New Jersey state Sen. Nicholas Scutari. Courtesy photo

A federal civil rights suit takes aim at allegedly spotty attendance on the job by New Jersey state Sen. Nicholas Scutari, D-Union, during his 15-year run as municipal prosecutor in Linden.

According to the lawsuit, which was filed by Roseland, New Jersey, attorney Beth Baldinger on Feb. 18 in U.S. district court in Newark, Scutari, who is chairman of the Senate Judiciary Committee, knowingly perpetuated violations of litigants' due process rights with his frequent absences from court, when he relinquished the duties of prosecutor to the judge,

The suit was filed on behalf of Yasmine Coello, who spent 18 days in jail on a harassment conviction that was later overturned. Coello was found guilty after a lawyer with an alleged conflict of interest was appointed as special prosecutor for the case in Scutari's absence in 2008, her suit claims.

Besides Scutari, the suit names former Linden Municipal Court Judge Louis DiLeo, Cranford attorney Kathleen Estabrooks, former Linden Mayor Richard Gerbounka and the city of Linden as defendants.

"It was the practice, policy and custom of the Linden defendants to deny litigants the right to counsel as mandated by both the U.S. and New Jersey Constitutions, all of which was countenanced by Scutari who relinquished his role as municipal prosecutor to DiLeo and/other unauthorized individuals," the complaint says.

"When you're charged with the responsibility to serve as municipal prosecutor, you take an oath to do your job and do it correctly. He abandoned his duties. How could he not know what was happening in his court house?" asked Baldinger of Mazie, Slater, Katz & Freeman, who represents Coello.

Baldinger said she plans to enter into evidence a report commissioned by Linden from forensic auditor Paul Gazaleh, which shows Scutari had unexcused absences from his job as Linden municipal prosecutor on 57 days out of 111 in which court was in session in 2018, on 64 days out of 115 in 2017 and 20 out of 124 in 2016. His annual salary from 2014-2018 was $84,659 and he was a participant in the Public Employees' Retirement System, the report says. Linden replaced Scutari in January 2019.

Scutari said the suit targets him "because of who I am, not for anything I did."

Scutari said further that he "should not be held responsible for the actions of another prosecutor authorized by the judge" and that "there's no theory of liability against me. I"ll be out of this case on summary judgment,"

Scutari adds that the suit's assertion that he was frequently absent from the Linden prosecutor's job is a mischaracterization, since other attorneys sometimes stood in for him and because the prosecutor is not required to be in the courtroom at all times when court is in session.

Scutari adds that a forensic auditor's report commissioned by Linden, which purports to show he was frequently absent, was "farcically made up" by persons who "pulled numbers out of the air." He said that he has served the city of Linden with notice that he intends to sue it for defamation over the report.

Scutari also serves as chairman of the Union County Democratic Committee,

Coello's harassment charge stemmed from an altercation she had with David Figueroa and Shirley Messina. At the time, Coello was dating Figueroa, who previously had a child with Messina.

DiLeo appointed Cranford attorney Estabrooks as special prosecutor in Coello's case, while Estabrooks was also representing Messina in a child custody dispute with Figueroa, the suit claims.

Court rules permit a municipal judge to appoint a special prosecutor under certain circumstances, such as when the case involves cross-complaints, but there were no cross-complaints in the Coello case, the suit says. And Estabrooks' application to assume the special prosecutor position failed to disclose facts that could have affected her impartiality, the suit claims.

At Coello's trial, in March 2007, Estabrooks asked for Coello to be removed from the courtroom while prosecution witnesses testified, and DiLeo granted the request, over the protests of Coello's lawyer, Maria Velez. The suit says Coello was thus deprived of her right to confront witnesses and the right to effective counsel. At the end of the trial, Coello was found guilty of harassment. She was fined $300, plus $34 in court costs, and sentenced to 30 days in jail, with her sentence suspended upon the condition that she attend 26 weeks of anger management counseling.

Nine months later, at Estabrooks' request, DiLeo ordered Coello to attend a hearing to determine whether she had completed anger management training, although she was never given a deadline for completing the program. At this hearing, in January 2008, Scutari was not present, and Estabrooks entered her appearance as counsel for Messina, so DiLeo filled the role of prosecutor. Coello testified that she had completed roughly 21 of the 26 hours of anger management training. DiLeo then sentenced Coello to 30 days in jail, and she was immediately taken away and incarcerated.

Two days after Coello's imprisonment, on Jan. 18, 2008, another attorney, James Krupka, filed a notice of motion for reconsideration of the sentence. Estabrooks opposed the motion. On Feb. 3, after she was incarcerated 18 days, Coello was released.

It was not until 2016 that Coello filed a motion for post-conviction relief, seeking an order vacating her conviction. The motion was heard in Clark Municipal Court, where Judge Antonio Inacio granted the motion in March 2018. In November 2018, Superior Court Judge Robert Kirsch granted Coello's motion to expunge the charges.

According to the lawsuit, DiLeo regularly violated litigants' constitutional rights by allowing persons other than Scutari to present cases. Coello cited cases from 2009 and 2010 in which DiLeo allowed presentation of the state's case by Linden police officers and state troopers as well as a city taxicab license clerk and a security guard from a Target store.

Coello's suit brings claims for conspiracy to violate civil rights, violation of substantive due process rights and cruel and unusual punishment against DiLeo, Scutari, Estabrooks and Gerbounka. It also includes claims for violation of the right to counsel and confrontation clause violations against DiLeo and a legal malpractice claim against Estabrooks.

DiLeo, who has retired from the practice of law, did not respond to a request for comment about the suit. He was reprimanded by the Supreme Court in 2014 for his role in the Kirkland case. Estabrooks declined to comment, and Gerbounka could not be located.

Coello's case appears to echo elements of another civil rights claim arising from Scutari's absence that resulted in a $575,000 settlement with the city of Linden in 2017.

In that case, cousins Wendell and Anthony Kirkland were convicted of theft and marijuana possession in proceedings where DiLeo, who was then municipal judge, served a dual role as prosecutor and judge in Scutari's absence.

The convictions were later overturned, and Linden agreed to pay $575,000 to resolve the Kirklands' federal civil rights suit over the handling of their court case. The settlement followed a ruling from the U.S. Court of Appeals for the Third Circuit in 2014, holding that DiLeo was not entitled to judicial immunity for his conduct in the Kirklands' case.

The current Linden mayor, Derek Armstead, said the city had asked U.S. Attorney Craig Carpenito to investigate Scutari's attendance as municipal prosecutor. Referring to Coello's complaint, Armstead said he was troubled about "the possibility that we will have to pay for this lawsuit—it will bankrupt the town."