Sunday, January 25, 2015

Isn't It Grand? Did You Write a Felony into Your Plotline? Info for Writers with John Higgins, esq.


Fiona - 
After a ThrillWriting reader asked me about Grand Juries,  
I contacted my friend and fellow writer John Higgins. 

John please give us a glimpse at your background. 

John -  
I have had a multifaceted career doing everything from farming to gun sales and repairs, refinishing antiques, developing industrial finishing systems, am a scuba diver, and private pilot.  

I spent 26 years in government, the last 15 years as a Deputy Attorney General and statewide prosecutor. I prosecuted cases in 19 of New Jersey's 21 counties, from simple assault to homicides including writing the plea agreement for the serial killer nurse Charles Cullen. (Information about Cullen HERE) 

Cullen Plea, New York Times

 I dealt with cases from the investigation stage through trial and even defended motions by convicts after all their normal appeals were denied. I also wrote policy papersworked with governmental committees on timely societal problems and drafted legislation.   Lastly, I even created, and implemented oddball projects such as filming rock stars to prevent substance abuse and a play that was performed by inner city high school students to reduce the incidence of bias crimes. In the week just prior to my retirement, I indicted two cases in State Grand Jury and two cases in one county grand jury and then another two cases in another county’s grand jury, six in all. 

Fiona -  
Can you start with a grand jury primer? What is the purpose of a grand jury? 


John -  
I will base my information on New Jersey's system. It's comparable to most of the other states and Federal system but there may be some differences. 

Grand juries are required by the federal and most if not all states’ constitutions.  

The simplest way to describe the purpose and operation of a grand jury is that it is a safeguard to make sure that the prosecution has enough evidence to establish that it is probable that a person has committed a specific serious crime and should be charged and prosecuted for that crime.  This is to prevent the prosecutor or government from exposing someone who is innocent to the embarrassment, cost, and potential harm of being tried for a serious crime.  

In New Jersey the grand juries are composed of twenty-three citizens who hear the prosecutor’s case.  The number of citizens on a grand jury can vary across the country. 

In New Jersey again, a majority of the grand jurors, 12 or more must find that there is sufficient evidence that a reasonable person would believe that this "target" or person committed that specific crime and that they should be tried in the courts for that charge.   

The number of required grand jurors may also differ in other jurisdictions. It is important to note that the level of proof required is less in a grand jury determination than it is in the petit or trial court jury. At trial the burden of proof is much higher, proof beyond a reasonable doubt as opposed to probable causeSerious crimes require a prison term of 12 months up to life in New Jersey and what we call serious crimes are called felonies in many other states.  

Fiona -  
"Target" is the correct word for someone going before the grand jury? 

John - 
Yes.  We call them "targets" because often the grand jury is used in the investigation stage, and they may or may not turn into "defendants" with an indictment handed down charging them with a crime. Remember citizens are presumed innocent in our society. 

Fiona - 
Not every case requires a grand jury, surely. 

John - 
In New Jersey we have a wide variety of less serious illegal behaviors which are categorized as petty disorderly persons and disorderly persons offenses.  Most other states call them misdemeanors.  These disorderly persons offenses only expose an accused to a potential of about 6 months in county jail as opposed to being sent to prison. And these offenses are tried in front of just a judge—the accused is not allowed to have a jury trial.  We handle almost all of these types of offenses in municipal court which is also our traffic and parking ticket courts.   

Examples of petty disorderly and disorderly persons offenses here are: 
  • simple assault 
  • getting into a fist fight
  • shoplifting less than $200 worth of goods.  



In some ways it makes things more efficient too as the whole system would be mired down if we had to select juries for all those offenses These cases are also brought mostly by police officers that swear that they have either witnessed the offense or have evidence to establish probable cause that this accused person committed it.  

Fiona -  
Who sits on the grand jury? And who brings the cases before the grand jury? 

John -  
In New Jersey Grand Juries are panels composed of 23 jurors selected by mailed jury duty notices. They are subjected to some examination by a judge designated to select or impanel them, and who reviews excuses for not being able to serve because of hardship or conflicts of interest generally.  


The grand jury most often hears cases that are already in process.  Ithe majority of cases initial charges have already been filed by law enforcement through an arrest, a warrant or sometimes a summons.  But there are also matters that are investigated by a grand jury to determine if anything criminal did occur and if they decide there wasn’t a crime nothing further happens.   

