State v. Jerome Shaw, Jr., 241 N.J. 223 (2020)

At the federal level and in the overwhelming majority of states, after a grand jury returns a “no bill,” a prosecutor may simply resubmit the matter to a new grand jury to try to obtain an indictment. If that second grand jury also returns a no bill, then the prosecutor may present to another one—there is no limit in most jurisdictions. In the matter of State vs. Jerome Shaw, Jr., prosecutors attempted three times to secure a grand jury indictment against the defendants for alleged burglary and associated charges. The first grant jury returned a “no bill,” declining to indict the defendants. A second grand jury voted to indict, but the trial court dismissed the indictment, explaining that prosecutors cannot “go to the grand jury more than once on the same facts” without violating what the court called “the multiple presentation rule.” A third grand jury was then impaneled, and that third grand jury returned a 10-count indictment after hearing from an additional witness. Following the defendant’s guilty plea, the case was appealed, and the Appellate Division affirmed the defendant’s conviction, stating that “no New Jersey statute or common law precedent . . . categorically bars a prosecutor from choosing to resubmit a case to a new grand jury after one has previously voted a no bill, or requires the State to present new evidence as a condition of resubmission.”

The Supreme Court granted defendant’s petition for certification on the issue of whether the indictment should have been dismissed because the State presented its case to three grand juries.

Pashman Stein Walder Hayden P.C. partner CJ Griffin, director of the Justice Gary S. Stein Public Interest Center, submitted a brief and argued before the Supreme Court on behalf of amicus curiae American Civil Liberties Union of New Jersey (ACLU-NJ), asking the Court to exercise its supervisory powers and establish an express limit on the number of resubmissions to a grand jury that may occur before a prosecutor is barred from further attempts to secure an indictment. ACLU-NJ’s brief discussed the grand jury’s dual role in safeguarding defendants from arbitrary or abusive prosecutions, while also ensuring that an indictment is issued where there is probable cause that a crime has been committed. The brief argued that the number of resubmissions should be limited, but that sometimes more than one grand jury presentation is needed to secure an indictment in difficult cases, such as cases against police officers who have used deadly force.

In its March 4, 2020 opinion by Chief Justice Rabner, the Court adopted the standard that ACLU-NJ proposed in its brief and 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.” To decide whether to permit a third presentation, the Court advised Assignment Judges to consider (1) whether the State has new or additional evidence to present; (2) the strength of the State’s evidence; and (3) whether there has been any prosecutorial misconduct in the prior presentations.

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