Nineteen months after charging Khari Noerdlinger with manslaughter and describing him as a violent drug dealer, the Bergen County Prosecutor’s office has dismissed the charge and admitted that Noerdlinger was not involved in a drug deal during an attack on him which left him injured and one of his three attackers dead. A review of the grand jury transcript revealed that the Assistant Bergen County Prosecutor and case detective worked together to deceive the grand jury about the danger facing Khari when he was attacked by three men with weapons including multiple knives as well as the injuries he suffered during it – all in an effort to negate any legitimate claim of self-defense the grand jury repeatedly asked about. During this 19 month period, there was apparently no oversight in the Bergen County Prosecutor’s Office and it took the defense to carefully lay out the obvious perjury in the grand jury presentation in order to get the faulty manslaughter charge dismissed. All of the materials provided by defense attorneys Jeffrey Lichtman and Lee Vartan which proved the commission of perjury were in the possession of the prosecutors and provided to the defense as part of routine discovery disclosure. Despite the obvious subornation of perjury by the Assistant Prosecutor, Danielle Grootenboer, and the perjury of the testifying case detective, James Costello, they have not been suspended and continue to menace the people of Bergen County. No apology, additionally, has been issued by the Bergen County Prosecutor for the perjury which led to the bogus manslaughter indictment as well as the repeated false public claim that Khari was dealing drugs at the time of the incident.
Khari was charged on February 1, 2016 with manslaughter and related charges after he was attacked by three armed men during a robbery in Edgewater, New Jersey. Immediately, we pointed out to the Assistant Prosecutor that Khari was lucky to be alive after the armed attack and that a manslaughter charge was wildly overreaching – that a legitimate claim of self-defense existed, which would negate his guilt. As a video of the attack clearly captured what occurred between Khari and his attackers, we expected that upon a review by the grand jury, they would agree that Khari had a right to act in self-defense to prevent a violent beating or even his death. A review of the video makes clear that all three men attacking Khari were armed with weapons including multiple knives and were beating him with the weapons, feet and fists at the time one of the attackers was stabbed in the leg.
The Law of Self-Defense Explained — And the Prosecutor’s Obligation to Present Evidence Which Negates Guilt
According to New Jersey law, NJ Rev Stat § 2C:3-4 (2013), “the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.” In addition, “(2) The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm ….” For a variety of reasons, the evidence gathered by the Bergen County Prosecutor’s Office made clear that Khari had the right to use any force necessary to extricate himself from the violent attack he was under. Provided the prosecutor has knowledge of it, she is obligated to disclose the evidence that “negates the guilt of the accused” and is “clearly exculpatory” to the grand jury. State v. Hogan, 144, N.J.216, 227, 676 A.2d 533, 538 (1996).
The Prosecutor Suborned the Perjury of the Case Detective Who Testified in the Grand Jury
A review of the grand jury transcript, however, made clear that the prosecutor’s only concern was to convince a very skeptical bunch of grand jurors that despite the video showing Khari being attacked by three men, he was not entitled to defend himself as he did. Therefore, it was imperative for Detective Costello and Assistant Prosecutor Grootenboer to minimize the attack on Khari. This was accomplished by a) claiming that the three attackers did not even leave a mark on Khari during their attack on him; b) that the attackers did not possess knives; and c) that only one of them had a weapon – and it was a “long cylindrical object.” All of this testimony was belied by the videotape of the incident; the confession of one of the attackers, Richard Jean Pierre; the statement of the dead attacker’s mother, Angela Floyd; and the evidence gathered by the prosecution and disclosed to the defense, including pictures of Khari Noerdlinger’s body after he was arrested.
The Weapons Used by the Attackers
In the grand jury, Detective Costello testified on multiple occasions that he saw only one weapon in the video of the incident, identified as a bat. Detective Costello further unequivocally stated that no one during the course of the investigation indicated that the attackers carried knives that night. These statements are directly contradicted by an objective viewing of the video which clearly showed multiple weapons being drawn and used. In further contravention to this testimony, during a video-taped interview that same night of attacker Richard Jean-Pierre, Jean-Pierre told detectives that Lewallen brought a weapon to the encounter, that both Lewallen and attacker Kevensky Lubin had knives, and that they in fact got rid of the knives after the attack. Clearly, Detective Costello was trying to downplay any danger to Khari to prevent the grand jury from finding that he acted in self-defense.
Detective Costello also testified that another attacker, Calim Gaspard, went to Lewallen’s house after the incident, where he changed his clothing and bloody shoes, and while he was there he “left items there to get rid of [them, namely:] cell phones, credit cards, keys ….” However, the list of items the detective provided to the grand jury inexplicably failed to include a bloody kitchen knife that Gaspard left there which was found by Lewallen’s mother and turned over to investigators the next day. Not only was the grand jury lied to about the possession of knives by Khari’s attackers, but they were not told about the bloody knife – which certainly could have been determined to be the one used to stab Lewallen. In the 19 months since that bloody knife was received by the prosecution, despite repeated requests, no picture of it has ever been turned over to the defense — nor has the knife been forensically tested. Lastly, it should be noted that Assistant Prosecutor Grootenboer was fully aware of what was on the videotape of the incident and of the confession of Richard Jean-Pierre and the Angela Floyd statement – she provided this material to the defense as part of the discovery process.
