Ex-Hunterdon Prosecutor Heads Back to Court to Obtain Grand Jury Records

Meir Rinde | April 9, 2015 | Politics
After five years, Bennett Barlyn is still seeking sealed documents he says will prove political interference in dismissed cases and his own termination

The legal battle over the Christie administration’s quashing of the indictments of political allies in Hunterdon County continues this week, as a former county prosecutor-turned-whistleblower renews his effort to obtain grand jury records in the five-year-old case.

The former Hunterdon County assistant prosecutor, Bennett Barlyn, was fired in 2010 after he charged that the prosecution of Republican County Sheriff Deborah Trout and two of her assistants had been dropped for political reasons. Barlyn sued then-Attorney General Paula Dow and two others for wrongful termination, alleging that he was unjustly dismissed for complaining about the political interference.

Last year, Barlyn’s allegations drew the attention of U.S. Attorney Paul Fishman as part of his investigation of the Bridgegate lane-closing scandal and other problems at the Port Authority of New York and New Jersey.

Barlyn said the allegations in his civil suit implicate both Dow, who went on to a job at the Port Authority, and Gov. Chris Christie’s former chief of staff Richard Bagger, who became an authority commissioner. In February two federal investigators interviewed Barlyn about Dow’s decision to withdraw the grand jury indictments in Hunterdon County.

As part of his suit, Barlyn argues that he needs records of the grand jury that issued the Trout indictment, which would normally be kept secret. When the state withdrew the charges, it said the actions of Trout and her two subordinates did not rise to the level of criminality, that the grand jury had received incorrect instructions, and there was insufficient evidence for some counts.

Barlyn alleges that the records will show the case was sound and will support his allegation that it was actually withdrawn for political reasons.

A Superior Court judge initially agreed and ordered the records released to Barlyn. But an appeals panel reversed that decision last year, saying that the ex-prosecutor had not done enough to show his need for the materials and to obtain evidence supporting his case in other ways.

Back in court

Barlyn says he has since obtained new evidence, including an email showing Christie’s office asked the prosecutor’s office about him after he was fired, and documents written by the investigators in the Trout case. He says he will be back in Superior Court this Friday to argue that only by examining how the grand jurors assembled the indictment can he show that its later dismissal was unjustified and driven by political concerns.

“There are no ‘other routes of discovery’ [of evidence] available to Mr. Barlyn because the events at the center of this case took place inside the jury room during the grand jury presentation itself,” his attorney Robert E. Lytle wrote to the court. “What actually occurred inside the grand jury room can only be proved by an examination of the grand jury transcripts and exhibits.”

[related]Attorneys hired by the state contest Barlyn’s arguments, saying that the ex-prosecutor has done little digging for new evidence, that what he has produced is not actually new, and that the materials do not help his claim that his needs trump grand jury secrecy. The lawyers also said the state had already given Barlyn more than 23,000 pages of documents from Dow’s office, the Hunterdon County Prosecutor and the Hunterdon County Sheriff’s Office, and is working to produce more.

Barlyn’s request for secret documents “has no more merit today than it had when the Appellate Division rejected his first attempt to compel grand jury materials,” wrote two lawyers from the firm Gibbons P.C.

Meanwhile, the state’s costs to defend the case and respond to Barlyn’s document demands continue to mount. Barlyn said this week that Gibbons has so far billed the state over $800,000, according to invoices he received in response to Open Public Record Act requests. He also noted Gibbons’ political connections, pointing out that William Palatucci, a longtime friend and adviser to. Christie, joined the firm in November 2012.

The Heart of the Matter

The indictment at the center of Barlyn’s case was handed up in May 2010.

Trout, Undersheriff Michael Russo, and former sheriff’s Investigator John Falat Jr. were indicted by the grand jury 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.

Dow later installed a deputy attorney general, Dermot O’Grady, to run the Hunterdon County Prosecutor’s office and announced 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. Though Barlyn was not the main prosecutor on the case, he confronted O’Grady, saying the dismissal was corrupt and charging that the attorney general had taken over the prosecutor’s office just to kill the case.

Barlyn was suspended and later fired, and two other prosecutors were forced out. In Barlyn’s subsequent civil suit, he notes Russo’s relationship with Hariri and Russo’s comment, as reported in a newspaper, that the governor would “have this whole thing thrown out.” William Courtney, the attorney for Trout, Russo, and Falat in their own suit against the state, has said Russo denies making that statement and said Barlyn’s account contains inaccuracies.

Barlyn believes the grand jury records will show Dow killed the indictments at the behest of either Hariri or Lt. Gov. Kim Guadagno, who as Monmouth County sheriff was friendly with Trout. Trout put together a group of law enforcement officers to support Guadagno’s 2009 campaign for lieutenant governor.

Barlyn also notes that Bagger, the former Christie chief of staff who serves on the Port Authority board, was hired as a senior vice president at Celgene in 2012, further illustrating Hariri’s ties to the Christie administration.

The state’s attorneys offer a different narrative to explain Barlyn’s termination. During his encounter with O’Grady after the indictment was dismissed, he made mocking, accusatory comments, said he would file a complaint against O’Grady, and followed O’Grady through the courthouse until he was warned to stop. He was then suspended for “unprofessional and insubordinate behavior.”

A subsequent assessment of Barlyn’s job performance found that, when he headed the prosecutor’s appeals unit, the appeals court warned the office a number of times about missing filing deadlines, and on three occasions Barlyn was ordered to appear before a judge to explain why his office should not be punished, according to the state’s legal brief. Those findings and the encounter with O’Grady resulted in Barlyn’s firing in September 2010, the brief says.

Barlyn dismissed that explanation, saying his supposed job performance issues were never mentioned as a reason for his dismissal until after he filed the suit.

“They’ve acknowledged that I was never reprimanded for any of that conduct during my tenure, so these reasons come very late in the day,” he said yesterday.

Meanwhile, the suit that Trout, Russo, and Falat filed after the indictment was dismissed also continues. Filed in state court in 2011 and later moved to federal court, the suit named a long list of defendants, including Barlyn, and alleged malicious prosecution, hostile work environment, discrimination, damage to their reputations and other claims.

A federal judge dismissed several of the claims last year and sent the case back to state court. Barlyn says the dismissal supports his contention that the indictments were sound. Hunterdon County and some of the other defendants have moved to have the remaining claims dismissed.