Gov. Chris Christie and several other former administration officials were never called to testify at the Bridgegate trial. Jurors might wonder why.
NEWARK--Bridget Anne Kelly, now on trial in the Bridgegate scandal, testified she told Gov. Chris Christie on at least three occasions about the 2013 lane closures at the George Washington Bridge that led to her indictment.
Federal prosecutors never called the governor as a witness. Neither did the defense.
Kelly said she spoke as well to her boss, Kevin O'Dowd, then the governor's chief of staff. He also did not testify.
And the admitted architect of the scheme that closed several local access lanes at the bridge, deliberately backing up traffic into Fort Lee, said he informed several other high-level Christie administration insiders about his plan to create traffic chaos to punish the mayor of Fort Lee for not endorsing the governor for re-election. Among them, according to David Wildstein, was Christie campaign manager Bill Stepien.
But jurors never heard from Stepien either.
In all, prosecutors called 21 witnesses to testify against Kelly, a former deputy chief of staff to the governor, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey.
Defense attorneys put 14 people on the stand, including Kelly and Baroni.
But some of the biggest names mentioned in the federal court case tied to alleged political retribution did not make an appearance in the fifth-floor courtroom of U.S. District Judge Susan D. Wigenton in Newark.
"This case was perhaps more noteworthy for the witnesses who didn't testify than for those who did," remarked Robert Mintz, former deputy chief of the Organized Crime Strike Force of the U.S. Attorney's Office in New Jersey and a prominent criminal defense attorney at McCarter & English. "Jurors will no doubt have questions as to why they never heard from others in the administration, including the governor, whose names were prominently mentioned by both the prosecution and the defense."
Indeed, during a closed-door conference with Wigenton last week regarding instructions to the jury, both the defense and federal prosecutors hotly debated what jurors should be told about why certain people whose names figured during the trial were not called to the stand, according to transcripts of the meeting.
"The jury wants to hear from the governor," said G. Michael Bellinger, a member of Baroni's legal team.
Michael Critchley, who represents Kelly, argued that the failure to produce Christie and other so-called "missing witnesses" constituted a lack of evidence.
Assistant U.S. attorney David Feder held that the jury should be told to draw no inference from the fact that one side or the other chose not to call a particular witness. "Both sides have the ability to call whatever witness to make whatever points they wanted to try to make," Feder told the judge.
In addition to the governor, O'Dowd and Stepien, among the names of those who came up during trial included David Samson, the chairman of the Port Authority at the time of the lane closures. Wildstein testified that Samson pushed to keep the lane closures in place. Philip Kwon, a top lawyer at the Port Authority, helped prepare Baroni for his now-discredited testimony before a legislative committee that launched the Bridgegate investigation. Regina Egea, who served as head of the governor's Authorities Unit, exchanged texts with Christie during Baroni's testimony that were later deleted.
Also named during the trial was William "Pat" Schuber, a Port Authority commissioner who Wildstein claimed was told in advance about the the lane closures. Jersey City Mayor Steve Fulop, who found himself on the outs with the Christie administration after he declined to endorse the governor for re-election, had said he expected to testify, but he was never called.
It is unclear what, if anything, any of them knew of the lane closures, or the alleged plot of retribution, including Christie.
In his summation before the jury on Friday, defense attorney Michael Baldassare pointedly referred to the missing witnesses, including the governor, Kwon and others."I said they would never call the governor, ever. Because all he would have said for sure was that David Wildstein is a liar," he said. "Jose Rivera. Might not remember him. Chief traffic engineer for the Port Authority. You look at the exhibits, he's all over them. We didn't hear from him."
He also asked why Chip Michaels, the Port Authority police officer who drove Wildstein around Fort Lee on the first day of the lane closures, was not called.
"Chip Michaels might have been nice to hear from. The guy in the front seat driving him all around, he's nowhere to be found."
Wigenton ultimately told the jury that while prosecutors were required to prove Baroni and Kelly were guilty beyond a reasonable doubt, "the government is not required to present all possible evidence related to the case or to produce all possible witnesses who might have some knowledge about the facts of the case."
Strategic and legal reasons
Mintz, who is not representing anyone in the Bridgegate case, said there are likely both strategic and legal reasons for the failure to hear from the biggest names that have come up at trial.
"But in the end, the burden of proof remains with the prosecution and it will be up to government to convince the jury that they have answered enough of their questions to support a guilty verdict for both defendants," he said.
The governor himself when asked earlier this year if he would testify, said "if I'm served with a proper and appropriate subpoena, I'll comply with the subpoena."
But Dennis Kearney, a former Essex County assistant prosecutor who now handles government enforcement cases and white collar defense work for Day Pitney, said he suspected the governor was not called by either side because each realized Christie would have stepped on their case.
Christie has already publicly denied Wildstein's claims that he was told about the traffic problems in Fort Lee during a 9/11 memorial ceremony on the week of the lane closures. He likely would have undermined Wildstein's self-characterization as being the "muscle" at the Port Authority.
"In the same way, Christie could undermine the defense by denying any conversations with Kelly," Kearney pointed out.
He said her testimony on why she deleted incriminating emails and explanation for her infamous "time for some traffic problems in Fort Lee" email to Wildstein already strained credulity. "Christie getting on the stand might have just blown that defense up," he said.
He said there is also a practical reason not to call a witness, especially a hostile one, who may not give answers that anyone expected.
"Putting a witness on the stand without knowing what he or she will say is playing Russian Roulette with four bullets instead of one," he remarked.
Still, the absence of Christie--or any major witness one might expect to testify--is not unusual at trial, according to former federal prosecutor Daniel Wenner.
"There are often cases in which a jury hears a lot about a particular person, but that person does not testify for a whole host of reasons," he explained. "The job of the prosecution is going to be to explain that the jury has enough evidence to convict and shouldn't be bothered by others who might have shed light."
Wenner, a former assistant U.S. attorney in the Eastern District of New York and now an attorney specializing in white-collar defense work with Day Pitney, said the defense may make an issue of the missing witnesses. But the government always gets the last word in its rebuttal summation and can say the defense is focusing on the evidence that wasn't introduced, rather than what the jury did hear.
Still, he had no doubt the jury did indeed want to hear from Christie.
"The governor has been all over this case and the jury undoubtedly is interested in hearing what he has to say about what he knew and what he directed others to do or that he had nothing to do with it," Wenner said.
But at the end of the day, whether the governor did or didn't know--or whether he did or didn't direct the conduct--was beside the point, he said. The issue for the jury is whether Baroni and Kelly engaged in the conduct alleged.
Baroni and Kelly are charged with nine counts of conspiracy and fraud involving the alleged political vendetta. Wildstein, a one-time political blogger and patronage appointee to the Port Authority, has already pleaded guilty to orchestrating the plot which shut down two of three toll lanes at the George Washington Bridge earmarked for Fort Lee traffic. He testified that Kelly and Baroni were both involved in planning the lane closures. The lane closures caused major gridlock on local streets for four days in September 2013.
In a highly unusual move, both opted to take the stand and testify in their own defense. Mintz said the strategy to testify was risky, but one that could ultimately create a head-to-head credibility battle between the two and Wildstein, the government's star witness.
"It's a high stakes gambit for the defense," he said. "If jurors don't believe a defendant once they testify, the jury is very likely to convict."
Matt Arco may be reached at marco@njadvancemedia.com. Follow him on Twitter @MatthewArco or on Facebook. Follow NJ.com Politics on Facebook.
Ted Sherman may be reached at tsherman@njadvancemedia.com. Follow him on Twitter @TedShermanSL. Facebook: @TedSherman.reporter.