Defense attorneys tend to dislike the use of speaking indictments, but in the high-profile prosecution of South Jersey powerbroker George Norcross, the prosecution’s lengthy filing may have given the defense team an opening to weaken Attorney General Matthew Platkin’s case at an unusually early stage.
Speaking indictments lay out charges in a narrative-driven format that defense attorneys typically dislike. The prevailing complaint is that prosecutors use vivid detail to sway public opinion before the trial begins. However, after the indictment against the high-profile Norcross was dismissed last week, said prosecutor’s use of a speaking indictment may have backfired, allowing the defense to challenge the narrative early and successfully frame the case as an overreach.
Daniel Ahn, a partner in Reed Smith’s regulatory and investigations practice group and a former supervisory federal prosecutor, told Law.com that speaking indictments can be the “proverbial double-edged sword.”
“The fact that this indictment spoke so much gave the defense an ‘in’ to argue that the indictment set out the AG’s case in such length and detail that it could represent the AG’s case-in-chief and thus be challenged legally—and potentially dismissed—pretrial,” Ahn added. “In this case, less would’ve been more.”
In June, the New Jersey Attorney General’s Office filed racketeering chargest against Norcross and five others, including brother his Philip A. Norcross, who is a shareholder at Parker McCay, and Brown & Connery William M. Tambussi. The suit alleged the defendants were involved in obtaining the rights to develop the Camden waterfront through a series of allegedly unlawful acts.
In challenging the charges, both Philip Norcross and Tambussi argued Platkin was attempting to criminalize “the routine practice of law.”
In late February, a Mercer County Superior Court judge agreed with the defendants and tossed the out the indictment, saying “not every threat is criminal or even wrong.”
The indictment has led to some political blowback for Platkin. Since the dismissal on Feb. 26, Republican members of the New Jersey Assembly filed articles of impeachment against the AG, alleging a laundry list of complaints, including arguing that the prosecution was the result of political ambition and that the investigation was corrupt.
Regardless of the political ramification, the judge’s decision to toss the case at such an early stage was unusual, according to attorneys.
“Pretrial dismissals for failure to state a criminal offense are a rare bird, so the dismissal was surprising,” Ahn said.
A Common Feature in High-Profile Cases
The AG’s Office declined to comment pending the appeal in the case. However, in its opposition motion, the office argued that a speaking indictment should not be taken as a “full proffer” of the state’s case, and that doing so would allow those charged through a speaking indictment the opportunity to preliminary challenge the charges.
“That, of course, is not the law, and defendants are subject to the same facial standard as everyone else—foreclosing their attempt to treat the indictment as tantamount to the state resting its case,” the brief said.
Prosecutors, however, say speaking indictments come with pitfalls.
Preston Burton, a former federal prosecutor and now a partner at Orrick, Herrington & Sutcliffe, agreed with Ahn’s assessment. Burton, who co-leads the firm’s white-collar and investigations practice, pointed to an article he co-authored for the National Association of Criminal Defense Lawyers, which argues that speaking indictments are as prejudicial as extrajudicial statements.
“Prosecutors can and do bring high-profile, factually complex cases without deploying speaking indictments,” the article said. “For example, the government initially charged Sam Bankman-Fried, the cryptocurrency entrepreneur who founded FTX, with a complicated fraud scheme involving eight counts, including multiple conspiracy charges and a forfeiture allegation, and required only 14 tidy pages to do the job (followed by several superseding indictments).”
Burton noted that speaking indictments are most commonly used in high-profile cases as a tool to shape public perception.
“Unlike in a civil case, the defense in a criminal case never files an ‘answer,’ so the defense’s case is often not aired to the same extent,” Ahn added.
A Case Built on Hard Bargaining?
Howard Master, a former federal prosecutor and now a partner at global investigation firm Nardello & Co., told Law.com that the indictment appeared vulnerable from the outset because it alleged conduct that could be defended as aggressive but legal bargaining.
“At the end of the day, I think it is unfortunate,” Master said. “The charges, in retrospect, probably should not have been brought because of the vulnerabilities in the case.”
Master pointed out that Mercer County Superior Court Judge Peter W. Warshaw dismissed the case on four main grounds: that the actions alleged in the indictment do not constitute extortion or criminal coercion, there is no criminal enterprise, the official misconduct charges lack a legal foundation, and that the statute of limitations expired on the alleged crimes.
Where the Norcross Case Stands
Warshaw dismissed the indictment against Norcross and other defendants, including his attorneys from Brown & Connery and Parker McCay, on Feb. 26. Almost immediately, the attorney general filed a notice of appeal.
The opinion said the indictment must be dismissed because its factual allegations do not constitute extortion or criminal coercion under the law. Norcross and the other five defendants made the motion to dismiss the charges, including his brother, Philip A. Norcross, a managing shareholder and CEO of Parker McCay, and William M. Tambussi, a partner with Brown & Connery.
Warshaw further held that the 13-count indictment’s validity depends on the existence of unlawful threats. According to the opinion, the state argued that the grand jury’s determination that the threats occurred is presumptively valid and entitled to deference. However, the defense argued that the grand jury was wrong and that it was the court’s obligation to correct that error. Warshaw said he agreed with the defense.
Ahn anticipates that Attorney General Platkin’s team will argue on appeal that the trial court misinterpreted the law and engaged in impermissible fact-finding. Ahn added that the defense will likely frame the legal issue narrowly, using the exhaustive facts in the indictment to reassure the appellate court that ruling in Norcross’s favor will not set a broad legal precedent.
“I think the outcome on appeal will turn on this macro table-setting issue,” Ahn concluded.
While Master did not rule out the state’s chances on appeal, he described it as an uphill battle, given the multiple legal deficiencies identified by the trial court.