While the state did not act with malice or intentionally, it violates fundamental fairness to not serve defendant’s public defender with a courtesy copy of a forfeiture complaint so the PD can advise to stay the forfeiture so defendant doesn’t get jammed up by admissions in the forfeiture that prejudice the criminal case. State v. Melendez, 2018 N.J. Super. LEXIS 63 (Apr. 23, 2018):
Further, the State did not serve defendant’s OPD attorney with a courtesy copy of the forfeiture complaint, so the attorney could at least advise defendant to file a stay motion, advise him against making admissions, and suggest that he consult private counsel if possible. In the context of this case, the failure to serve defendant’s criminal defense attorney was at least inconsistent with the spirit of RPC 4.2, if it did not violate the Rule. See State v. Bisaccia, 319 N.J. Super. 1, 22 (App. Div. 1999); see also Sanchez, 129 N.J. at 277-78. It was certainly inconsistent with the professional courtesy we expect of attorneys practicing in this State.
Moreover, unlike P.Z. or Kobrin, where separate agencies handled the criminal and civil actions, the same prosecutor’s office was both prosecuting defendant in the criminal action and moving to seize his property through forfeiture. This scenario presents a risk that a prosecutor’s office will deliberately use forfeiture complaints as a means of extracting admissions from criminally-charged defendants, or could file a forfeiture action in advance of filing criminal charges in the hope of obtaining information from a defendant for use in a future criminal prosecution.
[W]e must be sensitive to the potential for the State’s deliberately manipulating a civil procedure in order to obtain evidence against a criminal defendant. Should the government “use … the civil discovery process to compel answers to interrogatories … to build the government’s case in a parallel criminal proceeding[, it would reflect] such unfairness and want of consideration for justice’ as to require reversal.”
[Kobrin, 111 N.J. at 317 (alteration in original; citations omitted).]
There is no evidence that such deliberate manipulation occurred here. However, even if not done intentionally, or in violation of defendant’s constitutional rights, what occurred here violated principles of fundamental fairness. We choose to premise our decision on that doctrine. Because defendant’s answer was filed as the result of a fundamentally unfair process — one might describe it as a perfect storm of unfairness — the trial court misapplied discretion in admitting, in the criminal case, defendant’s answer filed in the forfeiture case.