State v. WeleckState v. Weleck
The defendant was indicted June 26, 1951 for misconduct in office and extortion as Borough Attorney of the Borough of Hillsdale for alleged offenses in March and July 1949. The Bergen County Court dismissed the indictments for not having been found within the then two-year statutory period of limitations (
The indictment for misconduct in office, a continuing offense and therefore not barred by the statute until two years from the last act of misconduct, was moved for trial before Judge Drenk and a jury March 16, 1953. The defendant was found guilty April 2, 1953. A motion for a new trial was denied by the trial judge, whose term has since expired, and sentence imposed April 20, 1953. An appeal from the conviction is still pending in the Appellate Division of the Superior Court.
At the trial the two principal witnesses for the State were David G. Lubben and Vincent F.X. Carlsen, his attorney. Lubben testified, and Carlsen corroborated his testimony,
Lubben was thoroughly discredited on cross-examination and by direct evidence of a handwriting expert produced by the State who testified Lubben‘s signature to two pertinent letters were genuine after Lubben had denied these signatures.
Carlsen testified in his professional capacity as an attorney-at-law of this State of 20 years’ standing, a member of a reputable law firm, retained by Lubben on recommendation of his parish priest. Throughout his corroborating testimony, Carlsen made it clear that his entire knowledge of the facts in issue, his personal attendance at all conferences, his telephone conversations, were solely in discharge of his professional duties. Attempts on cross-examination to elicit information from this witness to show more than a lawyer-client relationship and interest in the outcome of the trial were met by categorical denials. He denied any business interests with Lubben; denied any indebtedness between them, and denied any reason for personal vindictiveness toward the defendant.
Immediately following the trial, in fact, before sentence was imposed, the Bergen County Ethics and Grievance Committee commenced an inquiry into the professional conduct of Carlsen in the discharge of his duties as attorney for Lubben. As the investigation developed it was disclosed that in 1951 Carlsen and Lubben were engaged in a business transaction with another client of Carlsen wherein the three purchased a distillery in Puerto Rico upon a mutual understanding and representations that Carlsen‘s other client would pay half the purchase price with Carlsen and Lubben each paying one-quarter, but, in fact, by fraudulent arrangement between Lubben and Carlsen undisclosed to Carlsen‘s other
As soon as these facts were disclosed to the defendant, pending the appeal of his conviction, application was made to the Appellate Division of the Superior Court for remand for application to the trial court for a new trial under
At the hearing on the motion for a new trial plenary evidence was adduced to disclose that the Lubben-Carlsen relationship went beyond that of attorney and client; that there was an indebtedness of over $4,000 due from Lubben to Carlsen and his law partner for services at the time of trial when Carlsen denied any indebtedness between them, and that Carlsen was personally vindictive toward the defendant for a fee paid the defendant by a client of Carlsen. There was newly discovered evidence taken from the transcript of Lubben‘s testimony in United States v. Giglio (D.C.S.D.N.Y.), where he testified on January 17, 18, 19, 1955, admitting under oath to attempts to bribe government tax agents, extensive black market operations, and perjury. With the exception of some testimony of Carlsen‘s law partner, taken at the hearing for new trial, all the newly discovered evidence was taken from the record of the disciplinary proceedings against Carlsen in the Supreme Court which became a matter of public record open to inspection and admissible in evidence upon entry of the order of suspension. Prior thereto the records and files of the Bergen County Ethics and Grievance Committee were confidential.
Lubben and Carlsen were the two principal witnesses for the State. They were the only material witnesses. Lubben‘s discredited testimony might well have been totally rejected by the jury but for the fact it was corroborated by Carlsen who appeared to the jury as a reputable, disinterested attorney of 20 years’ good professional standing, testifying for his client who was recommended to him by a parish priest. Therefore, the newly discovered evidence of the true relationship and interests of these two State‘s witnesses is material and not merely cumulative, contradictory or impeaching. Carlsen‘s unprofessional conduct with Lubben in the Puerto Rican distillery enterprise, resulting in his suspension, could not have been discovered before trial with any degree of diligence when the man himself on whom the fraud was perpetrated was not aware he was duped until after the trial. And without Carlsen‘s testimony, or with him at the trial as a witness discredited by his suspension, it may well be doubted whether a jury could find the guilt of the defendant established beyond a reasonable doubt.
In determining whether such newly discovered evidence as is disclosed in this case would probably change the result if a new trial were granted, consideration must be given to the general rule that when a person who has been suspended from the practice of law takes the stand as a witness, proof of his suspension may be admitted to discredit his testimony.
The jury should hear the truth, and the whole truth. They were not afforded this opportunity when Carlsen was offered as a material witness for they were justified in accepting his testimony as that given by a reputable member of the bar entirely disinterested in the outcome of the trial without any influencing connections or associations with Lubben than their professional relationship of attorney and client. He appeared as a witness who could not be discredited by any act he and his client had previously committed. Obviously they were mistaken if they accepted his testimony upon such a belief.
Where it is doubtful, as in this case, whether a jury would have found the guilt of the defendant to have been established beyond a reasonable doubt, had they known all the facts which were withheld from them, or were unknown to the defendant at the time of trial, and unascertainable before trial on exercise of due diligence, then, the interests of justice require that a new trial should be and therefore is hereby granted to the defendant.