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Judge Sets Stage for Release of Grand Jury Records to Christie Whistleblower

Former Hunterdon County assistant prosecutor says public records requests show state has already paid $800,000 to private law firm for this case

former prosecutor Ben Barlyn
Former Hunterdon County prosecutor Bennett Barlyn

A whistleblower who claims the Christie administration quashed a set of indictments in Hunterdon County for political reasons five years ago is a step closer to obtaining secret grand jury records that he says will prove his case.

Mercer County Superior Court Judge Douglas Hurd said Friday that he wants to see progress in the suit that former Hunterdon County assistant prosecutor Bennett Barlyn. Hurd asked the attorneys in the case to start notifying the grand jury witnesses that their testimony could be released, so that they can file objections if they wish.

He also asked the state’s lawyer to check if the attorney general’s office will agree to a new protective order that would keep the materials confidential, if they are released to Barlyn. One such order is already in place, but Hurd said a new order could allow him to avoid having to personally review thousands of documents to ensure their public release will not harm the witnesses.

“This is a case that is three years old,” Hurd said. “I want it to get it going, because justice is served by having cases getting to juries sooner rather than later.”

The case has already proven expensive, even at this relatively early stage. Barlyn says the private law firm representing the state, Gibbons P.C., has billed over $800,000 for its work so far, according to invoices he obtained through public records requests.

The lawyers for the state say they want to protect the secrecy of the grand jury process to avoid the “chilling effect” a decision to release the materials would have on witnesses in future grand jury investigations. Barlyn, meanwhile, says the state has gone to great lengths to prevent disclosure of the jury records because their release will show that administration officials acted illegally when they moved to withdraw the indictments for political reasons.

It was not clear if Attorney General John Hoffman’s office will agree to the new protective order. When a lower court judge previously ordered the release of the grand jury transcripts and exhibits to Barlyn, the state appealed. The appeals court decided last year that Barlyn had not demonstrated that his need for the materials trumped grand jury secrecy, and sent the case back to Superior Court.

Hurd scheduled a conference call with the lawyers for May 5. Lawyers on both sides declined to comment after the hearing.

Barlyn was fired five years ago after he complained that the withdrawal of the indictments of Republican Hunterdon County Sheriff Deborah Trout, Undersheriff Michael Russo and former sheriff’s Investigator John Falat Jr. was politically motivated.

The three officials had been indicted in May 2010 on a combined 43 counts of official misconduct, including failure to conduct proper background checks, forcing employees to sign loyalty oaths, and making a false law enforcement badge for Robert Hariri, a prominent Christie donor and CEO at Celgene Cellular Therapeutics.

But Attorney General Paula Dow, who Christie had appointed after taking office earlier that year, ordered a review of the indictments. Her office said it found “legal and factual deficiencies” in the charges and in August 2010 a judge agreed to dismiss them. Barlyn alleges that Hariri’s political connections or Trout’s friendship with Lt. Gov. Kim Guadagno, whose campaign she supported in 2009, led to the dismissal.

State officials and lawyers have said Barlyn was suspended for insubordination after he confronted his boss at the time, Dermot O’Grady, about the withdrawal of the indictments, and was eventually fired for that and other job-performance issues. But Barlyn says he was never told about those supposed issues and contends he was wrongfully terminated for objecting to political interference in the Trout case.

Barlyn says he needs to see the transcripts and exhibits of the grand jury that indicted Trout and the two others so he can show that the indictment was sound and did not have the deficiencies Dow’s office cited. That would validate his complaint to O’Grady and show that his firing was political retaliation, he says.

However, the appeals panel that blocked his request last year said he had not shown the “particularized need” required before the judiciary’s policy of keeping grand jury testimony secret can be waived. While the three judges agreed the materials were relevant to his case, they said he needed to try to get the evidence he needs through other means first -- for example, by deposing witnesses -- before attempting another request for those documents.

Peter Torcicollo of Gibbons P.C. argued that Barlyn had done little to seek other evidence and so had not met the appeals court requirement. The only witnesses he had sought were two investigators who worked for the Hunterdon County Prosecutor’s Office, who declined to be interviewed because they did not want to violate grand jury secrecy.

Torcicollo also said Barlyn has been provided with some 56,000 pages of documents from the prosecutor’s office and other offices, some of it just in the last few days.

According to Barlyn’s attorney Robert Lytle, the investigators’ responses show that only by reviewing the jury materials can his client obtain the evidence he needs. Barlyn cannot refute the claim that the indictments were legally deficient “without access to the actual testimony, exhibits and legal instructions that were presented to the grand jury,” Lytle wrote in a legal brief.

He suggested that the state is dragging out the case and trying to make Barlyn spend money pursuing and digging through useless evidence. Dow and the other defendants “have the benefit of unlimited access to public funds in order to finance their defense,” while asking the court “to send (the) plaintiff on a fool’s errand designed to drain him of valuable resources and at the same time result in judicial inefficiencies and inordinate delay,” Lytle wrote.

Lytle also argued that grand jury secrecy should no longer be in effect anyway. That’s because a recently discovered document indicates that the grand jury records were already released to the Trout, Russo, and Falat five years ago as part of the original criminal case process.

Torcicollo responded that it was not evident that the three had actually received the grand jury materials, and argued that their obtaining of materials they had a right to see as part of a criminal prosecution did not constitute a public release. Both lawyers also said it was clear that Trout, Russo, and Falat now oppose the release of the materials to Barlyn.

That represents a switch from their position of a few years ago. Trout, Russo, and Falat had previously tried to subpoena the grand jury record themselves to use it in their own federal civil suit against the prosecutor’s office and a number of other parties. But after the attorney general’s office sought to block the subpoena, they reversed themselves and said they opposed the materials’ release.

“Of course they’re going to say, ‘we don’t want this out there,’ because they’ve kind of joined forces with the defendants here,” Lytle told Hurd.

The federal subpoena issue became moot after a judge tossed out much of the suit. Parts of that lawsuit, which seeks damages for Trout, Russo, and Falat for malicious prosecution, discrimination, and other claims, were sent to state court and a new hearing could take place later this month.

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