Christie and Defense Lawyer Face Off Over Length of an Informant's Leash;

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Christie and Defense Lawyer Face Off Over Length of an Informant's Leash;

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Posted by 10-27-2003 on October 28, 2003 at 16:07:42:

Christie and Defense Lawyer Face Off Over Length of an Informant's Leash;
Longshot strategy hopes to derail U.S. attorney's public corruption probe

New Jersey Law Journal
October 27, 2003

By Jim Edwards

This time last year, U.S. Attorney Christopher Christie outlined his strategy for bringing indictments against corrupt politicians:

"We try to move as quickly as we possibly can, especially when it involves people who are currently in public office," he said in two interviews with the Law Journal. "It's not something that we're going to drag our feet on."

When asked whether this was a new policy, Christie said, "There is one now. I do not believe that these are things that we have the right to allow to linger. We should move quickly. Many times you are dealing with people who are still in public office. They have to be moved swiftly ... in fairness to the public."

Since then, more than 30 indictments have been handed up in corruption cases - a clip unparalleled in recent years.

But in the past two weeks, the speed of Christie's removal of corrupt officials has come in for criticism following the indictment of two men accused of paying bribes to former Hudson County Executive Robert Janiszewski.

Joseph Hayden Jr., the lawyer for one of the men, says prosecutors shilly-shallied after discovering that Janiszewski took bribes for contracts. They left him in place to run the county for at least nine months, and perhaps as long as two years, while he wore a wire.

"He should have been removed immediately," Hayden said in a statement.

Hayden intends to argue that by leaving Janiszewski in office, the federal prosecutor deprived Hudson County residents of the honest services of local government - a gross due-process violation that warrants dismissal of the case against his client, Hoboken real estate magnate Joe Barry.

To bolster that contention, Hayden has retained former state Supreme Court Justice Gary Stein to brief the issue.

So, for observers of Christie's anticorruption drive, the question is: Could Hayden have found a weakness in the case? Or is this merely an effort to distract the jury pool with misgivings about prosecutorial conduct?

The stakes are high: Janiszewski is the mother lode for Hudson corruption cases. The FBI taped him taking a bribe from a contractor at Bally's hotel in Atlantic City in the fall of 1999. Arresting him the same day outside the building after the cash was passed, the agents persuaded him to wear a wire and tape his associates. Until he resigned in 2001, Janiszewski continued to run the county, the local Democratic Party and regional agencies that handled millions in federal grant money.

"If [Hayden] is successful, it definitely has an impact on every prosecution that's been brought where Bobby J is a central figure," says Peter Willis of Willis & Young in Jersey City. Willis represented former Hudson County Freeholder Nidia Davila-Colon, who was convicted this year of ferrying bribes to Janiszewski.

The ripples would reach a swath of yet-unfiled cases percolating in Hudson.

Christie is dismissive of Hayden's suggestion that federal authorities were in some way complicit in Janiszewski's corruption by monitoring his governance with a sword of Damocles. The day he learned of Hayden's strategy, Christie told reporters, "Bring it on!"

"The methods employed here have been used time and again with great success and have always been legally defensible," he said last week through his spokesman. "After Mr. Janiszewki's activities were uncovered, and he began cooperating with the investigation, he was under the microscope of this office and the FBI with no opportunity to continue with corrupt activities."

The defense strategy should have come as no surprise to the U.S. attorney. The partner at Roseland's Walder, Hayden & Brogan has used a similar tactic many times before - twice this year already.

The strategy works something like this: When a defendant comes under media scrutiny, start by attacking the propriety of the prosecution before the trial gets under way and focus on the evidence later.

In May, Hayden made just such a play in the Jayson Williams case, in which the former basketball star is accused of fatally shooting his chauffeur. He asked the judge for a review of the personnel files of five state troopers whom he claimed were racist or had engaged in racial profiling. By simply making his motion, Hayden planted a seed of doubt in the potential jury pool as to investigators' motives.

Four months earlier, in the same case, Hayden successfully persuaded the Appellate Division to review whether the prosecution had wronged his client by repeatedly telling the grand jury that he had maintained his right to silence. [The issue was later made moot by a superceding set of grand jury hearings.]

In 1995, when he represented a man accused of robbing a jewelry store, Hayden demanded tapes made by the U.S. Attorney's Office of the conversations of Somerset County Prosecutor Nicholas Bissell Jr. The prosecutor later committed suicide when the federal investigation of his corruption became known.

