Allison Pries

Staff Writer, @allisonpries

A Bergen County judge ruled there is probable cause for an official misconduct complaint to proceed against Governor Christie in the Bridgegate scandal – but prosecutors still have the right not to pursue the case.

Sitting in Central Municipal Court in Hackensack on Thursday, Judge Roy McGeady made his oral ruling from the bench during a 45-minute proceeding, two weeks after hearing arguments from Bill Brennan, a Wayne resident and a Democratic gubernatorial candidate who filed the civilian complaint against the governor. A standing-room-only crowd of mostly reporters filled the first-floor courtroom.

McGeady moved forward with the probable cause hearing – his second in the case – despite a statement last month by First Assistant Bergen County Prosecutor John L. Higgins III that prosecution in the matter was unwarranted because the "charge cannot be proven beyond a reasonable doubt."

At the time, McGeady rejected a request by Christie's attorney to cancel the hearing in light of Higgins' decision, saying the Bergen County Prosecutor's Office did not have the right to dismiss the case at that juncture.

As a result of the differing opinions between the judge and the Prosecutor's Office, it is unclear whether the governor will appear on March 10 for a first appearance that was set by McGeady for 1:30 p.m. Christie's attorney, Craig Carpenito, could ask that the governor waive his appearance. A call to Carpenito’s office was not immediately returned Thursday.

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Christie has continually denied any wrongdoing in the case. His press secretary, Brian Murray, on Thursday assailed the judge's ruling in a statement:

“This judge has once again violated the Governor's constitutional rights and intentionally ignored the earlier ruling by Assignment Judge [Bonnie] Mizdol. The judge is violating the law, pure and simple. This concocted claim was investigated for three months by the Bergen County Prosecutor’s Office, which summarily dismissed it, after concluding that the very same evidence relied upon again by this judge was utter nonsense. That is exactly what it is. The law requires this judge to have done the same. This is a complete non-event.”

While delivering his ruling, McGeady read through testimony from the federal trial of former Port Authority Executive Director Bill Baroni and Christie's former deputy chief of staff, Bridget Anne Kelly – who were both found guilty of seven charges of conspiracy, wire fraud and civil rights violations.

Fort Lee endured days of gridlock from lane closures leading to the George Washington Bridge, alleged to have been set up as political retribution against the borough’s mayor because he did not endorse Christie for re-election.

“The court found it very puzzling that the governor … seemed to be pleased with the fact that the mayor of a major city’s concerns about traffic jams … would go unanswered, seemingly with the governor’s approval,” McGeady said.

The other aspect that McGeady focused on in his decision was that none of the players mentioned politics – except Christie. McGeady also noted that Christie had control over “at the very least” Kelly.

“The court is satisfied that he had knowledge of the traffic problems … he had reason to believe this traffic was purposefully created, contrived and orchestrated,” the judge said.

Brennan, meanwhile, said he was not surprised by the decision.

“I think the judge marshaled the evidence in such a masterful way that gross incompetence is the only way [First Assistant Prosecutor] John L. Higgins can claim he can’t get a conviction on these facts,” he said.

Brennan also called on residents serving on grand juries throughout the state to summon him to testify and bring this case before them. He asked his opponents in the gubernatorial race to take up this issue “because it’s that serious that the governor is being immunized from responsibility for criminal acts that we all know he committed.”

Probable cause is a relatively low bar in the legal system that allows law enforcement agencies to search for, charge or arrest individuals suspected of wrongdoing, but it is not enough to prove guilt. McGeady, in rendering his decision, talked about the standards of proof in the legal system, which are ranked on a scale from one to six in ascending order. Probable cause is ranked fourth, two places away from the highest proof, beyond a reasonable doubt.

Darren M. Gelber, of Wilentz, Goldman & Spitzer, a past president of the Association of Criminal Defense Lawyers of New Jersey, said many cases that are supported by probable cause do not get prosecuted.

"Prosecutors are empowered to administratively dismiss a complaint, even one that’s supported by probable cause," he said.

If police arrest and charge a person with drug possession, he said, the prosecutor's office could look at the case and determine the search was done illegally, therefore the office is not going to dedicate the time and resources to prosecute it and the office can administratively dismiss it.

"Prosecutors are not obligated to continue the prosecution of the complaint," Gelber said.

Administrative dismissals are not "the usual course," he said, "but certainly not unheard of."

"The percentages weigh more heavily in favor of the prosecution of cases," Gelber said.

Other possibilities for the case would be the prosecutor downgrading the charge or it being referred to the Attorney General's Office.

The citizen’s complaint filed by Brennan, a retired Teaneck firefighter and outspoken critic of government officials, has been batted back and forth between the Municipal and Superior courts.

Brennan’s complaint, filed Sept. 28 in Fort Lee Municipal Court, alleges second-degree official misconduct against Christie. The document says that on or about Sept. 11, 2013, the governor failed to order his subordinates to reopen access lanes to the George Washington Bridge that were closed for a purported traffic study. The complaint was sent to Central Municipal Court in Hackensack, where McGeady found probable cause on Oct. 13, moving the case to state Superior Court. There, Judge Bonnie Mizdol ruled that Brennan's request to appoint a special prosecutor should not be addressed because Brennan, as the civilian complainant, had no stake in the case once it had been granted probable cause.

Then, on Jan. 12, Mizdol rejected a motion by Christie's attorney to dismiss the complaint, saying a new hearing should be granted because Christie's attorney was not allowed to participate.

That new probable cause hearing occurred two weeks ago, on Feb. 2, but neither Christie nor his attorney participated because, just days before the hearing, Higgins, the first assistant prosecutor, released his letter, stating there were "practical problems" with a probable cause determination made by a Municipal Court judge last year.

Carpenito then sent an email Feb. 1 to McGeady, stating that the probable cause hearing was moot.

"The BCPO has conducted a thorough investigation of the complaint ... and other relevant evidence over the past three months and has determined that it does not intend to pursue the complainant's frivolous charges," Carpenito wrote.

McGeady, however, denied Carpenito's request to cancel the hearing.

A spokeswoman for the Bergen County Prosecutor’s Office declined to comment Thursday.