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Judge was wrong to throw out bribery case in infamous corruption sting, prosecutors say

NJ.com logo NJ.com 10/7/2021 Ted Sherman, nj.com

A Superior Court judge got it wrong earlier this year when she threw out a high-profile bribery case against a former Bayonne mayoral candidate in what had been one of the state’s biggest corruption operations in years, prosecutors said.

In a filing before the Appellate Division, the state Attorney General’s office sought to reverse the ruling of Hudson County Superior Court Judge Mitzy Galis-Menendez, who dismissed a criminal indictment against Jason O’Donnell in June. He had been charged in connection with allegations that he took a cash payoff from a Morristown attorney in exchange for promises of lucrative tax and real estate work if he won his election.

Galis-Menendez concluded that O’Donnell had committed no crime under the state’s corruption statutes, finding that he had no influence to offer because he was not a public official when he was ensnared in the sting operation.

“Where is the crime? Where do we criminalize activity that someone is thinking of doing?” she asked. “Jason O’Donnell had nothing to offer.”

O’Donnell, a former Democratic assemblyman from Hudson, lost his mayoral bid.

But in a 161-page brief filed with the Appellate Division late Wednesday, the Attorney General’s office said the state’s bribery statutes were clear about the illegality of the payment allegedly accepted by O’Donnell.

“The question this case presents is whether our bribery law nevertheless contains a loophole granting immunity to candidates for public office who accept cash bribes as consideration to take future official action, solely on the basis that they have not yet been elected,” wrote prosecutors. “The answer, based on the text of the bribery law, compelling evidence of legislative intent, and precedent is a resounding ‘no.’”

The brief, written by Deputy Attorney General Jennifer Kmieciak said the Legislature “never contemplated” that any candidate could accept bribes with impunity, and that the law it wrote in fact prohibits such conduct.

She said the language of the law could hardly be clearer, covering any situation in which a person “accepts or agrees to accept any benefit as consideration for the performance of official duties,” without the requirement that they be able to perform those duties.

The state’s legal arguments echoed the same points prosecutors had unsuccessfully made before Galis-Menendez.

In court, Deputy Attorney General John Nicodemo said it could not be the Legislature’s intent to allow candidates to peddle influence with relative impunity.

“The statute unambiguously criminalizes the defendant’s conduct here,” argued Nicodemo, telling the judge that O’Donnell took money and created the understanding that he had the authority. “Case law says he accepted a bribe. It’s a conditional promise.”

But O’Donnell’s attorneys argued that the language of New Jersey’s corruption statutes specifically defined bribery as the taking of money in exchange for the performance of official duties. O’Donnell had lost his bid for election and was not in any position of authority when he was ensnared in the investigation, they said. He had no official duties.

“My client was not and is not a public servant or party official,” said O’Donnell’s defense attorney, Leo Hurley Jr. of Connell Foley in Jersey City during the hearing before Galis-Menendez.

A similar federal corruption case a decade earlier during the infamous Bid Rig case saw charges thrown out against Lou Manzo, a former assemblyman then running for mayor of Jersey City.

In that case, Manzo had been accused of accepting cash in exchange for promising expedited approvals for real estate projects. But then-U.S. District Judge Jose Linares dismissed the charges, ruling that Manzo wasn’t a public official and did not hold a public position because he was only an unelected candidate for elective office. The Court of Appeals for the Third Circuit later upheld Linares.

The Attorney General’s office, in its brief seeking the reinstatement of the charges against O’Donnell, said the federal ruling was not binding in interpreting state law.

The state law offers no defense to prosecution to someone simply because they were not qualified to act, wrote Kmieciak in the brief. She said O’Donnell allegedly accepted a “benefit” of $10,000 as “consideration” for taking an official act in the future.

“His only defense — that he was not qualified to act in the desired way when he made this illicit deal because he had not yet assumed office — is actually no defense to criminal liability at all,” she wrote.

At the same time, she said that despite the appeals court decision in the Manzo case, the federal law itself had been wrongly interpreted.

O’Donnell was originally charged in December 2019 with four other political candidates and officials accused of taking tens of thousands of dollars in illegal campaign contributions and cash payoffs from Morristown attorney Matthew O’Donnell — who is unrelated to Jason O’Donnell. The attorney was actually secretly cooperating with prosecutors after he was caught in a separate bribery investigation involving years of payoffs and donations.

After a series of meetings with the attorney which were secretly recorded, Jason O’Donnell was charged with accepting $10,000 in “street money” for his 2018 mayoral campaign. He allegedly promised Matt O’Donnell that if elected, the job of Bayonne’s tax attorney would be his, according to complaints filed in the case.

Since the years-long sting operation came to light, however, the undercover operation has come under mounting criticism by municipal officials questioning whether prosecutors went over the line in running a sting operation that ended up enriching their informant on the back of taxpayers.

Internal memos and interview notes obtained by NJ Advance Media found that while Matthew O’Donnell was secretly working with authorities, his Morristown law firm was permitted by prosecutors to rake in more than $6.5 million from 17 towns across the state.

Most of those charged in the case were low-level political figures — including a mayor’s wife who had the bribery charges against her dismissed. She was sentenced to probation for minor campaign infractions that carried no jail time.

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Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL.

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