And in 1990, Hayden gave this commentary to the Law Journal about state Attorney General Robert Del Tufo's use of two grand juries to prosecute a Teaneck policeman for the fatal shooting of a teenager: "[A] lawyer's first line of attack should be to analyze [the] proceedings and try to show whether the prosecution was so biased that it amounted to a denial of due process."

That's exactly what Hayden is doing now for real estate mogul Joe Barry.

Hayden and Stein decline to detail their defense or cite supporting statutes or cases. "Whatever arguments we'll advance will be advanced in papers to be filed in federal court," Stein says.

Speaking privately, because they have had a prior involvement with the case, former federal prosecutors do not believe the law supports Hayden.

The main problem for Hayden, they say, is that even if what he alleges is generally true, it is still hard to show that this specifically affected Barry or his co-indictee, political consultant Paul Byrne, and amounted to a constitutional matter.

Jersey City's Willis agrees. "It can't be in its generalized form," he says.

But that may not matter. Even if Hayden loses a motion to dismiss, he may succeed in empanelling a jury with one or two members who harbor questions about why the FBI was allowed to run the county for so long.

Willis believes that if Hayden can convince a court that Janiszewski was the FBI's puppet, it would lend support to some sort of entrapment argument. In other words, if it were not for the FBI leaving Janiszewski in place, Barry and Byrne [and Colon and indicted freeholder William Braker, for that matter] could not have committed their crimes.

"I think he's onto something," Willis says.

An entrapment defense can be tricky territory. Willis mounted one for Freeholder Colon, and she was convicted in June of three counts of mail fraud and two counts of aiding attempted extortion.

It also runs the risk that potential jurors, fed up with the parade of defendants shuttling between Jersey City and Newark's U.S. District Court, might approve of the FBI's oversight of Hudson County. Christie does not go quite that far, but in his statement last week he said, "We certainly do not believe that the public -- particularly the taxpaying citizens of Hudson County -- would object to the lawful methods employed if they ultimately weeded out those who were stealing from them under the cover of their appointed or elected positions."

He added, "The investigative methods had the desired effect of rounding up the greatest number of culpable individuals while assuring that the top targets in this case, Mr. Janiszewski, Mr. Barry, Mr. Byrne, Nidia Colon and others, are made to face the consequences of their actions."

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: Christie and Defense Lawyer Face Off Over Length of an Informant's Leash;
: Longshot strategy hopes to derail U.S. attorney's public corruption probe

: New Jersey Law Journal
: October 27, 2003

: By Jim Edwards

: This time last year, U.S. Attorney Christopher Christie outlined his strategy for bringing indictments against corrupt politicians:

: "We try to move as quickly as we possibly can, especially when it involves people who are currently in public office," he said in two interviews with the Law Journal. "It's not something that we're going to drag our feet on."

: When asked whether this was a new policy, Christie said, "There is one now. I do not believe that these are things that we have the right to allow to linger. We should move quickly. Many times you are dealing with people who are still in public office. They have to be moved swiftly ... in fairness to the public."

: Since then, more than 30 indictments have been handed up in corruption cases - a clip unparalleled in recent years.

: But in the past two weeks, the speed of Christie's removal of corrupt officials has come in for criticism following the indictment of two men accused of paying bribes to former Hudson County Executive Robert Janiszewski.

: Joseph Hayden Jr., the lawyer for one of the men, says prosecutors shilly-shallied after discovering that Janiszewski took bribes for contracts. They left him in place to run the county for at least nine months, and perhaps as long as two years, while he wore a wire.

: "He should have been removed immediately," Hayden said in a statement.

: Hayden intends to argue that by leaving Janiszewski in office, the federal prosecutor deprived Hudson County residents of the honest services of local government - a gross due-process violation that warrants dismissal of the case against his client, Hoboken real estate magnate Joe Barry.

: To bolster that contention, Hayden has retained former state Supreme Court Justice Gary Stein to brief the issue.

: So, for observers of Christie's anticorruption drive, the question is: Could Hayden have found a weakness in the case? Or is this merely an effort to distract the jury pool with misgivings about prosecutorial conduct?

: The stakes are high: Janiszewski is the mother lode for Hudson corruption cases. The FBI taped him taking a bribe from a contractor at Bally's hotel in Atlantic City in the fall of 1999. Arresting him the same day outside the building after the cash was passed, the agents persuaded him to wear a wire and tape his associates. Until he resigned in 2001, Janiszewski continued to run the county, the local Democratic Party and regional agencies that handled millions in federal grant money.

