19 January 2014

Christie, The Bridge, Corruption. Full Circle New Jersey Hustle?

“What did he know and when did he know it?” has apparently now taken second place to “Why did they do it?”  For sure there was no bona fide “traffic study”.  All else is inference.  While the leading speculation has been that the lane closings were related to the current Fort Lee Mayor’s failure to endorse Christie, articles in the New York Times and elsewhere now report that a knowledgeable New Jersey legislator has splashed cold water on the retribution-for-non-endorsement theory;  the  punishment seems not to fit the crime.  Instead, he suggests the lane closings are related to a real estate development immediately adjacent to the traffic lanes at the Fort Lee terminus of the bridge--a billion dollar project favored by the current Fort Lee Mayor. 

This real estate development has a dramatic history: it was first proposed in the early seventies, and quickly morphed into a saga involving reputed mafia figures, noted real estate moguls, the former mayor of Fort Lee, two of Christie’s predecessors in the U.S. Attorney’s office, a Long Island shopping center developer, and a large cast of attorneys, including me.  In all, a non-comic drama that might reasonably be called “New Jersey Hustle.”

Here is that story. 

In 1973, a successful Long Island shopping center developer named Nathan Serota came to see me.  He had just been indicted by a New Jersey federal grand jury on three counts of conspiracy to bribe Fort Lee’s Mayor Burt Ross, in order to secure the necessary permits to build a 47 story building at site of the current bridge parcel project.  Also indicted along with Nat were prominent real estate mogul Norman Dansker, two of his colleagues, his real estate development company Investors Funding Corporation,  a New Jersey electrical contractor Valentine Electric, and its representative, one Joey Diaco.  (Valentine Electric had earlier been accused of being headed by a mafia boss.  The accuser was one Frederick Lacey, then the United States Attorney for the District of New Jersey.)

Serota’s story was simple, and before he met me, he told it to the prosecutor who indicted him. Indeed, the facts, as to Serota, were never contested by the prosecutor:  Nat and his family lived in a condominium apartment in a Fort Lee high rise with a sensational view of the New York skyline.  The real estate project proposed by Dansker et al,  would have inserted an ugly blot on Serota’s skyline view, and the years-long construction would destroy his family’s tranquility.  So he did what so many others do all the time:  “NIMBY—not in my back yard,”said Serota, and  he campaigned vigorously against the project, gave money to groups opposing it, and, accompanied by his real estate lawyer, attended local hearings where he voiced his opposition. The project was voted down, but the proponents came up with a slightly amended plan, and Serota’s battle was renewed—at least until Nat was visited at home by Valentine Electric’s Joey Diaco.   Joey made Nat an offer he couldn’t refuse: If Serota would cease his opposition to the project, the promoters would buy his apartment for twice its market value.  Nat accepted. After all, he could care less about the view from an apartment in which he no longer lived, and Vivian wanted to move to New York City anyway.  

Did Nat accept money for advocating, or changing his advocacy, of a political position?  Sure.  Was that a crime? Yes, argued Mr. Jonathan Goldstein, the US Attorney.  His view was that under New Jersey law, anyone who took money to advocate or modify a political position was a criminal—a notion that totally ignores something called the First Amendment, and which, if applied by the prosecutor’s terms, arguably might criminalize all lobbying activity.  Ridiculous, you say? Yet the prosecutor went forward with his case.  To bolster his accusation, he argued that because Nat was an unpaid member of the Fort Lee Parking Authority--, the group that oversaw the collection of quarters from municipal parking meters—Nat was a “public official.”  The prosecutor conceded that this honorary position had nothing whatever to do with the real estate project in question,  but he could not resist the opportunity to hang the “public official” label on Serota as if it had some relevance. And the District Judge to whom the case was assigned (yup, Goldstein’s predecessor, the former US Attorney, Frederick Lacey),  sustained that view.

But what Nat did not know when he agreed to sell his apartment was there was another drama being played out on an adjacent stage:  Diaco, representing Valentine Electric, (which  had been promised the electrical contract for the project) had also visited a real public official, Burt Ross, the Mayor of Fort Lee. Joey offered the mayor $500,000 if  he would approve the project. Ross reported the encounter to the FBI and agreed to wear a wire. Diaco and his boss were in the soup when Joey delivered a suitcase with a $25,000 cash down payment to Ross at a Fort Lee diner.  The mayor took the suitcase to the bathroom, counted the cash,  and entertained his FBI listeners with his version of  the hit song from the Broadway production of Annie, “We’re in the money, we’re in the money,….”

The Trial:

The wire transcriptions of the bribe offer to the mayor were, as you might expect, devastating to defendants Diaco and Valentine Electric.  And  a cooperating witness connected to the  developer accepted a misdemeanor plea and testified against the Dansker team to tie them into the plot.

At no time was there any evidence Nat Serota had anything to do with the Burt Ross bribery effort, or even that he had any knowledge of it before the indictment was published, but the prosecutor nevertheless insisted on charging him with a conspiracy to bribe the mayor, and, at least during the trial, Nat was a fly stuck in the prosecution’s web.

