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Molinelli, left, Zisa
Allowing attorney Richard Malagiere to question investigators and others on the witness list as part of the civil cases causes “substantial and irreparable harm” to the state’s criminal case, with the trial not set to begin in Hackensack until March at the earliest, Molinelli contends in court papers filed Thursday in U.S. District Court in Newark.
Unlike in criminal cases, lawyers in civil suits have much broader authority to ask open-ended questions about someone’s “knowledge, thoughts and mental process,” contends the prosecutor’s motion, filed by Angelo J. Genova of Genova, Burns and Giantomasi.
In fact, Malagiere’s questioning of at least three of the defendants shows the lawyer “focused on the criminal trial of Mr. Zisa” and not on the federal civil rights complaints, in “an egregious attempt to circumvent the New Jersey court rules governing criminal practice,” Molinelli argues.
“It is apparent that these depositions were subpoenaed to elicit information concerning the Prosecutor’s investigation and prosecution of [Zisa] and to obtain information that is otherwise not discoverable in the criminal matter,” the motion contends. “The manipulation of the rules of criminal procedure by way of civil discovery in these cases cannot be ignored.”
The strategic legal game centers on two incidents involving Zisa’s then-girlfriend, Kathleen Tiernan.
In one, Bergen County prosecutors allege, Zisa covered up the alleged involvement of Tiernan’s son in a 2004 robbery and assault. In the other, they accuse Zisa of showing up at the scene of a car crash that Tiernan was in and whisking her away so that she didn’t have to take a DWI test.
Two officers who responded to the crash have said they believe Tiernan was drunk.
One of them, Joseph Al-Ayoubi, was among five officers who sued Zisa and others, alleging that the chief violated their civil rights by forcing them to alter their reports, among other complaints. Last week, a federal judge in Newark dismissed most of Al-Ayoubi’s suit against Zisa and two other officers over a failed drug test that he claimed violated his constitutional rights.
Another plaintiff is Hackensack Police Officer John Hermann, who is represented by Malagiere in another civil rights filing against Zisa, in which he claims that the chief pressured him to alter the accident report.
Prosecutors later arrested Zisa on charges of insurance fraud, then re-arrested him a month later and charged him with official misconduct.
A grand jury in Hackensack eventually handed up a 13-count indictment that expanded the case to include witness tampering and other charges.
The witness list provided by Molinelli’s office to the Superior Court, with copies to the involved defense attorneys, included Herrmann and Al-Ayoubi, as well as:
Hackensack Officer Laura Campos; Officers Eric Arosenowicz and Michael McCabe of the Bergen County Sheriff’s Department; and John Haviland, Gary Robinson, Dave Rodgers and Robert Pasquariello of Molinelli’s office.
“Each of these individuals has direct knowledge of the February 2008 accident involving Tiernan and Zisa,” or the incident involving her son, “or has been involved in the investigation and/or prosecution” of either or both cases, the motion says.
Only Herrmann and Al-Ayoubi have “any relevant knowledge concerning their First Amendment retaliation claims[,] which are the basis of the civil action against Zisa,” the motion alleges.
However, federal rules allow for the half-dozen or so individual suits filed by officers against Zisa to be consolidated as one for discovery purposes.
Molinelli noted that attorney Patricia Prezioso requested additional time in the criminal trial at the very same time that Malagiere was trying to depose people on the witness list. Prezioso told the judge that her “investigation has not yet been concluded, in part because there are still open discovery issues that have yet to be resolved.”
Superior Court Judge Peter Doyne, who first extended the trial’s beginning to Jan. 16, then moved it to March 26 after Tiernan’s lawyer dropped out of the case.
Molinelli contends that Prezioso’s “numerous motions and use of other tactics in the criminal matter have been orchestrated to significantly delay the prosecution,” apparently in order to give Malagiere time to depose people from the criminal witness list – essentially handing over the prosecutor’s case before a jury has even heard opening arguments.
“The open ‘discovery issues’ referenced by Ms. Prezioso undoubtedly refer to the deposition testimony subpoenaed by Mr. Malagiere only days earlier,” Molinelli’s motion contends.
These involve not only Tiernan’s car crash but also the investigation and subsequent reports connected to a 2004 mugging allegedly involving Tiernan’s son.
“This is amazingly ridiculous, and a transparent attempt by Mr. Molinelli’s attorney to spin the flaws in the State’s case against my client,” Prezioso told CLIFFVIEW PILOT. “What should be obvious to all is that my client didn’t initiate litigation against the State’s witnesses, the State’s witnesses initiated litigation against my client. Their lies and half-truths are now being exposed as we can see from civil litigation.”
Prosecutors have legal protections in order to “prevent the disclosure of law enforcement techniques, procedures and sources,” as well as “to protect witnesses and others involved in a law enforcement investigation,” and, finally, “to prevent interference with an investigation,” Molinelli’s request to the federal judge emphasizes.
However, Prezioso countered: “This is the United States, where prosecutors don’t get to surprise defendants with confidential evidence. My client indeed gets to defend himself, and gets to use all information available to expose the truth.
“The truth will eventually come out and justice hopefully will be done,” she told CLIFFVIEW PILOT. “And, for the sake of my client I hope that the US Attorney’s Office and the NJ Attorney General are watching.”
Molinelli is asking the judge to quash any subpoenas issued by Malagiere to his office’s investigators and witnesses for the prosecution. He also wants the judge to order that no further attempts be made to depose either until the criminal trial is finished.
Molinelli specifically cites a New Jersey Appellate Division ruling in a Bergen County case, River Edge Savings and Loan Ass’n v. Hyland (1979):
“The receipt by appropriate law enforcement officials of information concerning the existence or occurrence of criminal activities is critical to the uncovering and the prosecution of criminal offenses, and is thus crucial to effective law enforcement. In order that the flow of such information be not impeded or cut off, the law has long treated the information as confidential and privileged against disclosure, thereby protecting witness security, the State’s relationship with its informants and witnesses, and other confidential relationships, among other things.”
“Most federal courts have also recognized a law enforcement privilege barring the disclosure of investigatory files,” the motion adds.
In fact, it says, federal courts have ruled against those defendants in civil cases seeking such information who are also “an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question… at the very least until the criminal case is concluded.”
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