Gag order sought in West Morris Mendham teacher sex case

The Morris County Prosecutor’s Office has formally requested a gag order on a defense lawyer who has been vocal and critical of charges brought against a West Morris Mendham High School teacher accused of a sexual liaison with one youth and sexting with two others.

Defense attorney Timothy R. Smith, who represents now-suspended English teacher Nicole McDonough, 32, of Mount Olive, said he will oppose the Prosecutor’s Office request for a protective order on out-of-court comments made to journalists.

Although the charges are sexual in nature, McDonough is not charged with any sexual offenses. She is charged with three counts of official misconduct because all the alleged victims were 18 years of age.

“The Morris County Prosecutor's Office, through its request for a ‘gag order,’ has the gall to further trample on the Constitution - in this instance the First Amendment - by attempting to restrict my comments identifying the Nicole McDonough prosecution as an affront to the Constitution and an abuse of governmental authority,” Smith said in a statement.

“It is ironic that the Constitution is being denigrated to this extent on the very hallowed ground - Morristown - where Washington and his troops fought so valiantly to ensure its ratification. As Washington himself stated, ‘If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.’”

Smith added: “Rest assured, with all of our energy and all of the resources at our disposal, we will oppose the imposition of this gag order, continue to fight for Nicole McDonough’s rights, and stand up for the principles that Washington and his troops fought for right here in Morristown.”

Assistant Prosecutor Christopher Schellhorn has filed a motion for a protective order that Superior Court Judge Stephen J. Taylor is expected to hear on July 8, along with McDonough’s appeal of her rejection for admission into Morris County’s Pre-Trial Intervention program.

Schellhorn’s motion states that Superior Court Judge Stuart Minkowitz in February met in chambers with the assistant prosecutor and defense lawyer to discuss Smith’s alleged inappropriate comments.

Before that private meeting, Smith had called the charges against McDonough “a rogue prosecution.” He also said that the charges were “legally and factually flawed” and that “If the matter’s not rubber stamped by a grand jury, a no-bill should ensue.”

According to Schellhorn’s motion, Smith told the judge in February that some of his comments were misquoted. On Tuesday, Smith could not identify for the Daily Record how he was misquoted or which media representative quoted him incorrectly.

The formal motion was filed based upon additional comments made by Smith to the press on May 26, after a status conference on McDonough’s case in Superior Court. Out of court, Smith again attacked the prosecution, calling it “rogue” and said “Someone is trying to make a name for themselves politically.”

Schellhorn’s motion, in part, contends that Smith’s comments violate the rules of professional conduct for attorneys who are not supposed to make extrajudicial statements that he or she knows or “reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”

Smith has questioned the integrity of law enforcement and made other comments that “pose a grave risk of materially prejudicing the jury panel for trial,” Schellhorn wrote.

“The interests of justice demand that public confidence in the criminal justice system is not compromised by the extrajudicial statements of counsel,” Schellhorn wrote. “Although an extraordinary remedy, the state is obligated to pursue an order from this court barring the parties from making any further extrajudicial statements.”

McDonough is charged with three counts of official misconduct, for allegedly sexting with two male students and having a sexual liaison with a third student.

Schellhorn has extended a plea offer of five years in prison, with five years of parole ineligibility in exchange for McDonough pleading guilty to one count of official misconduct. She has formally rejected the plea offer.

McDonough was first charged in December with committing official misconduct by having sex with an 18-year-old student between May 1 and June 20, 2014. In March, a Morris County grand jury issued an indictment that charged McDonough with three counts of official misconduct. One count related to the original accuser and charges that McDonough engaged in improper communication, fraternization and/or sexual conduct with a student in Mount Olive and Mendham Borough between May 1 and June 20, 2014.

The second count in the indictment charges her with engaging in improper communication and/or fraternization with a student, 18, in Mendham Borough between March 1, 2013, and June 20, 2013. The third count charges improper communication and/or fraternization with a third student, 18, between April and June 20, 2014.

Staff Writer Peggy Wright: 973-267-1142; pwright@GannettNJ.com.