At the conclusion of a Statehouse news conference on drug rehabilitation, New Jersey Governor Chris Christie shifts topics and denies any involvement in the Bridgegate scandal. STAFF VIDEO BY THOMAS P. COSTELLO
NEWARK, N.J. — It’s one of the riskiest decisions a defendant can make.
Yet lawyers for two former allies of New Jersey Gov. Chris Christie who are accused of conspiring to close access lanes to the George Washington Bridge in an act of political retribution have already vowed to jurors that their clients will testify.
As the trial ends its fourth week and with the time drawing near for the pair to take the stand, were such promises a bold move, a bluff or an act of desperation?
“It’s very rare and extremely dangerous” for defendants to testify, said Dan Wenner, a former federal prosecutor in New York.
“Even if you have a narrative you want to get out through your clients and maybe humanize them and make them look like a sympathetic figure,” Wenner said. “when they get cross-examined, it could be devastating.”
Bridget Anne Kelly and Bill Baroni are accused of causing gridlock in Fort Lee by limiting local access to the bridge during five weekday mornings in September 2013 to punish the borough’s Democratic mayor for refusing to endorse the Republican governor’s re-election that year.
Like all defendants, Kelly and Baroni have a constitutional right not to incriminate themselves. By taking the stand, they waive that protection for the duration of their testimony, including cross-examination.
Jeffrey Lichtman, a New York defense attorney, said that lawyers usually decide whether their clients will take the stand months ahead of trial to give them time to prepare.
Lichtman said that while each case is different, attorneys rarely begin a trial thinking that their client will testify, only changing their mind if the proceedings are going poorly.
“If you are putting them on the stand, you feel like it’s a Hail Mary pass,” he said.
Defendants usually testify to fill in holes in their defense that cannot be plugged by other witnesses. They may also take the stand in an attempt to humanize the person who has sat silently through weeks of testimony.
“Sometimes, in a case like this, you want to show the jury, ‘See, these are honest people not looking to hurt anybody,’ ” Lichtman said.
Baroni’s lawyer may feel that his client has no choice but to testify since he has already taken the stand — obliquely — at trial. Baroni’s voice and image have taken center stage several times as prosecutors played video for the jury of Baroni giving a combative performance before skeptical members of a state legislative committee that probed the lane closures.
Baroni has sat mostly impassively through the testimony, apart from conferring with his legal team.
Kelly has seemed more engaged, taking notes, shaking her head when she disagreed with a witness, and wiping away a tear as one witness recounted how the press hounded Kelly’s family after the scandal broke.
The government’s star witness in the case is David Wildstein, Baroni’s former second-in-command at the Port Authority of New York and New Jersey, the agency that owns and operates the bridge.
Wildstein, who last year pleaded guilty to masterminding the conspiracy and is cooperating with prosecutors in hopes of a lenient sentence, has been described as a villain and a liar, even by the prosecution’s own witnesses.
Lichtman said defense lawyers may want to show the contrast between their clients and Wildstein and then ask jurors: “Who do you believe? These kind, honest people that took the stand and testified? Or a guy like Wildstein who committed a crime, admitted it, and who is working it off solely to avoid jail time?”
Baroni’s attorney, Michael Baldassare, told jurors during his opening statement on Sept. 19: “I guarantee you 100%, I’m saying it here in open court, Bill is going to sit in that witness box and tell you what happened.”
The same day, Kelly’s attorney, Michael Critchley, told the jury: “Bridget will get on the stand and she will explain to you exactly what was going on.”
TRUSTED KEY WITNESS
Over the past month, each defense attorney has depicted his client as a victim of Wildstein’s machinations.
Baroni, the governor’s former top executive appointee at the Port Authority, has been portrayed as a naive bureaucrat who lacked the vicious streak necessary to carry out the governor’s agenda at the agency. Baldassare has suggested that Baroni juggled so many responsibilities — overseeing most of the region’s major airports, tunnels and bridges, the World Trade Center site and the PATH train system — that he was too busy and too trusting of Wildstein to have knowingly played a role in the conspiracy.
Kelly’s lawyer has sought to downplay her power and influence as the governor’s deputy chief of staff who had responsibility for relations with local elected officials. He depicted Kelly as someone who trusted Wildstein when he told her that the lane closures were necessary and that any subsequent claims made by the mayor of Fort Lee about gridlock and public safety issues were not to be taken seriously.
But the jury has also heard from a parade of witnesses who have described how the governor’s office used the Port Authority to advance Christie’s political ambitions. They have also heard how Christie’s allies courted Democratic officials in a bid to shore up his bipartisan bona fides in anticipation of a 2016 presidential run.
Local officials who crossed the governor publicly or in private were shunned or, as has been alleged with the lane closures, punished. The allegations have been shored up with emails, text messages and other documents supporting the government’s case.
Steven Molo, a defense attorney in New York, said that irrespective of the evidence to date, if the defendants take the stand, the case will turn on Kelly’s and Baroni’s credibility.
“If they do choose to testify,” Molo said, “then the focus of the case really becomes that testimony.”
Jennifer Rodgers, a former federal prosecutor, said that the two defendants are good candidates to take the stand. Rodgers, executive director of Columbia Law School’s Center for the Advancement of Public Integrity, noted that the pair have no criminal record and that “they’re articulate, smart people who … would present well to the jury.”
During Baldassare’s opening statement, he revealed that Baroni served as an FBI informant between 2006 and 2010 when he was in the New Jersey Assembly and in the state Senate.
Many people become informants after being caught behaving badly. But, Rodgers said, “it’s not always true that an informant has to have gotten himself into trouble.”
TABLES ARE TURNED
The main risk for the defendants will arise during cross-examination.
Over the past few weeks, defense attorneys have used cross-examination to undermine the credibility of prosecution witnesses — with varying success — often by drawing attention to their character flaws, their worst actions or suspicious gaps in their memory.
Soon, it will be the prosecution’s turn.
Wenner said: “A lot of times someone is likable and believable on direct examination and then, when cross-examined, their demeanor and behavior changes in a way that calls into question their credibility.”
Kelly and Baroni also risk receiving a harsher sentence if they are convicted and the federal judge overseeing the trial believes that they lied on the stand.
Although both attorneys stated that their clients will testify, they could still change their minds at the last minute, arguing that the prosecution’s case is too weak to warrant it or that the witnesses so far have told the jury everything they need to know.
Wenner said that prosecutors are barred from explicitly pointing out to jurors that a defendant has declined to testify. “It’s a low-risk proposition to suggest your client is going to testify and then to have them not testify,” Wenner said. “And in my experience, this happens frequently.”
Lichtman disagreed. He said that while prosecutors have the weight of evidence behind them, a defense attorney relies largely on his credibility.
“If you’re the guy that lied to the jury,” Lichtman said, “they are going to absolutely reject you.”
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