Authorities in Middlesex County paid a confidential informant $180 to wear a wire and secretly record a meeting with a defense lawyer representing a man the prosecutor’s office was trying on drug charges, NJ Advance Media has learned.
The move outraged the attorney, Joseph Mazraani, and “troubled” a state Superior Court judge – though the judge declined to toss the case when the secret recording was revealed.
Now a state appeals court is taking up the matter at the urging of a coalition of criminal defense lawyers, who accuse law enforcement of “sending a spy into the defense camp.”
County authorities countered they had reason to believe Mazraani was going to try to bribe their informant, who was a key witness in the case. That suspicion turned out not to be true, both sides of the dispute have acknowledged in court papers.
Current and former trial lawyers not involved in the case who spoke with NJ Advance Media for this story said the circumstances were unusual, though they differed on whether the investigators crossed an ethical line by secretly recording an adversary in a pending criminal matter.
“This is egregious because it’s – it’s snooping on – on something that’s supposed to be sacrosanct,” Mazraani told the judge during an April hearing. At another point, he argued: “I’m not entitled to send somebody into (the prosecutor’s) office when he’s preparing his witnesses.”
Through a spokeswoman, Middlesex County Prosecutor Andrew Carey declined to comment.
An NJ Advance Media review of court records reveals how the relatively low-stakes drug trial ballooned into a fight over civil rights – and got tangled up in the case of another well-known criminal defense attorney, Michael Policastro, who was charged last month with illegally interfering in three other criminal matters.
THE CONFIDENTIAL INFORMANT
In May 2017, Gregory A. Martinez was indicted on nine counts of second- and third-degree drug charges.
Central to the case was the testimony of a confidential informant, Delvi Cruz-Santos, who was secretly recorded while allegedly buying cocaine from Martinez under the direction of a law enforcement drug task force.
Martinez hired Mazraani to defend him against the charges, and as the lawyer was preparing for an April trial, he reached out to Policastro, who previously represented the informant, Cruz-Santos, to arrange a pre-trial interview.
Such requests are common in criminal cases, prosecutors and defense attorneys told NJ Advance Media, though frequently witnesses for the state are advised by prosecutors or their own lawyers not to meet with the defense before trial.
Cruz-Santos was suspicious, records show. He didn’t know why Mazraani wanted to speak with him. What’s more, he claimed the defendant, Martinez, had sent him a friend request on Instagram around the same time, making him anxious.
Cruz-Santos later told officials at prosecutor’s office that his own attorney, Policastro, suggested Mazraani might want to “offer him money.” The informant told his lawyer he wanted to alert the prosecutor’s office, and the attorney agreed, records show.
Neither Cruz-Santos nor Policastro could be reached for comment.
The possibility of a bribe caught the attention of the investigators because they were quietly preparing to bring separate charges against Policastro for witness tampering. Just weeks later, they accused him of encouraging witnesses “to testify or inform falsely, or withhold testimony or information pertaining to three criminal cases.” Those charges are still pending.
Cruz-Santos’ handlers at the prosecutor’s office who oversaw his previous undercover drug buys encouraged him to take the meeting, paying him $180, documents show.
In records obtained by NJ Advance Media, investigators claimed they put a wire on the informant “for the purpose of determining if witness tampering would be occurring inside of The Policastro Law Firm.”
But while the meeting took place at Policastro’s Milltown law office, Policastro wasn’t there. He was in court on another case that day, the records show.
The transcript shows the meeting itself was unremarkable. Mazraani quizzed Cruz-Santos on how he set up the alleged purchases and how they were recorded, serving as a preview to the testimony the informant might give at trial. Nobody discussed money.
When Mazraani asked Cruz-Santos’ to give a taped statement, he declined.
“A lot of times in the past witnesses have gone and have told the prosecutor that I did something bad or inappropriate or forced them in any way to do things and, you know, there is no taped statement,” Mazraani told him, according to the transcript.
“So, they say, well, you know, and then — and then they believe you over me. That’s what happens.”
What the attorney did not know was the interview was being recorded – by the prosecutor’s office.
When Mazraani got a copy of the tape during trial preparation, he filed a motion to throw out the case, claiming the prosecutors’ actions dragged him into the investigation and undermined his ability to represent his client.
“Trial strategy is not some — you know, it’s not like we’re sitting around a war room with, you know, little toy soldiers here and some tanks here,” he told the judge, arguing that prosecutors eavesdropping on his questioning of a witness improperly revealed key aspects of his defense strategy.
APPEALS COURT TO RULE
Prosecutors countered that they did not conspire to listen in on the interview, but simply acted when they had suspicion a crime might occur.
“This is a meeting that was scheduled and requested by counsel of the (informant),” Assistant Prosecutor Elvis Jardines told the judge. “The confluence of another case and this case came to bear.”
The trial judge, Thomas Buck, denied the motion to dismiss the case.
“I’m troubled by a lot of things that’s — what’s been presented to me just in the papers,” he said, according to a transcript of the hearing. “I’m not sure it’s relevant to this case, but it’s still troubling because of how this has gone forward.”
He noted that prosecutors did not intend to use it as evidence and ruled the tape did not reveal any trial strategy that would undermine Martinez’s defense.
Defense lawyers disagree. In an April 29 filing, Deputy Public Defender Joseph Russo argued the secret recording “appears to violate the attorney work product privilege and the rights of the defendant to due process and independent counsel.”
And in an April 15 filing on behalf of the Association of Criminal Defense Lawyers of New Jersey, attorney John J. O’Reilly wrote it “defies credibility” that prosecutors were just targeting Policastro, and not Mazraani, when they put a wire on their informant.
Either way, O’Reilly wrote, the prosecutor’s office should have put in place a “taint team” – a group of outside investigators and prosecutors – to prevent anyone involved in the underlying drug case from having improper access to the information obtained from the secret recording.
Prosecutors, meanwhile, defended the move.
In an April 16 filing, Jardines wrote that “based on the ongoing investigation of Mr. Policastro and the fact that the (informant) was told that he would probably receive money at this meeting, reasonable suspicion existed for a wire to be placed on the (informant’s) person and for a recording to take place.”
Lucy Lang, the executive director of the Institute for Innovation in Prosecution at John Jay College in New York, reviewed select filings in the case at NJ Advance Media’s request and said prosecutors did not appear to do anything improper.
New Jersey has “single-party consent” laws for recording, meaning authorities did not need a warrant to secretly record a conversation as long one of the parties agreed.
“If that witness weren’t a cooperator – were just an ordinary witness for the prosecution – they could have just recorded the meeting themselves and turned over the tape, or could have made extensive notes immediately after,” Lang said.
A state appeals court granted an emergency application from Mazraani, putting his client’s trial on hold.
It could be months before the matter is sorted out. Briefs in the case will be filed in coming weeks, with the last due in mid-July, a spokeswoman for the judiciary said.
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