: "If [Hayden] is successful, it definitely has an impact on every prosecution that's been brought where Bobby J is a central figure," says Peter Willis of Willis & Young in Jersey City. Willis represented former Hudson County Freeholder Nidia Davila-Colon, who was convicted this year of ferrying bribes to Janiszewski.

: The ripples would reach a swath of yet-unfiled cases percolating in Hudson.

: Christie is dismissive of Hayden's suggestion that federal authorities were in some way complicit in Janiszewski's corruption by monitoring his governance with a sword of Damocles. The day he learned of Hayden's strategy, Christie told reporters, "Bring it on!"

: "The methods employed here have been used time and again with great success and have always been legally defensible," he said last week through his spokesman. "After Mr. Janiszewki's activities were uncovered, and he began cooperating with the investigation, he was under the microscope of this office and the FBI with no opportunity to continue with corrupt activities."

: The defense strategy should have come as no surprise to the U.S. attorney. The partner at Roseland's Walder, Hayden & Brogan has used a similar tactic many times before - twice this year already.

: The strategy works something like this: When a defendant comes under media scrutiny, start by attacking the propriety of the prosecution before the trial gets under way and focus on the evidence later.

: In May, Hayden made just such a play in the Jayson Williams case, in which the former basketball star is accused of fatally shooting his chauffeur. He asked the judge for a review of the personnel files of five state troopers whom he claimed were racist or had engaged in racial profiling. By simply making his motion, Hayden planted a seed of doubt in the potential jury pool as to investigators' motives.

: Four months earlier, in the same case, Hayden successfully persuaded the Appellate Division to review whether the prosecution had wronged his client by repeatedly telling the grand jury that he had maintained his right to silence. [The issue was later made moot by a superceding set of grand jury hearings.]

: In 1995, when he represented a man accused of robbing a jewelry store, Hayden demanded tapes made by the U.S. Attorney's Office of the conversations of Somerset County Prosecutor Nicholas Bissell Jr. The prosecutor later committed suicide when the federal investigation of his corruption became known.

: And in 1990, Hayden gave this commentary to the Law Journal about state Attorney General Robert Del Tufo's use of two grand juries to prosecute a Teaneck policeman for the fatal shooting of a teenager: "[A] lawyer's first line of attack should be to analyze [the] proceedings and try to show whether the prosecution was so biased that it amounted to a denial of due process."

: That's exactly what Hayden is doing now for real estate mogul Joe Barry.

: Hayden and Stein decline to detail their defense or cite supporting statutes or cases. "Whatever arguments we'll advance will be advanced in papers to be filed in federal court," Stein says.

: Speaking privately, because they have had a prior involvement with the case, former federal prosecutors do not believe the law supports Hayden.

: The main problem for Hayden, they say, is that even if what he alleges is generally true, it is still hard to show that this specifically affected Barry or his co-indictee, political consultant Paul Byrne, and amounted to a constitutional matter.

: Jersey City's Willis agrees. "It can't be in its generalized form," he says.

: But that may not matter. Even if Hayden loses a motion to dismiss, he may succeed in empanelling a jury with one or two members who harbor questions about why the FBI was allowed to run the county for so long.

: Willis believes that if Hayden can convince a court that Janiszewski was the FBI's puppet, it would lend support to some sort of entrapment argument. In other words, if it were not for the FBI leaving Janiszewski in place, Barry and Byrne [and Colon and indicted freeholder William Braker, for that matter] could not have committed their crimes.

: "I think he's onto something," Willis says.

: An entrapment defense can be tricky territory. Willis mounted one for Freeholder Colon, and she was convicted in June of three counts of mail fraud and two counts of aiding attempted extortion.

: It also runs the risk that potential jurors, fed up with the parade of defendants shuttling between Jersey City and Newark's U.S. District Court, might approve of the FBI's oversight of Hudson County. Christie does not go quite that far, but in his statement last week he said, "We certainly do not believe that the public -- particularly the taxpaying citizens of Hudson County -- would object to the lawful methods employed if they ultimately weeded out those who were stealing from them under the cover of their appointed or elected positions."

: He added, "The investigative methods had the desired effect of rounding up the greatest number of culpable individuals while assuring that the top targets in this case, Mr. Janiszewski, Mr. Barry, Mr. Byrne, Nidia Colon and others, are made to face the consequences of their actions."

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