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Ex-Prosecutor Urges Legislative Probe In Hunterdon Sheriff’s Case

Trout and Russo
Charges against Hunterdon County Republican Sheriff Deborah Trout (right) and Undersheriff Michael Russo were dropped after Christie's Attorney General's Office took over the prosecutor's office.

Charles Ouslander, the Hunterdon County first assistant prosecutor who supervised the 2010 indictment of Republican Sheriff Deborah Trout and two aides for official misconduct, yesterday asked the Legislature’s Select Committee on Investigation to expand its inquiry to include whether Gov. Chris Christie’s Attorney General, Paula Dow, was politically pressured by her boss to take over the prosecutor’s office and kill the indictment.

“As a former career county and state-level prosecutor with firsthand knowledge of the events in question, I again express my belief that the actions of the Attorney General were unlawful and, from my vantage point, obviously influenced by improper political considerations,” Ouslander wrote in a letter to Assemblyman John Wisniewski (D-Middlesex), the committee’s co-chair, that he emailed to the committee’s special counsel yesterday. “As such, it is of vital public importance that the Committee undertakes an exhaustive investigation into the conduct of the attorney general.”

For Christie and his inner circle, the allegations charging that the governor’s office brought pressure to kill the Hunterdon County indictments are as serious both criminally and politically as Bridgegate and Hoboken Mayor Dawn Zimmer’s charge that Lt. Gov. Kim Guadagno threatened to withhold Sandy aid if she did not approve a high-rise development represented by a Christie insider’s law firm. The administration has been fighting to suppress the release of information on the case, which is the subject of a civil lawsuit that has been winding its way through the courts.

Lawyers for Christie’s Attorney General’s Office have filed 17 motions since August in an effort to overturn a Superior Court judge’s order requiring the release of the grand jury proceedings demanded by Bennett A. Barlyn, an assistant county prosecutor who has sued the state for wrongful firing.

Political Motivation

Barlyn was fired after he complained to Deputy State Attorney General Dermot O’Grady, whom Dow had sent in to run the Hunterdon County prosecutor’s office, that the August 7, 2010, decision to drop the case against Trout, an ally of Christie and Guadagno, without telling the Hunterdon prosecutors who had handled the case was “corrupt” and politically motivated.

The decision by Dow’s office to drop the case against Trout and two aides because of “legal and factual deficiencies” came exactly three months after the May 7, 2010, release of a Hunterdon County grand jury’s indictment of Trout, Undersheriff Michael Russo, and Sheriff’s Investigator John Falat Jr. on 43 criminal counts ranging from hiring sheriff’s officers without proper background checks to forcing employees to sign loyalty oaths and making a fake police badge for a prominent Christie campaign contributor. The grand jury had also issued a separate presentment identifying non-criminal malfeasance by other sheriff’s office employees.

The eventual squelching of the indictment did not come entirely as a surprise to Hunterdon prosecutors and investigators. After all, on the same day that the indictment was released, Dow not only dismissed Prosecutor J. Patrick Barnes, a Democratic holdover who had been serving for seven years, but also took control of the prosecutor’s office. She put Deputy Attorney General Dermot O’Grady in charge, announced that the Trout case would be handled by her office, and ordered all case files shipped to Trenton.

Pulling Rank

According to Barlyn, Barnes told colleagues that Dow told him he was being replaced because of the Trout case and that the decision was made by “people above” her; the only two people who outrank the attorney general in New Jersey state government are the governor and lieutenant governor. Further fueling Hunterdon prosecutors’ fears was Russo’s declaration that day to fellow staffers, reported in the Hunterdon Democrat, that Christie would “step in (and) have this whole thing thrown out.”

Barlyn and Ouslander said in interviews earlier this week that they hoped the ultimate release of the grand jury proceedings would prove that the legitimacy of their case against Trout and her aides.

But only a legislative committee armed with subpoena powers could demand the internal memos and other documents showing communications between the attorney general’s office and the governor’s office, and compel key people like Dow, O’Grady, Lt. Gov. Kim Guadagno, and Robert Hariri, a prominent Christie donor and biomedical CEO named as a witness in court papers, to testify on why the case was killed in such an unusual way, they said.

