‘Epiphany’ leads to late discovery & courtroom drama, but judge denies motion to dismiss
Following a bit of courtroom drama, Judge Mirtha Ospina ruled against the defense’s motion to dismiss the case after an “epiphany” led to late discovery being turned over by the Hudson County Prosecutor’s Office.
The State of New Jersey vs Joseph Ascolese, Kelly Chesler, and Michael O’Neill resumed on September 24, 2018, after being adjourned for a week while the lead attorney for the Hudson County Prosecutor’s Office (HCPO) dealt with a medical issue.
By the beginning of the trial’s sixth day, First Deputy Assistant Prosecutor Peter Stoma looked healthy and vigorous. Over an hour into the day, Stoma’s aggressive tone and repeated interruptions of Hudson County Superior Court Judge Mirtha Ospina evoked an emphatic response from the bench.
The controversy started last week when Jersey City Police Department (JCPD) officials produced records – a voluminous amount of radio transmissions and CAD reports – that could be exculpatory to the case. Defense attorneys motioned for the case to be dismissed, claiming it was part of a pattern of evidence violations and a byproduct of “farming out” the investigation to the JCPD Internal Affairs Unit (IAU).
The state forcefully pushed back against insinuations of nefarious activity on their part, claiming the records were unrelated to the case. Stoma stated that “it was unknown” to JCPD officials that mostly “backed-up radio transmissions from 2014” actually existed until, at the earliest, September 17, 2018.
Records weren’t produced until after the realization state witnesses may be questioned about the existence of any transmissions from the times in question. HCPO Assistant Prosecutor Charles Cho provided defense attorneys with JCPD radio transmissions and computer aided dispatch (CAD) reports, from the period of indictment, that were backed-up because of Open Public Records Act (OPRA) requests filed with the City of Jersey City.
Specifically, Roseann Manto, a supervisor in the JCPD radio room, apparently had an “epiphany” that led to the transmissions being discovered, according to Cho.
Charles Sciarra, attorney for Officer Michael O’Neill, argued that the transmissions being turned over, nearly two-and-a-half years after indictment, in the middle of a trial, constituted a third strike against the HCPO.
The first strike Sciarra mentioned centered around phone records tossed by Ospina during a pre-trial hearing, which were mentioned by Stoma during JCPD Off-Duty Intake Coordinator Thomas Mahoney’s testimony. The second was that Stoma failed to obtain records related to New Jersey Department of Transportation (NJDOT) invoices not being fully reimbursed, which arose from Mahoney and former Business Administrator Robert Kakoleski’s testimony.
If Ospina were to deny the motion, Sciarra sought a remedy that “forbid anybody who appears on any of these radio transmissions… that the state has or could’ve gotten, during that period of time, be forbidden from trial, with regard to any testimony about time and place.”
Furthermore, Robert Lytle, attorney for retired Capt. Joseph Ascolese, questioned whether other radio transmissions relevant to the time of the indictment existed and weren’t turned over. He also questioned Stoma’s good faith response to a discovery letter, alluding to the possibility of games being played with the wording of the request.
Lytle, as he’s done previously, focused on the investigation conducted by JCPD IAU Lt. Robert Sjosward. The defense attorney attacked Sjosward’s effort to obtain the transmissions when the IAU investigator apparently discussed the issue with Manto via email in December of 2017.
Those emails still haven’t been turned over, Lytle claims.
Additionally, Sciarra noted to the court the inherent issue with the HCPO “farming out an investigation” to an agency being sued by two of the defendants. Lt. Kelly Chesler, and her co-plaintiff, Ascolese, filed a sexual harassment lawsuit in federal court against the JCPD.
Stoma eventually fired back, reading a case-specific discovery request involving transmissions and CAD reports, written by Jeffrey Garrigan, Chesler’s attorney, which apparently had a limited scope related to NJDOT jobs and JCPD Motorcycle Squad (MC) duties. The prosecutor added that the state’s investigation was done with the assumption that audio recordings were not available.
While he understood the “consternation” caused by the late discovery, Stoma couldn’t understand how it could be grounds to dismiss the indictment. He also mocked Sciarra’s proposed remedy that the state’s witnesses, related to transmissions, be barred from testifying in the trial.
At that point, Ospina began to speak, and Stoma began forcefully interrupting. During a series of back-and-forth exchanges related to the defense’s “three strikes” argument, the prosecutor cut off and spoke over the judge in a highly provocative manner.
Ospina, who serves as judge & jury in the bench trial, has allowed significant leeway for counselors to make their arguments. Stoma clearly crossed a line with Ospina, who, with a raised voice, dropped the gavel during a tense exchange to regain control of the courtroom.
After a short recess to evaluate the discovery issues raised, Ospina apologized for raising the court’s voice, and Stoma for evoking the response. Stoma noted he has a hard time controlling himself after more than 20 years as a prosecutor, and that “sometimes it works, often times it doesn’t.”
Ultimately, Ospina ruled against the defense’s motion to dismiss, but provided them with a remedy that any witness can be recalled based on the late discovery, or defense attorneys can make arguments based on testimony and discovery during their summation.
The next day, Ospina briefly noted that the defense would be able to motion to dismiss again if they found something exculpatory in the records produced.
MOTION TO DISMISS VIDEO BELOW:
The afternoon session featured the beginning of JCPD provisional Deputy Chief Neil Donnelly’s testimony, which is still ongoing after day seven of the trial.
PUBLISHER’S NOTE: Because Donnelly is still on the stand, his testimony will be published after it’s completed.