Paul's Federal Civil Rights Lawsuit Advances;
First Amended Complaint Against Law
Enforcement / Prosecution Individuals Filed,
With Additional Misconduct Allegations
October 12, 2012
TRENTON, N.J. — Paul Kamienski's legal team has filed a First Amended Complaint in his federal lawsuit, within the 30-day deadline granted by U.S. District Judge Peter G. Sheridan in rulings last month. When Judge Sheridan allowed Kamienski's civil rights allegations to move forward against the defendants, personally, he also granted leave for attorney Timothy J. McInnis, of McInnis Law in New York City, to engage in limited discovery and file the amended Complaint which could allow additional allegations of withholding and fabricating evidence, witness coercion and malicious prosecution to be added against the defendants. For more information read the First Amended Complaint.
September 12/13, 2012
TRENTON, N.J. — More than three years after a federal appeals court freed north Jersey businessman Paul Kamienski after 20 years of unjust imprisonment in New Jersey's highest and medium security prisons, and two years after the U.S. Supreme Court declined to hear the Ocean County Prosecutor's appeal of that insufficient evidence ruling, Kamienski's federal lawsuit has taken center stage.
U.S. District Judge Peter G. Sheridan has allowed Kamienski's federal civil rights lawsuit to advance against certain law enforcement and prosecution invididuals, and with more specifity may allow other damage claims to move forward after Timothy J. McInnis, of McInnis Law in New York City, who heads Kamienski's legal team, files an amended Complaint.
In his order, Judge Sheridan permitted limited discovery and 30 days leave to file the more specific amended Complaint that could include allegations of withholding and fabricating evidence, witness corecion and malicious prosecution.
Among individuals named in the original Complaint, which is expected to be amended and filed by October 13th, are: Attorney General For The State Of New Jersey, Marlene Lynch Ford, Thomas F. Kelaher, James W. Holzapfel, Ronald Deligny, John Mercun, Samuel J. Marzarella, E. David Millard, James A. Churchill, Daniel Mahoney, Jeffrey P. Thompson, John Does 1-10, Ocean County Prosecutor’s Office And County Of Ocean.
More than three years afer the U.S. Court of Appeals for the Third Circuit ordered the State of New Jersey to expunge Kamienski's murder conviction and all records associated with it the New Jersey Attorney General's Office has voluntarily filed an applicaton with the New Jersey Superior Court application seeking that statewide records erasure. He had been serving two life sentences for a double homicide he did not commit or aid, and had professed his innocence from the moment he was first questioned by the prosecutor's office until his releasse from South Woods State Prison in Bridgeton, New Jersey on June 16, 2009.
If signed by a New Jersey Superior Court judge, the expungement order will direct all courts, detention or correctional facilities, and law enforcement or criminal justice agencies to expunge any records it held on Paul Kamienski relating to the 1987 murders in Toms River, according to McInnis, a former federal prosecutor who has represented Kamienski for more than a decade.
Related State Court Action
Earlier, a Mercer County Superior Court Judge in New Jersey, acting on Kamienski's state lawsuit brought under the Garden State's Mistaken Inprisonment Act, issued a summary judgment ruling in favor of Kamienski, ordering the state to pay $344,000 to the former businessman for his unjust imprisonment, as well as attorney's fees. Notices of appeal have been filed by both sides in this case and attorney's fees continue to be litigated.
Under state law, the amount of compensation allowed for prisoners who are unjusted incarcerated is based on the income the convicted person earned prior to being taken into custody and the years in which he was held. Kamienski, who had business interests in New Jersey and Florida, reported more than $143,000 in total income the year before he was arrested.
The news release prepared in connection with the federal and state lawsuits is listed in the filed dociments section, along with the filed State of New Jersey Complaint, Answer and Ruling; and the federal Complaint and three decisions. Use the "Documents" link in the top navigation to read these documents.
U.S. Supreme Court Denies
Ocean County, NJ, Prosecutor's Appeal;
Final Obstacle Is Removed To
Complete Freedom for Paul Kamienski
January 19, 2010
The U.S. Supreme Court this morning removed the final obstacle to complete freedom for a New Jersey businessman unlawfully convicted as an accomplice in a 1983 double homicide, a crime for which he always maintained innocence.
