Court Overturns Release Of Grand Jury Records in Hunterdon Prosecutor Case

Mark J. Magyar | May 8, 2014 | Politics
Fired prosecutor vows to continue fight to prove Christie administration pressured attorney general to kill case against political allies

Whistleblower: Former Hunterdon County prosecutor Bennett Barlyn
In a victory for the Christie administration, a state appeals court overturned the release of grand jury records that former prosecutor Ben Barlyn says will prove that the governor’s office pressured Attorney General Paula Dow four years ago to take over the Hunterdon County Prosecutor’s Office and squelch the prosecution of Republican County Sheriff Deborah Trout and two of her assistants.

Barlyn, an assistant prosecutor who was suspended and then fired after he complained that the case had been dismissed for political reasons, said the Appellate Division ruling was merely a setback in his wrongful-firing lawsuit that has drawn the attention of the New York Times and MSNBC as the first major allegation of official misconduct levied against the Christie administration.

Undeterred by the court ruling, Barlyn immediately filed motions yesterday seeking the release of all communications on the case between Gov. Chris Christie’s governor’s office and the Attorney General’s Office; between Dow and Dermot O’Grady, the deputy attorney general she put in charge of the prosecutor’s office; and between Lt. Gov. Kim Guadagno and Trout, who worked on Guadagno’s election in 2009.

“The court ruled that we had not exhausted all of the avenues available to us to get the information we need without opening up grand jury records, so that’s what we’re doing,” Barlyn said. “The ruling left the door wide open for us to drive through. It’s basically staving off the inevitable at this point.”

In an ironic twist, Trout and her two deputies whose official misconduct indictments by the Hunterdon County Prosecutor’s Office were dropped by Christie’s Attorney General’s Office are suing in federal court for the release of the same grand jury records that Barlyn sought. Trout — who did not run for reelection in 2011 — former Undersheriff Michael Russo, and former investigator John Falat Jr. are suing various Hunterdon County officials for wrongful arrest and malicious prosecution.

And while the three-judge Appellate Division panel cited concern over the privacy rights of Trout, Russo, and Falat in its decision to keep the grand jury records sealed, that will not be an issue in U.S. District Court because the three defendants are the ones seeking their release.

“The only party that is opposed to the release of these grand jury records is the Attorney General’s Office,” Barlyn noted. “Why are they fighting so hard to keep these records from the public?”

The three-and-a-half-year legal battle to untangle what really happened in the virtually unprecedented state takeover of the Hunterdon County Prosecutor’s Office and dismissal of all charges against Trout, Russo, and Falat is a complex political narrative with a high-profile cast of characters and with battle lines that transcend normal partisan lines.

Hunterdon County’s Republican establishment, including George Melick, who retired in January after 35 years on the county freeholder board, agree with Barlyn and former First Assistant Prosecutor Charles Ouslander that the Christie administration improperly dismissed the case against Trout and her two deputies for political reasons.

The allegations of political interference were fueled by Russo’s public declaration, reported in the Hunterdon County Democrat, that Christie would “step in (and) have this whole thing thrown out,” and by former Hunterdon County Prosecutor J. Patrick Barnes’ comment to colleagues, as reported by Barlyn, that Attorney General Dow told him he was being replaced because of the Trout case and that the decision was made by “people above her.”

Barlyn believes that the records he is seeking will prove that Dow, now a Superior Court judge, killed the indictments of Trout, Russo, and Falat either at the behest of Guadagno or of Robert Hariri, the CEO of Celgene Cellular Technologies. Guadagno, as Monmouth County sheriff, was friendly with Trout, who put together a group of law enforcement officers to support her 2009 campaign for lieutenant governor.

Meanwhile, Dr. Hariri, a multimillionaire stem-cell entrepreneur and then a neighbor of Todd Christie, the governor’s brother and chief fundraiser, and his wife gave $15,500 to Christie and the state GOP, and his parent company’s CEO Dr. Sol Barer, who headed Christie’s panel that recommended the merger of the state’s medical schools into Rutgers University and who has given at least $102,600 to Christie and the Republican State Committee since 2009.

Prosecution of the Trout case would have been embarrassing because the grand jury indictment named Hariri as a witness after Russo and Falat manufactured a fake “National Emergency Medical Response Team” badge for him as a thank-you gift after he flew Trout and Russo to a conference on a private jet. Christie press secretary Michael Drewniak previously dismissed Barlyn’s allegations as “wild-eyed conspiracy theories,” while Guadagno and Hariri has failed to respond to requests for interviews.

Trout, a former sheriff’s investigator who had successfully sued the county on sexual discrimination charges years before, was elected Hunterdon County sheriff in 2007, and hired Russo and Falat, with whom she had worked at a rogue Warren County SPCA chapter that the State Commission of Investigation described as an “out-of-control . . . paramilitary” organization that existed primarily to enrich its members. Russo, the Warren SPCA’s second-in-command, took the Fifth Amendment when subpoenaed in 2000 by the SCI.

The manufacture of the phony badge was one of 43 criminal counts included in a May 7, 2010, indictment against Trout, Russo, and Falat Jr. on allegations ranging from hiring sheriff’s officers without proper background checks to forcing employees to sign loyalty oaths. The grand jury had also issued a separate presentment identifying noncriminal malfeasance by other sheriff’s office employees.

On the day that the indictment was released, Dow not only dismissed Barnes, a Democratic holdover who had been serving since 2003, but also sent O’Grady, a deputy attorney general, to take over the prosecutor’s office, announced that the Trout case would be handled directly by the state Attorney General’s Office, and ordered all case files and materials shipped to Trenton.

Three months later, without telling the Hunterdon County prosecutors who had worked on the case, Dow sent Deputy Attorney General Christine Hoffman to Superior Court to announce that the case was being dropped because of “legal and factual deficiencies.” That same day, Christie announced he was nominating Anthony Kearns as the new Hunterdon County prosecutor, replacing O’Grady, who had been serving on an interim basis.

Barlyn angrily confronted O’Grady, proclaiming “Mission Accomplished!” and charging that the case had been dropped for political reasons.

The next day, Barlyn was suspended. He was later fired. Ouslander and William McGovern, the Republican assistant prosecutor who had handled the case before the grand jury, both retired.

Barlyn argued that the grand jury proceedings were crucial to show that the prosecution was not based on “legal and factual deficiencies,” and a Superior Court judge agreed. However, the Appellate Division yesterday ruled that Barlyn had not sought the information he needed through all other available avenues, including a full discovery process.
The court also said Barlyn’s request for the full grand jury proceedings “failed to demonstrate a strong showing of particularized need that outweighs the interest in grand jury secrecy,” although it noted that Barlyn could petition in the future for specific grand jury records he deems necessary to his case.

Barlyn said yesterday he will pursue the avenues recommended by the Appellate Division before deciding whether to appeal the ruling to the state Supreme Court.