At the end of the prosecution case lawyers for all the parties moved to dismiss the three-count indictment. While lawyers almost always do this, they rarely expect to win.  I thought otherwise: any fair-minded judge would surely see that there was no evidence Nat Serota was involved in the scheme to bribe Ross, and Serota’s sale of his apartment and consequent withdrawal from the political scene was clearly innocent, legally protected behavior.

Hah.  District Judge Lacy denied all the motions instantly.  All of them, and we went to court the next day prepared to put on the defendant’s case.  But before we entered the courtroom, Lacey’s deputy approached me and said the judge wanted me to reargue my motion. Nobody else but me.  A ray of sunshine!  I did so, and Lacey threw out the Ross bribery charges against Serota, agreeing there was not a shred of evidence tying Serota to the conspiracy to bribe Ross.  But the judge left in the flawed charge that Serota was the recipient of a bribe by reason of his written agreement to sell his apartment at a premium and cease his opposition to the development. 

That created what proved to be an impossible hurdle to a fair trial for Nat.  Why? We argued that the jury could not reasonably be expected to differentiate between the damning evidence against Dansker and Diaco, et al, and the dramatically different story of the sale of Serota’s apartment.  They were now two different bribery cases, two different bribes, two different bribees, (Ross and Serota) and it was now clear Serota had nothing to do with the Ross bribery attempt.  But former prosecutor Lacey, a very bright guy, had nevertheless gone as far as he was willing to go, and he kept Serota in the case on one count-- that Serota accepted a bribe by agreeing to sell his apartment and to cease his campaign against the bridge parcel project.

As we predicted, Lacey’s decision generated a pile-up of error and confusion when it came to summations.  At our request, the judge instructed Goldstein that in his summation he must differentiate the evidence of the two conspiracies.  In other words, when he talked about the evidence of the Ross bribery, he had to make clear this evidence could not be used in their deliberations of Serota’s guilt or innocence with respect to the one count remaining against him, the so-called apartment sale in which Serota was the alleged bribee.

Summation procedures differ.  In New Jersey, the defense went first, then the prosecutor. That’s it.  No rebuttal.  My summation was short, uncomplicated.  I reminded the jury Serota had now been cleared of the Ross bribery allegations, knew nothing about that claim, and as to the sale of his apartment, he did what anyone else what do in his circumstance. He took the "NIMBY"  not in my backyard approach to the construction project: No secrets. The contract to sell his apartment was a lawyer-drafted document.  No harm, no foul.

Goldstein did not object to one word I said.  But when his turn came, it was a different story.  I think he did try to obey the judge’s admonition to separate the two bribe cases in his marshalling of the evidence, but the task was impossible:  after all, though Serota had nothing to do with the Ross bribery, Diaco et al were accused of bribing both Ross and Serota, so evidence of both “bribes” were admissible against all defendants except Serota . Again and again, Goldstein failed to separate out the evidence--the eggs were already scrambled.  The result was each time he lumped “the defendants” to a piece of evidence, I objected and insisted he differentiate between the Ross bribery counts and the Serota bribery count.    Over and over again.  The judge agreed each time I objected, but after a while, he just said something like, “yes, the jury is so instructed.” Confusion reigned. On the Friday before the Easter weekend, the prosecutor summed up in the morning, the judge charged the jury, deliberations began at 1 P.M. and the verdict came in three hours later:  All defendants guilty on all counts.

Three trial anecdotes worth repeating, one humorous, the other two not:

1. At a recess after the summations, and before the judge charged the jury, a short grey-haired woman of a certain age, wearing a fur coat, angrily approached me in the corridor.  I had seen her in the courtroom but had no idea who she was. “Mr. London,” she said, “ I am Jonathan Goldstein’s mother and I am furious at your behavior.  I am calling your partner Simon Rifkind and complaining about you.  My  son never interrupted your summation. Not once. But you interrupted him 12 times!  I know Rifkind and am calling him at once!”  I apologized to Mrs. Goldstein.

2.  Before the trial, some of the defendants had moved for Judge Lacey to recuse himself because of his earlier statements tying Valentine Electric’s owner to the mafia,  but Lacey’s denial of the motion was sustained on appeal.  But some of us saw plenty of anti-defendant leanings at the trial.  The most notable and unique, in my experience, was Lacey’s charge to the jury.  Of course,  we asked him to remind the jury of the legal standard that if they found any reasonable doubt about guilt, they were obliged to acquit, and we submitted language to that effect—standard language that had been approved by higher courts. The judge agreed to, and did  read our language to the jury.  But while the rest of the charge was delivered at a normal pace, when it came to the reasonable doubt section, Lacey raced through as if he were trying to win a speed-reading contest. His words were barely discernible to us, and we had submitted them!  We were shocked. None of us had ever seen anything like that.

When he was finished, the judge sent jury out, and asked counsel if they had any objection to his charge. I turned to my colleague Max Gitter, who had the responsibility for preparing and submitting our requested charge language, poked him hard in the ribs, and said “Max, you gotta object!”  Max whispered, “What should I say?” I responded in a stage whisper that I am sure Lacey heard, “Tell him to say it once more, with feeling.” 
Max did object to the speed reading and the judge reacted with fury. His face reddened, he raised his voice, said this was a personal attack, (duh, after all, he was the one who did it) and he refused our request.

