A former New Jersey prosecutor who alleges members of Gov. Chris Christie’s administration quashed a criminal case to protect a political ally faced off Tuesday in appellate court against a state lawyer trying to block access to grand jury records.
In his whistleblower suit, Bennett Barlyn, a former Hunterdon County assistant prosecutor, alleges he was fired for protesting that the decision to drop the charges was based on political cronyism rather than on the merits.
Three indictments had charged then-Hunterdon County Sheriff Deborah Trout and two of her deputies with various misconduct that included supplying law enforcement IDs to ineligible people—among them Robert Hariri, CEO of Celgene Cellular Therapeutics, who served on Christie’s transition term.
In addition, during the 2009 election, Trout publicly backed Christie and running mate Kim Guadagno, a former Monmouth County sheriff who is now lieutenant governor.
Barlyn has sued New Jersey, the Attorney General’s Office, former Attorney General Paula Dow and others allegedly involved.
Last August, a lower court held he could access grand jury records—transcripts exhibits, subpoenaed documents and other materials—to help him establish that the dismissed criminal case was not legally deficient, as the state claimed.
Mercer County Superior Court Judge Darlene Pereksta said the records were relevant because “an employer may be more likely to fire an employee for making complaints about corruption or unlawful activity when such complaints are well-founded as opposed to when such complaints are completely illusory.”
The Appellate Division allowed an interlocutory appeal, which was argued on Tuesday morning in Jersey City before Judges Carmen Messano, Margaret Hayden and Garry Rothstadt.
Deputy Attorney General Jane Greenfogel told the panel that Barlyn had not shown the compelling need that is required for releasing otherwise secret grand jury documents.
She also contended Pereksta was mistaken in thinking she did not have to consider the policy of encouraging people to testify by keeping their testimony confidential. She said Pereksta’s view was that with Trout and her deputies gone from office, there was no risk of retaliation against those who testified against them, but Pereksta did not take into account the chilling effect in other cases.
Messano asked Barlyn’s attorney, Robert Lytle of Szaferman Lakind Blumstein & Blader in Lawrenceville, why the chilling effect was not a factor, especially since a greater need for secrecy of grand jury proceedings has been recognized in cases that end without indictment. Weren’t the dismissed charges here the “functional equivalent” of no indictment?
Lytle said he did not think so. Not only were the indictments public, but Trout and her deputies had sued Hunterdon County in federal court for malicious prosecution, litigation that is ongoing. “The cat’s out of the bag,” and “there is no anonymity to protect,” he said.
He also mentioned that he asked the state for a list of grand jury witnesses who might be embarrassed if the records are released but had not received one.
Messano reminded Lytle that the panel denied his request to supplement the record by having the state reveal the names of any such witnesses, and in any event, Lytle had the burden to overcome the secrecy that covers grand jury proceedings.
Greenfogel further argued that the criminal case was “totally unrelated” to Barlyn’s matter, thus failing on another requirement for releasing the records. There is not one recorded case in New Jersey that allows an unrelated civil plaintiff to get grand jury records, she told the court.
To Mes-sano’s retort, “I guess it depends on how you define ‘related,’” Greenfogel responded that the parties and witnesses must be the same and the records must be necessary for the civil litigation.
Messano pointed out that the grand jury materials might help Barlyn rebut the state’s contention that it had a legitimate reason to fire him.
When Greenfogel expressed doubt that the grand jury records could show Barlyn had a reasonable belief the dismissal was for a corrupt, political purpose, Messano asked, “How can we know?” given there has been no discovery.
He suggested that Barlyn might have known a lot about the indictments, even though he was not the one who presented them, from talking with his colleagues in Hunterdon County. “It might surprise you how much he knew,” the judge said.
Greenfogel replied that Barlyn can depose anyone he wants and does not need the grand jury files.
Lytle told the court the records could help with the causation element. Motive can be proved by inference from circumstantial evidence, which the records might provide by showing that dismissal of the indictments was improper, thereby supplying a reason to retaliate against Barlyn.
Hayden inquired if proving a corrupt motive would require proof that the “decision maker”—whoever decided to kill the case—knew it was a solid one.
Lytle said the record shows the decision maker “did in fact know” because the AG’s office came in and took over the case and removed the files.
But prosecutors often throw out indictments, Messano stated, adding it “happens all the time.”
Lytle disagreed, calling it a rare move usually done because of defects.
Messano said there could be myriad reasons, including the inability to prove the case beyond a reasonable doubt. He referred to a memo written by Deputy Attorney General Christine Hoffman explaining why the evidence was insufficient to proceed against Trout and the others.
Greenfogel also addressed the state’s argument that Pereksta lacked jurisdiction to release the records. She said the request for the records should have been directed to Judge Paul Armstrong in Hunterdon County, whom Assignment Judge Yolanda Ciccone designated to hear matters concerning grand jury proceedings.
Lytle saw that as a practical concern rather than a jurisdictional one.
The Bridgegate scandal came up at one point, in response to a question by Hayden. Federal prosecutors and state legislators are investigating allegations that the closing of local access lanes to the George Washington Bridge last September, creating massive traffic jams in Fort Lee, was orchestrated by Christie appointees and staff as political retribution against the town’s mayor for not endorsing Christie’s reelection last fall.
Hayden wondered why Barlyn was intent on pursuing circumstantial evidence of motive from the grand jury records rather than more direct evidence, such as memos and emails. She asked, “Why don’t you get those first?”
Lytle started to say that you wouldn’t expect that sort of thing to show up in an email, but then stopped and said, “although recent circumstances…”
“Never say never,” Messano interjected, drawing laughter in the courtroom.
Hayden continued, telling Lytle, “So far you have nothing.”
He conceded he had “no smoking gun,” something that said the indictments were dropped for political reasons.
In a posthearing interview, Lytle, referring to his own experience as a former prosecutor, called it “extremely rare” to dismiss a criminal case outright rather than just the weaker parts.
Barlyn added that the Trout indictments were “preemptively dismissed,” in contrast to the usual scenario where charges are dropped in response to a defense motion.
Asked about the impact of Bridgegate, Lytle said recent events have shown that where there is smoke, there is fire and “in this case, the smoke alarms are going off all over the place.”