Despite promising the Court in September to “respond the same as I always do” to Khari Noerdlinger’s motion to dismiss the remaining charges against him due to prosecutorial misconduct and perjury in his grand jury, Assistant Prosecutor Danielle Grootenboer of the Bergen County Prosecutor’s Office did quite the opposite this week: she refused to respond to Mr. Noerdlinger’s allegations and instead simply re-indicted Mr. Noerdlinger on the minor charges still in existence – presumably without the problems of the massive perjury which fouled the last indictment. By tossing out the indictment and refiling the same charges, the Prosecutor’s Office actually believes it can avoid having to explain away the massive perjury and misconduct which permeated the original indictment filed nearly two years ago against Mr. Noerdlinger and attempt a fresh start in this case – despite the fact that Mr. Noerdlinger was damaged by the false public accusations from Grootenboer that he was a killer and a drug dealer all this time. It was only when the Bergen County Prosecutor was shown the misconduct of Grootenboer and the perjury of case detective James Costello that the manslaughter charge was dismissed. However, simply telling the Court that it “will not be filing a response to defendant’s motion to dismiss,” will not put an end to our inquiry and attorneys Jeffrey Lichtman and Lee Vartan will continue their efforts to dismiss the remaining charges against Mr. Noerdlinger as well as filing a lawsuit against Grootenboer, Costello and the Bergen County Prosecutor’s Office for the deprivation of Mr. Noerdlinger’s civil rights. Only in this way will the people of Bergen County see the true face of the prosecutors who have sworn to protect them.
The Perjury and Misconduct of the Bergen County Prosecutor’s Office
As noted here previously, Grootenboer and Costello conspired to present the grand jury with a false narrative of the night of January 31, 2016 in which Mr. Noerdlinger was attacked by three armed men with knives and bats in Edgewater, New Jersey. As revealed very clearly on a security video taken from a building nearby, all three attackers had weapons and were in the midst of violently beating Khari when one of them was stabbed in the leg, ending the attack. Nevertheless, the prosecutor and detective lied to the grand jury, claiming that just one of the attackers had a weapon – and it was a “long, cylindrical object.” They also told the grand jury that Khari was not only not injured during the attack but had not a scratch on him afterward. These lies were designed to negate any belief by the grand jury that Khari was in any real danger during this very violent attack – as such, Grootenboer and Costello prevented a finding by the grand jury that Khari was justified in using force or deadly force to “protect himself against death or serious bodily harm ….” NJ Rev Stat § 2C:3-4 (2013). These lies were easily disproven by not only the video of the attack but by the statements of one of the attackers who indicated all three men were armed with knives or bats, the mother of one of the attackers who claimed that the attackers dropped off a bloody knife to her home immediately after the attack, and the pictures taken of Khari Noerdlinger’s body after he was arrested – which revealed significant bruising on his back. All of this information and evidence was known by Grootenboer and Costello at the time of the grand jury presentation and kept from the grand jury; during the 19 months following the attack, additionally, Grootenboer publicly and loudly incorrectly described Khari as a violent drug dealer, a claim the Bergen County Prosecutor has withdrawn – privately.
The Doctrine of Fundamental Fairness Requires Dismissal of the Remaining Charges
As the Bergen County Prosecutor seeks to avoid answering for its misconduct and perjury, we believe that the remaining charges should be dismissed for a number of reasons: first, the fundamental fairness doctrine requires dismissal of the new indictment. “The doctrine of fundamental fairness serves to protect citizens generally against unjust and arbitrary governmental action, and specifically against governmental procedures that tend to operate arbitrarily. [The New Jersey Supreme Court] has described this doctrine as an integral part of due process that is often extrapolated from or implied in other constitutional guarantees.” State v. Saavedra, 222 N.J. 39, 67 (2015) (quotations and citations omitted). Although the doctrine “has been an elusive concept … [where] exact boundaries are undefinable,” State v. Yoskowitz, 116 N.J. 679, 705 (1989) (quotations and citations omitted), it is applied “where the interests involved are especially compelling; if a defendant would be subject to oppression, harassment, or egregious deprivation.” Saavedra, 222 N.J. at 67. Khari Noerdlinger was variously labeled a murderer, a drug dealer, and felon on national and regional television, and pictures of him in an orange jumpsuit adorned the front pages of countless New Jersey and New York newspapers. The Bergen County Prosecutor’s Office cannot take that back. At 19, still in college, and yet to even decide on his career, Khari Noerdlinger will live in infamy on the internet—falsely. He will be forced to explain himself to a prospective graduate program, a future employer, and even a would-be girlfriend. The Court should invoke the fundamental fairness doctrine to correct this “egregious deprivation”: Khari’s movements were additionally restricted by the Court and probation for some 19 months, and his bail restrictions came with weekly drug testing—all because Ms. Grootenboer chose to falsely allege that he was a drug dealer. His education has been disrupted, his family’s finances drained, and his life generally put on hold as he has fought the manufactured charges of the Bergen County Prosecutor’s Office. It was for precisely this type of situation that the fundamental fairness doctrine was created and where it is most appropriately invoked. “For the most part, it has been employed when the scope of a particular constitutional protection has not been extended to protect a defendant.” Yoskowitz, 116 N.J. at 705.
