NJ: Wrongful death case treads new path
Patty
By SCOTT FALLON
The Record (Bergen NJ)
When a California civil jury found O.J. Simpson liable for the deaths of Nicole Brown
Simpson and Ronald L. Goldman, lawyers hailed it as a watershed case, largely because the
retired football star had earlier been acquitted of criminal charges.
Seven years later, the Joan Gisler case in New Jersey is seeking to take wrongful death
lawsuits a step further.
Gisler's brother, Joseph Luongo, alleges that his brother-in-law, Ernie Gisler, arranged
his wife's killing in 1994. She was found stabbed 43 times in the couple's home in Wayne.
The killing remains unsolved, but a 1996 case report from the Passaic County Prosecutor's
Office indicates that Ernie Gisler, who denies involvement but was deep in debt at the
time of the killing, was a prime suspect in a murder-for-hire plot.
Luongo is seeking an inheritance that his sister had come into before her death, in
addition to real estate holdings the couple shared. The case is to resume today before
Superior Court Judge David Waks in Paterson after a brief hearing last month.
What separates this case from Simpson's is that Ernie Gisler has never been charged.
The case may be unique in coming before a New Jersey civil court. The majority of wrongful
death lawsuits deal with fatal accidents or medical malpractice in which the victim's
family seeks to prove someone liable. In the few cases involving homicides, the lawsuits
typically come after the defendant has been convicted.
"A case like this is extremely rare," said Jay Feinman, a professor at the Rutgers School
of Law in Camden. "If there hasn't been enough evidence for a grand jury to indict, I
think it would be difficult to sway a civil jury or a judge. But in legal terms, it
doesn't matter that there hasn't been a conviction or even a charge. This is purely a
civil matter."
The basis of the lawsuit is the battle over Joan Gisler's estate. Two months before the
killing, Joseph Luongo Sr., 83, died of a stroke at his home in Rutherford. He bequeathed
his estate equally to his two children, including his still-unsold house, valued at nearly
$240,000, and $100,000 in the bank.
In court papers, Ernie Gisler is seeking his wife's share. Luongo, citing "bad faith and
unclean hands," countersued, saying his brother-in-law cannot legally profit from his
wife's death.
"This case isn't about money," said Richard Pompelio, Luongo's lawyer, who runs the New
Jersey Crime Victims Law Center. "It's about a brother who is convinced, and I believe
rightly so, that this man is guilty of this murder."
Joan Gisler was found dead about 6 p.m. Sept. 13, 1994, by her husband, who had returned
home after working all day for his construction company.
Almost immediately, investigators ruled out robbery as a motive. There was no sign of
forced entry or an initial struggle. A diamond pendant still hung from the victim's neck.
No useful physical evidence was found.
After initial questioning, Ernie Gisler -- who has since moved to Los Angeles -- refused
to cooperate with police, according to investigators.
Soon after the killing, he sold the couple's furnished condo in Florida for $140,000, even
though it was purchased unfurnished in March 1986 for $164,000. He also closed his wife's
Florida bank accounts, which had $84,000 in cash and CDs.
Darren Del Sardo, his lawyer, said in an opening statement last month that there is no
physical evidence linking his client to the killing. "This case is clearly
circumstantial," he said. "This case is based upon hearsay that's based upon hearsay."
On the criminal side, the case has never been presented to a grand jury. The
investigation, which is still open, has been stalled by a lack of evidence and witnesses.
Ernie Gisler is not required to be present for the civil case.
Because he has not answered interrogatories in the civil case and has invoked his Fifth
Amendment right against self-incrimination, the two sides began dueling in what is called
a proof hearing last month before Waks. The defense cannot call witnesses or enter
evidence in a proof hearing. Lawyers merely question and cross-examine the plaintiff's
witnesses.
The burden of proof in such a hearing is much lower than even that of a civil case, which
is based on a preponderance of evidence. The verdict in a proof hearing is based solely on
whether the scenario the plaintiff describes might have happened.
Unlike the Simpson case, Luongo's lawyer doesn't have the power that prosecutors have or
access to evidence gathered in the criminal investigation.
"You're essentially proving the same set of facts that you would in a criminal court,
except you don't have the investigative powers of a prosecutor," Pompelio said. "Would a
criminal prosecution be a more detailed case? Absolutely. But there is a wall between
civil and criminal cases."
That wall can be breached, though. Those subpoenaed include Sgt. James Wood, the lead
investigator for the Prosecutor's Office, and Detective Matthew Dox, a Wayne police
investigator.
"It's a bit of an awkward position," Wood said last month before the start of the trial.
"I'm not interested in this being taken care of in a civil trial. I want this case taken
care of in a criminal court."
Pompelio has also subpoenaed a police videotape taken two months after Joan Gisler's death
in which an undercover investigator poses as a hit man in an attempt to incriminate Ernie
Gisler.
On the premise that in a contract murder, Ernie Gisler would not have known the killer's
identity, the disguised investigator asks him for payment for having taken "care of
someone's wife."
Ernie Gisler, who didn't deny anything, tells the man to come back in a few days when he
can pay him, the report states. The sting operation turned sour two days later when the
undercover investigator approached Gisler outside his Carlstadt office. His demeanor had
changed completely, and he vehemently denied knowing what the stranger was talking about.
The investigator walked away. Ernie Gisler drove to the visitor's vehicle, opened the
unlocked door, and took the car's portable police radio, which he later returned, the
report states.
"We have to take these pieces together that Mr. Gisler had a hand in his wife's murder,"
Pompelio said during opening statements. "Can we conclude upon a reasonable doubt?
Probably not. But this is not based on that."
Luongo has said he hopes the case will help prosecutors in their criminal investigation.
But it's doubtful that previously unknown information will surface in the trial.
"Even if the plantiff wins the civil case, the prosecutor may still not have enough to
convince a jury beyond a reasonable doubt," said Frank Askin, a professor at the Rutgers
School of Law in Newark.
In an opening day of testimony, Brendan Suter, who worked for Ernie Gisler's contracting
company in the early 1990s, said his boss would often say in a joking manner that he
wanted to kill his wife.
Suter said he quit in 1993 because Ernie Gisler asked him to forge Joan Gisler's signature
on a number of checks made out to both of them.
Pompelio attempted to establish a romantic link outside the marriage, and Suter testified
that Ernie Gisler's friend Howard Morris, now deceased, had bought a condominium in North
Bergen for a business partner, Xiaoli Zheng, a Chinese national who went by the name Lily
June.
When Joan Gisler spent the winter months at the couple's condo in Boca Raton, June stayed
at Gisler's house in Wayne, June told police in December 1994. She would lie down in the
back of his Chevy Blazer whenever he took her to or from the house, a police report
states.
Interviewed by police, June denied any romantic ties with Ernie Gisler, describing the two
as friends and business partners.
But Suter testified that he changed the locks at the house at Ernie Gisler's request
during the winter of 1993 because a cousin who lived nearby would often come unannounced
to feed the dog while Joan Gisler was in Florida. He also installed blinds on some bare
windows at Ernie Gisler's request.
"They were not a very close couple," Suter said of the Gislers.