If a person submits an Open Public Records Act (OPRA) request to a county prosecutor for records that the prosecutor filed in court, it is generally accepted that those records must be disclosed provided that the court case is not sealed. Yet, on November 5, 2018 the non-profit I serve as executive director filed suit against the Atlantic County Prosecutor’s Office (ACPO) for refusing to disclose briefs, certifications and trial court transcripts filed in a former Hammonton school guidance supervisor’s court challenge to his conviction for masturbating in public. The case against the ACPO is captioned Libertarians for Transparent Government v. Atlantic County Prosecutor’s Office, Docket No. ATL-L-2684-18 and is on-line here.
By way of background, according to a May 24, 2017 Press of Atlantic City article, Michael P. Ryan was convicted in Absecon Municipal Court of masturbating in his car in the parking lot of a Hammonton laundromat on September 11, 2015 (Summons/Complaint No. 0113-S-2015-000398). Ryan, who had worked as a guidance supervisor for the Hammonton Public School District, was suspended from his position when he was charged with lewdness–a disorderly persons offense–and was fired when he was convicted of that offense.
On May 18, 2017, Atlantic County Superior Court Judge Donna A. Taylor affirmed Ryan’s municipal court conviction. Details of the facts leading up to the charge are set forth in Judge Taylor’s May 18, 2017, 13-page written decision. Judge Taylor affirmed the $506 fine, $158 costs and assessments and one-year term of probation that the municipal court imposed.
Also included in Judge Taylor’s decision are details relating to another, separate lewdness charge (Summons/Complaint No. 0113-S-2016-000097) arising out of an September 20, 2015 incident where Atlantic County Prosecutor’s Office Detective Michael Peterson charged Ryan with masturbating in his car in the Hammonton Discount Liquors parking lot and an Obstruction of the Administration of Law offense (Summons/Complaint No. 0113-S-2016-000098) that Peterson brought against Ryan for allegedly fleeing from the scene of the September 11, 2015 incident at the laundromat. The municipal court found Ryan not guilty of these two charges and convicted him only of the lewdness charge that arose out of the September 11, 2015 laundromat allegation.
According to Judge Taylor’s decision, the lewdness charge arising out of the September 11, 2015 incident at the laundromat was brought by Eastampton Township Police Officer Michael Musser and his conviction on that charge relied very heavily on Musser’s testimony. Musser said that he, while off-duty, went to the laundromat to do some laundry when he witnessed a man, who he later identified as Ryan, masturbating in his car. After Musser identified himself as a police officer, the man allegedly drove away. Musser said that he recognized Ryan driving the same car a couple of weeks later in a grocery store parking lot and took a photograph of Ryan’s license plate. Musser said that he followed Ryan’s vehicle but that Ryan ran stop signs to evade him.
At trial, Ryan’s attorney argued that Musser did not report the September 11, 2015 when it occurred and could not recall the date or day of the week when it allegedly occurred. According to Judge Taylor’s decision, Ryan’s attorney argued that “Musser’s lack of reporting the initial incident should raise a serious question as to his attentiveness during the incident.”
At some point after Judge Taylor affirmed his conviction, Ryan and his attorney became aware that Musser had been fired for lying to the Eastampton Police Internal Affairs Unit. (See my article, “Burlington judge upholds Eastampton cop’s firing.“) While Ryan’s motion and brief to the Appellate Division have been suppressed by the Atlantic County Prosecutor’s Office, Burlington County Judge Susan L. Claypoole’s October 23, 2017 written opinion does show that Musser was aware of an Internal Affairs investigation against him on August 25, 2016 which was prior to the October 28, 2016 trial at which Musser testified against Ryan.
While Ryan’s attorney’s argument to the Appellate Division has not been disclosed, Ryan apparently argued that the prosecution was required by the 1963 Supreme Court decision in Brady v. Maryland to tell Ryan’s attorney about Musser’s untruthfulness. Such would have allowed Ryan’s attorney to attack Musser’s credibility during Ryan’s trial and may have led to a different outcome. The prosecution’s failure to so inform Ryan of Musser’s credibility issues arguably deprived him of a fair trial.
Appellate Division Judge Michael J. Haas entered a December 22, 2017 order that granted Ryan’s motion to remand the case back to the Superior Court and Atlantic County Superior Court Judge Bernard E. DeLury, Jr. signed a March 19, 2018 Order that “vacated the Judgment of Conviction,” granted Ryan a “new trial based on a Brady violation” and remanded the matter back to the Absecon Municipal Court for a new trial. By way of a November 30, 2018 letter, Atlantic County Assistant Prosecutor Kathleen E. Robinson advised Absecon Municipal Court Judge John H. Rosenberger that “upon further review . . . the State has declined to continue the prosecution of defendant Ryan.” Attached to Robinson’s letter is a copy of Summons/Complaint No. 0113-S-2016-000098 marked “dismissed.”
Libertarians for Transparent Government is being represented in the OPRA lawsuit by Richard M. Gutman of Montclair.