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Feds may have hard case to prove in Bridgegate trial

Paul Berger
@pdberger

When the defendants enter the courtroom this month for the start of the Bridgegate trial, the odds will be stacked against them. Of the 203 men and women who have appeared on federal charges in New Jersey during the past six years, only 13 have been acquitted.

But Bridget Anne Kelly and Bill Baroni will have hope.

That’s because the trial to determine who ordered access lanes closed at the George Washington Bridge, which promises to be the highest-profile trial in the state for years, presents some thorny challenges for prosecutors, even by the idiosyncratic standards of public corruption cases.

Former Christie administration Deputy Chief of Staff Bridget Anne Kelly and her attorney Michael Critchley Sr. head to a news conference in May 2015 after federal prosecutors brought charges against Kelly and Bill Baroni, who was the governor's top appointee at the Port Authority.

Kelly, Gov. Chris Christie’s former deputy chief of staff, and Baroni, Christie’s top executive appointee at the Port Authority of New York and New Jersey, are accused of conspiring to close two of three access lanes to the world’s busiest bridge over five mornings in September 2013. The closures in Fort Lee coincided with the first week back to school, causing gridlock that wreaked havoc for commuters, school buses and first responders.

The George Washington Bridge is one of the agency’s most lucrative assets, generating revenues of $739 million last year.

Baroni, the agency’s deputy executive director, and others at the Port Authority initially said that the lane closures were conducted as part of a traffic study. But prosecutors allege that the study was a cover story to hide the true motive, which was to punish Fort Lee Mayor Mark Sokolich, a Democrat, for not endorsing Christie, a Republican, during his 2013 re-election campaign.

Jury selection begins on Thursday with opening statements set for Sept. 19.

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Defense attorneys and former prosecutors anticipate it will be a hard-fought trial, in particular because Michael Critchley Sr., widely regarded as one of New Jersey’s top criminal defense attorneys, represents Kelly.

Critchley, who declined comment, is renowned as a skilled defense attorney capable of developing a rapport with juries and unafraid of cross-examining witnesses, even if he does not know the answer before he asks a question.

He rose to national prominence 30 years ago as the attorney for Michael “Mad Dog” Taccetta, who stood trial in Newark alongside 19 reputed members of the Lucchese crime family. That blockbuster trial, which lasted almost two years, ended in an acquittal for all of the defendants. A few years later, Critchley represented a Newark police officer found, gun in hand, standing in his former bedroom by the naked body of his ex-wife’s lover. The detective’s acquittal on murder charges was only the second such acquittal in Morris County in 20 years.

“He’s had tougher cases, and he’s won tougher cases,” said attorney Jeffrey Lichtman, who won John Gotti’s acquittal on racketeering charges in Manhattan in 2005. “If he’s involved, there’s hope — and that’s really what you want as a defendant.”

Jennifer Rodgers, executive director of Columbia Law School’s Center for the Advancement of Public Integrity, said she doubts prosecutors are concerned about facing Critchley. Rodgers, a federal prosecutor in Manhattan for 13 years, said she was never impressed by a defense lawyer’s skills.

“All the showmanship in the world can’t really erase the facts,” Rodgers said.

The statistics bear that out. Since April 2010, the earliest date for which the U.S. Attorney’s Office was able to provide detailed statistics, prosecutors secured 162 convictions at trial, and 17 defendants pleaded guilty after trial commenced — an 88 percent success rate. Just 6 percent of defendants walked free.

The remaining 11 defendants’ trials ended in a hung jury or in a mistrial. Nine of those defendants were subsequently convicted. One did not face a retrial, and the remaining defendant will stand trial this November.

Still, public corruption trials can pose particular problems for prosecutors. Unlike in a murder case, the government must prove both that a crime was committed and that the defendant committed the crime deliberately.

“Getting inside someone’s head is always the challenge,” said Glen McGorty, who led several high-profile public corruption cases during almost 15 years as a federal prosecutor in New York.

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McGorty, now a managing partner of the New York office of Crowell Moring, said prosecutors will use text messages and emails, including the infamous email Kelly sent to an alleged co-conspirator one month before the lane closures — “Time for some traffic problems in Fort Lee” — to show that criminal intent.

But Steven Molo, a prominent defense attorney in Manhattan, said that skilled lawyers can find a version of events to fit their defense.

“Often in white-collar cases, there’s not a great deal of dispute as to what occurred, but why it occurred and whether the defendant had a criminal intent,” said Molo, who defended former New York state Assembly Speaker Sheldon Silver last year. “I would say that’s going to be really more the issue: who has a story that resonates with the jury and what are the facts.”

