The criminal case against Governor Chris Christie over the Bridgegate lane-closing scandal met with a setback on January 12 when a state judge sent it back down to municipal court for a new hearing on probable cause.
Bergen County Assignment Judge Bonnie Mizdol vacated the probable cause determination made last October by Roy McGeady, the county’s Presiding Municipal Judge, on the ground that Christie was denied his constitutional right to counsel.
The case was already out of the ordinary in that a citizen activist had succeeded in launching the case against Christie after state legislative hearings and a federal criminal investigation failed to achieve that result, though many were left wondering if Christie was one of the unindicted co-conspirators referred to in the federal prosecution whose names were never made public. The federal trial judge ordered release of the list but the Third Circuit Court of Appeals overturned her decision. ,
The case took another strange turn when the prosecutors to whom McGeady entrusted the case sided with Christie’s criminal defense counsel in attacking the probable cause decision.
Mizdol ruled in their favor, holding Christie was “improperly denied counsel at a critical stage,” mandating reversal of the probable cause finding.
Christie’s lawyer, Craig Carpenito of Alston & Bird, was present in court for the October 13 probable cause hearing and had submitted a nine-page letter on Christie’s behalf. But McGeady told Carpenito that he had read only the conclusion and would not allow him to participate because until probable cause was found to exist, Christie was not yet a defendant and thus had no standing.
Mizdol did not address the merits of the case, which was brought as a citizen complaint by Bill Brennan of Wayne, a retired firefighter who has a history of trying to hold elected officials accountable and recently announced he intends to run for governor.
Brennan alleged that Christie knew of the local lane closures to the George Washington Bridge while they were underway in September 2013, and of the resulting traffic nightmare in Fort Lee, but failed to remedy the situation despite having a duty to act.
That conduct allegedly constituted official misconduct under N.J.S.A. 2C:30-2b, a second-degree crime punishable by a minimum five- year prison term and as much as ten years. There must be proof that the act or failure to act was for the purpose of obtaining a benefit for oneself or to injure or deprive another of a benefit.
In his complaint, Brennan contended that Christie sought to benefit by obtaining endorsements for his reelection from Democratic mayors, to deprive Fort Lee Mayor Mark Sokolich, a Democrat who withheld endorsement, from being able to meet the needs of his constituents, and also “to injure the citizens of the State of New Jersey by forcing them to sit in traffic that was created by his appointees with malicious intent.”
McGeady found that the threshold for probable cause was met based on transcripts Brennan submitted of sworn testimony from the federal Bridgegate trial.
That trial, still ongoing at the time of the first probable cause hearing, concluded in early November with guilty verdicts for two Christie appointees: Bill Baroni, former Port Authority Deputy Executive Director, and Bridget Kelly, former Christie Deputy Chief of Staff for Legislative and Intergovernmental Affairs. Both were found guilty of conspiring to shut down the local access lanes to the George Washington Bridge, the nation’s busiest.
Brennan relied on testimony from David Wildstein, Director of Interstate Capital Projects for the Port Authority and also a Christie appointee, who orchestrated the lane closures and pleaded guilty in 2015 to two related conspiracy counts.
Brennan also testified at the hearing and was questioned by McGeady but was not subject to cross-examination by Carpenito.
McGeady concluded that the probable cause standard — which he characterized as low but more than just suspicion – had been met and referred the matter to the Bergen County Prosecutor.
Brennan then asked Mizdol to disqualify the Bergen Prosecutor and Attorney General, both Christie appointees, as tainted by conflicts of interest and to name a special prosecutor to handle the case but Mizdol rebuffed the request.
When Christie appealed the probable cause finding based on denial of counsel, the Bergen County Prosecutor filed supporting papers and joined him in asking Mizdol to vacate the finding.
Some have taken note of how unusual it is to see the prosecution siding with defense counsel to throw out a criminal case.
For example, Star Ledger columnist Paul Mulshine in a January 5 piece entitled “Bergen Prosecutor Comes to Christie’s Defense in Bridgegate Case” marveled “That was a new one on me. I’ve been writing about various legal proceedings for years. In every case I’ve covered the prosecution prosecutes and the defense defends. . . . Not in this case.”
Mulshine referred to the alignment as a “defense/prosecutor tag team” and quoted state senator Ray Lesniak, himself a lawyer, as saying he had “never seen a prosecutor make a move like this.”
However unusual such a move might be, it has happened before and in perhaps the most pertinent instance, in a case involving Christie, politics and official misconduct charges.
Legal Precedent for Dismissing this Case
Last year, the state of New Jersey paid $1.5 million to settle Barlyn v. Dow, a whistleblower suit brought by Bennett Barlyn, who claimed the Christie Administration quashed a Hunterdon County case in which the sheriff and two others, political allies of Christie and Lieutenant Governor Kim Guadagno, were indicted by a grand jury on multiple counts of official misconduct.
The indictments included charges that the defendants provided law enforcement ID cards to unauthorized people, including Dr. Robert Hariri, the chairman of Celgene Cellular Therapeutics, who with his wife donated more than $10,000 to Christie’s 2009 campaign and was appointed to Christie’s transition team.
In 2010, on the day the indictments were unsealed, the Attorney General’s office took over the Hunterdon Prosecutor’s office, had the case files moved to Trenton and a few months later got a judge to dismiss the indictments, claiming they had factual and legal deficiencies.
Barlyn, then an Assistant Hunterdon County prosecutor, did not work on the case but protested that the dismissals were improper and politically corrupt. He was suspended the next day and subsequently fired without explanation, according to his wrongful termination suit.
In February 2015, Barlyn was interviewed by two federal investigators, at least one of whom was part of the Bridgegate investigation.
Barlyn said a “heavy focus” of the conversation was a statement that appeared in the Hunterdon County Democrat at the time of the indictments. The newspaper reported that a Sheriff’s Department employee claimed one of the defendants had said Christie would “step in (and} have this whole thing thrown out.” The investigators were interested in why that defendant “would specifically identify Christie as a person who would intervene and dismiss the case,” according to Barlyn.
He was subsequently informed by letter that it was “not apparent on the face of your submission that there have been potential violations of federal criminal law.”
In 2014, the state Legislative Select Committee looking into Bridgegate also expressed an interest in looking into Barlyn’s allegations but then decided against it without explanation.
The Christie administration fought Barlyn for years, paying more than $3 million in legal fees before agreeing to pay the $1.5 million.
So, yes, there is precedent for prosecutors scuttling a case, though it can prove very costly.
In a radio interview right after Mizdol made her probable cause decision, Brennan expressed confidence that he will prevail once again at the new probable cause hearing, set for February 2. He noted that with more Bridgegate trial testimony having been given since the date of the first hearing, he will have even more evidence than last time.