Newspaper article The Record (Bergen County, NJ)

Judge Used Rare Option in Zisa Case

Newspaper article The Record (Bergen County, NJ)

Judge Used Rare Option in Zisa Case

Article excerpt

An unexpected trial court decision that partially overturned the conviction of Hackensack's disgraced former police chief has focused attention on a rarely exercised judicial power put in place to prevent wrongful convictions in cases where evidence doesn't support the jury's verdict.

In a ruling earlier this week, state Superior Court Judge Joseph Conte said witnesses in the case of Ken Zisa contradicted themselves and that numerous issues raised throughout the trial could have prejudiced the jurors during their deliberation.

The jury nevertheless concluded Zisa was guilty on four counts of official misconduct and one of insurance fraud. Conte, however, disregarded the opinion of the panel, saying he had too many concerns to accept the jury's findings in its entirety.

Such a decision is permitted, yet rare, several national legal experts said Thursday.

"A judge is not supposed to impose a judgment and sentence on a jury verdict that lacks sufficient evidence to support it," said Stephen Duke, a Yale University law professor.

Ruling on a post-verdict motion by Zisa's defense attorney, Conte overturned three convictions related to Zisa's failure to recuse himself from a 2004 investigation involving the then-teenage sons of Zisa's live-in girlfriend at the time, Kathleen Tiernan. The counts that remain are tied to Zisa improperly removing his girlfriend at the time from the scene of a 2008 car accident and later filing a fraudulent insurance claim for $11,000 in damages.

Zisa faces a five-year mandatory prison term without parole for those remaining counts at his sentencing next Thursday. The Bergen County Prosecutor's Office could not be reached for comment about whether it would appeal. Zisa's attorney, Patricia Prezioso, said Thursday that she plans to pursue a complete acquittal.

State court rules permit trial judges to set aside guilty verdicts if the judge finds the evidence is insufficient to warrant a conviction, according to an acquittal motion filed by Prezioso.

"It's built into the system," said Louis Raveson, a law professor at Rutgers School of Law in Newark. "It's a mechanism to correct injustices. If somebody is wrongly convicted, a judge can't stand idly by."

Duke said it is rare for a case without enough evidence to go through a trial. But when it does, it's common for a judge to step in at the end. He added that a judge might wait for a jury to deliberate because if he threw out the charges during the trial, the prosecution would not be allowed to appeal under court rules that prohibit trying defendants for the same crime twice.

Paul Robinson, a law professor at the University of Pennsylvania, said a judge has the option of dismissing charges at various points in the trial but likely would not do so.

"No trial judge in his right mind would do that," he said. …

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