Dismissal of DeMarzo Indictment Was No Surprise

BY CAROLE MATTESSICH
Correspondent
COURT HOUSE — For those familiar with the March 16 court proceeding that led to last week’s dismissal of the indictment against Gary DeMarzo and Sam Lashman, the dismissal didn’t exactly come as a surprise.
For weeks, the courthouse buzz was that Superior Court Judge Albert Garofolo, visiting from Atlantic County, to assist an overburdened Judge Raymond Batten – had grilled Chief Assistant Prosecutor Rob Johnson at the hearing, asking why and how the County Prosecutor’s Office brought charges of official misconduct and conspiracy against DeMarzo, Wildwood’s former mayor, and Lashman, an attorney.
Lashman worked at City Hall as a confidential aide to DeMarzo between Oct. 1 and Nov. 16, 2009. The state alleges that he spent that time defending DeMarzo against a lawsuit authorized by DeMarzo’s fellow commissioners, Ernie Troiano and William Davenport, challenging DeMarzo’s dual service as both a Wildwood cop and a commissioner.
After DeMarzo’s election in May 2007, City Solicitor Marcus Karavan had opined that the dual jobs presented a conflict. The city’s suit against DeMarzo careened through the court system for more than two years.
Garofolo conducted the March 16 hearing to consider dismissal motions filed by both defendants, who argued that the criminal indictment was politically motivated and that the prosecutor improperly kept important evidence from consideration as grand jurors decided whether to hand down charges.
Facts allegedly not presented to the grand jury included that Lashman’s hiring was specifically discussed by all three of Wildwood’s commissioners at public meetings; that Troiano expressly voiced concerns about hiring legal assistance for DeMarzo; and that both Troiano and Davenport nevertheless voted – not just once, but twice – in favor of budgets that included the monies earmarked for Lashman.
It wasn’t the first time DeMarzo and Lashman argued for dismissal.
The state initially handed down a different indictment last year, shortly before the May 2011 election in which Troiano regained the mayoral seat from which he tumbled during a December 2009 recall election. That first indictment accused DeMarzo of hiring and using Lashman surreptitiously within City Hall, and it was used in campaign ads by some of Troiano’s supporters as a reason to vote DeMarzo out of office last year.
But the state issued a second, “superceding” indictment in late November, just days before a scheduled hearing on the defendants’ first motion to dismiss.
DeMarzo’s attorney, Lou Barbone, argued at the March 16 hearing that, in order to continue creating an impression that defendants had acted secretly, during the second grand jury process the state elected not to tell grand jurors that Lashman’s hiring and payment were openly disclosed, debated and voted upon by all commissioners.
That doesn’t comport with the prosecution’s duty in the grand jury process, Barbone asserted to the court.
“In order to ensure independence in the grand jury system in the State of New Jersey,” he said, “it is essential that jurors be informed of the relevant facts.”
In addition, Barbone argued, a commission member who finds himself in a minority on certain issues in a Walsh Act jurisdiction – like DeMarzo in Wildwood – has the right to obtain legal counsel.
“This is a fight of the governmental officials about governmental business and power in the City of Wildwood,” Barbone said. “It is absolutely a lawsuit by the city, the majority of two against the minority of one, and it’s a minority of one fighting back in defense.”
Though the state conceded in its most recent brief that Lashman was hired openly, Johnson continued to argue at the March 16 hearing that DeMarzo tried “to sneak it under the back door” in order to get around a city ordinance providing that the city will not indemnify any employee against whom it has filed a lawsuit.
“I don’t understand how you keep saying no one knew,” Garofolo said to Johnson, referencing public comments by Troiano and other city officials about the hiring, as well as the public votes on budgets that included monies paid to Lashman. Couldn’t the hiring of a confidential aide to provide legal advice simply have been a valid strategic move, he asked, and, if the payments were so wrongful, how could the other two commissioners avoid indictment or a taxpayer lawsuit?
When Johnson insisted that Lashman served only DeMarzo’s private interests, Garofolo asked: “Why can’t it be personal and public at the same time? Why can’t he have an admitted interest in saving his $70,000 job at the same time he says ‘the taxpayers voted for me and deserve to have me here’?”
To Johnson’s suggestion that DeMarzo’s fellow commissioners were not sure what was going on, Garofolo was equally blunt.
“Why did they just not pay (Lashman), when they had all these doubts about it?” he asked.
In his opinion announced last week, Garofolo stated that the State’s failure to present all relevant evidence resulted in a grand jury proceeding that “was fundamentally unfair, deprived the grand jury of its decision-making function, and was therefore unconstitutional.”
If the grand jury had the chance to consider everything, the judge said, it likely would have made a different determination.
Garofolo also expressed concern over the state’s reliance on grand jury testimony by City Solicitor Karavan, who suggested that the defendants’ activity was improper and unethical. The testimony was “rife with conclusory statements about the state of the law and the expression of personal opinions about ethics violations,” the court noted.
The judge also noted that while the state claimed DeMarzo gained a personal benefit by trying to protect his high-paying police job, he also had “a constructive obligation…to uphold the public will which placed him in office.”