Friday, April 16, 2010

Mount Olive pays $25,000 to settle malicious prosecution suit

On March 8, 2010, the Township of Mount Olive (Morris County) agreed to pay $25,000 to a man who sued members of the Mount Olive Police Department and the Township's mayor and prosecutor for maliciously prosecuting him for harshly criticizing the police department for setting up a motor vehicle roadblock.

In his suit, William P. Duncan, Jr. said that on August 4, 2002, his elderly aunt was taken to the hospital by ambulance after falling down some concrete stairs and breaking her hip. Duncan said he drove to the hospital in order to care for his aunt and to supply a blood transfusion if needed.

While driving to the hospital on Route 46 at about 1 p.m., Duncan claimed that he was stopped by a roadblock set up by Mount Olive Police and detained there for about eight minutes while the police looked through car windows for evidence of criminal activity or motor vehicle violations. Duncan said that he felt that the roadblock was unconstitutional and was annoyed that it may have delayed his aunt's trip to the hospital.

In order to express his displeasure at the roadblock, he stopped at a phone booth to call Mount Olive Police. When he found he had no change, Duncan called 911 and "criticized the police for having the roadblock and asked the operator whether they lived in a Nazi state." Duncan admits to having used foul and offensive language.

According to Duncan's lawsuit, the Mount Olive police "immediately traced [Duncan's] call and tracked him down on the way to the hospital." Police allegedly "seized [Duncan] and forced him back to the site of the roadblock to have their supervisor" Michael Pocquat speak with him. There, Pocquat allegedly lectured Duncan for about twenty minutes about how the roadblock was needed to search for terrorists. After the lecture, Pocquat released Duncan and let him continue on his way to the hospital.

According to the lawsuit, Pocquat, during the next several weeks, decided to press criminal charges against Duncan because of his "criticism of the roadblock and his indirect suggestion that the Mount Olive Police Department were 'Nazis.'" Duncan alleged that this decision to press charges was made with the assistance and cooperation of Mayor Richard DeLaRoche, Police Chief Edward Katona, Jr. and Municipal Prosecutor Brian Mason.

Duncan alleged that Pocquat began calling members of Duncan's family to ask where Duncan lived, "even though Mount Olive police had written down [Duncan's] full name and address at the time of the roadblock incident and knew exactly where he lived." Duncan further alleged that at about 10 p.m. on August 27, 2002, Pocquat sent an officer to Duncan's elderly mother's house. He claimed that the officer told her that her house was under surveillance and that Duncan "is in a lot of trouble." He alleged that the visit "served no legitimate purpose but was designed to terrorize [Duncan's] mother.

Duncan claimed that he was issued a summons and complaint at his home at about 10:15 the same night for having "knowingly placed a 911 call knowing no emergency existed and using offensive language to convey his dissatisfaction with Mt. Olive." Duncan alleged that the summons and complaint, which contained his full address, was written prior to the police visit to his mother's house, thus demonstrating that the police "had [Duncan's] home address all along and had no need to be harassing his mother late at night."

Duncan was charged with violating N.J.S.A. 2C:33-3(e) (using 911 for non-emergency purposes). Duncan claimed that he was summoned to the Mount Olive Municipal Court to answer the charge even though it is a crime of the fourth degree which cannot be prosecuted in municipal court.. After apparently learning that the charge could not be prosecuted in municipal court, Mount Olive officials referred the case to the Morris County Prosecutor who declined to prosecute it as a crime. Rather, the County Prosecutor returned the matter to the Mount Olive Municipal Court to be prosecuted as the petty disorderly persons offense of harassment.

Duncan claimed that since his right to criticize the police was protected by the First Amendment, the prosecution was "utterly without probable cause." He also alleged that at his March 29, 2004 trial, Pocquat and two other officers perjured themselves. After having been found guilty by Municipal Court Judge Philip J. Maenza, he was sentenced to pay a $1,000 fine and spend 30 days in jail.

Duncan alleged that he asked Maenza to defer his sentence for a short while because his wife was having cancer surgery leaving him to care for his minor children. Despite this, Duncan claimed, Maenza ordered him to be sent to the Morris County Jail immediately where he stayed until March 31, 2004 when he was able to obtain a stay of sentence.

Duncan alleged that on April 14, 2005, all the charges against him were dismissed by the Appellate Division of the New Jersey Superior Court, which found "that the charges against [him] were insufficient as a matter of law."

The case is captioned Duncan v. Pocquat, et al, Federal Case No. 2:07-cv-01570 and Duncan's attorneys were Edward P. Kelly of Spring Lake and Michael G. O’Neill of New York. Case documents are on-line here.

None of Duncan's allegations have been proven or disproven in court. The settlement agreement resolution expressly states that the $25,000 payment does not constitute an admission of wrongdoing by Mount Olive or any of its officials. All that is known for sure is that Mount Olive or its insurer, for whatever reason, decided that it would rather pay Duncan $25,000 than take the matter to trial. Perhaps the defendants' decision to settle was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claimed. Or, perhaps the claimed were true and the defendants wanted to avoid being embarrassed at trial. This is the problem when cases settle before trial--it is impossible to know the truth of what really happened.