Mr. Noerdlinger’s Speedy Trial Rights Were Violated By Two Years of Misconduct, Lies and Delays
In addition, the Bergen County Prosecutor did all it could to delay a trial in this case: Grootenboer never provided full discovery – a year and a half later, she always claimed to be too busy to set a trial date – and even did not show up to court on occasion for a scheduled appearance. Twenty-one months passed and now the prosecutors have put us back to square one, with a new indictment with the same charges – minus the lead manslaughter charge which was permanently dismissed due to their misconduct. And we are still no closer to a trial. New Jersey courts apply “the Barker four-factor analysis to speedy trial claims.” State v. Cahill, 213 N.J. 253, 267 (2013). Specifically, New Jersey courts consider: (1) the length of the delay; (2) the reason for the delay; (3) any effort by defendant to assert his right to a speedy trial; and (4) any prejudice suffered by defendant. Id. at 272.
After running out of excuses a year after the arrest, Assistant Prosecutor Grootenboer proffered a new excuse for her inability to provide basic discovery: she was going to present a superseding indictment to the grand jury. That superseding indictment – any detail of which was never provided to the Court or defense – never came. Instead, six months after this latest excuse was unveiled, the manslaughter charge was dropped when we confronted the Bergen County Prosecutor. In hindsight, the reasons for the delay are clear: Grootenboer and Costello realized that their theft of the grand jury would be exposed. Panicked, they chose to stall, lying to the Court and Mr. Noerdlinger about a superseding indictment which was always coming “next month.” Mr. Noerdlinger for his part, did all that was possible to move this case forward but was stymied due to the failure by the state to provide long-promised discovery materials. While “[a] speedy trial violation can be established without evidence of prejudice, … every unresolved case carries with it some measure of anxiety. [T]he defendant automatically endures restraints on his liberty and lives under a cloud of anxiety, suspicion, and often hostility.” Cahill, 213 N.J. at 274–75 (quotations and citations omitted). That remains true of Khari Noerdlinger.
A Civil Case Will Be Brought — And Assistant Prosecutor Grootenboer’s History of Misconduct Will Be Revealed
In sum, Mr. Noerdlinger’s attorneys will continue to press for the dismissal of the remaining charges before Judge Christopher Kazlau of the Bergen County Superior Court. In addition, a civil complaint will be filed against Grootenboer, Costello and the Bergen County Prosecutor’s Office on behalf of Mr. Noerdlinger. Since Grootenboer’s misconduct was exposed in September, additionally, we have received calls from other New Jersey defense attorneys providing claims of Grootenboer’s misconduct in their cases. And in at least one of Grootenboer’s cases, top drug charges were dismissed by Judge Kazlau due to her failure to provide exculpatory evidence to the defendant for two years. Of course, the now familiar refrain from Grootenboer was proffered: “What we’re talking about here is a mistake, not misconduct.” At some point, this prosecutor will need to be stopped from violating the rights of the accused; we fully expect it to be the result of this case.
November 6, 2017 Update
Bergen County Prosecutor Gurbir Grewal told a reporter today that he “dispute[s] Mr. Lichtman’s allegations … but [was] not permitted to discuss publicly grand jury and pending criminal matters.” Yet, when given a chance to dispute them in the appropriate place, the courtroom — Mr. Grewal refused.