At the next recess, there was a knock on our counsel room door, and in came the court reporter.  He said, “Mr. London, I have been a court reporter in this courtroom for 12 years and I have never heard such speed-reading of a portion of a charge. I can prove what he did.  In order to produce daily copy of the transcript, as the judge  reads  his charge, he puts finished pages up on the ledge, where the revolving reporters take it back and use the judge’s script to input and correct the words on their stenograph machines.  In order to maintain order, each batch of the judge’s script is marked by the pick-up reporter with the time of his pick-up. Those time notations show that the reasonable doubt charge portion of the charge was read at 2-3 times the speed of the rest of the charge.  If you need it, Mr. London,  I can supply the evidence for your appeal!”. Yikes.

3. Sentencing:  The maximum sentence for each count was 5 years. He could give less, but not more.  And where multiple counts were involved, it was within the judge’s discretion to say whether the individual sentences be served concurrently, (in effect, so that all sentences would be served at the same time and the duration of jail-time is the same as if convicted on only a single count) or consecutively, so three five year sentences would yield fifteen years in prison. Lacey gave the other defendants maximum consecutive sentences, i.e., fifteen years.  Serota, of course, was found guilty of only one count, and the good judge indicated he would have preferred to give Nat the full fifteen, but alas, could not do so!  At least that’s the way we all heard it. He sentenced Serota to the max; five years in federal prison.

4.  All lawyers hate to lose. All. But losing a criminal case when you know in your gut that your client did nothing wrong, and the case was a total miscarriage of justice that you let happen, is simply the worst. When the verdict came in that Friday afternoon I was bereft. How could I have failed to protect an innocent client? I was full of “shoulda’s”. I shoulda done this, I shoulda done that, whatever. Sleep evaded me Friday night.  No amount of red wine put me under.

But Saturday morning, at 11 ayem, I got a call from Nat. “Get up, shower, shave, and dress!  Vivian and I are picking you up in the Rolls, and we are going for a champagne lunch!”  I said, “Nat, what are you smoking? You just got convicted at trial and for sure that guy is going to give you five years!”  Nat, bless him, responded, “Fuck em, Marty.  I did nothing wrong, and you’re gonna get me off! We’ll be at your door in hour.” I get goose bumps writing this.

The Appeal

I argued Nat’s appeal In February, 1976, and June of that year found me  in New York’s Hospital for Special Surgery, in traction with a herniated disk.  I was miserable. It is tough to sleep with those sandbags pulling on your ankles.  One night, at 10 PM, long after visiting hours had expired, I heard a commotion in the normally quiet corridor outside my room.  I thought I heard Nat Serota arguing with a nurse, telling her he needed to speak to me at once, I was his lawyer, and this was an emergency.  Over the nurse’s strident objections, Nat and Vivian barged into my room carrying a shopping bag. We all cried and kissed, Nat pulled a champagne bottle and stemware out of the shopping bag, and we celebrated his appellate victory.  The Third Circuit Court of Appeals had that morning unanimously reversed Nat’s conviction.  It found that Lacey had erred in accepting the prosecution’s overbroad theory that would have dramatically expanded criminalization of First Amendment freedoms, and that Nat’s membership on the Parking Meter board was totally irrelevant.  The Court did not use the words “red herring” but that was substance of the holding. Bottom line, Nat did nothing wrong.

 Most criminal convictions are affirmed on appeal, and while there are some reversals, they usually end up with a direction for a new trial.  Not this time: The result of the Third Circuit opinion was that the District Court was required to enter a judgment of acquittal of Nathan Serota.

Because we were able to knock out the Serota count, two of the three counts against the other defendants fell by the wayside, and their sentences were reduced to five years.  Subsequent legal motions then further reduced those sentences drastically.

Small world sequillae:

Thirty years later, when I retired, the real estate broker produced a buyer for our vacation home;  a nephew of Norman Dansker bought the house.

The Bridge parcel was thereafter acquired by a former client of mine, Leona Helmsley, and she sold it to a predecessor of the current developers.

Burt Ross wrote a book about his experience. We found something else in common in 2008 when it was revealed we were both victims of Bernie Madoff’s Ponzi scheme.

Nat Serota, who was my dear friend for almost forty years, died at home in his New York City apartment at the age of 90, in 2010.  When he learned I had been stung by Bernie Madoff, Nat immediately called me and me asked if I was alright, and did I need money. Happily the answer was “No”, but I nevertheless treasure that call.

Judge Lacey left the bench in 1986.  Years later we chatted once or twice at legal functions. We did not discuss the trial. He was not jocular.

Ten years after the trial, Jonathan Goldstein and I encountered each other at Newark Airport when our kids were on the same plane to a summer trip. We had a pleasant chat. We did not discuss the trial. He is, as far as I know, working the other side of the street as a defense lawyer.

I have  not yet discovered a personal connection to Chris Christie.  But it ain’t over till it’s over. And for sure, this ain’t over.

A bientot.

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