Outspoken lawyer for West Morris-Mendham teacher scolded

A lawyer for a suspended West Morris Mendham High School teacher accused of having sex with one student and sexting with two others was sternly ordered by a judge Wednesday to quit denigrating the charges and prosecutors in out-of-court comments to the media.

Superior Court Judge Stephen Taylor, sitting in Morristown, stopped short of imposing a gag order on defense attorney Timothy R. Smith. He did order that Smith -- who represents accused English teacher Nicole McDonough -- abide by the rules of professional conduct for lawyers or face a complaint being filed with the district ethics committee for attorneys.

“Your personal views on the legal sufficiency of an indictment does not trump the rules of professional conduct,” Taylor told Smith, in finding that some of Smith’s comments have bordered on being unethical.

Over a hearing that spanned nearly three hours, the judge also upheld the Morris County Prosecutor’s Office opposition to McDonough’s eligibility for admission to the Pre-Trial Intervention program.

Taylor also heard arguments for and against dismissal of the indictment charging three counts of official misconduct against McDonough, but said he would reserve judgment while the state’s Appellate Division is deciding whether official misconduct charges against a teacher in Middlesex County were appropriately dismissed by a trial-level judge.

Over the past five months, Smith has been openly critical to reporters outside-of-court about the official misconduct charges against McDonough, now 33, of Mount Olive. He has repeatedly called the case “a rogue prosecution.” He has stated that he knows McDonough is innocent and that someone in the prosecutor’s office is trying to make “a political name” for himself. He has said McDonough is being persecuted, and that no indictment should occur unless a grand jury “rubber stamped” the state’s case.

Assistant Prosecutor Christopher Schellhorn first attempted to put an end to “inflammatory” comments by Smith during a private meeting in February with one judge and Smith. The extrajudicial remarks continued, so Schellhorn last month filed a formal motion with Taylor for a gag order. He argued that Smith’s comments were disparaging, made at a critical time the grand jury was hearing evidence on the charges, and have the ability to taint a future trial jury, particularly since the stories are retrievable over the Internet.

Attorney Robert Scrivo, representing the Criminal Defense Lawyers Association of New Jersey, got permission to intervene on the gag order issue. Scrivo told Taylor Wednesday the association was concerned about restraints on First Amendment rights for lawyers and that a gag order might be imposed without a fuller analysis being conducted of the nature and extent of news reporting on McDonough.

Scrivo argued that less harsh options than a gag order were available and the judge ultimately agreed, ordering Smith to abide by the rules of professional conduct for lawyers. In his arguments, Smith agreed he has been outspoken but said he has the First Amendment right to speak his mind about the charges. He said he never intended for any of his comments to influence the grand jury or a future petit (trial) jury.

“I made my comments based upon a genuine belief this was an appalling, unconstitutional prosecution,” Smith said, adding that he believes the gag order was sought in response to “backlash” against the prosecution in the form of reader comments to stories about the case on media websites.

Smith didn’t apologize for his remarks and even repeated some of them, prompting the judge to rebuke: “This is not a show for the press. I’m not here to hear speeches.” The judge warned that he could impose a gag order or refer Smith’s conduct to the district ethics board if Smith makes further inappropriate comments out of court.

“There appears to be a pattern of comments by counsel which, if they do not currently run afoul of the rules of professional conduct, push against their borders,” Taylor said.

Smith also argued unsuccessfully to the judge that the Prosecutor’s Office abused its discretion by opposing McDonough’s admission into PTI. PTI is a one-time program under which criminal charges are dismissed against enrollees if they successfully complete a period of probation and fulfill other conditions. If McDonough is convicted at trial of official misconduct, she faces a minimum of five years in prison, with a mandatory five years to be served before parole.

Smith argued that the Prosecutor’s Office is trying to “criminalize” violations of school policies that McDonough may have committed by allegedly fraternizing against school rules with students. She specifically is charged with official misconduct counts by having sex with one 18-year-old student and propositioning two other 18-year-old males for sex. She is not charged with any sexual offenses because all the alleged victims were 18 at the time.

“If ever there is a victimless crime, this is one of them,” Smith said. He told the judge that none of the “victims” reported feeling victimized or pressured by McDonough. One youth even told authorities he had “a loving” relationship with McDonough, Smith said.

“If they were pressured at all, it was by police investigating this matter, not by Ms. McDonough,” Smith said. He also argued that prison would be a terrible hardship for his client because she is a single mother of children aged six and three, and has no financial support from her ex-husband, a drug abuser.

Schellhorn, the assistant prosecutor, argued that McDonough is not an appropriate candidate for PTI and that prison is a hardship for everyone.

“The defendant seeking out sex, propositioning students for sex, is very troubling to the state,” Schellhorn said, adding that McDonough also is accused of sending lewd images of herself to some of the victims.

Schellhorn said that victims of official misconduct by a teacher include the community, taxpayers who send their children to school to learn and not be preyed upon, other teachers, and districts with reputations and standards to uphold.

The judge upheld the denial of entry into PTI, saying case law dictates that judges can’t substitute their judgment for that of a prosecutor unless they find a gross abuse of discretion or error. Taylor agreed that prison would be a hardship for McDonough if she is convicted.

“Prison is a hardship, it’s meant to be a hardship,” the judge said.

Smith eventually wants the indictment dismissed altogether, contending there is no specific law in New Jersey that bans a teacher from having sex with a student who is 18 or older. Since McDonough is not charged with a sex crime and can’t be under current law, there is no basis for an official misconduct charge, Smith said.

Official misconduct, in part, charges that a public servant committed an unauthorized act in his or her position to gain a benefit for his or herself or another.

By prosecuting McDonough, Smith said, “the state wants to impose morals on people.”

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 her 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.

The second count in the indictment charges her with engaging in improper communication and/or fraternization with a student, 18, in Mendham between March 1 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.