It takes no compromising to give people their rights. It takes no money to respect the individual. It takes no survey to remove repressions.
-Harvey Milk-
Prosecutors have very broad powers when it comes to charging or not charging an individual with a crime. Rule of Professional Conduct 3.8 prohibits the prosecution of a charge against an individual that is known to be unsupported by probable cause and the rule primarily limits the powers of a prosecutor in efforts to protect the accused. There is often a public uproar when a decision is made by a prosecutor not to charge an individual for what surely seemed to be an apparent crime. As a former prosecutor of attorney misconduct, I understand sometimes that the evidence, which often times is not available to the public, does not always support a charge.
But what about the rights of a victim? Many states, including Tennessee, have passed legislation providing certain rights to victims of crime and, indeed, such was the case in New Jersey with the passage of the Crime Victims Bill of Rights in 1985. These rights give certain protections to the victims of crime, including the right to be treated with dignity and compassion by the criminal justice system and the right to be free from intimidation.
You would never expect a prosecutor to intentionally trample upon the rights of a victim, but that certainly may have been the case involving Richard Burke, a prosecutor from Warren County, New Jersey. There is a bit of a twist here as the victim was also alleged to be the perpetrator of a crime. No one, however, could seriously view the case under such a lens, including the Warren County Grand Jury. But first, the facts:
The victim, Jane Doe, severed a short-term engagement from her ex-fiancée. The ex-fiancée pleaded with Jane Doe to allow him to see her but she would not submit to his wishes. The ex-fiancée then drove from Florida to Ms. Doe’s home in New Jersey and knocked upon her door. When Ms. Doe answered the door, the ex-fiancée forced himself into the home and sexually assaulted her. He then placed a knife to Ms. Doe’s neck and threatened to kill her before tying her to a chair. The ex-fiancée spoke for hours about death and suicide and emptied a handgun of ammunition to show Ms. Doe how to fire the weapon. He then gave Ms. Doe the weapon, fully loaded, and requested she shoot him in the head. When she refused, he threatened to kill her if she did not comply. Ms. Doe shot the ex-fiancée in the shoulder as she did not wish to kill him but he yelled and turned toward her at which time she fired another shot into his shoulder. Ms. Doe escaped from her home and called 911 and the ex-fiancée died from the two gunshot wounds. Amazingly, the Warren County Prosecutor’s Office sought to indict Ms. Doe for murder. The Grand Jury, instead, returned a no true bill against Ms. Doe. In response, it is alleged by Ms. Doe that Richard Burke held a press a conference or issued a press release and revealed details of her identity, sexual assault, and the killing of her ex-fiancée without her prior knowledge or consent. Ms. Doe alleged that such disclosure prompted contact by many members of the public and the media causing her mental anguish, emotional distress, anxiety, and embarrassment.
Ms. Doe subsequently filed a civil action against Mr. Burke, the Warren County Prosecutor’s Office and other state entities alleging that Mr. Burke’s conduct violated her constitutional rights and the tenets of the Crime Victims Bill of Rights. Ms. Doe also claimed that the conduct of Mr. Burke involved the intentional tort of invasion of privacy and intrusion on seclusion. All claims against all defendants were dismissed on summary judgment, but on appeal, the court reversed the dismissal as to several claims against Mr. Burke and some governmental defendants asserting that Ms. Doe had raised viable causes of action which, if true, were not subject to immunity and the development of facts was necessary to determine whether relief was warranted. You can read the opinion here: https://www.leagle.com/decision/innjco20210817262
I have thus far been unable to verify whether Mr. Burke is the subject of a disciplinary proceeding by the Disciplinary Review Board of the Supreme Court of New Jersey. It may be that a confidential investigation was opened and has been deferred due to the pending civil action. In any event, if the facts alleged by Ms. Doe are true, there is a good argument that Mr. Burke violated RPC 4.4(a)(1) which states that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the legal rights of such a person.” Let’s break this down. Mr. Burke, at the time, was representing his client, the Warren County Prosecutor’s Office. At the time of the alleged disclosure of information, Ms. Doe was not a party to an action since the Grand Jury would not indict her. Thus, she meets the description of a third person. Lastly, there would not seem to have been a substantial purpose for the release of the information and it could be inferred that Mr. Burke disclosed the information to the public in sour grapes fashion because he could not obtain the indictment he sought. Obviously, the civil case will delve into the facts through the discovery process and more will be revealed as the case winds its way back through the court system. Meanwhile, in a bizarre turn of events, Mr. Burke resigned from the Warren County Prosecutor’s Office to take a position with the New Jersey Office of Public Integrity and Accountability. And get this . . . the mission statement is Combatting Public Corruption and Strengthening Public Confidence in Government and the Criminal Justice System in New Jersey. Oh, the irony.