The Joint Select Committee on Investigation has been given broad authority to investigate any abuses of power and their coverup by the Christie administration, and it has issued 37 subpoenas in the last month, extending its investigation this week beyond Bridgegate to focus on Christie’s cancellation of the ARC Tunnel, the 2011 Port Authority toll increase and Christie’s placement of patronage appointees at the bistate agency. The U.S. Attorney’s Office, which has been focusing its efforts on the Zimmer allegations, also could choose to investigate the Hunterdon case if it is looking to establish a pattern of abuse of power for political purposes within the Christie administration.

In his letters to Wisniewski and Senate Majority Leader Loretta Weinberg (D-Bergen), the committee’s cochairs, Ouslander notes that he has “gone on record to corroborate the allegations of official misconduct against the New Jersey Attorney General relating to the handling of the criminal case against Sheriff Debra Trout made by two former colleagues: Bennett Barlyn and William McGovern,” a Republican assistant prosecutor who also protested Dow’s decision to kill the Trout case.

Ouslander, now a law guardian for the Office of the Public Defender and a Hopewell Township municipal court judge, volunteered to cooperate with any investigation into the “abuse of law enforcement powers exercised by the New Jersey Attorney’s Office when it superseded the Hunterdon County Prosecutor’s Office in 2010” and its “unprecedented dismissal of the 43-count indictment.”

Ouslander said in an interview Wednesday that Dow’s decision to take over the prosecutor’s office in May 2010 in order to kill the indictment made no sense to him because he, McGovern, Hunterdon County Prosecutor J. Patrick Barnes, and Chief of Detectives Dan Hurley drove to Trenton to meet personally with Dow and First Assistant Attorney General Philip Kwon the week after Christie’s inauguration in January 2010 and offered to turn over the case to the attorney general’s office.

“We said you should take this over because we work side by side with the sheriff’s office,” Ouslander recalled. “They said, no, you take it. Philip Kwon, who served in the U.S. Attorney’s Office, with Christie said it was a legitimate indictment, and that this guy (Undersheriff Russo) shouldn’t be in law enforcement. Once they gave us the green light, we went ahead. It was probably the cleanest presentation of a grand jury indictment I’ve ever seen, and the grand jury obviously agreed.”

That was before Dow took over the prosecutor’s office, however, and before her designee, Deputy Attorney General Christine Hoffman, went into court and announced that Dow’s office had decided to drop all charges. Following the dismissal, Trout, Russo, and Falat filed a $10 million lawsuit of their own in federal court, charging the Republican freeholder board, the county counsel, and a slew of county prosecutors for wrongful arrest, malicious prosecution, and damage to their reputations.

An Out-of-the-Ordinary Decision

Dow’s unusual decision to take over the prosecutor’s office has been the subject of considerable discussion in the legal community, said Robert Del Tufo, a former U.S. Attorney and state Attorney General. Del Tufo said he found the Hunterdon case troubling. He said “taking over a county prosecutor’s office requires the consent of the governor,” and that Dow’s action was a highly unusual step.

“I can only remember two other times over 50 years -- one in Bergen County where the prosecutor was corrupt and another down south – where the state took such a step,” Del Tufo said. “It was also unnecessary. If somebody wanted to get rid of that indictment because it was against a sheriff who was a Christie supporter, the attorney general could have taken the case to Trenton and taken steps to convince an assignment judge to dismiss it. But booting the prosecutor aside and dismissing his assistants seems to be going overboard.”

Barlyn, who was fired after protesting the dismissal of the case, won an important victory in August when a Superior Court judge hearing his wrongful termination lawsuit ordered the release of grand jury documents in the Trout case. But the Christie administration appealed, leading to a January 28 hearing before a three-judge appeals court panel, which is likely to issue its decision in the spring. Either way, an appeal to the state Supreme Court is likely, which means it will be months before the grand jury papers are released, unless, of course, they are subpoenaed by the Wisniewski-Weinberg committee.

“What I really would like to know is who was behind the decision by Attorney-General Paula Dow to take over the prosecutor’s office and kill what prosecutors and grand jurors have said was a proper indictment,” said Barlyn, a former state and county prosecutor with a sterling reputation who coauthored a revision of the state sentencing code, but is now teaching middle school.

