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Former Prosecutor, Christie Whistleblower Wins Access to Grand Jury Records

Judge orders confidential transcripts to go to Bennett Barlyn, but state could drag out release for month using legal means

former prosecutor Ben Barlyn
Former Hunterdon County prosecutor Bennett Barlyn

A former county prosecutor who claims the Christie administration quashed a set of indictments in Hunterdon County to help political allies, and then wrongly fired him for protesting, has won access to confidential grand jury materials he says will help him prove his allegations.

Former prosecutor Bennett Barlyn said he hopes the decision will help him win vindication as a whistleblower, and gain the attention of federal investigators who could prosecute the political malfeasance he believes was behind the withdrawal of the indictments.

“Let's say I get a settlement or I win a trial. All I can seek are monetary damages,” Barlyn said yesterday. “Where is the vindication of the public's right? The only way that's going to happen is if there is intervention by the legislature -- and they won't do it -- or a federal law enforcement authority.”

On Friday, Mercer County Superior Court Judge Douglas Hurd ordered the state to give Barlyn the grand jury transcripts while requiring that he not publicly disclose them. Barlyn says the materials will show that Deputy Attorney General Christine Hoffman’s withdrawal of the Hunterdon County indictments in August 2010 was not legally justified.

“It is apparent that the grand jury record is, as tangible evidence goes, the proverbial ‘smoking gun’ in this case,” Barlyn’s attorney Robert Lytle wrote in a brief last month.

A spokesman for the attorney general’s office, Leland Moore, declined to comment on the case.

The law firm Gibbons P.C. has so far charged the state more than $1.7 million to fight Barlyn’s demand for the grand jury materials, according to invoices Barlyn obtained through public records requests. Gov. Christie’s close confidante and former law partner Bill Palatucci is an attorney at Gibbons.

Despite Hurd’s decision it is unclear when Barlyn will receive the grand jury transcripts. While such orders typically require materials to be handed over in 10 days, the state could ask for a stay and try to appeal, potentially extending the legal battle for months. Gibbons has fought hard to avoid giving Barlyn the transcripts; last month its attorney argued, unsuccessfully, that the legal conditions had not even been met to allow the judge to review the documents himself so he could decide whether Barlyn would get them.

Even if Barlyn does get the transcripts, an actual trial on his whistleblower claims might not begin for years. For one thing, he said he plans to fight to obtain more records related to the Hunterdon County case that the state has refused to release on the basis of attorney-client privilege, grand jury confidentiality, deliberative process privilege, and other protections. Just the lists of the privileged records run to 240 pages, he said.

In addition, the former prosecutor said he would want to depose anybody with knowledge of the handling of the Hunterdon case, potentially including Christie, Lt. Gov. Kim Guadagno, former Christie aide Michele Brown, who now heads the business promotion group Choose New Jersey, and several others.

Barlyn’s suit has its basis in his firing 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. Christie has denied involvement in the case.

State officials and lawyers said Barlyn was suspended for insubordination after he confronted his boss 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 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.

Though there has been no sign of an active federal investigation of Barlyn’s allegations, the office of U.S. Attorney Paul Fishman did show some interest in his case earlier this year.

Barlyn wrote to Fishman to point out possible connections between his civil suit and the U.S. Attorney’s investigation of Bridgegate and the Port Authority of New York and New Jersey. He said his allegations implicate both Dow, who went on to a job at the Port Authority, and Christie’s former chief of staff Richard Bagger, who became an authority commissioner.

In February, two federal investigators met with Barlyn to discuss his case. The meeting drew enough attention that Fishman’s spokesman made a point of saying that it would be incorrect to conclude that the office was investigating Christie. When Fishman announced Bridgegate indictments in May there was no mention of Barlyn’s case.

Meir Rinde is a freelance writer who lives in Philadelphia.

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