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Just as one of the biggest criminal trials in New Jersey in recent memory was about to begin, two appeals court judges have suddenly put on the brakes. Those judges will hear arguments on March 12 on whether a prosecutor crossed constitutional lines too many times in the grand jury to allow the indictment against former National Basketball Association star Jayson Williams to stand. Williams’ trial for aggravated manslaughter in last year’s shooting of chauffeur Costas Christofi was to begin this Friday. But Appellate Division Judges Michael King and Jose Fuentes ordered it halted on Feb. 4, when they took the unusual step of granting Williams’ motion for leave to appeal. The appeals court panel reversed Superior Court Judge Edward Coleman, who on Dec. 20 had turned down the defense motion to dismiss on the grounds that Steven Lember, the acting Hunterdon County, N.J., prosecutor who presented the case to the grand jury last April, trampled Williams’ due process rights. Williams’ attorneys, Joseph Hayden Jr. and William Martin, had argued to Coleman that Lember violated Fifth Amendment and other constitutional protections by repeatedly referring to their client’s decision not to speak with police and to his statements that he would remain silent until he consulted with a lawyer. Lember discussed Williams’ silence at least five and possibly six times, directly or through law enforcement witnesses. Hayden and Martin filed their appellate brief on Jan. 9, saying the case “involves a novel issue never decided by the Appellate Division or the New Jersey Supreme Court: whether an indictment should stand where a prosecutor repeatedly brings to the grand jurors’ attention the fact that the defendant consulted counsel and declined to be interviewed, thereby prejudicing the defendant … by inflaming its members.” Lember acknowledged to Coleman that his presentation was “imperfect” but emphasized that case law gives grand jury procedures much more latitude than petit jury proceedings. He said that the errors were minor and not relevant to the vote when considered in the totality of a 250-page transcript of the proceeding. Though he rejected the motion to dismiss, Coleman harshly criticized parts of the government’s presentation, saying he did not buy Lember’s explanations. “To me, it’s obviously material, based on my training and experience, that would never go before a grand jury, certainly would never go before a trial jury,” said Coleman, a former career prosecutor. “Or couldn’t you have [said] to the Grand Jury, hey, listen, the defendant has every right in the world not to talk to the police, you can’t use that against him, don’t even take that into consideration because he has every right.” Among the comments that apparently vexed Coleman were two in Lember’s opening statement. Lember told jurors that a trooper who responded to the 911 call from Williams’ residence said he “overheard [Williams] say to the other guests that defendant had called his lawyer, and the defendant wasn’t going to say anything about what happened.” Lember said shortly thereafter, “Detectives were assigned to question all the guests who had been in the home at the time of the shooting. The defendant, through his attorney, who was present at the home [soon after the shooting], declined to be interviewed.” Williams’ lawyer that night was Flemington, N.J., solo practitioner Salvatore DiFazio, also his sports agent. At the time of the shooting, 10 other people were in Williams’ mansion in New Jersey’s Alexandria Township. They had gone to a charity basketball game in Bethlehem, Pa., and a Hunterdon County restaurant, before going to Williams’ home after 2 a.m. Christofi was driving a limousine ordered by Williams. During a tour of the home, Williams took out a shotgun and jokingly pointed it at Christofi. The gun went off when Williams snapped it closed with his finger on the trigger. Williams was charged with reckless manslaughter and aggravated manslaughter. ERRORS INSUFFICIENT Despite his criticism, Coleman concluded that the errors were not enough to warrant dismissal of the indictment. He relied on a large body of case law that states that judges should not intervene in the grand jurors’ work unless the prosecution errors are egregious. Many courts have concluded that the cure for such errors is a post-conviction appeal if the defendant loses at trial. Arguing against the request for a leave to appeal, state Assistant Attorney General Boris Moczula said in his Jan. 21 appellate brief that the characterization by Hayden and Martin of the issue as novel was at best a stretch. He said there was “nothing unique” about the application. He cited more than a dozen precedents, including State v. N.J. Trade Waste Association, 96 N.J. 8 (1984), where the court said an indictment is presumed valid except on the “clearest and plainest ground.” Moczula also cited State v. Ferrante, 111 N.J. Super. 