UPDATE 04/28/10


William Duncan, the plaintiff in the civil case, asked me to add the following clarification to my blog entry. I have not verified the factual statements he made and any opinion expressed are Mr. Duncan's and not mine. Before relying on any fact alleged, you should verify it by consulting official records. JP

The above coverage of this civil suit demands some clarification. The issue and subject of my complaint was not the illegal roadblock which precipitated the event, but my allegation that that police committed perjury and lied under oath and during their testimony in my trial, amongst multiple other civil rights violations.

During a formal court hearing in Mount Olive municipal court, the prosecutor denied the existence of critical discovery evidence requested to prove my case. The prosecutor declared on the record, with the judge concurring and dismissing my motion, that police retained no records of any phone calls made to their emergency 911 line. Absurd.

I took the discovery issue to NJ Superior Court and won; the Superior Court Judge then ordering police and prosecutor to provide the exact 911 records which he had formally stated on the record did not exist. It was a clear and blatant example of perjury, obstruction of justice, and federal civil rights violation. I notified the presiding judge of the prosecutors perjury, for which he was required by law to act, and he did nothing.

Appearing at trial to answer a petty harassment charge, I was actually tried on a 4th degree felony charge outside the municipal court's jurisdiction; with both judge and prosecutor arguing their pursuit of a felony charge not formally before the court, and for which I was unprepared, until I proved myself correct. This further violation of civil rights was the subject of my appeal by the ACLU in the appellate division, which agreed and overturned my conviction.

Not being able to support an argument of harassment given there was no intent to harass as defined by NJ vs. Hoffman, (I had only called their illegal actions at a mid day Sunday afternoon roadblock as that of Nazis) the prosecutor produced a completely new argument. Three police officers lied under oath in testifying against me by stating that no ambulance had passed their roadblock; evidence of which I had in multiple Mount Olive EMS personnel eye witnesses to the event. While the hospital emergency is now acknowledged by police in their statements, it was denied to having occurred at all by the testimony of the police during my trial - allowing an openly hostile judge to negate my defense and find a guilty verdict. This was the core issue of the federal case. It was my allegation in my federal complaint that had the prosecutor not created a fraudulent argument, and had police not deliberately lied under oath in support of that fraudulent argument, I would not have been convicted and sent to jail.

In my 1st appeal in Superior Court, the judge again completely ignored a NJ Supreme Court clarification on the issue of harassment in the case of Hoffmann, as the municipal court had done, and upheld my conviction. My attorney adamantly refused to address the civil rights violations and police perjury in my appeal.

Of the many defense attorneys I had contacted originally when first charged, all stated that the NJ municipal court system was so utterly corrupt that they could not defend me if pleading not guilty. In their words, not mine, I was advised that the municipal court system was a revenue generating system and more of a "kangaroo court," not a venue for justice. They further stated the wrath I would face in the court for criticizing their police force, a prime and needed moneymaker for the township.

Except for one attorney who stated he would file a not-guilty plea for a $10,000 retainer expecting to appeal it, the rest would only take the case if I agreed to let them negotiate a plea to to a charge of something lesser. Lets make a deal you could say. This for a $2,500 fee.

I refused, and ultimately defended myself having no other options, and not willing to plead guilty to something I did not do. Immediately before my trial, I was pressured by the prosecutor to accept a guilty plea to a minor motor vehicle violation and pay maybe a $100 fine, which I refused. In the end, those attorneys I had originally spoken to were 100% correct, and I did learn first hand of how corrupt the municipal court system really is.

I filed the federal complaint myself, and turned the case over to an attorney simply due to the lack of time to properly pursue the case. I am not an attorney.

This was a solid case with every claim fully supported. My attorney however, refused to pursue the core arguments of the case, that of the perjury of police and malicious prosecution, and insisted upon a settlement.

As an outsider to the legal world, this case has been both educational to me and quite disturbing. The law is magnificent in its raw form; in print anyway. In practice, however it is corrupt from every viewpoint.

Although the American justice system is still hailed as the best, what justice exists when every attorney you speak to tells you the courts themselves are so utterly corrupt that they will not even take the case unless you plead guilty? When the reality of the court system to those practicing within its walls is completely opposite public perception?

When attorneys are afraid of bring charges against corrupt public officials due to some form of personal or official retribution? When an attorney explains he cannot defend you on a no-guilty plea because he has no fair chance whatsoever; and then further ridicules you for even thinking it even possible.

Attorneys act and like to be perceived as honorable defenders of freedom, but in fact lack the courage to oppose the system. And under such conditions, no justice can exist.

This civil suit was about violations of civil rights relating to my trial in Mount Olive and not the roadblock itself which prompted it.

William Duncan
billdunc@optonline.net