The highest court in the land summarily "denied" the Ocean County New Jersey Prosecutor's attempt to overturn a U.S. Court of Appeals for the Third Circuit habeas corpus decision. The Philadelphia-based appellate court, citing insufficiency of evidence among other things, ruled in Paul Kamienski's favor after more than 20 years' imprisonment, most of that time in New Jersey State Prison in maximum security.
Attorney Timothy J. McInnis of New York City has represented Kamienski since early 1999, including during Kamienski's federal habeas petition and appeal. A former federal prosecutor in New Jersey, McInnis moved today in the U.S. District Court in Newark, New Jersey to remove all bail restrictions. A $1 million personal recognizance bond and travel restrictions among New Jersey, New York and Florida was set in July 2009 when Kamienski was released following his successful appeal.
"For the first time in more than two decades Paul Kamienski can begin the long process of getting his life back. I spoke with Paul moments after the Supreme Court decision and shared the high emotion of this bittersweet moment. A man who had been unfairly imprisoned for more than 20 years -- during which his parents, family and close friends passed away -- finally can breathe the sweet air of freedom he was denied for so long," McInnis said.
"Paul wanted me to convey his deepest appreciation to the friends (and others who learned of his plight from http://www.ReleasePaulNow.com) who stood by him all these years, knowing he was innocent of the murder charges," McInnis added.
Prosecutor Appeals Paul Kamienski's
Writ of Habeas Corpus To The U.S. Supreme Court
September 30, 2009
TOMS RIVER, N.J. -- Ocean County, New Jersey Prosecutor Marlene Lynch Ford, as she had vowed after the Third Circuit Court of Appeals ordered Paul Kamienski's release on a writ of habeas corpus last May, on September 30 asked the U.S. Supreme court to reverse the Circuit's order and return the businessman to a New Jersey prison to finish two 30-to-life sentences for crimes for which he always has maintained innocence.
Attorney Timothy J. McInnis of the McInnis Law Firm in New York City confirmed that the prosecutor had filed a petition for certiorari, or review of the lower court opinion, with the Supreme Court on September 30th, the absolute deadline to seek the highest court's review of the case.
McInnis's insufficiency of evidence arguments prevailed at the Circuit Court and helped win Kamienski's habeas writ and subsequent release on bond on June 16, 2009, pending appeal. A businessman with interests in New Jersey and Florida at the time of his arrest, Kamienski had spent more than 20 years behind bars -- as a model prisoner -- before his June release.
McInnis, a former Assistant U.S. Attorney in New Jersey before launching his private practice, noted that the certiorari petition was expected and that he will begin to carefully study the prosecutor's filing to determine what response, if any, Kamienski would be making.
The New York Times, in an article published September 29, noted that the Supreme Court receives approximately 8,000 petitions for writ of certiorari each year and now hears just 80 of those cases.
In its unanimous decision to release Kamienski the Circuit Court ruled primarily on insufficiency of evidence. And its decision was re-affirmed by the three-judge panel and the entire court. No major issues of law, conflict among Circuits or other precedential issues were involved, according to the Circuit Court, which designated its opinion as "non-precedential," McInnis explained. Under these circumstances in the past, the Supreme Court almost always denies review of the lower court's ruling, he added.
On July 31, 2009 a New Jersey District Court issued Kamienski's writ of habeas of corpus as ordered by the Third Circuit and Kamienski's federal court file was officially closed.
U.S. District Judge Stanley R. Chesler's writ of habeas corpus vacated Paul's judgment of conviction for the two murders in which he has always maintained his innocence. Equally important, Judge Chesler also ordered the State of New Jersey to expunge Kamienski's conviction from all of its records.
Now absolute freedom will not be Paul's until the Supreme Court rejects the prosecutor's attempt to reinstate the conviction.
Bail was liberalized
Paul remains free on bail pending the Supreme Court's decision, bail that had been significantly liberalized from its original conditions.
On July 24, 2009 over Ocean County Prosecutor's Office ("OCPO") objections, Judge Chesler ruled in Paul's favor on a motion to modify his bail. The original terms limited his travel to New Jersey, where he has a residence and businesses; to New York, where attorney Timothy J. McInnis maintains his Manhattan offices; or to Florida where Paul also has property and interests.
