Superior Court Judge Mitzy Galis-Menendez today dismissed the indictment against former Assemblyman Jason O’Donnell (D-Bayonne) and dealing a crushing blow to state prosecutors and their cooperating witness in a corruption sting operation.
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“This court does not believe that the state has presented some evidence to the grand jury that the defendant received a benefit as a consideration for the performance of his official duties,” Galis-Menendez said. “There is no evidence of any official duties.”
Galis-Menendez appears to have relied on an argument from O’Donnell’s attorney, Leo Hurley, that a federal judge got it right a decade ago when he dismissed charges against former Assemblyman Louis Manzo (D-Jersey City). The judge, Jose Linares, found that Manzo could not be accused of bribery because he no longer held public office.
Hurley called the Manzo case “a mirror image” of the state’s prosecution of O’Donnell.
O’Donnell had been out of the legislature for almost three years when he mounted an unsuccessful bid for mayor of Bayonne in 2018. Prosecutors alleged that O’Donnell took cash campaign contributions in exchange for making the cooperating witness, Matthew O’Donnell, the city’s tax appeal attorney. Jason and Matthew O’Donnell are not related.
Galis-Menendez shot down claims by Deputy Attorney General John Nicodemo that the court should consider two precedents: Rabbi Israel Schenkolewski, who was accused of accepting a contribution to a non-profit he ran in exchange for actions by the Lakewood Zoning Board that he chaired; and former Carneys Point Mayor John Lake, who traded a promise of a job to coax his Democratic opponent to drop out of the race.
Despite Nicodemo’s argument that the “crime is in the promise,” the judge found that O’Donnell, as a candidate, lacked the power to deliver on any pledge of a contract.”
“I don’t think you need to be in office, but you need to have influence,” Galis-Menendez said.
In what he termed an “unintended consequence,” Nicodemo apologized for filing a brief that took shots at Linares’ ruling in Manzo. He had called the analysis “flawed” and suggested the highly respected former jurist manipulated an argument to get the result he wanted.
Galis-Menendez made it clear she did not agree with Nicodemo.
“Judge Linares did a beautiful analysis of that,” she said.
The state attorney general is planning to appeal Galis-Menendez’s ruling.
“We strongly disagree with today’s decision, which, if upheld, effectively legalizes bribing candidates for public office,” said Peter Aseltine, a spokesman for the prosecutors. “We do not think this is what the Legislature had in mind when drafting this law and we look forward to appealing this ruling once we receive the written opinion.”
Hurley applauded Galis-Menendez’s decision to dismiss the indictment.
“We are pleased with the Court’s decision today that re-affirms a basic precept of our system of government: it is the legislature, and not unelected prosecutors, who writes the laws of this State,” said Hurley.
So far, O’Donnell’s cooperation has netted just a handful of small fish: former Morris County Freeholder John Cesaro, former Mount Arlington Councilman John Windish, and former Jersey City Board of Education President Sudhan Thomas.
Mary Dougherty, also charged in the O’Donnell caper, pleased guilty to a campaign finance reporting violation and received one year of probation.
In April, Galis-Menendez sealed a list of potential targets in a state corruption probe, including a list of individuals cooperating witness Matthew O’Donnell offered to contact and a list of people prosecutors asked O’Donnell to connect with.
Nicodemo acknowledged that there are ongoing investigations related to a cooperation agreement O’Donnell and his law firm entered into with Attorney General Gurbir Grewal’s office in June 2018.
State and federal prosecutors were conducting joint investigations in matters involving Matthew O’Donnell.
Matthew O’Donnell agreed to plead guilty to one count of second degree Conspiracy to Commit Misconduct by a Corporate Official and forfeit $600,00 he made through an elaborate scheme that used illegal straw donors and cash contributions to obtain lucrative taxpayer-funded legal contracts.
The state will recommend that O’Donnell serve eight years in a state prison, according to a plea agreement obtained by the New Jersey Globe through a document request from the state judiciary.
But prosecutors and O’Donnell also agreed that the forfeiture amount would be “be subject to an upward revision to account for prospective profits that the defendant derives from illegal activities occurring after the date of this agreement but in connection with his cooperation.”
The prosecution of O’Donnell has been going on for nearly four years.
O’Donnell entered into a plea agreement on July 30, 2018, that included a permanent disqualification from holding any public position “at the time of this plea.”
Matthew O’Donnell billed government entities more than $4.6 million since his participation in a sting operation began three years ago, Hurley has said.