Barlyn and Ouslander theorized that Hariri, the Celgene Cellular Therapeutics executive and prominent Christie donor who was named in the indictment as a witness for receiving a phony law enforcement identification, and/or Guadagno, who as Monmouth County sheriff was friendly with Trout before she ran for lieutenant governor, most likely pressured Christie and Dow to suppress the Trout case. “You have to connect the dots,” Barlyn said. He noted that Guadagno thanked Trout, who put together a group of county law enforcement officers to work for the Christie-Guadagno ticket, for her help in an email two nights after the election: “Saw a lot of your staff on the trail – thank you for giving them to us!”

Hariri and Guadagno have not responded to repeated requests for interviews from NJ Spotlight this week nor have they commented previously on the case in the four months since the New York Times broke the story a month before Christie’s landslide reelection or after it became national news on networks like CNN and MSNBC.

Conspiracy Theories

Christie denied involvement in the dismissal of the indictments in late 2010, and Michael Drewniak, the governor’s press secretary, attacked Barlyn’s allegations as “wild-eyed conspiracy theories” in the New York Times last October.

However, Barlyn and Ouslander insist that prosecution of the Trout case would have been highly embarrassing for Dr. Hariri, the multimillionaire Celgene CEO. The Hariris, who gave $15,500 to Christie’s campaign and the Republican State Committee, own a Bernardsville estate and were neighbors in 2009 and 2010 of Todd Christie, the “First Brother” who is Christie’s top fundraiser. Hariri served on Christie’s 2009 transition team on health issues.

Hariri’s involvement in the case also would have been embarrassing to his subsidiary’s parent company, Celgene, whose chairman, Dr. Sol Barer, later headed Christie’s panel that recommended the merger of the state’s medical schools into Rutgers University, accompanied Christie on his trip to Israel, and has given at least $102,600 personally to Christie and the state GOP since 2009.

Hariri, a world-famous stem cell research entrepreneur whom Christie named to the prestigious New Jersey Council on Cancer Research, was named in the Trout indictment as a witness after receiving a fake “National Emergency Medical Response Team” badge manufactured for him by Undersheriff Michael Russo and sheriff’s investigator John Falat Jr., the two sheriff’s officers indicted along with Trout, after he flew Trout and Russo to a conference on a private jet.

Hariri was very friendly with Trout, Russo and Falat – a controversial trio who had been part of a rogue Warren County SPCA chapter that the State Commission of Investigation called an “out-of-control . . . paramilitary” organization that existed primarily to enrich its members. Russo, the chapter’s second-in-command, took the Fifth Amendment in the 2000 probe. The extent of that friendship would have come out in any trial or if Barlyn succeeds in getting the grand jury transcripts, which would include details of Hariri’s interview with investigators, unsealed.

Unlike the Bridgegate and Hoboken cases, in which Republicans have defended Christie, Hunterdon County’s Republican establishment says privately -- and one former freeholder says publicly -- that the Christie administration killed the Trout, Russo, and Falat indictments for political reasons.

“This is still very upsetting to me,” said George Melick, a staunch Republican who retired last month after 35 years as a Hunterdon County freeholder. “I can’t imagine to this day the attorney general’s office sending a new prosecutor up here and getting these indictments thrown out after 23 citizens of Hunterdon County spent all that time, listened to all that testimony lined up by very able prosecutors, and decided there was reason to charge the Sheriff’s Office on 43 counts.

“This all goes back to Trenton,” Melick insisted. “That’s where the decisions were made. I’m very supportive of Barlyn and find him very credible. I hope Barlyn is successful in his lawsuit because these grand jury documents should see the light of day so that the public can make its own judgment on the merits of the prosecution.”

One well-placed Republican, an active Christie supporter who asked not to be identified in order to speak candidly, said “I don’t have any doubt the governor’s office wanted the indictment to go away. Dr. Hariri from Celgene was a big donor, and he got in deep with these people, flying them around the country. Deborah (Trout) was the face of the operation, but Russo was the brains. He was a Svengali who ingratiated himself with the governor and his staff and with Hariri too. He could sell ice to Eskimos.”

The Republican said the Sheriff’s Office “operated with the worst kind of cronyism,” and that Trout “gave out ID’s and badges like she was giving out campaign pins.” The source said the trial would be an embarrassment to Hariri. “I would bet this guy went through Todd Christie or Dr. Barer to have them tell the Christie administration to get rid of this thing. We know how this governor operates.”

