X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Federal prosecutors have agreed to pursue possible civil rights charges against two New Jersey state troopers who were cleared last week of the most serious charges stemming from the April 1998 turnpike shooting. The federal intervention, announced last Friday by U.S. Attorney Robert Cleary and state Attorney General John Farmer Jr., was sought by Farmer after Superior Court Judge Andrew Smithson last Tuesday tossed out attempted-murder and aggravated-assault indictments against the two troopers. “The focus of the independent federal criminal investigation will be to determine whether there is a prosecutable case under the federal civil rights statutes and whether federal action is warranted,” said the joint announcement. Farmer also said he would continue to seek an expedited appeal of the ruling by Smithson, who had accused the prosecution of violating the troopers’ due process rights by gross misuse of the grand jury system. Both actions have a self-vindicatory aspect, since Smithson inveighed against the state attorney general’s office — and especially Farmer’s predecessor, Peter Verniero — as being driven by “powerful and intimidating forces … or political expediency.” At the time John Hogan and James Kenna were indicted, Verniero was involved in a contested process of confirmation to the state supreme court, amid charges that racial profiling by troopers was practiced and covered up on his watch. Hogan and Kenna, who are both white, were charged with shooting up a van on the New Jersey Turnpike on April 23, 1998, without justification, wounding three of four occupants, all of them black or Hispanic. Smithson accused state prosecutors of railroading Hogan and Kenna by infecting the grand jury process with irrelevant race issues; by telling jurors they would get legal instructions on all relevant statutes but then omitting those that could help the troopers’ defense; and by running an adversarial mini-trial. Smithson said that prosecutors improperly set up a credibility contest between the troopers and the four men in the van and that the state killed any chance that the troopers could be viewed as credible by having them indicted by a separate grand jury, in the middle of the first grand jury’s proceedings, for falsifying records to cover up racial profiling. The falsification indictment was released with great fanfare. Only Hogan and Kenna were targets of that second grand jury even though other troopers were suspected of falsifying records. In addition, the judge said, the state waited two months after the falsification indictment was handed up before inviting Hogan and Kenna to testify in the shooting case. But the van occupants were invited to testify early on, live, matched against the troopers’ statements. Smithson said James Gerrow, a special deputy attorney general, gave a trial jury summation — taking up 40 transcript pages — that the defense contends focused on the troopers’ inconsistencies while ignoring inconsistencies among the four van occupants. “No legal authority exists … to justify the State’s action in leading the grand jury into the realm of an adversary proceeding; a mini-trial where guilt or innocence is adjudicated. Grand jurors are not designed to weigh evidence or determine issues of credibility. Nonetheless … the State specifically guided the grand jury into all of these areas. It did so over and over again,” said Smithson in reading his 35-page opinion from the bench. The judge cited case law that chides prosecutors not to treat grand juries as “rubber stamps” through “intentional subversion.” Now Gerrow and Deputy Attorneys General Charles Grinnell and Christine D’Elia must prepare an appeal to Smithson’s dismissal, as ordered by Gov. Christine Todd Whitman, who said the loss was due to “perceived procedural deficiencies.” If they lose, prosecutors vow to try again with a fresh grand jury. The prosecutors are also preparing to litigate the second indictment charging the state police officers with falsifying records about the race of motorists in order to conceal racial profiling. RAISING RACE TO THE FOREFRONT Even though race had nothing to do with the indictment, which dealt with the few seconds of the shooting and not the purpose of the stop, Gerrow introduced it immediately during the first session, and it remained a constant throughout. Smithson ruled that bringing in the race factor was part of the state’s design to turn the proceeding from an accusative forum to an adjudicative “mini-trial” to be weighed on “matters of credibility,” as Gerrow put it. “The troopers involved in this case are Caucasian. The other individuals … are African-American and Hispanic,” said Gerrow in his opening “overview.” Van driver Keshon Moore and passengers Jermaine Grant and Rayshawn Brown are African-American; passenger Danny Reyes is Hispanic. Thereafter, questions of race continued to infect the proceeding, including the two lengthy voir dires, which took up all or part of four sessions. One juror asked forensic scientist Henry Lee, who was brought in to help reconstruct the incident, “Has anyone drawn conclusions as to [Hogan and Kenna's] propensity towards