299 (App. Div. 1970), which held that “absent misconduct or abdication by grand jurors, the question of whether evidence before a grand jury was competent or incompetent is irrelevant to the motion to dismiss an indictment.” The assistant attorney general also cited case law saying that grand jurors can hear illegally obtained, hearsay and inadmissible evidence. As for Lember’s remarks, Moczula said only two of five comments about Williams’ silence related to Williams declining a law enforcement officer’s request for a statement. The others were instances in which evidence brought out by Lember involved Williams telling, or suggesting by inference or intimidation, others to keep quiet. Moczula said it is difficult to separate some comments because Williams seemed to be simultaneously exercising his right not to speak and urging others as well. Moczula noted that a trooper “overheard the defendant say to other guests that defendant had called his lawyer, and the defendant wasn’t going to say anything about what was going to happen.” The state brief also said Williams gave a “command” that “no one fucking talks until the lawyer gets here.” The state prosecutor argued that this goes beyond an exercise of Williams’ Fifth Amendment right and was “a blatant attempt … to keep witnesses to the killing … from providing inculpatory information.” The state claims that the jurors were entitled to understand Williams’ silence as the early stages of his “hastily concocted strategy to conceal the truth.” OTHER DUE PROCESS CLAIMS Hayden and Martin make other arguments about constitutional violations or a deprivation of fundamental fairness: A detective testified that some guests “heard stories about [Williams'] alleged connections to organized crime.” While the defense argued that this unfairly inflamed the jury, the state countered that jurors deserved to know why some guests may have been intimidated and initially went along with Williams’ strategy of not talking. Hayden and Martin say that because witnesses eventually did come forward, changing their stories after an initial cover-up of crucial facts, there was no need for the introduction of such rumors. The state says under case law, prosecutors have no obligation to provide grand jurors with evidence on behalf of the accused. The role of a grand jury is not to establish guilt or innocence but to conclude whether prima facie evidence exists to indict, the state says. Much of the defense argument is over the difference between the evidence before and at the time of the shooting, and after the shooting. The defense argues that what happened after Williams shot Christofi is irrelevant to whether it was manslaughter or an accident. Hayden and Martin asked Coleman to sever the manslaughter count from the post-shooting counts of witness tampering and hindering the prosecution. Coleman denied that motion; the defense is not appealing that loss. The case law cited by Moczula is replete with admonitions against judges intervening in grand jury proceedings. Yet King and Fuentes saw enough to halt the trial and allow the appeal, though they did not say why. In addition, they will rely on the briefs submitted before their order granting the leave to appeal, which is giving hope to the Williams team. Hayden and Martin say the state would not be harmed much if they prevail because it could take the case to another grand jury and try again. But Moczula downplays the errors as irrelevant and reminds the court that Williams was drunk and orchestrated a cover-up. King is known for keeping a keen eye out for constitutional violations. While temporarily sitting on the New Jersey Supreme Court, he dissented from the affirmance of the death sentence for the killer of Megan Kanka, finding that prosecutorial misconduct tainted the penalty phase. As a Superior Court judge in Hudson County, N.J., Fuentes showed no reluctance to rule against government in civil or criminal cases. The pair will no doubt be joined by a third judge on Part B of the Appellate Division. Lember has since returned to his previous post as first assistant, under the new prosecutor, J. Patrick Barnes. Hayden is a partner with Roseland, N.J.’s Walder, Hayden & Brogan, and Martin is a partner with Blank Rome’s Washington, D.C., office. Walder Hayden associate Christopher Adams is on the brief. Also on the defense team is Leonard Arnold, once Somerset County, N.J.’s presiding criminal judge, now of counsel to Lawrenceville, N.J.’s Stark & Stark.

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