defender.  Moynihan “concluded that Judge DiLeo had “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.” He ultimately found both men not guilty of the marijuana charges and remanded the remaining charges to municipal court to be heard before a different judge.

The complaint alleged that the Kirklands’ treatment by DiLeo was not an aberration but “a long standing custom” that developed during DiLeo’s nine years on the bench.  The complaint alleges that the American Civil Liberties Union (ACLU) once stepped in because of DiLeo’s conduct on the bench.

According to a January 27, 2014 article in NJ Advance Media, DiLeo was reprimanded by the New Jersey Supreme Court for his treatment of the Kirklands. The Court’s 42-page decision is on-line here.

The case is captioned the Wendell Kirkland and Anthony Kirkland v. Louis M. J. DiLeo, et al, Federal Case No. 2:2012-cv-01196 and the the Kirklands’ attorney was Michael R. Rubas of Jersey City.  Case documents are on-line here.

The settlement agreement contains a confidentiality clause, which prevents the parties to the suit from disclosing the settlement’s terms to others, including the media.  Fortunately, however, these confidentiality clauses do not trump the public’s right to obtain copies of settlement agreements that arise out of lawsuits in which a government agency or official is a defendant.

None of the the lawsuit’s allegations have been proven or disproven in court. Settlement agreements typically state that payment does not constitute an admission of wrongdoing by DiLeo.  All that is known for sure is that Linden or its insurer, for whatever reason, decided that it would rather pay the Kirklands $575,000 than take the matter to trial. Perhaps the defendants’ decision was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and the defendants wanted to avoid being embarrassed at trial. This is the problem when cases resolve before trial–it is impossible to know the truth of what really happened.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]