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NJ Supreme Court Rejects Appeal Challenging Prosecutor’s Failure to Instruct Grand Jury on Lesser Included Offenses

One difference between defending criminal cases in federal and New Jersey courts is that the latter, unlike the former, entitle defendants to receive in discovery the transcripts of the grand jury proceedings underlying their indictment. Unfortunately, even though those transcripts often reveal deficiencies in those proceedings which prejudiced the defendant, New Jersey courts rarely dismiss indictments based on such deficiencies and routinely permit prosecutorial discretion in presenting charges to trump principles of grand jury independence and fairness to defendants.

That judicial trend resurfaced last week, when the New Jersey Supreme Court issued a precedential decision which considered whether a “prosecutor’s failure to instruct the grand jury on lesser-included offenses for murder in response to questions posed by a grand juror constituted an abuse of prosecutorial discretion warranting dismissal of defendant’s indictment for first degree murder ….” State v. Todd, ___ N.J. ___, 2020 WL 1855800, at *2 (Apr. 14, 2020). The Court unanimously affirmed the trial court’s refusal to dismiss the indictment by concluding “that the prosecutor did not impermissibly interfere with the grand jury’s investigative functions” because “the grand jury here sought clarification rather than specific instructions on lesser-included offenses for murder ….” Id. Although the Court added that “prosecutors should instruct the grand jury on lesser-included offenses” where there is a “rational basis” for doing so “in response to grand jurors’ questions considered in context,” the Court’s refusal to apply that directive in the case before it suggests that this directive may ring hollow.

Todd concerned a defendant who had a physical altercation with the victim, after which both individuals drove away from the scene in their respective cars. Id. at *3. After crashing his car, the victim was found lying on the ground covered in blood and was later pronounced dead at the hospital from stab wounds “apparently inflicted during the altercation” with the defendant. Id. The prosecutor presented the grand jury with a first-degree murder charge, without presenting any lesser homicide charges. Id. Before any evidence was presented, a grand juror asked the prosecutor whether there were “different degrees” of murder, to which the prosecutor replied that the grand jury does not “determine degree” because “degree affects punishment.” Id. After several witnesses testified, the grand juror asked “is there such a thing as second-degree murder,” to which the prosecutor replied that “there are lesser included lower offenses for an individual’s act of causing the death of another.” Id. But rather than informing the grand jurors of those “lower offenses,” the prosecutor told them he could do so only if they first found “that there is insufficient evidence of a prima facie case” of first-degree murder. Id. The grand juror then asked whether “no part of the definition in the New Jersey statute [] speaks to premeditation,” to which the prosecutor replied “no” and read the model jury charge for murder. Id. The grand jurors ultimately voted to charge first-degree murder, so the prosecutor never instructed them on any lesser-included offenses. Id.

The trial court denied the defendant’s dismissal motion by “finding that the grand jury was not requesting instructions on lesser-included offenses, but rather ‘clarification.’” Id. at *4. After the Appellate Division denied the defendant’s motion for leave to appeal, the Supreme Court granted a similar motion but ultimately upheld the indictment. Id.

The Court broadly held that “the constitutional protections afforded defendants by the grand jury process are not undermined by the failure to charge lesser-included offenses,” distinguishing between the benefits of such instructions before the grand jury and at trial. Id. at *6. At trial, the Court acknowledged that, in addition to aiding the prosecution, “lesser-included-offense instructions also serve as a way ‘to protect the accused by avoiding “the coercive prejudice inherent in giving the jury the choice of all-or-nothing.”’” Id. (citations omitted). “In the grand setting,” in contrast, the Court found that “an all-or-nothing choice jeopardizes the prosecution, not the defendant,” because “if the prosecutor does not explain lesser-included offenses to the grand jurors and probable cause is not found for the offense presented, the grand jury will return a no bill.” Id.

But the latter rationale seemingly applies equally to the trial setting, i.e., if the court does not instruct the jury on lesser-included offenses and the jury finds that the State has not proven the charge presented beyond a reasonable doubt, the jury will acquit. Indeed, in the trial setting, the jeopardy to the prosecutor of an adverse “all-or-nothing choice” is far greater than the grand jury setting because an acquitted charge cannot be appealed or re-tried, whereas a no-billed charge can be re-presented. And more importantly, the “coercive prejudice” to the defendant of such “all-or-nothing choices” seemingly applies in the grand jury as well as at trial. The Court did not explain why such choices prejudice defendants at trial (where they can defend themselves through counsel) but not before the grand jury (where they cannot).

The Court also agreed with the trial court that the grand jury in the case at bar merely “sought clarification rather than specific instructions on lesser-included offenses for murder.” Id. at *2. Without addressing the specific questions posed by the grand juror, the Court reasoned that, in the context of an “altercation” in which the defendant “allegedly stabbed the victim, … it is reasonable that a grand jury would seek clarification about ‘degrees’ for murder, and specifically about premeditation.” Id. at *7. The Court also noted that the prosecutor’s response “mentioned ‘lesser included offenses,’ the grand jury’s responsibility, and the model jury charge for murder”; found that this response “made no misstatements or misleading representations”; and concluded that the prosecutor’s failure “to instruct the grand jury on lesser-included offenses for murder does not constitute an abuse of the prosecutor’s broad discretion” in deciding “what charge to file or bring before a grand jury ….” Id. at **7-8. The Court qualified its holding by stating that “other cases may call for such instructions” where “the grand jurors’ questions, considered in context, ask about lesser-included offenses and there is a rational basis for instructions on lesser-included offenses,” adding that providing such instructions “will ensure that grand jurors are fully informed of the consequences of their decisions.” Id. at *8.

But the Court did not explain why the grand jurors’ questions in the case at bar, when considered in a context in which the Court acknowledged that questions about “degrees” and “premeditation” were “reasonable,” did not satisfy that qualifying standard. Viewed in that context, the grand jurors’ questions appeared to seek more than mere “clarification” from the prosecutor; rather, those questions plainly sought information about alternative charges of lesser “degrees” that did not demand “premeditation” as an element. The Court’s conclusion that even in that context, such “reasonable” questions do not require instructions on lesser-included offenses seemingly places form over substance and effectively holds that such instructions need not be given unless the grand jury explicitly and unambiguously requests them – an implausible requirement given grand jurors’ status as lay persons who rely on prosecutors to tell them what charges they should consider and what instructions they should receive.

Todd is just the latest New Jersey decision to sustain an indictment despite a prosecutor’s failure to provide relevant, and arguably critical, factual or legal information sought by a grand jury. This judicial reluctance to dismiss charges tainted by such incomplete, arguably misleading presentations is disappointing given the grand jury’s constitutionally guaranteed role as an independent, investigative body tasked with “‘protecting citizens against unfounded criminal prosecutions.’” Id. at *4 (citation omitted). Moreover, it is unnecessarily counterproductive, since most dismissals of indictments do not preclude the State from curing the defective presentation and re-presenting the case correctly. By routinely deferring to prosecutorial discretion and upholding indictments tainted by defective presentations, the courts seemingly remove any prosecutorial incentive to avoid such defects while frustrating constitutional principles guaranteeing grand jury independence and fairness to defendants.

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