Detective Costello Lied About the Injuries Suffered by Khari – and Assistant Prosecutor Grootenboer Allowed It
In furtherance of this attempt to cause the grand jury to disregard any self-defense claim by Khari, the detective perjured himself repeatedly when discussing any injuries Khari sustained during the attack on him, even claiming he was not certain Khari was even struck by his attackers. Beyond the fact that the tape of the attack reveals that Khari was struck repeatedly, Costello testified that a “full body standup of photographs and inspection” of Khari’s body was taken upon his arrest and that Khari had no visible injuries whatsoever. He repeated this claim: “There was no signs of injury, so I can’t say that definitively he was struck” and that he saw “no bruising, no scrapes, no cuts” on Khari.
As part of the discovery received by the defense from Grootenboer, the photographs of Khari from the police station clearly show bruising on Khari’s body. Not only do they show bruising, but the Bergen County Sheriff’s Office clearly knew that the bruises were there as they actually photographed Khari with a ruler next to the bruising on his body to show the size of the injuries. The detective’s testimony regarding the complete lack of any visible injuries cannot be characterized as anything other than a blatant lie, again attempting to mislead the jury and pre-empt a self-defense claim by portraying Khari as walking away without a scratch while his attacker Lewallen died. If the grand jury heard that Khari was being savagely beaten with multiple weapons including knives prior to the stabbing, they likely would have believed Khari was justified in his actions and voted not to indict on the manslaughter charge.
The Law on Perjury Before a Grand Jury
The grand jury both “acts as a sword so that those who are suspected of wrongdoing may be properly brought to trial, and as a shield to protect the people from arbitrary prosecution.” State v. Smith, 269 N.J.Super. 86, 93, 634 A.2d 576 (App. Div. 1993). In State v. Murphy, 110 N.J. 20, 538 A.2d 1235 (1988) the New Jersey Supreme Court held that it is the court’s obligation to exercise its supervisory authority over the grand jury process to ensure that the selection of the grand jurors and the presentation are fair and unbiased.
“Unless the prosecutor’s misconduct is ‘extreme and clearly infringes upon the [grand] jury’s decision-making function’ an otherwise valid indictment should not be dismissed.” Id. citing State v. Buonadonna, 122 N.J. 22, 48-49, 583 A.2d 747 (1991). The dismissal of an indictment is appropriate “if it is established that the violation substantially influenced the grand jury’s decision to indict” or if there is ‘grave doubt’ that the determination ultimately reached was arrived at fairly and impartially. Bank of Nova Scotia v. United States, 487 U.S. 250, 256 quoting United States v. Mechanik, 475 U.S. 66, 78 (1986). “The grand jury cannot be denied access to evidence that is credible, material and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused.” State v. Hogan, 144 N.J. 216, 236, 676 A.2d 533 (1996).
Khari was attacked on February 1, 2016. It was not until our meeting with the Bergen County Prosecutor, Gurbir Gruwal, on August 29, 2017 wherein we revealed the perjury contained in the grand jury process; only then he agreed to dismiss the manslaughter charge. As of now, neither Grootenboer nor Costello have even been suspended for their conduct. Grootenboer remains defiant and has made clear to the court that this is business as usual in her office: “These types of motions have been filed before, and they’ll be filed after this case. And I will respond just as I always do.”
Simply put, this is the worst example of prosecutorial misconduct and perjury that I have ever witnessed in 27 years of practice. The actions of the Bergen County Prosecutor’s Office were nothing short of a modern-day lynching and if not for Khari having attorneys who had the resources to fight this corrupt prosecution, he could have landed in jail for decades. Finally, it is simply incomprehensible to believe that the perjury which occurred here was an isolated incident. Defense attorneys in Bergen County would be wise to review all cases they’ve had with the prosecutor’s office in which Grootenboer or Costello were involved. If the Bergen County Prosecutor will not clean up his corrupt office, it will be up to defense attorneys and judges to do it for him.
Jeffrey Lichtman has received the highest rating (AV) from the Martindale-Hubbell Legal Directory, is recognized in the Bar Register of Preeminent Lawyers and has also been selected as a New York City Super Lawyer for being a leader in his field of criminal defense. Mr. Lichtman has received a rating of 10.0/10 Superb rating from Avvo Lawyer Directory and was profiled in the New York Daily News, The New York Times as part of the “Public Lives” series and in a two-part series in Super Lawyers magazine. He can be reached at (212) 581-1001.