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Defense lawyers for two former students accused of felony murder in the fatal 2000 Seton Hall dormitory fire are charging Essex County prosecutors with grand jury misconduct and manipulation. In an 86-page motion to dismiss, filed with Superior Court Judge Harold Fullilove, the defense team alleges the prosecution presented prejudicial information that the grand jurors should never have heard and withheld information they should have heard. The defense lawyers also chastise prosecutors for bootstrapping a third-degree arson charge to a felony-murder count, which carries a minimum of 30 years in prison. They don’t admit their clients started the fire but say it was an accident, which means the purposeful intent required by statute was lacking. “There is no such animal as an unintentional or accidental arson,” write William DeMarco of Wayne and Salvatore Alfano of Bloomfield, representing defendant Joseph T. LePore, and Michael Bubb of Morristown, representing defendant Sean Ryan. The lawyers say Assistant Essex County Prosecutor Norman Menz Jr. told the grand jury that “it does not generally matter that the act which caused the death was committed recklessly or unintentionally or accidentally.” They also accuse Menz of deliberately failing to give the mandatory causation charge, i.e., informing the jurors they must link the underlying arson to the death. Not only must the deaths be a probable consequence of the underlying arson, the defense maintains, but the law is clear that a person is liable for felony murder “only if the resulting death is not too remote, [or] accidental in its occurrence … “ As for information not presented, the defense lawyers say grand jurors were never told that the prosecutors agreed to pay one mobster, convicted felon Daniel Ricciardi, $60,000 for his help in the case. Worse, they say, the prosecutor deceived the grand jury by having Daniel Ricciardi testify he received no deal but never mentioning that his brother Thomas Ricciardi, a fellow Lucchese crime family member and hit man turned informant, who has admitted his role in nine murders, received a one-year sentence reduction. Assistant Essex Prosecutor Charlotte Smith, a spokeswoman for Prosecutor Paula Dow, says of the allegations raised by the defense, “None of them have any merit, and we will fully respond in court at the appropriate time.” DROP-OUTS AND NO SHOWS The defense motion, filed April 25, is the latest salvo in the tortured, multimillion-dollar prosecution – now in its sixth year with no end in sight — which followed the Jan. 19, 2000, blaze in a third-floor lounge at Boland Hall on the South Orange campus of Seton Hall. Three freshmen died, and 58 were injured. The well-publicized fire triggered changes in fire-safety laws and sparked media pressure to solve the case. The lawyers criticize the stop-and-go grand jury proceedings. There have been three panels so far. Jurors did not sit at all during one eight-month stretch, only to be called back for two quick sessions and a June 5, 2003, vote on the arson and felony counts based upon some testimony presented as much as 20 months earlier. More important to the defense, the special grand jury that returned the arson and felony murder indictment began with the required 23 jurors but wound up with only 14 voting — of whom nine had missed one to six sessions. The prosecutor’s office produced signed statements by the nine who missed sessions, in which the jurors say they have read the needed transcripts, but the defense team notes the statements were not under oath, adding that failure to abide by the statements carries no penalty. Jurors also sometimes showed up late, causing Assignment Judge Joseph Falcone to address the jurors. The defense brief says that while Falcone was lecturing the panel about being late, some were reading transcripts to catch up. Prosecutors brought in 154 witnesses and 113 exhibits, though there are no eye witnesses, no guilty admissions and no physical evidence linking the suspects to the fire. WAS GRAND JURY POISONED The defense lawyers decry what they say was a mountain of information fed the jurors in violation of the U.S. Constitution, case law and the New Jersey Grand Jury Model Manual. Jurors learned, for instance, that defendant Ryan refused to give a formal written statement, while being told by a state trooper that all the other students from Boland Hall gave statements, and that it was out of the ordinary not to do so. The jurors also learned that Ryan sought counsel, arguing a Sixth Amendment rights violation; that two other initial suspects took and passed polygraphs, allowing the inference that LePore and Ryan did not; that LePore and Ryan were drinkers, marijuana smokers and rude trouble-makers more likely to engage in out-of-control conduct; and that another student witness who testified he believed the fire was an accident had also retained a lawyer. Among the snippets of information either played down or not heard by the grand jury, the defense maintains, are testimony from a student who accused an early suspect of threatening to burn down a room in the dorm earlier that night; the presence of another student in the lounge five to 10 minutes before the fire alarm sounded while no one saw the defendants after 3:30 a.m. (the fire is estimated to have begun between 4:20 and 4:35 a.m.); and the presence of another student smoking in the lounge shortly before the blaze. That suspect accused of threatening to burn down a room did, however, testify himself, denying the allegation. Prosecutors say he passed a polygraph. But the most explosive information allegedly withheld from the panel concerned the Ricciardi brothers. Thomas Ricciardi, serving 10 years on a murder charge during 2000, told authorities that his brother Daniel had information about the fire a few weeks after it occurred. Daniel, who was in a federally supervised program at the time, agreed to help. His girlfriend worked with Joseph LePore’s mother, Marie, who Daniel Ricciardi said discussed the fire with him a month after the blaze. Daniel Ricciardi asked for $60,000 for “relocation expenses” as the federal government was about to move him to Arizona. Essex prosecutors said he needed to move because of his cooperation in the Seton Hall probe. After prosecutors approved the payment, he balked at signing the cooperation agreement. He nonetheless cooperated and has received at least $17,500, though prosecutors insist it was not for his testimony. A third Lucchese family member was also to receive $60,000 but died before he could help in the case, The Star-Ledger reported. Ricciardi told investigators that Marie LePore told him the defendants started the fire during “a prank that went bad” as they played with lighter fluid while drinking late into the night. The defense, noting that LePore did not say where she learned what she knew, calls Ricciardi’s testimony rank hearsay that is inadmissible, though the prosecutor’s office has already said it does not intend to call Ricciardi at trial. According to the defense brief, Daniel Ricciardi initially lied to detectives, saying he had no knowledge of the fire when queried in early 2000 by County Det. Dennis Masucci, who so wrote in a May 2001 affidavit. But after his brother, Thomas, wore a wire and secretly recorded Daniel discussing Marie LePore’s fear her son was involved, Daniel Ricciardi flip-flopped and detailed his discussions with LePore. The brief then quotes a colloquy between prosecutor Menz and Daniel Ricciardi in which the witness is asked, “Did you relate to Lt. Masucci [in April 2000] what you told us today?” Ricciardi answered yes. This caused the defense team to write: “Either Assistant Prosecutor Menz presented false testimony to the grand jury and withheld the fact … that Ricciardi had lied to law enforcement authorities in April 2000 or the affidavit [of] Lt. Masucci … was false.” Masucci’s affidavit was used to secure a warrant allowing police to plant bugs in the LePore home in Florham Park, as well as on their phone and LePore’s cell phone. The secret mikes were in place from June 13, 2001, to the following July 9, with the prosecutor’s office seeking the special grand jury a week later. In a separate indictment, the grand jury charged LePore, her husband, Joseph E. LePore, and a daughter, Lauren, with obstruction of justice, hindering prosecution and tampering. Lauren is also accused of perjury. The prosecutors did call Mr. and Mrs. LePore into the grand jury, with the defense charging the move was highly inflammatory because they knew the couple would invoke their Fifth Amendment right to remain silent. Judge Fullilove granted Dow’s office’s request for an extension to May 31 to file a reply brief to the motion. He set down June 17 for oral argument, but the date will likely be pushed back, says the judge’s staff.

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