Hunterdon County Justice Center in Flemington
The state is seeking to appeal a recent court ruling compelling it to turn over transcripts and other information for the grand jury proceedings against former Hunterdon County Sheriff, Deborah Trout.
In 2010 a Hunterdon County grand jury returned 43 counts of official misconduct and other crimes against Trout; Michael Russo, who was an undersheriff, and John Falat Jr., a former Sheriff’s Office investigator. The indictments were later dismissed after the state took over the investigation.
Trout is suing the county and others in federal court over what she terms malicious prosecution. And the dismissal of the indictments prompted a suit in the state superior court by former Assistant Prosecutor Ben Barlyn, who claims that when he complained at a meeting that the indictments were dismissed for political reasons, he was then fired.
Barlyn sought to get the transcripts in the Trout case to help prove his case of wrongful termination. He hopes to show that the indictments were not properly dismissed and therefore he was improperly terminated. If they do help prove his case, the transcripts could also help prove that the county had probable cause to indict Trout, Russo and Falat and therefore there is no malicious prosecution.
Barlyn's suit is against Paula Dow, a former state attorney general and now a Superior Court judge; the county Prosecutor’s Office; then-acting Hunterdon Prosecutor Dermot O’Grady; Hunterdon County; the state; the state Division of Criminal Justice; the Attorney General’s Office and up to 25 other people whose identities were not known at the time the suit was filed.
In late August, a judge gave the state 30 days to turn over the transcripts and documents pertaining to the grand jury proceedings that led to the indictments of then-Sheriff Trout and her two undersheriffs.
A brief in support of a motion for leave to appeal, submitted this week on behalf of Acting Attorney General John Hoffman said, "The negative implications of the trial court's decision are two-fold. First, every judge of the Superior Court of New Jersey would now have the unprecedented authority to unseal the record of grand jury proceedings of another county. Second, a civil plaintiff may now obtain the record of an unrelated grand jury proceeding in which neither he nor the defendants are parties, based on nothing more than bare speculation. Because the trial court's decision degrades the secrecy of grand jury proceedings, it must be reversed."
Under New Jersey court rules, grand jury proceedings are generally kept secret. Only jury members, the clerk, witnesses, the prosecutor and the person transcribing or recording the procedures are allowed in the courtroom. The jurors must take an oath of secrecy.
A grand jury consists of no more than 23 people. Of those 23, at least 12 must concur that there is sufficient evidence to suggest a crime has been committed. The grand jury does not decide guilt or innocence, only that a trial is warranted. The prosecution and defense each get a copy of the grand jury proceedings after an indictment is returned.
Only when an assignment judge agrees, will grand jury transcripts be made public.
The state argues that Barlyn does not need the evidence requested, because in a civil case he only needs to prove a reasonable belief as opposed to a criminal case where the state must prove its case beyond a reasonable doubt.
The state also argues that releasing the transcripts would have a chilling effect on future cases. He argues that witness may not come forward out of fear of losing their privacy and that they could face retaliation by those they testify against.
Judge Pereska reasoned that since Trout, Falat and Russo no longer work in the county, there is no opportunity to retaliate against any current employees who were also witnesses in the investigation.
In his brief in support of the motion to compel the state to release the transcripts, Barlyn's attorney Robert Lytle, argued that there is very little that was kept secret in the Trout case. The story was widely reported in local and national media outlets.
The courts, however, view newspaper accounts as "unreliable hearsay."
Hoffman wrote that not all the information presented to the grand jury was revealed in the indictments and releasing such information would invade the privacy of Trout, Falat and Russo.
"Barlyn should not be allowed to trample on the confidentiality of the grand jury proceedings merely because the indictments were reported by the press."
No new court dates have been scheduled in Barlyn's case.
A telephone conference call is scheduled in Trout's federal case for Oct. 23 and an in-person conference set for a month later.
Three motions to dismiss the federal case are still pending.
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