ATLANTIC CITY - City Councilman Marty Small, acquitted recently of voter-fraud charges for the second time, filed a notice last week that he intends to sue the state for "malicious prosecution."

A tort claim filed by Small's lawyers Friday accuses the state Attorney General's Office of violating the 2nd Ward councilman's civil and constitutional rights.

"They obviously violated me," Small said Monday. "They did it twice. I should never have been indicted in either case. You had 24 different (jurors) from different backgrounds who agreed."

The state indicted Small and 13 others in September 2009 on voter-fraud charges related to messenger ballots obtained during the 2009 Democratic mayoral primary involving Mayor Lorenzo Langford and candidate David Tayoun.

Two defendants pleaded guilty in the lead-up to trial, but a jury acquitted Small and five other defendants. The state dropped charges against the remaining six.

The acquittal was Small's second in six years. He faced similar charges related to handling ballots in the 2005 Democratic mayoral primary between Langford and Bob Levy, but was acquitted after jurors deliberated for a half-hour.

"The first time I considered going there, but one of my advisors told me to leave well enough alone," Small said of considering suing the state in 2005. "This time it was a no-brainer."

The Press of Atlantic City obtained the letter Monday morning. Small and his attorney, Ed Jacobs Jr., confirmed its authenticity. Leland Moore, a spokesman from the Attorney General's Office, declined to discuss Small's claim.

"We're convinced that Marty has been maliciously prosecuted," said Jacobs, who added that Small's 2005 acquittal would also be part of the lawsuit. "They've done this to Marty twice. We're filing this litigation to make sure it doesn't happen a third time."

Investigators immediately began questioning people involved in the 2009 campaign within a week after Election Day. Small and his fellow defendants soon learned that their Atlantic Avenue headquarters had been under surveillance for months by State Police detectives , and an informant had infiltrated the campaign.

Eddie Colon Jr., assigned by the campaign to collect messenger absentee ballots from the city's Hispanic community, recorded telephone conversations and secretly videotaped discussions with the councilman and other campaign workers.

In June 2010, The Press of Atlantic City obtained copies of Colon's recordings and the investigative report filed by state detectives. The paper reported the discussions involving Small did not appear to reveal anything criminal.

The state Attorney General's Office also relied heavily on Ronald Harris, one of the 14 originally charged, who took a plea deal to testify against his fellow campaigners. Key words used in the indictment, such as Small's "special army" of campaigners and the "autograph parties" the campaign allegedly held to forge voters' signatures, came from Harris's grand jury testimony.

But Harris' testimony lost value to the prosecution because of unusual behavior on the stand that included him dry-heaving into a wastebasket and giving photographers the middle finger.

Harris's performance on the witness stand prompted authorities to revoke his plea deal. A judge sentenced Harris to 181 days in jail, which he can serve on house arrest.

Small maintained his innocence all along, but the ordeal altered his public demeanor. Normally active in the community and vocal at City Council meetings, Small laid low as the trial approached and missed several council meetings or sat silently during the sessions he attended.

Small's tort claim seeks reparations for damages, including humiliation, pain and suffering, legal fees and loss of public standing and reputation. However, the document does not indicate an amount the councilman is seeking in damages.

A tort-claim notice is not a lawsuit. Instead, it reserves a person's right to sue a public agency in New Jersey. By state law, the official filing of a lawsuit must wait a period of six months after the tort claim is submitted, a requirement designed to make both sides consider a settlement.

Asked if he is hesitant to go to trial, Jacobs replied, "Not in this case."

Contact Michael Clark:

609-272-7204

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