Criminal Justice

Prosecutors tossed from drug case after witness is used to record defense lawyer

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A New Jersey appeals court has tossed prosecutors from a drug case because detectives wired a witness and sent him to record the criminal defense lawyer who had requested a pretrial interview.

The court of appeals removed Middlesex County prosecutors from the case because they apparently reviewed the recording. Law360 and have coverage.

In the Oct. 29 decision, the appeals court asked the New Jersey attorney general’s office to assign the case to prosecutors who had no access to the recording and transcript. The appeals court said the new prosecutors in the drug case should work for the state attorney general or a different county prosecutor.

A Middlesex County prosecutor authorized the wiretap, although it’s not clear whether the prosecutor knew the target was a lawyer, according to the opinion. But the prosecutor in the drug case evidently obtained the recording and transcript, the appeals court said.

“The defense attorney’s interview may as well have been conducted with the narcotics prosecutor hiding in the closet,” according to the appeals court.

“If the roles were reversed and the defense had surreptitiously recorded a prosecutor’s pretrial interview of an anticipated trial witness, the state would surely be sounding the alarm, and contending its work product had been unfairly obtained.”

Detectives had asked the witness to record the meeting with lawyer Joseph Mazraani because the witness—who was also a government informant—said Mazraani might want to offer him some money. The witness was accused of buying drugs from Mazraani’s client.

The witness said he was told of the possible bribe by his former lawyer, whom Mazraani had called to arrange the interview. The witness’s former lawyer has since been charged with witness tampering in three cases that are unrelated to Mazraani or the drug defendant.

The informant received $180 to cover lost wages for wearing the wire and attending the meeting with Mazraani. No bribe was offered.

Mazraani says he never knew the meeting was recorded until the information was provided in discovery materials three days before his drug client’s trial. He sought to get his drug client’s drug case dismissed and appealed when the trial judge turned him down.

The appeals court refused to dismiss the case but said the state erred by allowing the prosecutor handling the drug case to access “the fruits of the surreptitious taping.”

“Because of that failure, and because attorney work product from the recorded interview was prejudicially divulged to the narcotics prosecutor and staff, the narcotics case must be transferred,” the appeals court said.

The appeals court said the trial judge should conduct a hearing on remand to determine whether the witness may have been unfairly coached or influenced when prosecutors prepared him for the taping or in his debriefing afterward. Depending on the findings, the witness may need to be excluded from trial, the appeals court said.

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