 For example, a police officer can file charges where they have witnessed the offense being committed in their presence and they place the accused under arrest.  Initially, the police file charges of a serious crime if it qualifies, but then the grand jury has to agree with that determination before the accused can be tried.  Of course that allows for further investigation after arrest and before the grand jury makes their determination.  

There are also some cases created when one citizen files charges against someone else where the police have not witnessed the offense.  I can’t think of an instance where that ever made it to the grand jury level, those minor cases are basically dealt with solely in Municipal Court -- usually disputes between neighbors etc.   It is important to realize that only a prosecutor can present a matter before a grand jury and never a private citizen.  

Typically, in cases that have already been charged through an arrest or a warrant, the prosecutor reviews the case file and if he or she believes there is enough evidence to prosecute the matter against that target, he or she then goes and  presents the evidence before the grand jury for their consideration of potential serious charges.  

Fiona -
The grand jury decides whether or not there is a sufficient case to go forward against a target. A majority needs to believe there is sufficient cause for a trial. Can you talk about that yay or nay process?

John - 
In New Jersey, only a simple majority of the grand jurors have to vote to return what is known as a True Bill”  here, which means there is probable cause that a crime was committed, and that this defendant committed it, or they were involved in perpetrating the crime. Other states can require a super majority of 2/3 or the like of the grand jurors in their system.  

A fuller definition of Probable Cause - is a reasonable belief based on articulable facts that the person committed or was involved in the criminal act. 

If the grand jury does not believe that there is probable cause, there will not be enough votes to indict the matter which is called a “No Bill.”  Then there is no indictment, and the matter is generally ended.  However, your readers should realize that the prosecutor can always present the case again, providing the statute of limitations has not ended for the crime.  

Many defendants file motions to dismiss the indictment based on a variety of grounds, basically that something went wrong in the grand jury process, or the prosecution did not present enough evidence etc.  Most times, even when a defendant wins that motion, unless the court specifies that the dismissal is “with prejudice” meaning the case is ended, the prosecution can repair the defect and present the case again to a grand jury as long as the statute of limitations does not prevent it.   

So your readers understand what a statute of limitations means, every crime has a period of time after it was committed that allows for the case to be brought.  Again this is a protection for the accused because as time passes, it’s harder to both prove a case or defend against a charge as witnesses die, move away, evidence is destroyed or spoils.  Most crimes in New Jersey are limited by a five year period which means they must be indicted before five years have passed since the crime was committed.  There are a few exceptions such as:
  • murder (anytime)  
  • official misconduct (7 years) 
  • continuing conspiracies (depends on the facts of the case).  

Fiona - 
What is an investigatory grand jury? 

John - 
Investigatory grand juriescan be an already sitting grand jury or one assembled for a particular purpose.  Generally, they become fact finders of sorts and look into any evidence that can be gathered to see if anything improper was done and if there was, that the evidence is sufficient to meet the probable cause standard that it was a crime that was committed by that target. They can call witnesses and investigate of course through the prosecutor, directing him or her to compel witnesses or documents through subpoenas for their consideration.  

They are usually used in cases of police shootings or other cases where the facts may not be so clear cut or where a great deal of evidence has to be gathered such as a Watergate break-in type event and there could be a large number of targets. 
  
Fiona - 
You said the grand jury has the power to call witnesses and investigate, what does this include? 


John - 
Grand juries have a broad subpoena power to gather evidence and compel witnesses to testify.  The power is not unlimited.  There are some instances where a witness has a privilege which gives them a reason to not testify or turn over evidence, for example a Fifth Amendment right not to testify against themselves etc.   Or a subpoena may not be legally sufficient in New Jersey for getting electronic communications and data which require a greater amount of scrutiny by a court before that evidence can be required to be turned over to law enforcement, and then presented to a grand jury such as telephonic records and the like. 

The subpoenaed party can file a motion to quash the subpoena and then a court would have to determine whether to compel them to turn over the evidence or to testify.  If someone refuses after the court finds that the motion to quash is denied or that the party simply doesn’t complythey then can be held in contempt, and punished by the court.   

