Update: Baroni, Kelly guilty on all counts

NEWARK--Defense attorneys Thursday asked for the declaration of a mistrial in the Bridgegate saga in the wake of a furtive, day-long battle that took place behind-the-scenes on Wednesday over whether jurors had been incorrectly instructed.

The request was made in a redacted application that gave no reason for the mistrial request.

At the same time, assistant U.S. Attorney David Feder filed a separate motion asking the court to seal the record.

"Because the filing refers to a matter that was addressed in a sealed courtroom on Nov. 2, 2016, and because its disclosure would complicate the court's efforts to ensure a fair trial, the government submits that, in an abundance of caution, the filing should be maintained under seal," the motion said.

As of 11:20 a.m., defense attorneys were in the courtroom awaiting the judge.

The request for a mistrial comes seven weeks after the trial began and three years after the politically motivated lane closures at the George Washington Bridge that led to indictments against two former Christie administration insiders.

It was not known whether the issue involved the jury itself, or another legal matter.

But it came following a heated dispute on Wednesday involving the judge's answer to a question by the jury a day earlier, when U.S. District Court Judge Susan Wigenton told jurors they need not consider the politically inspired motive in the George Washington Bridge scandal in determining the the guilt or innocence of the defendants.

Jurors had questioned whether Bridget Anne Kelly and Bill Baroni, the two former Christie administration insiders charged with illegally shutting down toll lanes at the George Washington Bridge to cause traffic problems in Fort Lee, could be found guilty of conspiracy if their intent had not been to punish Fort Lee Mayor Mark Sokolich, as prosecutors have alleged.

Baroni, the former deputy executive director of the Port Authority, and Kelly, who served as a deputy chief of staff to the governor, are charged with conspiracy and fraud in connection with the 2013 lane closures at the bridge, which federal prosecutors said was planned with the intention of causing traffic havoc in Fort Lee to send a message to Sokolich over his refusal to endorse Gov. Chris Christie for re-election.



David Wildstein, the key figure in Bridgegate and key witness against Baroni and Kelly, previously pleaded guilty to the scheme and was the main witness against the two.

But in the initial instructions to the jury before the start of deliberations, prosecutors had argued the indictment charged the two with illegally misapplying the resources of the Port Authority, not with a scheme of retribution. Wigenton agreed that motive was not an issue in the case and in her answer to jurors, she told them the defendants could indeed be found guilty of conspiracy without a finding of intent.

However, defense attorney Michael Critchley, who represents Kelly, angrily told the judge that the response would "direct a verdict of guilty." On Wednesday, he filed a motion with the court seeking reconsideration.

In that motion, Critchley said the indictment charged a conspiracy to accomplish a specific unlawful purpose--in this case retribution--and that the government needed to prove an unlawful purpose.

"While it is true that motive is not an essential element of every conspiracy, it is an essential element when the grand jury charges a defendant with conspiring to do so, and in fact, doing something he is authorized to do, but doing it for an improper purpose," Critchley wrote in his motion.

He called it an error to instruct the jury otherwise, and that the court should correct it with re-instructions to the jury.

In the wake of the filing, both the defense teams and federal prosecutors cycled in and out of the courtroom throughout the day Wednesday before retreating--the defense attorneys to a conference room down the hall and the assistant U.S. attorneys to their offices in the Peter Rodino Building next to the courthouse in downtown Newark.

While the two sides were in the courtroom, no one else was allowed inside. When one reporter attempted to go in, a U.S. Marshal threatened to remove him from the courthouse. A record of the proceedings on Wednesday was placed under seal.

Late this morning, the U.S. Attorney's office filed a response to the defendant's motion for new jury instructions.

They said the indictment alleged that "the defendants conspired to and did obtain by fraud, knowingly convert, and intentionally misapply Port Authority resources to facilitate and conceal the causing of traffic problems in Fort Lee, all without any legitimate justification."

The government said the arguments made by the defense would be relevant if they had been charged with misusing some Port Authority resource unrelated to alleged scheme.

"The remainder of defendants' arguments are restatements of what they previously argued in support of their desire for motive to be part of the Court's instructions," they wrote.

Shortly after lunch, the judge ruled on that motion, denying a request to change the instruction to the jury. However, she did not move on the mistrial.

She said the defense "failed to set forth any dispositive factual matters or controlling decisions of law that have been overlooked or newly discovered information."

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.