racial prejudice? … Are we allowed to know that?” Gerrow interjected that Lee could not answer that, but went on to tell the juror, “Having broached that question, I’ll give you an answer another time, not today.” At that time, Hogan and Kenna had not been accused of racial profiling. Juror #16, identified in court papers as a white pastor named Daniel McMurray, said in the first voir dire that he had discussed media reports of profiling with parishioners, one of whom expressed “shame [and] frustration.” He went on to point out that his son-in-law is black. The lawyer for Hogan, Robert Galantucci, said in a brief that the son-in-law was also a trooper. McMurray said he sits on several “human relations” committees, adding that “everyone knows that’s a big issue with me.” One prosecutor asked McMurray whether he had “formed any opinion about the state police regarding racial issues.” During a subsequent conference call involving Mercer County Assignment Judge Linda Feinberg during the voir dire, McMurray said that “everyone knows my passion about that [profiling] issue,” which he added was a “big issue” in his parish. Notwithstanding “ingrained” and “subtle prejudices” on such issues, he said he could remain fair and impartial. During the next voir dire, after Hogan and Kenna became, in Smithson’s words, the “poster-boys of racial profiling,” McMurray said he saw a television show about the troopers being indicted “or found guilty” for falsifying records, saying he assumed that was “related to this case.” In his brief, Galantucci, of Hackensack’s Galantucci & Patuto, cites the transcript in which McMurray was asked whether he could be impartial. “This is the crucial moment. I can say no and be sent home, but yes. Obviously, yes,” said McMurray, who later said he was being sarcastic. Al Sharpton, who came to the defense of the van occupants two days after the shooting, became part of the voir dire because of the television coverage. One juror said she could be fair even though she saw Sharpton “make a fuss” over the possibility the jury would not indict the troopers. Defense attorney Jack Arseneault, representing Kenna, criticized Judge Feinberg for not conducting a voir dire of all the jurors individually, after the records falsification indictment. Feinberg, in turn, was defended by Gerrow and his team, who noted that she reviewed all the voir dire transcripts. CREDIBILITY CONTEST Throughout the proceedings, both sides conceded that the accounts of what happened on the night of the shooting differ widely. But in their defense briefs, Galantucci and Arseneault, of Chatham, N.J.’s Arseneault & Fassett, said the state set up a credibility contest as “us-versus-them,” and then continually bolstered the van occupants’ version. That, they argued, was done by ignoring many contradictions among the four men and by bringing in experts to rebut the troopers’ accounts. According to the state’s rebuttal motion brief, prosecutors bought most of the occupants’ version and rejected much of Hogan’s and Kenna’s account. The most critical fact in the case, both sides agree, is that the van was moving backward toward Hogan and the police car after the van was pulled over to the shoulder for speeding. State experts testified that the van rolled in reverse at about four miles per hour, or idle speed without acceleration, probably never hitting Hogan and barely damaging the cruiser. The defense claims that Reyes moved into the driver’s seat from the front passenger seat as the driver, Moore, jumped toward the back while Kenna was banging on the passenger window and firing into the van. The state says Reyes never got completely into the driver’s seat. The troopers’ version, of course, is much different. In their briefs, they contend that Moore put the van in reverse on purpose, drove back 10 feet and struck Hogan, who dove into a lane of traffic. The van then smashed the troopers’ car, knocking it 40 feet. Hogan, who was driving, had not put the cruiser in park as called for by regulations. Moore’s action, and to a lesser extent Reyes’, are crucial because Kenna says he opened fire to protect Hogan, whom he could not see but suspected was in danger of being run over. Hogan maintains he fired only after the van came toward him, and both men swore that they stopped firing when the van stopped, which the state agrees was the case. But the court file shows that Moore conceded he probably did hit the accelerator pedal, and plaintiffs’ lawyer David Ironman, representing Reyes, conceded early on that the van struck Hogan. Moore apologized to the troopers in his initial statements to the police, saying it was his fault. “I can’t blame anybody but myself. It was a mistake,” said Moore, who said he was trying to put the van in park but was so nervous he probably put it in reverse. Reyes conceded he was halfway in the driver’s seat, trying to grab the wheel and shift the van into forward after it veered backward across the turnpike lanes and hit an oncoming car. Passenger Brown swore he heard Moore say to Reyes, “Danny, you drive,” supporting one defense theory that Moore and Reyes were trying to switch seats because Moore had no license. The troopers claim that all