Atlantic City Councilman Marty Small Ben Fogletto

MAYS LANDING - Timing may play an important role in the voter-fraud case against Atlantic City Councilman Marty Small.

The councilman's attorney argued Tuesday that Small's grand jury testimony should be suppressed because Small was never told he was a target of the investigation into his failed mayoral campaign. A target could expect that an indictment could come from the grand jury. Small was told that was not the case when he testified.

Last September, Small and 13 others were indicted for allegedly disenfranchising voters during the 2009 Democratic primary. Two men pleaded guilty, leaving 12 people to stand trial. Jury selection began this week for six of the defendants, with several motions being heard before Superior Court Judge Raymond Batten.

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Deputy Attorney General David Fritch insisted Tuesday that Small was not a target of the investigation when he testified before the grand jury, and that the sitting councilman was not even named on the subpoena. Instead, it was the campaign's records custodian who was compelled to testify. Small answered that call, Fritch said.

But defense attorney Stephen Funk pointed to the lead investigator's report that called Small a target well before he appeared before the grand jury.

"I think it comes down to an issue of candor," he told the judge. "The target must be informed of his or her status."

Fritch said it is unclear why the investigator used that word target but that that was not how Small was seen by the state at the time.

"Are you saying the state should be (legally) bound by the characterization made by investigators on the street?" Batten asked.

"I don't see how they cannot be," Funk replied, adding that it was the lead investigator. "How can they not be bound by the person they put out there?"

Batten is expected to rule on the motion today. If he rules in favor of Small, that could mean another motion to drop the charge of hindering prosecution against Small.

Another defendant in the case, Toni Dixon, remained free a day after the state made a motion to revoke her bail because she allegedly tried to coach a witness. Her attorney, Ed Weinstock, denied the allegations. She is now charged with one count of third-degree witness tampering in addition to the nine counts she already faced in the voter fraud indictment.

The state also asked the judge to allow them to open 316 messenger ballots the Board of Elections rejected in 2009, saying it could strengthen the case by showing the votes went to Small.

"There's always the chance the contents of these ballots could undercut the state's case," David Fritch said of the possibility a majority of the ballots were cast for another candidate.

But lawyers for several of the defendants argued there are strict legal limits to opening ballots, and that the state's request does not seem to meet those requirements.

Twenty-five voters whose ballots were rejected in 2009 have come forward, Fritch said. They have all provided statements: 15 say they never received a messenger ballot; four say they received the ballot and application to receive the ballot at the same time, which is illegal; and six claim they were told how to cast their vote.

Batten did not make a decision on that, instead agreeing with Timothy Reilly - attorney for co-defendant Floyd Tally - saying that, since the ballots would affect all 12 defendants, then all the lawyers should have an opportunity to be there for the argument. The other six attorneys whose clients are supposed to go to trial next year are scheduled to be in court Thursday for that.

A second panel of 80 potential jurors entered the courtroom Tuesday and answered questionnaires that will help cut down the pool for individual questioning later. Jury selection is expected to take about two weeks. The trial is expected to last two to three months.

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