In New Jersey, we also often use target letters where we would advise someone we are investigating them and offer them the opportunity to testify before the grand jury on their own behalf. However, the targetcannot be accompanied by legal counsel in the grand jury room. Legal counsel can sit outside, and the target can take breaks to confer with their counsel if they deem it necessary, but there is no opposing counsel allowed into the grand jury room. Few targets ever appear like that though.  

Grand juries are secret proceedings -- only the grand jurors, stenographer, witnesses and the prosecutor(s) are allowed in the room.  Complex cases often have more than one prosecutor assigned.  

Your readers should also be aware, that contrary to the popular belief that a prosecutor can easily convince a grand jury to “indict a ham sandwich” we are required to provide the grand jury with what’s called exculpatory evidence, that is evidence that tends to show the defendant did not commit the crime.  If we do not present and/or provide exculpatory evidence, it is the easiest grounds to have the indictment dismissed or overturn the conviction later if the case went that far.  It is also considered prosecutorial misconduct which has its own range of sanctions directly against the prosecutor.    

Fiona - 
Is a true bill part of public record? 


John -  
Yes, a “True Billed” indictment becomes a public record, but not always right away.  In largermore complex cases an indictment can be sealed on the prosecutor’s motion before the grand jury judge and kept secret until law enforcement is ready to arrest the target.   The sealing can be used to make sure the defendant doesn't flee or to allow law enforcement to continue its investigation against other associated targets.  The indictment then will stay sealed until the entire case is indicted,this prevents other targets from fleeing, taking other actions to make it more difficult to prosecute the matter, or destroy evidence.   
. 
Fiona - 
How do they gather a grand jury? 


John -  
They are gathered by a mailed jury duty notice, the same as is used for trial level or petit juries. The term of service for a grand juror is longer though, usually 6 months.   In New Jersey it is required that there is always a grand jury sitting in each of the 21 counties as well as a state grand jury to hear cases.  Sometimes special grand juries can be assembled for a specific case where an investigatory grand jury is required. 

 In New Jersey, we have a state grand jury as well as a grand jury on the county level in each of the 21 counties. In state grand jury indictments, prosecutors request a specific venue or county for the case to be tried in as the cases are all tried on the county level. 

We use the state grand jury often where there is a conflict of interest. Say the target is a member of a county prosecutors office or a superior court in a county or family member who is indicted, we move the case outside of that county to prevent the appearance of impropriety. Sometimes cases involve crimes committed in multiple counties or across state lines, we then have to decide which county is best to try the case in after indictment and recommend accordingly.   

As a Deputy Attorney General, could present cases both before the state grand jury and county grand juries. My choice depended upon the complexity of the case and the caseload.

There are some other wrinkles that may be different across the country.  For example in New Jersey if we as prosecutors compel a police officer to testify as a requirement to keep their job while he or she is also a target the police officer can later  claim immunity from prosecution through that indictment.  Therefore a prosecutor has to be very aware of these types of pitfalls 

Fiona - 
Define indicted. 

 John - 
Indicted means that the grand jury determines after hearing evidence that there is probable cause that a crime has been committed by this target. 

The indictment is specific to the charges exactly as voted upon by the grand jury. 

Fiona -  
What is the role of an Attorney General and an Assistant Attorney General? 

John - 
Broadly, Attorneys General across the country are the legal advisors to the Executive Branch and handle matters where the State or Federal Government is sued civilly or administratively. Assistant Attorneys General and Deputy Attorneys General are the subordinates. And yes, it's Attorneys General; its not a rank like a major or colonel. 

In New Jersey, the Attorney General is also the Chief Law Enforcement Official under the Governor. That means in New Jersey all local police, state police, and county prosecutors report to and are under the command of the Attorney General. From what I understand we are the only state to have such centralized control.  

In other states, it's a county based system where the District Attorney or County Prosecutors are in charge of law enforcement within their territorial jurisdiction and are not under the control of their respective Attorney General.  
 As a result, I was a statewide prosecutor as a Deputy Attorney General within our Criminal Division which meant I had jurisdiction across the entire state; whereas the county assistant prosecutors only had jurisdiction in their own county.  They could not handle matters in other counties unless they would temporarily be designated as an acting Deputy Attorney General. 


Fiona - 
Tell me about the roles of the District Attorney (DA) and Assistant District Attorney (ADA)? 