Judge Chesler's original June 15 order also had required Paul to report weekly in person to Ocean County authorities and to post a $1 million personal recognizance bond.
The revised bail conditions set by the District Court before closing Paul's case continue until the Supreme Court rules. Paul is allowed to travel anywhere in the continental United States to be able to continue to thank loyal friends, family and interested others from coast-to-coast who knew he was innocent from the moment of his arrest. He also needs only to phone authorities to advise the state to which he will be traveling and is allowed to report weekly by telephone – not in person. His $1 million personal recognizance bond continues.
Mandate issued July 10th;
Stay "DENIED" July 24th
On July 10 the U.S. Court of Appeals for the Third Circuit issued its mandate, affirming its unanimous May 28 decision that the OCPO had insufficient evidence to convict Paul. The appeals court had rejected in a one-word, "DENIED" order on July 2 the OCPO's motion for reconsideration.
Then, on July 24th the Third Circuit rejected a new motion by the OCPO to recall and stay its mandate issued two weeks before. Among other things, Attorney McInnis argued in response for Kamienski, the OCPO missed the deadline to request such a stay under the Federal Rules of Appellate Procedure. The appeals court issued another one-word, "DENIED" ruling. By doing so it closed out the case at the appeals court and remanded it back to the district court for all further proceedings.
Attorney McInnis has handled Paul's appeal for a decade in the Third Circuit and District Courts. In motions and responses filed in association with the bail reduction, mandate and habeas corpus motions, all of which Paul Kamienski won, McInnis has repeatedly noted that the OCPO imprisoned Paul by misstating facts and misrepresenting the record in its appellate briefs.
In his reply letter to Judge Chesler regarding language in Kamienski's proposed writ attorney McInnis wrote, "Given that the State here secured the reinstatement of Kamienski's murder convictions that had been dismissed by a judgment N.O.V. by perpetrating a fraud on the State Appellate Division and this Court by submitting materially false and misleading briefs (and sought unsuccessfully to repeat this at the Third Circuit), "law and justice" require that Kamienski's unconditional habeas judgment be given full effect. This is particularly appropriate here in light of the State's inability to re-prosecute him because of the Double Jeopardy Clause."
In a one-word, "DENIED" decision the U.S. Court of Appeals for the Third Circuit rejected the OCPO's request for reconsideration by the unanimous three-judge panel and the whole 12-judge court of its May 28 decision overturning Paul's double homicide conviction. He had spent more than 20 years in New Jersey prisons, innocent and unfairly convicted, until his June 16th release on bail pending further review.
Read the July 3rd News Alert for the media and comments by New York City attorney Timothy J. McInnis regarding this development on Paul's case.
June 16, 2009
A white New Jersey Department of Corrections van transporting just one passenger leaves the grounds of South Woods State Prison in Bridgeton, New Jersey. The van turns right onto Burlington Road South and after traveling less than a tenth of a mile turns left onto Industrial Drive North, slowing just past the stone and dirt lot with State of New Jersey gas pumps and other infrastructure.
A 10-year legal battle
It's late afternoon, June 16, 2009. New York attorney Timothy J. McInnis has waited 10 years for this moment. His client, Paul Kamienski, is being released on bail, pursuant to a writ of habeas corpus ordered by a federal appeals court that found his convictions on murder charges 20 years previous had been based on "speculation."
Legal media relations expert Richard Lavinthal of PRforLAW, LLC waits with the reporters, photographers and two TV crews who have camped out on Industrial Drive North for hours, waiting for the van and its passenger.
The van stops in the middle of the road; a corrections sergeant opens the side doors and Paul Kamienski takes one step down onto the tarmac and into the crisp, cool air of freedom.
After a few private minutes with attorney McInnis, Paul Kamienski speaks briefly with reporters.
Release on bail is ordered
The day before, June 15, U.S. District Judge Stanley J. Chesler in Newark ordered Paul released on bail, setting a $1 million personal recognizance bond, establishing weekly reporting requirements with New Jersey authorities and allowing him to travel to Florida where Kamienski also has a residence, and New York City to McInnis' law office.
