CAPE MAY COURT HOUSE — Citing a “fundamentally unfair” grand jury presentation, a judge dismissed the official misconduct and conspiracy charges pending against former Wildwood Mayor Gary DeMarzo and former city attorney Samuel Lashman.
In a nine-page letter opinion dated April 2, Superior Court Judge Albert Garofolo found that various pieces of evidence were not presented to the grand jury as it considered whether to indict DeMarzo and Lashman.
“In conclusion, this court finds that the substance and manner of the grand jury presentation was fundamentally unfair, deprived the grand jury of its decision making function and was therefore unconstitutional as to both defendants. Accordingly, the defendants’ motion to dismiss is granted,” Garofolo wrote.
Garofolo’s ruling was the fourth time a judge had dismissed a notable grand jury indictment under Cape May County Prosecutor Robert Taylor’s tenure.
After learning of the dismissal, DeMarzo said he welcomed the judge’s decision and called for Taylor’s resignation.
Taylor, who has been prosecutor since 2004, said he would not comment on DeMarzo’s call for his resignation, but he said his office will review the court’s opinion and likely pursue an appeal.
“In my opinion, the court’s decision is not legally correct,” Taylor said.
DeMarzo said the indictment was devastating to him and his family and was the result of “a politically motivated attack.”
The indictment was handed up March 8, 2011, weeks before that year’s May 10 citywide election, which DeMarzo lost.
The indictment played a role in the election in which DeMarzo’s opponents ran ads that borrowed from the popular Got Milk? campaign.
“Got indicted??” one advertisement, paid for by a group called Support Our Police, asked. “Your Mayor Did.”
“I am elated,” DeMarzo said of the judge’s decision. “But it comes as no surprise to me.”
At the time, the grand jury alleged that DeMarzo and Lashman used city funds to pay DeMarzo’s private legal bills related to a lawsuit filed after the May 2007 commission election in which Mayor Ernie Troiano Jr. and former Commissioner Bill Davenport wanted DeMarzo to choose between his elected commissioner’s job and his position as a city police officer.
DeMarzo was a city police officer from 1998 until 2010, when a court decision forced him to choose which job he wanted to keep.
The indictment charged that between November 2009 and March 24, 2010, DeMarzo, who became mayor in December 2009 following a recall election, “knowingly did use public funds belonging to the city of Wildwood to pay personal legal expenses and other related expenses in an amount greater than $200.”
Garofolo, citing testimony by several witnesses, said that if all the evidence had been presented to a grand jury “it would be difficult to envision that a reasonable grand jury could find prima facie evidence that unauthorized conduct by the defendant has been committed.”
DeMarzo also showed he said exactly what he wanted to do, debated the issue at a public meeting, and made a budget request which was approved by the vote of two other commissioners appropriating $20,000 to pay for attorney’s fees, the judge wrote.
Garofolo cited statements by Troiano, City Clerk Christopher Wood and Chief Financial Officer Jeanette Powers, as well as the minutes of the May 29, 2009, commissions meeting, all of which mentioned that the use of the money for DeMarzo’s legal representation had been openly discussed.
That information, Garofolo said, was not provided to the grand jury.
Garofolo also found it troubling that City Solicitor Marcus Karavan offered his personal opinions about the defendants’ guilt during his grand jury testimony, although the prosecutor did tell jurors to disregard anything of a personal nature.
DeMarzo and Lashman were also charged with conspiracy to commit official misconduct.
Garofolo, however, said there was no evidence that the two men conspired.
The state did not provide any proof that the two individuals agreed to commit official misconduct, the judge wrote, adding that “while an agreement to commit an offense certainly can be proven by circumstantial evidence, there is no such evidence.”
Attorney Louis Barbone, who represented DeMarzo, called the grand jury presentation “devious.”
“They have, in fact, attempted to ruin the guy,” Barbone said.
“I frankly think the entire case is despicable,” Barbone said. “Everything Gary did was in the open. They attempted to hide from the grand jury that it was done publicly. It was part of the budget.”
DeMarzo also issued a written statement detailing his reaction to the court’s ruling and what he described as Taylor’s “personal animosity” toward him.
“I pledged my life to public service and would never violate the public trust that was placed in my care as an elected official and especially as mayor,” he wrote.
He continued, “I now call for the resignation and disbarment of Robert Taylor for his violation of my cherished constitutional rights. Additionally, I call for the resignation and disbarment of Marcus Karavan, Wildwood city solicitor and ‘star witness’ in the presentation of the case to the grand jury, who blatantly lied and riled up the jury with tales of my supposed action.”
DeMarzo alleged that Taylor and Karavan represented each other in civil actions and had “close ties.”
“I am now left to file suit against all parties, and seek civil remedies to regain my integrity and my good name,” DeMarzo said.
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