OPIA destroyed cell phones of investigators in corruption sting operation

The embattled Office of Public Integrity and Accountability has destroyed the cell phones of detectives who investigated a nearly six-year-old bantam public corruption case against former Assemblyman Jason O’Donnell (D-Bayonne), even though investigators used those phones to send text messages to each other – and prosecutors – about the case.

O’Donnell’s attorney, Leo Hurley, alleged that the OPIA dumped the phones two years after his 2020 discovery demand.  He stated that text messages relevant to the case had previously been discussed in court and that there are no reports or documentation explaining the destruction and preservation process.

“These are investigators of the Attorney General’s office, conducting business of the Attorney General’s office, through text message,” Hurley said in a hearing before Superior Court Judge Mitzi Galis-Menendez today.  “The implications of the destruction of these phones and the lack of turnover are not just on this individual matter. They bear upon any matter these investigators were involved in.”

Hurley argued that prosecutors have “an obligation to preserve materials on cell phones.”

“Phones that we know had communications on them related to this case were destroyed,” he said, noting that a text chain previously turned over shows that state business was being turned over.

“These repositories of communications about this case, and ostensibly about other cases, by agents of the state employees of the state were destroyed. We don’t know the process that was undergone. We don’t know if there were any attempts made to preserve the materials thereon,” said Hurley.  “Take my word for it, it doesn’t work that way.”

According to Deputy Attorney General Frank Valdinoto, work-issued cell phones for three investigators – Michael Fallon, Ho Chul Shin, and Brian Powers – were destroyed.

A fourth phone issued to Detective Miguel Rodriguez has not been replaced, but he is currently on active military duty, and the attorney general’s office does not have possession of it.

“These are investigators of the attorney general’s office who are conducting business of the Attorney General’s office and investigations through text message. The implications of this, of the destruction of these phones and the lack of turnover of materials related to process preservation, and these purported interviews after the fact, years after the fact of the destruction,” Hurley said.  “They’re not just on this individual matter. They bear upon any matter that these investigators were involved in. And they bear upon the liberty interests of Jason O’Donnell and others similarly situated.

The prosecutor who made the representations, Valdinoto, is no longer with the OPIA; he’s been reassigned to a different office, the New Jersey Globe has confirmed.

At today’s hearing, the OPIA was represented by Assistant Attorney General Andrew Wellbrock and Deputy Attorney General Michael Grillo.  Since O’Donnell was charged following a sting operation connected to the state’s cooperating witness, Matthew O’Donnell, the OPIA has had approximately ten different prosecutors on the case; among them is disgraced former prosecutor John Nicodemo, who now holds a desk job at the Office of Highway Safety. (Jason O’Donnell and Matthew O’Donnell are not related.)  Valdinoto had recently succeeded Lisa Queen, a deputy attorney general who had requested a transfer out of the OPIA.

Wellbrock had been brought in last fall to supervise the state’s prosecution of Democratic powerbroker George E. Norcross III and others; Superior Court Judge Peter Warshaw dismissed the indictment in February.

Hurley pushed back against representations by the state that he hadn’t asked for the information until 2023.

“Either they don’t know their file or they’re making a material misrepresentation,” Hurley said.   “It’s important because the letter that Valdinoto submits then goes through a series of recitations about phones, and the implication in the way the letter is structured is essentially, how could we have ever preserved phones of investigators if there wasn’t a demand for communications that was made for the first time until 2023, when the demand was made in 2020?”

Galis-Menendez complained that prosecutors sent her redacted documents to view privately as she mulled which items were discoverable and needed to be turned over to O’Donnell’s attorney.

She set the next court date for October 21, but noted that they’ll be back earlier if the appellate court rules on the OPIA’s appeal of another procedural ruling comes back before that.

Jason 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.   Galis-Menendez had dismissed the indictment, but it was reinstated on appeal.