Paul's nightmare is not yet over. His release is on bail because his case is continuing. On June 11th the Ocean County, New Jersey, Prosecutor filed a motion for reconsideration by the three-judge panel and the entire U.S. Court of Appeals for the Third Circuit. Circuit Court Judges McKee, Smith and Van Antwerpen had unanimously ordered Kamienski's writ of habeas corpus in their May 28, 2009 ruling.
The prosecutor has been quoted as stating that her office will take Kamienski's case to the U.S. Supreme Court should the motion for reconsideration be denied by the Third Circuit.
Prosecutor's behavior is "reprehensible"
"The behavior of the prosecutors was reprehensible," McInnis told the Asbury Park Press on June 16.
The Appellate Division had reversed the trial judge, reinstated Kamienski's murder convictions and sent him to prison with a double-life sentence for murders he did not commit or aid.
The prosecutor's office's Appellate Division briefs contained misstatements and conclusions that courts above accepted and adopted without scrutiny, McInnis argued in the federal appeal to the three-judge Circuit Court of Appeals panel in Philadelphia on April 16, 2009.
An Ocean County jury had found Kamienski guilty of both drug and murder charges but trial judge Stephen P. Perskie dismissed the murder convictions, ruling that they had not been proven beyond a reasonable doubt. Twenty years later the federal appeals court reached the exact same conclusion.
An unusual situation
Paul Kamienski's case represented an unusual situation for federal and state authorities in that a federal court ordered a habeas corpus for a state prisoner.
The novelty of the case delayed Kamienski's release by the New Jersey Department of Corrections which could not automatically accept the June 15th order by U.S. District Judge Stanley R. Chesler in Newark setting bail and reporting conditions to state authorities.
After Chesler set bail Monday morning McInnis began driving to the prison in Bridgeton, approximately two-and-a-half hours from Newark. With just 30 minutes left before arrival McInnis learned from the county prosecutor's office that a writ from the Ocean County Court and two additional documents would be needed in order for the New Jersey Department of Corrections to release Paul. McInnis stayed overnight in Toms River, the county seat where the prosecutor's office is located. He expected the prosecutor's office to file the three documents with the Department of Corrections, after which Kamienski would be released from the prison and brought up by the county sheriff.
McInnis waited in vain in Toms River for a response from the prosecutor's office until approximately 11:30 a.m. when N.J. Attorney General Anne Milgram and the administrator of South Woods State Prison interceded to arrange Paul Kamienski's release without the three documents.
When the Third Circuit ordered the writ of habeas corpus May 28, McInnis hailed the victory as the first habeas of its kind in the Circuit, made even more rare since the imposition of tough new federal appeal standards requiring deference to be given to state courts under the pre-911 Antiterrorism and Effective Death Penalty Act ("AEDPA").
In its May 28th opinion the unanimous three-judge Circuit Court panel sternly criticized the N.J. (State) Appellate Division of Superior Court for failing to understand Kamienski's case to begin with.
Listen to the Third Circuit oral arguments
Audio transcripts of the April 16, 2009 oral arguments before the Third Circuit Court of Appeals, all filed documents up to this moment and the news release issued on May 29th are uploaded and linked in the Documents section of this Web site.
Every news report on Kamienski's case is also available in the "News" section of this Web site.
All filed state and federal court documents, beginning with the 1988 New Jersey trial transcript and ending with the Third Circuit's bail order, are available from the "Documents" section of this Web site.
This reference Web site went live April 16, 2009, immediately following McInnis' oral arguments before the Third Circuit Court of Appeals. The copy that follows has since been slightly edited from its original version to reflect Kamienski's current status.
The original Web site begins below
Think that only disadvantaged criminal defendants
can be convicted in spite of their innocence? Think again.
If you assume someone with money can't be convicted of a crime he didn't commit you don't know the story of Paul Kamienski, a respected businessman with interests in three New Jersey cities and an auto business in Florida who believes he has been unfairly prosecuted by the Ocean County Prosecutor's Office as a supposed accomplice in the double homicide of two of his friends during a drug deal gone bad in Toms River, NJ in 1983.
Far from being poor and disadvantaged, Paul, an only child, came from a great, loving and successful family. Like his grandparents and parents before him, he was a respected member of the Polish communities of Passaic, Garfield and Wallington and a former Pulaski Day Parade grand marshal who led his three-city contingent down New York City's Fifth Avenue in 1979. That all was to change a few years later.
