A New Jersey appeals court has agreed to decide whether grand jury records of an indictment allegedly squelched by Gov. Chris Christie’s administration to protect a political ally should be released.
The dropped criminal case is at the center of a whistleblower suit brought by career prosecutor Bennett Barlyn, who claims he was ousted for protesting political cronyism and corruption.
The Appellate Division on Oct. 16 gave the state leave to file an interlocutory appeal of a Mercer County judge’s order granting Barlyn’s request for release of the grand jury transcripts, exhibits and other records.
Superior Court Judge Darlene Pereksta agreed with Barlyn that they might help refute the state’s position that it opted not to pursue the criminal charges against former Hunterdon County Sheriff Deborah Trout and two others because the case was weak.
The AG argues that as a plaintiff in a civil suit, Barlyn has no right to materials from a grand jury proceeding that led to the indictment of other people.
Trout, Undersheriff Michael Russo and Sheriff’s Investigator John Falat Jr. were indicted in March 2010 on 43 charges, mostly for official misconduct, including supplying phony law enforcement IDs to Robert Hariri and others.
Hariri, CEO of Celgene Cellular Therapeutics, was a prominent supporter of Gov. Christie in the 2009 election and served on his transition team. Trout had publicly backed Christie and running mate Kim Guadagno, a former Monmouth County sheriff.
When the charges were announced, Russo reportedly remarked that Christie would have them thrown out.
On May 7, 2010, the same day the indictment was unsealed, Attorney General Paula Dow, a Christie appointee who had previously worked for him when he was U.S. attorney for New Jersey, took over the Hunterdon County Prosecutor’s Office and the case against Trout, Russo and Falat.
The former county prosecutor, J. Patrick Barnes, a holdover appointed by Gov. James McGreevey, had asked the state Division of Criminal Justice to step in prior to the indictment and before Christie was elected, because the matter involved one county law enforcement agency investigating another. But it did so only after Christie became governor.
In May 2010, Dow had Barnes resign, replacing him with Deputy Attorney General Dermot O’Grady, who sent the evidence to Trenton.
On Aug. 23, 2010, the indictments were dismissed at the request of Deputy Attorney General Christine Hoffman, chief of the Corruption Unit, based on “legal and factual deficiencies.”
Barlyn alleged that when he ran into O’Grady in a hallway that day, he told him the dismissals were improper, unlawful and done for a corrupt political purpose. One day later, he was suspended without explanation and escorted from the premises and three weeks after that terminated, again without a reason being given, he claims.
His whistleblower suit named Dow, O’Grady and the Attorney General’s Office, among other defendants.
This past Aug. 23, Pereksta ordered from the bench that the grand jury records be released. Deputy Attorney General Jane Greenfogel immediately asked for a protective order, prohibiting disclosure to third parties, and more time to comply so the state could decide whether to seek an appeal.
Pereksta gave the state 30 days and said it could move for a protective order. Before doing so, the state tried to get Barlyn to agree to an order allowing use of the materials solely “to investigate, prosecute or defend the claim in this action and not for any other purpose” and requiring that any filing with the court be done under seal.
The proposed order applied to all documents, testimony and exhibits and other materials produced in discovery and all “derivative documents and information.”
On Sept. 11, Barlyn’s lawyer, Robert Lytle, rejected it, saying it was “so broad that it will encompass virtually every document generated in connection with this case,” contrary to the presumption of public access to documents filed in court. He added that he would, however, agree to an order pertaining just to the grand jury records.
That same day, the state moved for leave to file an interlocutory appeal. In response to its request for a stay pending appeal, Pereksta pushed back the date for disclosing the grand jury materials until Oct. 28.
The motion for a protective order was filed Oct. 9. The state now seeks a narrower order protecting only the grand jury records and derivative documents.
The motion was to be argued on Oct. 25, along with one for a stay pending appeal, but both are on hold in light of the appeal.
Appellate briefing is to be completed by mid-December with oral argument set for Jan. 28.
Barlyn says of the fight over the records: “One side of the Attorney General’s house—the civil side—is by its aggressive attempts to suppress discovery apparently abetting the cover-up and misconduct engaged in by the other side, the Division of Criminal Justice.”
Given the media attention to the case, he sees “no suitable reasons to keep this material confidential except to prevent embarrassment to this administration prior to an election.”
He notes that an editorial about the case in The Star-Ledger on Oct. 20 made that same point.
The litigation was also the subject of a lengthy front-page article in The New York Times on Oct. 10, which reported interviews with Trout grand jurors who thought the case was strong and were angry that it was tossed out.
Barlyn says the Times story, which is attached to his opposition papers, is “going to be the proverbial 800-pound gorilla in the courtroom” on Oct. 25.
Dow, appointed by Christie to a judgeship in Burlington County Superior Court last year, declines comment.
The Attorney General’s Office also declines comment, as does Lytle, of Szaferman, Lakind, Blumstein & Blader in Lawrenceville
William McGovern, the assistant Hunterdon County prosecutor who secured the Trout indictment, filed a tort claim notice alleging he was forced to resign because O’Grady conditioned his continued employment on his remaining silent about the state’s handling of the Trout matter.
McGovern did not sue but—according to his lawyer, Thaddeus Mikulski Jr. of Hamilton—believes Barlyn’s termination was unlawful and expects to be called to testify.