William Courtney, attorney for Trout, Russo and Falat in their wrongful arrest lawsuit, charged that the original indictment was part of a political vendetta by the freeholders against Trout, who had won an $800,000 settlement in a discrimination suit years before she ran for sheriff.

“The indictment didn’t have any merit and the attorney general’s office confirmed it by dismissing it, Courtney said. “Dr Hariri met Trout and Russo at a function and volunteered to help for free if they were injured or needed (medical) advice and not charge them. My clients feel so bad they’re dragging Dr. Hariri into this. He’s a kind-hearted physician and surgeon. They’re making it sound like Dr. Hariri was in a conspiracy with the governor so he could have a sheriff’s badge.”

Courtney said the badge was “more like an ID tag and said Police Surgeon on it,” and that it would be useful as official identification for Hariri when he came to the Sheriff’s Office in Flemington.

Trout, who was elected sheriff in November 2007 after winning a four-way Republican primary in June, had a stormy tenure from the start.

She had barely taken office in January 2008 when Mark Kobner, a retired detective working in the sheriff’s office, called the prosecutor’s office to report that Trout was failing to conduct proper background checks, requiring new employees to sign loyalty oaths, and was creating phony law enforcement identification badges for political allies.

A Rogue SPCA

Further, some of the hires who were slipping in without background checks were friends of hers and Russo’s from the rogue Warren County SPCA chapter that the State Commission of Investigation had charged seven years earlier with mishandling funds, providing its officer with guns, night-vision goggles and other military paraphernalia, and engaging in a scheme to avoid sales tax by having the SPCA purchase cars for the personal use of Russo and others. The following month, in fact, the New Jersey State SPCA would reach a settlement that enabled it to take over the Warren chapter that Russo had helped run.

Courtney dismissed the probe by the State Commission of Investigation, a respected bipartisan agency created by the Legislature in 1968 to expose organized crime and political corruption, as “not the most reliable investigation. People are talking about it like it’s some kind of governmental investigation by the FBI and the CIA, but that’s not what it was. When you hear the SPCA is corrupt, that’s insane.”

Trout allowed Russo to conduct his own background check. Furthermore, Erik Ezekian, one of the former Warren SPCA colleagues she and Russo hired as a sheriff’s investigator had a pending appeal on a drunk-driving conviction following an accident that had ended with him leading a police chase on foot. Ezekian, who had been fired previously by the Rockaway Township and Alpha police departments, later pleaded guilty to falsifying his employment application. Falat, another Warren County SPCA friend of Russo and Trout, was hired as a sheriff’s investigator even though he had no law enforcement experience, but his family had contributed $6,000 in printing services to Trout’s campaign.

First Assistant Prosecutor Ouslander noted that the prosecutor’s office offered to turn over the case to Democratic Gov. Jon Corzine’s Attorney General’s office to either intervene to clean up the sheriff’s office or pursue criminal charges as it saw fit. But the Division of Criminal Justice, which was then headed by Deborah Gramiccioni (whom Christie recently named Deputy Executive Director of the Port Authority), decided to leave the case in county hands.

When Dow and Kwon turned down a similar offer the week after Christie’s January 2010 inauguration, McGovern presented the case to a Hunterdon grand jury, which indicted Trout, Russo, and Falat on a total of 43 counts of official misconduct, including the failure to conduct proper background checks, forcing employees to sign loyalty oaths, and making a false law enforcement badge for Hariri.

Ouslander, Barlyn and McGovern expected no interference as the case moved forward because they had kept Dow’s Attorney General’s office fully informed and had heard no objections, so they were surprised when Dow took over both the case and the prosecutor’s office itself.

Hunterdon County insiders say Barnes’ tenure was tumultuous, noting that he had three lawsuits filed against him, one for allegedly head-butting an employee, but they gave him credit for hiring experienced prosecutors like Ouslander, Barlyn, and McGovern from other counties in an attempt to upgrade the operations of the smallest prosecutor’s office in the state.

Barnes, the brother of Assemblyman Peter Barnes (D-Middlesex) and the son of a former assemblyman, had been appointed by Democratic Gov. Jim McGreevey and was worried about his pension when he left. Six months later, however, he resurfaced as an assistant prosecutor in Middlesex, where he had worked previously -- an appointment that required Dow’s approval. Barnes said through an intermediary he did not want to be interviewed about the case.