the commotion throughout the stop, as well as the occupants not responding to Kenna’s calls to put their hands up, caused them to be cautious and fearful. Moore said he was nervous because his driver’s license was suspended. He had been on the revoked list in New York for more than two years as a scofflaw, and also said he had crashed his last car. According to the defense, he had his girlfriend’s mother rent the van for his use. But Reyes’ attorney, Ironman, said Moore fumbled with the gear shift because the van belonged to his father and he was unfamiliar with it. Court records show Moore had also used marijuana within the previous two days, testing positive at the hospital the night of the shooting. The state admitted that Moore was speeding. Both sides agree, though, that he was averaging 62 miles an hour on the turnpike. The troopers say they clocked him at 74 to 75 miles an hour, 19 to 20 miles over the limit, while Moore and Reyes deny they were speeding. Reyes says the van was doing the limit, 55. There were other misstatements or embellishments. Ironman said Reyes was one course away from graduating from college, which was rebutted by Reyes’ school. All four said they were going to North Carolina Central University for a basketball tryout, when there was no such tryout. Moore had gone to the school but had been kicked out for poor grades before playing ball. He was heading to the campus with his friends in the hope that they could showcase their talents with players already recruited and admitted into the school. But assistant coach Ron Woodard said Moore was told not to come. THE JUSTIFICATION DEFENSE The reverse movement of the van is pivotal because the state took the position that, based on Hogan’s and Kenna’s sworn statements given within hours of the incident, they fired to prevent harm or death to Hogan, rather than to prevent a violent or life-threatening crime. To that end, the prosecutors gave the jurors legal instructions on several statutes covering self-defense and the defense of others. In particular, they recited N.J.S.A. 2C:3-4b(2), which says that the “use of deadly force is not justifiable under this section [self-defense] unless the actor reasonably believes that such force is necessary to protect [himself] against death or serious bodily harm.” Gerrow also gave the jurors the beginning of that statute, which states that the use of force is not justifiable if “the actor knows he can avoid the necessity of using such force with complete safety by retreating … “ Smithson said both instructions were misleading because of two statutes omitted by Gerrow. The first was N.J.S.A. 2C:3-4(2)(b)(ii), which says “a public officer is justified in using force in the performance of his duties … [and] is not obliged to desist from the efforts to perform such a duty … “ The second omitted statute was 2C:3-7, titled “Use of Force in Law Enforcement.” The state argued in papers that it wasn’t necessary to include it because that law enforcement justification doesn’t apply where the use of force will prevent substantial risk or injury to innocent people. The prosecutors said that if Kenna was shooting at Moore to stop him from backing into Hogan, he couldn’t help hitting the passengers, which is what he did. But Smithson agreed with the defense that that was a matter for the grand jury to decide. During oral argument in June, Deputy Attorney General D’Elia argued that that instruction was not applicable because the troopers were required to believe that a crime was taking place. In fact, she said, they were shooting only to save Hogan, or each other. D’Elia said Hogan and Kenna “didn’t make that analysis … I’m doing this because a crime is taking place.” Smithson then asked her whether running a trooper over was a crime. D’Elia stumbled through and said, “Some kind of idea of the elements of the crime” had to be going on in the troopers’ minds. She added, “And then, okay, I have to stop this. I understand that it follows from it that if someone is deliberately trying to run you over, yes, there — that most — if not all, of the elements of attempted murder would take place.” She also said that she didn’t believe “that that analysis took place” in the troopers’ minds. Smithson wrote in his decision, “The state had no business substituting its decision-making for that of the [troopers] when they were confronted with the events of April 23, 1998. To do so without police training or experience is highly presumptuous. Once again, this was a matter for the grand jury to consider.” By the time the grand jury voted in September 1999, after 11 sessions over nine months and almost 17 months after the shooting, and after some $1.5 million and 25,000 transcript pages, only 17 of the original 23 jurors remained. The others had been bounced by Judge Feinberg after voir dire hearings over whether they could be fair and impartial. Negotiations have been going on to settle civil suits as well as the criminal cases. One source familiar with the negotiations says that the state has agreed to a civil settlement of about $10 million, which wouldn’t be paid until the end of the criminal case.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.