Documents, experts suggest prosecutor played favorites
TRENTON >> Prosecutors can “indict a ham sandwich.”
But former Monmouth County Prosecutor Peter Warshaw, now the top criminal judge in Mercer County, might be the first prosecutor to un-indict a ham sandwich, a law professor said.
In this case, the ham sandwich is former Belmar police officer Darian “Darren” Vitello.
Vitello benefitted from a secret plea deal with Monmouth prosecutors in 2009 and is challenging the plea and suing the former attorney, also a former high-ranking Monmouth prosecutor, who negotiated it.
“You don’t go back to a grand jury and say, ‘Undo this indictment,’” said Bennett Gershman, a law professor at Pace University who specializes in legal ethics. “This looks like favoritism here. It strikes me that this prosecutor behaved improperly in seeking an end around normal procedures to achieve the result he wanted. It’s extremely troubling and unprecedented.”
A Trenton attorney has suggested Warshaw’s conduct could be criminal.
While the law professor said an ethics panel should investigate Warshaw for possible wrongdoing, a Trentonian review of 150 pages of documents and interviews with former prosecutors and legal experts suggests Monmouth County prosecutors mishandled Vitello’s case.
The Trentonian wrote about Vitello’s case earlier this month when it was discussed at a hearing Exterior of the Mercer County Criminal Courthouse in Trenton Sunday, Aug. 30, 2015.
for suspected killer Wayne Bush, of Trenton.
Bush is represented by Trenton attorney Jack Furlong. Bush asked the judge to remove himself from his trial because Furlong’s suggestion Warshaw may have committed a crime by interfering with a grand jury in the Vitello matter may color his rulings in Bush’s murder case.
Warshaw said he can be fair. He also claimed there was nothing inappropriate about rescinding indictments and it was something Monmouth prosecutors have done for 40 years.
Former assistant prosecutor Gregory Schweers, who worked under Warshaw, said it happened maybe “half a dozen” times.
Monmouth County First Assistant Prosecutor Marc C. LeMieux said in a statement his office “feels very confident in its procedures and will vigorously litigate” against Vitello.
Furlong said Vitello’s case shows the criminal justice system’s “jaundiced eye,” that Gershman said Warshaw’s actions undermined the legal system.
“That’s not the way the system works,” he said. attorney, Robert Honecker, a former first assistant prosecutor in Monmouth County.
Vitello is related to Honecker and may have hired him because of his deep and powerful connections in the Monmouth County Prosecutor’s Office.
He is suing Honecker for malpractice because he said the defense attorney had a “conflict of interest” when he negotiated the plea.
He wants to withdraw his guilty plea because he had “ineffective” legal advice.
“We felt that Honecker had been a career prosecutor up until that point,” said David Schroth, an attorney who represents Vitello along with attorney Robert Solomon.
In court papers, Schroth contends Honecker failed to review police reports and witness statements in Vitello’s case and “suborned perjury” by convincing the former cop to plead guilty, according to court papers.
Vitello lost his job and pension. He tried resurrecting his career with Fort Lauderdale Police but couldn’t because of the conviction. told the grand jury he wasn’t intimidated when the Belmar cop allegedly pointed a gun at him, according to court papers.
Another alleged witness, Paul Smikovecus, had an ax to grind because he was upset Vitello recommended not hiring him in Belmar after he was fired by Manasquan Police.
Honekcer “misled the court” to push through a plea, the court papers say.
During his Oct. 1, 2009 plea, Vitello asked for a break to speak to his attorney about whether a grand jury had indicted him. He was told not to “ask any more questions,” the court papers say.
Judge English, Honecker and Schweers met in chambers prior to the plea.
Scwheers claimed in his deposition he told the judge that Vitello had been indicted. English said he didn’t know Vitello had been indicted.
During the plea, the judge said in part, “I know from the conferencing of this matter that this matter was getting prepared to go before grand jury.”
Schweers didn’t correct the judge.
“I didn’t feel the need to correct him,” he said. “Perhaps I should have.”
Judge English explained in a January 2014 decision ordering that the Monmouth judiciary cannot be involved in Vitello’s post-conviction hearing he wanted to make it clear he would “have never said” what he said if he knew Vitello’s case had already been presented to the grand jury.
“That would be a mistake by me,” he said. “And I would never place something like that on the record.”