The state takeover of the prosecutor’s office was made under the authority of the 1970 Criminal Justice Act, and all of Barnes’ assistant prosecutors were sworn in as deputy state attorneys general under O’Grady, but it was the handling of -- or, more specifically, the lack of information about -- the Trout case that caused consternation in the Hunterdon County Prosecutor’s Office.

Two-and-a-half months after O’Grady took over, Detective Sgt. Kenneth Rowe, the lead investigator on the Trout case who had previously spent 26 years with the State Police, fired off an email to colleagues expressing concern that “Dermot has NOT yet asked me ONE question about the sheriff’s job.” Rowe said he found that “particularly worrisome” because the Attorney General’s office in Trenton had been requesting all of the grand jury transcripts, investigative reports, affidavits, and search warrants in the case, and “taking all our original evidence for ‘review.’ (That’s total BS that has never happened to me before.”)

“I have never seen a prosecutorial agency act or work as a defense counsel,” Rowe wrote. “I perceive a lot of what they have been doing as interfering with a GJ (Grand Jury) investigation or even criminal acts. I am certainly starting to believe the comment . . . where Russo reportedly said Christie is going to take care of it. Why the interest in this small time case????”

Two weeks later, on August 7, 2010, O’Grady formally took the lead prosecutor, McGovern, a registered Republican, off the case and ordered him not to show up at the scheduled August 9 hearing. On that day, Deputy Attorney General Hoffman went into court and told the judge that the prosecutor’s office had decided to drop all 43 charges because the indictments contained “legal and factual deficiencies” and would “criminalize what are essentially bad management decisions.” That same day, as the indictments were being dismissed, Christie issued an announcement that he would be nominating Anthony Kearns to serve as the new Hunterdon prosecutor.

Barlyn noted that in other cases where there are deficiencies in the presentation of a case, prosecutors simply fix the deficiencies and re-present the case. That’s what the attorney general’s office, for example, was prepared to do when its case against Middlesex County Sheriff Joseph Spicuzzo came apart after the judge discovered that prosecutors had never told defense lawyers that offers of immunity from prosecution had been offered to current or former sheriff’s officers in exchange for their testimony. Spicuzzo eventually accept a plea deal.

Courtney said criminal charges should never have been brought against Trout and her aides on what he characterized as inconsequential management issues, but Barlyn disagreed, noting that Kwon, the First Assistant Attorney General, suggested contacting the U.S. Attorney’s Office.

When Barlyn saw O’Grady in the hall the day the case was dismissed, he confronted him. “Mission accomplished!” Barlyn shouted at O’Grady, and the two argued. The next day, Barlyn returned from Drug Court to find three investigators from the attorney general’s office in Trenton, who informed him that he was suspended and escorted him out of the building. By the time Barlyn got home, his computer access to his files was turned off, and three weeks later he was fired, allegedly for not showing up to a job he had been ordered to leave.

McGovern was called in and told he could stay, but only if he agreed not to question the dismissal of the Trout case. He chose to retire. Ouslander, who was not given the option of staying, retired too.

Barlyn consulted his aunt and legal mentor, Judith Yaskin, former First Assistant Attorney General under Democratic Gov. Brendan Byrne, before deciding to file suit.

“I support Ben’s decision to take action and not remain silent,” Yaskin said. “We take an oath in the criminal justice system that we will make decisions on who gets indicted ‘without fear or favor.’ That’s what justice is.”

One Hunterdon Republican said privately that “Barlyn is a consummate professional, and he just viewed what Trout did as so damaging to the law enforcement profession and he felt so righteous about it that he just can’t let it go.”

Christie nominated Dow to a Superior Court judgeship the following year, and when Essex County Democrats exercised senatorial courtesy to block her nomination, Christie moved her to a $215,000 a year job as deputy counsel at the Port Authority. She then moved to Burlington County, a Republican-controlled county, and went before the Senate Judiciary Committee for confirmation.

Questioned by Sen. Nicholas Scutari (D-Union), the committee’s chairman, about Barlyn’s lawsuit, she insisted she had acted properly. She said Barlyn’s firing had been an “employment decision,” and that the Hunterdon prosecutor’s office had had a “troublesome history.”

"With respect to the allegations, I deny them and believe they are not going to be substantiated," Dow said.

She was confirmed by the Senate, and those are the last words Dow has said publicly about the subject.

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