Court won't throw out civil rights case against Linden, former municipal judge

A federal appeals court has rejected Linden's request to dismiss a civil rights suit filed against the city and a former municipal court judge.

LINDEN — Two cousins who filed a civil rights suit claiming they were wrongly convicted by a Linden municipal court judge have won a federal court decision allowing them to proceed with their case.

The Third Circuit Court of Appeals in Philadelphia last week rejected motions from both the city of Linden and from former municipal judge Louis DiLeo’ who wanted the case filed by Wendell and Anthony Kirkland thrown out.

DiLeo convicted the two cousins in a robbery trial in May 2010. DiLeo sentenced the cousins to 180 days in jail each. They each served 124 days before they were paroled.

The cousins said DiLeo acted as judge and prosecutor in the hour-long trial, gathering evidence he used to find them guilty.

The Kirklands were arrested in Linden on Oct. 4, 2009 and charged with unlawful taking of five lug nuts, attempted theft by unlawful taking of a tire, possession of burglary tools and possession of marijuana. The charges eventually were downgraded to disorderly persons offenses and sent to the Linden municipal court.

The two men appealed their convictions to state Superior Court, contending that during their hour-long municipal court trial, DiLeo questioned the witnesses and took on the role of prosecutor.

Also, the Kirklands said DiLeo allowed the arresting officer to question them at the trial, and said the judge refused to let them apply for a public defender, forcing them to represent themselves.

A Superior Court judge later threw out the marijuana convictions, and had other charges transferred to the Elizabeth municipal court where they were vacated, according to the federal court decision. The cousins subsequently filed a federal lawsuit against DiLeo and the city.

The Third Circuit Court of Appeals, in a Sept. 10 ruling, upheld a lower federal court ruling that rejected DiLeo’s claim of being protected by judicial immunity. U.S. District Judge Kevin McNulty ruled the case could go forward on the question of whether DiLeo grossly departed from his role of judge.

Also, the appeals court rejected the city’s motion to dismiss the case. The city claimed that the Kirklands failed to show that Linden conspired with DiLeo to deprive the defendants of their rights. The appeals court said the Kirklands’ complaint included specific allegations that the city endorsed DiLeo’s actions.

Michael Rubas, the Kirklands attorney, has questioned whether other defendants faced similar treatment before DiLeo.

“I just can’t see this being a single specific occurrence,” Rubas said.

Linden Mayor Richard Gerbounka countered that the city has no control over the municipal judges’ action.

"The court comes under the control of Superior Court. I can't see how the city is going to be held responsible for the judge's actions," Gerbounka said.

Last January, the state Supreme Court reprimanded DiLeo, saying he committed "egregious legal errors" in the Kirklands' case.

The state's highest court sanctioned DiLeo for depriving the defendants of their constitutional rights, refusing to let them apply for public defenders, forcing them to represent themselves, then questioning witnesses and taking on he role of prosecutor, according to the Supreme Court ruling.

In 2012, Gerbounka and the city council removed DiLeo, who had served as judge for nearly nine years and had refused to step down.

Last year, DiLeo filed a lawsuit against the city and Gerbounka for wrongful termination, claiming the mayor retaliated and discriminated against him after an alleged attempted ticket-fixing issue became public. That suit is still pending.

Calls to DiLeo’s law office in Linden were not returned today.

Tom Haydon may be reached at thaydon@njadvancemedia.com. Follow him on Twitter @Tom_HaydonSL. Find NJ.com on Facebook

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