Bill Baroni, former deputy executive director of the Port Authority of New York and New Jersey, was indicted along with Bridget Anne Kelly in the Bridgegate case.

Kelly and Baroni are charged with misusing federally funded property, fraud and depriving the public of its right to interstate travel. David Wildstein, a former Port Authority employee, pleaded guilty to related charges in May and is cooperating with the government.

Bridgegate poses a particular challenge, lawyers say, because the defendants enjoyed no obvious material benefit from the alleged conspiracy.

No cash or gifts exchanged hands. Public employees were not used to paint a boss’s home or to plow his driveway. The defendants are not even leaders or front-line politicians. They are deputies accused of carrying out a petty scheme using an iconic bridge to exact political revenge against a small-town mayor.

“Cases with the biggest trial risk are those with complicated fact questions, and this case certainly has a number of complicated and difficult factual questions,” said Brian Jacobs, a partner at Morvillo Abramowitz who secured convictions in several public corruption cases as a federal prosecutor in New York.

Christie’s shadow

Although Christie is not on trial, the specter of the 55th governor of the state of New Jersey will loom over the courtroom.

The bridge closure allegations dogged Christie throughout his failed bid for the Republican presidential nomination, and they continue to dog him as a top aide to Republican presidential nominee Donald Trump.

Christie said last month that if he is served with a subpoena he will testify at trial. But several lawyers said they doubt he will appear. Lichtman said, “I’m sure that Christie has made it clear to both sides, ‘If you call me, you are going to regret it.’ ”

Prosecutors do not claim that Kelly or Baroni organized or led the conspiracy. Instead, they say that the pair cannot mount a defense by claiming they were only following orders.

Observers will be watching for any evidence linking Christie’s inner circle to the conspiracy. Witnesses are likely to include former Christie allies, political operatives, the mayor of Fort Lee, the executive director of the Port Authority and Port Authority police officers.

Another possible witness, Christie’s 2013 campaign manager Bill Stepien, was recently hired by the Trump campaign as a national field director. Christie cut ties with Stepien in January 2014 after emails emerged showing that Stepien privately called the Fort Lee mayor an “idiot” when Sokolich raised concerns about the lane closures.

Although Baroni was Christie’s top executive appointee at the agency, Wildstein — who, like Christie, attended Livingston High School — was widely regarded as the governor’s top political lieutenant at the agency. Operating from the shadows of his post as interstate capital projects director, Wildstein made sure that the governor’s will was carried out, from overseeing major construction projects to strategizing the rollout of a series of controversial toll hikes.

As the prosecution’s star witness, Wildstein will be a prime target for Critchley and for Baroni’s lead lawyer, Michael Baldassare, who also declined to comment on the case. The pair will likely emphasize that Wildstein has an incentive to give prosecutors whatever they need in return for a lenient sentence.

“The credibility of the cooperator will be a key issue, as will how that cooperator holds up under cross-examination,” said Carrie Cohen, a partner at Morrison Foerster who as an assistant U.S. attorney led the prosecution team that secured Silver’s conviction last year.

Wildstein’s past includes an early stint as a brash, power-hungry New Jersey mayor, several years as the anonymous author of a political blog, and finally as a Machiavellian figure inside the Port Authority. Critchley’s cross-examination of Wildstein already has defense attorneys salivating. “Crossing a guy like him would be a joy for any defense lawyer,” Lichtman said.

Since winning the Lucchese case, Critchley has defended a slew of New Jersey politicians and businessmen. He also represented Rielle Hunter, John Edwards’ mistress, and worked for free for Bruce Jackson, the emaciated foster boy whose case sparked an overhaul of New Jersey’s child welfare system. In 2010, Critchley secured the acquittal of Ridgefield Mayor Anthony Suarez, breaking the U.S. attorney for New Jersey’s eight-year winning streak in political corruption cases.

Hank Asbill, who worked alongside Critchley in the Lucchese trial, said Critchley has “a great sense of humor, a fantastic memory, and he is totally fearless” when cross-examining witnesses.

“The prosecution is going to have to deal with the fact they are up against one of the best trial lawyers ever,” said Asbill, who most recently defended former Virginia Gov. Bob McDonnell. “No matter how good or bad their facts are, they will be in for a serious contest, regardless. If Mike is in trial, the government’s at risk.”

Paul Berger: berger@northjersey.com