Cooperating witness in state corruption probe asks appellate judges to postpone civil lawsuit

Matt O’Donnell, the disgraced former tax appeal attorney who is the state’s cooperating witness in a local corruption sting operation, is trying to delay a lawsuit by the township of Holmdel, who says he overbilled them for legal services.

O’Donnell is appealing a decision by Superior Court Judge Linda Grasso Jones to permit Holmdel to move forward.  His attorney, Kevin Musiakiewicz, told a panel of state appellate court judges that they should stay Holmdel’s lawsuit until after O’Donnell cooperation deal is finished.

The crux of O’Donnell’s argument, which was backed up by state prosecutors, is that media attention could pollute the jury pool when trials of three former officeholders under indictment – former Morris County Commissioner John Cesaro, former Jersey City Board of Education President Sudhan Thomas, and former Mount Arlington Councilman John Windish – begin.

Musiakiewicz suggested that the civil suit could impede the state’s prosecution of others.

But Jerry Dasti, the attorney representing Holmdel, said that O’Donnell “is potentially only a party, not a defendant,” in the cases against Cesaro, Thomas and Windish.

“That jury will know in ten seconds that he’s pled guilty,” Dasti told the judges.

Appellate Court Judge Francis Vernoia seemed skeptical of that, saying that the state did not express concern for civil discovery in an amicus brief they filed supporting a hold on Holmdel’s suit.

“They’re worried that there’s going to be publicity in this case that might affect the jury pool.  Do they express any view on any other issues that might be implicated by his providing discovery in this case?” asked Vernoia.

Musiakiewicz said they did not but said he doesn’t think that eliminates the possibility of that happening.”

He also argued that O’Donnell’s plea agreement will allow past victims to recoup lost funds from him but acknowledged he could not be sure Holmdel would be eligible for that restitution.

The town had little trust in the plea agreement to recoup funds for the town.

“My recollection of the plea [agreement] it says he’s supposed to post $600,000 for all these towns, and if he doesn’t have it, he can sign a note,” said Dasti.  “We don’t put a lot of faith in that.”

O’Donnell has pled guilty on two counts connected to his use of straw donors to obtain public contracts.  He faces three years in state prison.

Dasti voiced concern over a revised plea agreement that was made public in October that immunizes O’Donnell for past billing practices in certain cases.  The state has not revealed the scope of their investigation into O’Donnell, but Dasti said he was told by prosecutors that Holmdel is not part of the probe.

“Somebody has to be responsible for Mr. O’Donnell and it should be Mr. O’Donnell,” Dasti said.

Two of the judges appeared unconvinced by O’Donnell’s argument that his civil rights might be violated if the Holmdel case moves forward before his cooperation with the state is over, and before he is sentenced.

“He’s not like other defendants in a civil action because he’s pleaded guilty,” said Clarkson S. Fisher, Jr.,  the presiding appellate court judge.  “He’s not concerned with his fifth amendment rights.”

Vernoia said that the criminal prosecutions are “the state’s case, not Mr. O’Donnell’s case.”

“I’ve been asked to trust a criminal,” Dasti stated.  “I don’t think Mr. O’Donnell has earned anybody’s trust.”