Approximately twenty years ago, one of our clients was indicted and charged with bribing a public official by a second grand jury after the first grand jury had issued a no bill. Undaunted by that rejection, the State simply re-presented the same case to a new panel, without presenting any material new evidence or soliciting any judicial approval. The State’s unilateral do-over was understandable, since no New Jersey statute, court rule, or case law imposed any conditions or limitations on the State’s ability to pursue re-presentations following one or more no-bills.
We moved to dismiss the indictment, arguing (among other grounds) that the court should preclude the State from re-presenting cases following no-bills absent material new evidence and/or judicial approval, as a matter of state constitutional law and/or its supervisory authority over grand juries. During oral argument, the court expressed both concern about the absence of any such conditions or limitations and reluctance to address the issue without any guidance from our appellate courts. So, the court did what courts normally do in such situations – reserved decision and urged the parties to resolve the case. The parties did resolve the case, so the court never decided the motion.
Last month, some twenty years later, the New Jersey Supreme Court finally addressed the issue by “consider[ing] whether there should be any limits on the number of times a prosecutor can submit a case to a grand jury after a prior grand jury declined to indict.” State v. Shaw, ___ N.J. ___, 2020 WL 1036636 (March 4, 2020). Invoking its supervisory authority over grand juries, the Court unanimously held that “if grand juries decline to indict on two prior occasions, the State must obtain advance approval from the Assignment Judge before it can submit the same case to a third grand jury.” Id. at *4. The Court also instructed Assignment Judges to “consider whether the State has new or additional evidence to present; the strength of the State’s evidence; and whether there has been any prosecutorial misconduct in the prior presentations.” Id.
While conditioning a third grand jury presentation on judicial approval is a welcome development, it does not go far enough. The Court’s supervisory authority over grand juries – not to mention putative defendants’ right to fundamental fairness – should preclude the State from re-presenting a case after a single no bill absent judicial approval, which in turn should be conditioned on the State proffering material new evidence.
Shaw recognized that “[a] majority of states no longer require grand jury indictments and allow crimes to be prosecuted by information,” specifying that “[o]nly eighteen states and the District of Columbia still require a grand jury indictment for serious offenses.” Id. at *7 (citing LaFave, et al., 4 Criminal Procedure § 15.1(g) (4th ed. updated 2019)). But Shaw also recognized that over two-thirds (“more than a dozen”) of those 18 states “restrict the prosecutor’s ability to resubmit cases to grand juries.” Id. at *9 (citations omitted). “Most of those states require court approval to resubmit,” and “[s]ome allow resubmission only when the prosecution can present additional evidence.” Id. at *10 (citations omitted).
Moreover, Shaw further noted that “[l]imits on re-presentations should enhance the grand jury’s historic and independent role as a buffer between the State and potential defendants,” adding that “[w]hen a grand jury declines to indict, repeated and nearly identical presentations to another grand jury can undermine the grand jury’s screening function – to shield the innocent from prosecution.” Id. “The practice can also be seen as forum shopping for a desired outcome, which can increase the risk that an innocent person will be charged” and “can amount to an abuse of discretion and raise due process concerns.” Id.
All those rationales weigh against permitting the State to re-present the same case to a second grand jury after the original grand jury has issued a no-bill. But without any substantive explanation, the Court chose to draw the line only after two different grand juries have issued no bills: “We recognize that due process concerns are more likely to surface only in limited situations, such as a third or fourth presentation of similar facts in search of essentially the same indictment.” Id. By drawing the line between the second and third presentations, Shaw held “that if grand juries decline to indict on two occasions, the State must obtain advance approval from the Assignment Judge before prosecutors can submit the same case to a third grand jury.” Id. As a result, prosecutors are free to re-present the identical case to a second grand jury after the original panel issues a no bill, without any new evidence or judicial oversight.
Whatever “due process concerns” may dictate, the Court’s supervisory authority over grand juries, coupled with putative defendants’ rights to fundamental fairness, should have compelled the Court to draw the line requiring judicial approval for a re-presentment after a single grand jury returns a no-bill. Shaw’s well-founded warning about “repeated and nearly identical presentations to another grand jury” applies as fully to second presentations as it does to “third or fourth” presentations. Id. Nothing in Shaw purports to explain or justify drawing the line against unapproved re-presentations only after two separate grand juries have returned no bills.
Shaw is a welcome, albeit overdue, limitation on the State’s ability to re-present rejected charges and evidence to multiple grand juries. But it did not go far enough.