TRENTON, N.J. (CN) - A lawyer who previously represented New Jersey cops can defend a Newark police officer accused of assault after a state appeals court ruled Monday there is no conflict of interest.
In July 2014, David Hudson, a 21-year veteran Newark police officer who was indicted for aggravated assault and illegal possession of a weapon following a road rage incident, enlisted attorney Anthony Fusco, Jr. in his defense.
The problem, though, was that Fusco had also represented one of the officers investigating Hudson's alleged incident, which led to concerns that the attorney might go easy on that officer during cross-examination.
New Jersey's Appellate Division ruled Monday that Fusco could, in fact, represent Hudson because the investigating officer's role was "merely tangential" in the Hudson case and therefore he would not likely be called to Hudson's trial.
The opinion, written by Judge Marie Lihotz, found no conflict of interest and dismissed concerns of a mistrial based on the fact that Fusco had represented the other officer.
"Prior representation, in and of itself, is not sufficient to justify disqualification," Lihotz wrote.
On March 8, 2014, Hudson allegedly followed a couple and their 11-year-old son home after the family supposedly cut him off. According to reports, Hudson chased the family on Interstate 280 until they reached Broad Street and Third Avenue in Newark.
Hudson then allegedly pointed a handgun at the father and threatened him. The family called 911 and Hudson was later arrested by fellow officers responding to the scene, according to reports.
Hudson hired Fusco to defend him against the charges, which included unlawful possession of the handgun, and state prosecutors immediately moved to disqualify Fusco based on his previous representation of the state's police union.
Fusco had represented the New Jersey Fraternal Order of Police in other cases. Fusco also defended Lt. Camilo Mos a decade earlier in a separate disciplinary issue.
Mos was present during Hudson's videotaped custodial interview and was one of the investigating officers in the incident. Mos is currently a captain in the Newark Police Department.
The trial judge in Hudson's case found no conflict of interest but agreed with prosecutors that there was at least a perceived conflict of interest. The judge ordered Hudson to find a new attorney. Fusco appealed that ruling in January.
Lihotz ruled that there was no conflict of interest because there needs to be more than just the appearance of impropriety. She noted that Mos was Fusco's former client, not a current one, and that the representation had been "limited in scope."
"The age of the prior matter and that Lt. Mos had not engaged Fusco since do not support a current relationship," Lihotz wrote. "Rather, the facts show the attorney-client relationship ended many years ago."
The judge noted a "sea change" in New Jersey's basis for determining attorney-client conflicts of interest in 2004, when the state "appearance of impropriety" provisions were removed from state rules of professional conduct for attorneys.
Simultaneous representation of conflicting clients would cause a conflict of interest under the new conduct rules, Lihotz wrote, but that was not the case for Fusco's representation of Hudson and Mos in cases separated by more than a decade.
"Mos is not a key or essential state witness based on his disclosed involvement" in the Hudson investigation and Mos was not actively involved in Hudson's arrest or his videotaped interrogation, Lihotz wrote.
Fusco's firm Fusco and Macaulos specializes in representing New Jersey police officers. Fusco himself is also a featured columnist for the police union's news magazine, regularly speaks at the union's state convention, and provides legal advice to the union's board of trustees, according to the ruling.
Lihotz remanded the case to the trial judge and ordered a more detailed review on whether Fusco's prior representation of Mos created an actual conflict of interest, as well as the likelihood that Mos would be called to testify at Hudson's trial.
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