John -  
In New Jersey, County Prosecutors and the Attorney General are appointed by the Governor and confirmed by the State Senate.  

In many other jurisdictions they are elected. 

They only prosecute cases that occur in their counties from assaults all the way to homicides. 

In New Jersey we have the Attorney General as head of law enforcement because it makes it easier to handle complex cases that cross county lines; involve multiple counties; or have organized criminal activity and need a lot of resources to investigate such as the Mafia, skinhead organizations, or gangs ; or where the crimes were committed across state lines. For example, the serial killer nurse we had. He confessed to killed twenty-nine patients in four New Jersey and two Pennsylvania counties.   Or the other nurse case I worked on where she killed hubby here in New Jersey but disposed of the body in Virginia.  

I hope that explains your readers’ questions adequately, if any of your readers have additional questions feel free to drop me an email. 
  
 Fiona - 
It is tradition that ThrillWriting guests tell us a story - either about a scar or a harrowing event. Would you please? 

 John - 
When I was 15 or 16, I was in NYC in a subway with my cousin Ruthie and her boyfriend. We were going back to my aunt's house in Riverdale after leaving the Metropolitan Museum of Art.  We had used the last of our money on subway tokens and were waiting at the platform. This older bowery-type bum walked up to us, approaching with the trough for the subway trains behind him. As he got closer to me, I saw him open up his old grey coat, and I saw a scabbard inside the coat with a Bowie sized knife within it - although it certainly was far from being that fancy of a blade.   As he got closer, he pulled out the knife, pointed the blade at me and saidGive me all your money."  I looked directly back in his eye as I knew that none of us had any money to give him, all the while my cousin and her boyfriend could not help me as they were off to the side, standing there frozen. I calculated he was going to knife me when I told him I have no money, so I prep myself to take my leg and bring it up to push him backwards into the train trough behind him, figuring that he would miss slashing anything that could be fatal on me. And at that point I would have nothing to lose as I anticipated he was going to knife me anyway.  As I tensed up to strike, he went, "Ha ha ha - only joking."  He then took the knifeput it back into the scabbard and then walked away.  

Fiona - 
Glad you were all safe. 

Please tell us about your writing. 



John -  
My first book series deals with Archangels and the War in Heaven. It’s an epic story with Seven Levels of Heaven, fourteen archangels, nine specific species of angels, with a Human and Angelic love story entwined within it.  

I wanted to write something different from crime as I needed a break from that genre after retiring. I had my own experience with Angels as a toddler and as result have been fascinated by the whole myth about the Angels.  

These Beings of Light, closest to the Almighty did not just disobey the Almighty by not following the instructions to not eat the forbidden fruit like mankind did, but they actually attempted to take over the heavens and overthrow their creator The first three booksThe Archangel Jarahmael and the War to Conquer Heaven: In the Beginning; In Rebellion; and In Exile, the trilogy in heaven, are already out.   

Book 4, In Pursuit, which moves the story into Hell and the Underworld is with the publisher awaiting edits, I anticipate three trilogies, one in the heavens, one in hell and the last one on earth, nine books in all.  
 Now, I am also writing my memoirs including some of my law enforcement experiences as well as a novel about a corrupt governor running for POTUS and another novel about a serial killer.  


If you want to stay in touch, 
my website   

I can also be heard on my own radio show, (Fiona was a guest for an hour chat go HERE if you'd like to listen.)

Tuesday nights  and also discussing politics and practical solutions for America on the Barb Adams Show on the Genesis network, Saturday nights. 


Fiona -  
Thank you to John for sharing his expertise and his willingness to help. 


Thank you so much for stopping by. And thank you for your support. When you buy my books, you make it possible for me to continue to bring you helpful articles and keep ThrillWriting free and accessible to all.


4 comments:

  1. Hi Fiona! I've been transcribing another book and letting my crime story sit for a while, so I've just now seen this, but thank you so much! I copied/pasted into my notes section (so that I don't have to have a hotspot connection if I need to look up something specific), and I even used my new features in my Scrivener software to highlight specific sections, just like I would if I were taking notes in school! Awesome info, thanks again!

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    Replies
    1. My pleasure. Best of luck on your book!

      ~Fiona

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    2. Great interview with good information for those of us not employed by law enforcement. Thank you.

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