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Otherwise, the prosecutor said: “We won’t be responding. We never do. We argue cases in court.”
Molinelli’s staff joined two separate allegations against Zisa into one indictment accusing him of a “pattern of misconduct,” among other counts.
In one incident, he is accused of directing officers to alter reports of an accident involving his ex-girlfriend, Kathy Tiernan.
In another, officers accuse him of taking a hand in an assault report filed against her then-16-year-old son, when, they said, he should have “recused” himself.
This made him guilty of a “conflict of interest,” a grand jury indictment returned nearly a year ago alleges.
Lawyers for Zisa have filed court papers in Hackensack asking a judge to toss out the indictment, claiming that the presentation by Bergen County prosecutors “was fatally flawed, denied Mr. Zisa due process and was fundamentally unfair.”
“This indictment was not constitutionally obtained,”contends the filing, a copy of which was obtained by CLIFFVIEW PILOT. Not only were there gross errors and omissions in the instructions provided to the grand jury by the Assistant Prosecutor, but exculpatory and mitigating facts were not presented.”
In doing so, they allege, the assistant prosecutor “lied by omission.”
It takes a lot for a judge to toss an indictment. However, Zisa’s lawyers cite a ruling by the state Supreme Court that its justices “have demonstrated a willingness to review grand jury proceedings where the alleged deficiency in the proceedings affects the grand jurors’ ability to make an informed decision whether to indict.”
A state judge could also quash an indictment if he or she finds “fundamental unfairness … or where the conduct of the prosecutor amounted to an ‘intentional subversion’ of the grand jury process.”
In the 2004 case of Tiernan’s son, they say, the assistant prosecutor didn’t explain police discretion in juvenile matters. Nor, they say, did he correctly answering the grand jurors’ questions.
The boy’s name was removed from an initial report in which he was named, along with three other teens, in a fight that broke a victim’s tooth. Officer Laura Campos — who has a case pending against Zisa — said the chief directed her to remove the youngster’s name and, in doing so, had the incident “swept under the rug.”
The officer’s claims have “all the hallmarks of pure fiction,” the defense lawyers claim.
The fact is, they say, the file still contains the teen’s full name and attached signed confession. What’s more, they provide proof that Tiernan and the other mothers paid restitution for the broken tooth.
Police reports also show that she changed her story about being told to do anything, including one point saying someone else — and not Zisa — told her that the chief wanted the name excluded, before she even knew who the boy was. She later said it was a different officer that issued the directive.
Interviewed directly by an investigator from the prosecutor’s office after she had filed her federal suit against Zisa, Campos said a review of notes she took in a journal helped her recall that the chief himself told her to remove the teen’s name.
A judge ordered that she produce the journal: After first telling him she didn’t know where it was, she later said there never was one.
Zisa himself called it “an outright lie.”
RELATED STORY: Federal judge dismisses complaints against Zisa, threatens sanctions against cops A federal judge in Newark dismissed several civil rights complaints by a quartet of Hackensack police officers against suspended Chief Ken Zisa and members of his brass – but, more significantly, warned that they might find themselves in serious trouble if they bring any more actions against their deposed boss. READ MORE….
The reports also show that the father of the victim said he was only concerned with restitution and not in pursuing any criminal charges. That apparently was fine with Hackensack police, who handled it under mandatory Attorney General directives governing “stationhouse adjustments.” The goal is help juveniles who aren’t true delinquents avoid unnecessary stigma — and, with it, the potential to get into even more trouble.
It was also something the prosecutors should have explain to grand jurors, given that it isn’t what would be considered common knowledge, Zisa’s lawyers contend.
“Without the grand jurors being aware that there are entirely different mechanisms, procedures, and potential consequences when an offense is committed by someone under the age of eighteen, the grand jurors were forced to assess what had happened to [the boy] by adult criminal standards,” the filing says.
In 2008, Tiernan got into a pre-dawn accident driving Zisa’s car. He came and picked her up, allegedly denying Hackensack police and a Bergen County Sheriff’s officer the opportunity to determine whether she was drunk.
Officer
Joseph Al-Ayoubi wrote the accident report, in which Tiernan said she swerved to avoid hitting an animal. Hermann, who was at the scene, claimed Zisa told him the next day “to keep the incident quiet.”The only way the case flies is if prosecutors prove that Tiernan was drunk and that, as a result, she and Zisa lied on the insurance claim — neither of which is possible, the chief’s lawyers say.
“A phone call from an accident victim to her boyfriend or husband to come pick her up from the scene of the accident is far from a criminal or interfering act,” they contend. “Nowhere does it say that they told Mr. Zisa that they wanted to do [a sobriety test]. There is no evidence that he denied them that opportunity.”
The lawyers also noted that the sheriff’s officer at the scene never officially breathed a word of the incident to anyone until “a private investigator appeared two years later.”