In 1983 Henry ("Nick") and Barbara DeTournay, married acquaintances of Kamienski from Florida, were killed delivering three kilos of cocaine to two Toms River men. Kamienski, in his mid-30s at the time, had only recently met the men and introduced them to the DeTournays. Unbeknownst to Kamienski, one or both of these men schemed to murder the couple instead of paying for the drugs they were delivering, which at the time had a wholesale value of $150,000.
In 1988, a N.J. Superior Court jury convicted all three men of murder and drug charges, saying that one of the men was the actual killer, while Kamienski and the remaining defendant were accomplices. In Kamienski's case, he was charged with allegedly helping to dispose of the victims' bodies after the fact.
At trial Assistant Prosecutor E. David Millard told the jury during closing argument that Kamienski had no foreknowledge of the drug robbery and murders and had done nothing to help plan them. Post trial, New Jersey Superior Court trial judge Steven P. Perskie ruled that the Prosecutor's Office failed to produce sufficient evidence of Kamienski's guilt on the murder charges and dismissed them all together.
The Ocean County Prosecutor then appealed that decision and the New Jersey Appellate Division of Superior Court reinstated the murder convictions against him. Kamienski says the state appellate court came to this mistaken conclusion because it was influenced by a false and misleading brief by the Ocean County Prosecutor's Office which mislead the court into believing certain things had been proven at trial that in fact had not been proven at all.
Kamienski appealed to the N.J. Supreme Court and the U.S. District Court, but each merely adopted the earlier Appellate Division ruling. On April 16, 2009 Kamienski's last chance at regaining his freedom and restoring his innocence culminated with oral argument before three federal judges at The U.S. Court of Appeals for the Third Circuit in Philadelphia.
Attorney Timothy J. McInnis, Esq. from the McInnis Law firm in Manhattan, has waged a battle in the federal courts on Paul's behalf for a decade. To prove Kamienski's innocence, McInnis said, among other things, that the Ocean County Prosecutor's Office had filed briefs that did not accurately reflect the trial record, and which muddied the waters by incorrectly lumping Kamienski in with his co-defendants.
According to McInnis, a fair reading of the actual record fails to show any evidence that Kamienski did anything before or during the killings to assist the other defendants in the murders and therefore he must be exonerated of those charges.
If the prosecutor's office is unable to reverse the habeas decision in the Third Circuit or U.S. Supreme Court the State would be precluded from re-trying Kamienski on double jeopardy grounds and at that moment Paul Kamienski would be free.
The ReleasePaulNow.com Web site includes Paul's own written story; four videos shot days before his 61st birthday in South Woods State prison; more than 50 photos from Paul's youth up through his June 16th release from prison; all the filed court documents; and audio from the oral arguments before the Third Circuit in April 2009.
This reference Web site clearly explains Kamienski's plight and how using illegal drugs recreationally, perhaps compulsively, put him near the wrong people at the wrong time. He has paid a heavy price for that error in judgment and personal drug use during the early 1980s.
It has been 26 years since the DeTournays were murdered by Joseph Marzeno, a self-confessed killer with a lengthy federal and state rap sheet. He died of natural causes while in maximum security Trenton State Prison in 1991.
The other co-defendant, Anthony Alongi, also had a long stint in Rahway State prison in the 1970s where he helped found the "Scared Straight" program. Alongi still is incarcerated in Trenton State Prison and is appealing his case on grounds of ineffective assistance of counsel and the right to represent himself at trial.
How you can help
Do you have first-hand information about this crime, its investigation, prosecution or appeal which has not faded over the years?
Are you someone with first-hand knowledge about the crime who feared retribution by Marzeno, who is now dead?
Are you someone who can shed light on the drafting of the initial appeal to the Appellate Division of Superior Court?
Were you affiliated with law enforcement or the prosecutor's office and now free to speak? Please provide your information or just your contact information and we'll forward it to Kamienski's defense team.
It's time to correct a terrible injustice.
When Paul stepped from the van early Tuesday evening he told reporters that there are others in prison who are innocent, and many that are guilty. Once his nightmare is behind him Kamienski hopes to use his education, business acumen and personal experience in state prisons to help both the innocent and the guilty.