A criminal defense attorney is questioning the timeline after the judge in his client’s murder trial became the prosecutor three months later.
Damon Tyner was an Atlantic County Superior Court judge in December, when he presided over the trial of Rodney Smiley, accused of murder and other offenses in the 2012 killing of an Atlantic City man.
By March 15, he was heading the county’s Prosecutor's Office.
“I was very surprised,” attorney Ed Crisonino said of the move.
He questioned whether Tyner — who was officially nominated for the position in February — knew about the possibility when he was presiding over the case.
While he has seen prosecutors move to the bench, Crisonino said he’s not seen a criminal judge move to head the prosecutor’s office in the same county.
In two motions, Crisonino is asking for a new trial and also that the Atlantic County Prosecutor’s Office be disqualified from the case, which is now before Superior Court Judge Bernard DeLury.
Smiley was acquitted of murder in the case, which accused him of being one of the men in a Sept. 6, 2012 gun battle inside Stanley Holmes Village.
Jose Ortiz, 59, who was biking from his mother’s home that evening, was struck in the cross-fire and died.
Sixteen months later, Smiley was arrested and charged. While the jurors acquitted him of murder, they couldn’t agree as to whether he was guilty of the lesser charge of aggravated manslaughter or conspiracy. Smiley was convicted of witness tampering and a weapons offense. He is set to be sentenced this summer.
But before that, Crisonino will make his motions.
Tyner declined to comment on the issue.
His office has made sure that certain cases will not be overseen by him to avoid any conflict. First Assistant Prosecutor Cary Shill will handle those cases.
It’s similar to the situation when Ted Housel went from having a private defense attorney practice to become prosecutor in 2007. Any cases in which he dealt with the defendant previously was overseen by then-First Assistant Jim McClain, who later followed him as prosecutor.
McClain himself is now a judge. He is assigned to Civil Court to avoid presiding over any of the cases he oversaw as prosecutor.
