Nearly five months after a Lehigh County commissioner was arrested in connection with a multi-state drug probe, the public is still in the dark about the evidence authorities have to justify the charges.
Lehigh County Judge James T. Anthony on Friday listened to arguments for and against releasing the two pages from a sealed grand jury presentment that deals with the allegations against Commissioner Zach Cole-Borghi, of Bethlehem.
A media law attorney representing Lehigh Valley news outlets and Cole-Borghi’s defense attorney argue it’s a matter of First Amendment protections of freedom of the press and free speech. The effort seeks the release of allegations against at least 22 defendants charged in the alleged interstate drug ring, even though Friday’s hearing focused specifically on the case involving Cole-Borghi.
Lehigh County District Attorney Gavin Holihan’s office says the presentment must remain hidden from the public to protect confidential informants involved in the investigation. One confidential informant has been assaulted and multiple people have been threatened in connection with the case, the DA’s office said.
Anthony surmised that while no informant in the case has been identified, “someone can put two and two together.”
Two of 41 defendants facing charges in the investigation have yet to be apprehended.
Anthony gave the attorneys involved until Jan. 30 to present case law in support of their position.
Holihan’s office charged Cole-Borghi and 40 others following a three-year grand jury investigation into an alleged marijuana drug ring. The county commissioner is charged with marijuana possession with intent to deliver, authorities have said. Holihan at a news conference last August announcing the investigation said the allegations against Cole-Borghi relate to a pound of marijuana, and that he did not play a large role in the operation.
Cole-Borghi at the time of his arrest worked in the City of Bethlehem Solicitor’s Office but was no longer an employee on the day his arrest was announced Aug. 29. The Democrat was elected county commissioner for District 3 in November 2021 and held onto his seat in last November’s election. He is free on bail.
Lehigh County Judge Thomas Caffrey on Thursday ordered preliminary hearings to proceed in Cole-Borghi’s and nine other defendants’ cases. They were continued to a date to be determined during proceedings Friday at the county courthouse in Allentown.
Those hearings would have been the first time the public would hear details about the allegations. Defendants and attorneys were given the grand jury presentment with an order to not share it.
Chief Deputy District Attorney Craig Scheetz told presiding District Judge Kyle Miller that it could take between one and three weeks to present the evidence required. The investigating grand jury, for example, was presented with 2,691 items of evidence in 130 exhibits over the course of its three-year empanelment, he noted.
Of the 41 defendants charged, 27 agreed to bypass their hearings, but Cole-Borghi and the nine other defendants insisted on having them, arguing their due process rights have been violated by delays in the case. While Cole-Borghi and two other defendants are free on bail, the rest have been behind bars since their arrests at the end of August.
After some initial courtroom confusion, Miller, acknowledging the scheduling difficulty, granted a continuance to make sure there is appropriate time for all the evidence to be heard.
“For today’s purposes, this is going to have to be continued,” the judge said.
Attorneys for the defendants agreed, and pushed for the earliest date possible.
The news outlets — The Morning Call, Lehigh Valley Live, and Lehigh Valley News — are trying to get the allegations unsealed. In a hearing Friday before Anthony, separate from the delayed preliminary hearings, the media groups were represented by Paula Knudsen Burke, an attorney for the Reporters Committee for Freedom of the Press (RCFP).
“I’m glad that the judge gave us the opportunity to present our arguments and push for public transparency, because there has been such little availability of information here,” Knudsen Burke told reporters outside the courtroom after Anthony adjourned the hearing.
Each defendant already taken into custody has seen the grand jury presentment, authorities said, but they and their legal counsel are barred by court order from discussing the allegations publicly.
Cole-Borghi’s attorney, Easton-based Gary Asteak, argued that means an elected official is unable to defend himself to constituents.
Asteak said a “dark cloud of secrecy” has hung over the case since last summer.
“This is Kafkaesque,” Asteak said in court, referring to oppressive bureaucracy portrayals in author Franz Kafka’s fiction. “He has been unable to respond.”
Scheetz and an assistant, Joseph Holaska, representing the district attorney’s office, say protecting the investigation’s confidential informant or informants takes precedence.
Knudsen Burke said identifying information can be redacted.
Asteak argued that the two pages of the grand jury presentment pertaining to Cole-Borghi contain no information that could identify those cooperating with investigators.
“So there’s kind of layers of First Amendment issues here,” Knudsen Burke said. “And it’s not to say that there can’t be times when information is shielded from the public, but there has to be an explanation of why the public is being cut out, and it must be a very significant reason.”
Anthony did not indicate a timeline for ruling, beyond the two-week window for filing legal arguments.
Morning Call reporters Dan Sheehan and Christopher Dornblaser contributed to this report.