The grand jurors didn’t get to hear any of the officers, nor where they told of immunity agreements they had signed with prosecutors, nor were they notified of the pending federal cases against the chief, today’s filings allege (NOTE: Prosecutors make presentments to grand jurors as a way of obtaining indictments that lead to criminal proceedings; no defense is presented at these. As a matter of record, grand jurors very rarely refuse to indict).
Had the prosecutors disclosed the connections, Zisa’s lawyers contend, the grand jurors would have had questioned the credibility of all three officers.
What’s more, the attorneys claim, the lawyer for the officers in their administrative cases — an attorney who also was defending former PBA President Anthony Ferraiolo against his own charges — offered a “seriously objectionable quid pro quo” to Zisa that they say is documented in an official recorded account of a Jan. 14, 2010 hearing involving Ferraiolo.
(Ferraioli has since been implicated in plenty of trouble of his own: Hackensack officer who sued city, county charged in beating, cover-up )
In short, Zisa says, the lawyer for the officers in their administrative hearings offered to not tell the media, or any federal, state or county law enforcement authority about the charges that would lead to the indictment if the chief agreed to drop the departmental charges.
The trio “had tremendous motivation to lie,” the petition says. “[I]n addition to the civil lawsuits, they each provided the statements used in the grand jury under an unwritten immunity agreement while each had administrative charges or investigations open or pending against them.”
None of that was disclosed to the grand jurors, the defense attorneys said.
Nor was a letter, included in today’s filing, in which the officers’ lawyer, Patrick Toscano, asks that they be able to meet with Bergen County Prosecutor John L. Molinelli’s investigators in the attorney’s Caldwell office to discuss their allegations against Zisa.
Although the chief’s lawyers say they don’t know whether a meeting ever occurred, they did produce a transcript of a meeting the prosecutor’s detectives had with a private investigator hired by Toscano, William Wilks, in which he laid out allegations against Zisa by the officers.
Wilks, they noted, is not “a neutral law enforcement officer,” but “an advocate for the administratively charged ‘witnesses’.”
Prosecutors didn’t tell the grand jury of the arrangments when they read his statements, which became a primary basis for the state’s case, Zisa’s attorneys argue.
“Much of the testimony was based upon opinion and innuendo,” the filing alleges. Combined with an alleged failure to acknowledge evidence that could have cleared Zisa, proscutors “made it impossible for the grand jurors to fulfill their constitutional duty.”
It all came to a head, Zisa’s lawyers say, when grand jurors asked “two salient questions” at the end of the presentation.
On wanted to know why the other boys in the assault weren’t charged. The true answer is that delinquent complaints are signed against minors. These, by law, are required to remain confidential unless they are waived up to adult criminal charges, which they weren’t.
Zisa’s attorneys say the assistant prosecutor at first said charges could be considered but then corrected himself by saying that a six-year statute of limitations had expired — which, as they noted, is entirely false, given that it was a delinquency case and not a criminal matter.
Another grand jury asked “how the case came about and why a private investigator was involved,” the filing says.
The prosecutor’s witness, Bergen County Prosecutor’s Detective Sgt. John Haviland, “did not explain the full circumstances of how these charges were raised, omitting the potential extortion attempt at the Ferraioli administratiive hearing….”
“Further, he did not disclose that the Private Investigator was working on behalf of the witnesses at the time the statements were taken.
“These omissions prevented the grand jurors from knowing that the key witnesses against Mr. Zisa were biased; specifically, that they were given immunity, that they were and are involved in civil litigation against Mr. Zisa, and that they were subject to administrative charges (under Mr. Zisa’s authority) themselves, and that the private investigator was working on their behalf,” the petition alleges.
Twelve days after the indictment was announced, administrative charges that could have gotten Officer Al-Ayoubi fired — testing positive for the steroid methandienone — were dismissed, which Zisa’s lawyers called “highly questionable and patently irregular.”
Al-Ayoubi not only admitted to the use, they said: He gave the prosecutor’s office information about 20 or so of his colleagues’ alleged steroid use.
However, Molinelli “seemingly and shockingly took no action,” the filing alleges. Less than two weeks after the indictment was returned, Al-Ayoubi was back at work in the Youth Bureau, it says.
Officer John Hermann also “had two administrative investigations pending against him,” the filing alleges, noting that he, like Al-Ayoubi, has a civil suit pending against Zisa.
Detectives from Molinelli’s office first arrested Zisa on May 26, 2010 and charged him with insurance fraud for the damage reported by his ex-girlfriend to her car.
A month later, they charged him with official misconduct.
Defense attorney Patricial Prezioso said Zisa repeatedly asked that he be allowed to give a statement — and, later, testify before the grand jury. She said Bergen County authorities told her they wanted a full interrogation outside the proceedings.
Grand jurors then indicted Zisa on charges of official misconduct, witness tampering and insurance fraud on Oct. 19, 2010.
A trial is scheduled for January 2012.
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