Murder Defendant’s Indictment Thrown Out

New Jersey Criminal Lawyers Schwartz Posnock

Asbury Park Press,June 27, 2003
Author:  Karen Sudol

Murder defendant's indictment thrown out. Shackles in testimony said to sway jury. 

FREEHOLD - A Monmouth County grand jury's indictment charging a Red Bank
man with murdering his live-in girlfriend two years ago has been dismissed
and the case should be presented again to a grand jury, according to a
state appellate court ruling.

The indictment handed up against Alex Grant has been thrown out because
Grant was forced to wear shackles when he testified at a grand jury
hearing, which may have improperly influenced the grand jurors, the
appellate panel ruled Wednesday.

The panel determined that Grant, 37, was "deprived of a significant right
-a right created by the agreement between his counsel and the assistant
prosecutor - to have the grand jury assess his viable self-defense claim
through a neutral prism rather than one through which his credibility was
distorted by restraints which could only impact negatively on his
credibility . . ."

"We are pleased with the outcome," said Grant's attorney, Leslie B.
Posnock, adding that she will wait to see if the Monmouth County
Prosecutor's Office appeals the decision or presents the case again to a
grand jury.

"I'm hopeful they'll do neither," she said yesterday. "He's innocent of
the charges, and whatever happens, we're confident he'll prevail."

First Assistant Monmouth County Prosecutor Robert A. Honecker Jr. said he
planned to discuss the decision with Monmouth County Sheriff Joseph W.
Oxley because it affects "the ability of the sheriff's officers to provide
safety and security for the personnel in the courthouse," he said.

"Once I receive his input, we'll make a determination whether we will
consider an appeal," said Honecker yesterday.

Grant had been named in a three-count indictment in June 2002 charging him
with murder, possession of a weapon for an unlawful purpose (a knife) and
unlawful possession of a weapon.

Grant had testified he stabbed his 34-year-old girlfriend, Yvette Bacon,
on Dec. 15, 2001, after she came at him with a knife as he tried to move
out of their Tilton Avenue house. She was stabbbed 12 times in the neck,
chest and abdomen.

Grant was stabbed seven times, causing life-threatening injuries, Posnock
said.

According to the appellate decision, Grant said he found his girlfriend in
the house using drugs in front of their son. When he threatened to call
the state Division of Youth and Family Services, he said Bacon put a knife
to his neck, and the two began to "wrestle" resulting in her death and his
injuries.

He remains in the Monmouth County Jail, Freehold Township, on $500,000
bail, according to the Monmouth County Sheriff's Office.

The appellate court's decision establishes new case law in New Jersey that
obliges the state to ensure a defendant's appearance is as fair as
possible when testifying in a grand jury proceeding, said Posnock.

While it is unusual for a defendant to testify at a grand jury hearing, an
agreement was reached between Assistant Monmouth Prosecutor John F.
Loughrey and Andrea Sassa, Grant's attorney at the time, that permitted
him to testify.

Part of the agreement included Grant testifying without handcuffs and
restraints. However, when Grant went to testify, a sheriff's officer
insisted on using restraints because of the nature of the charges.

Superior Court Judge Ira E. Kreizman denied the request to remove the
handcuffs, deferring to the sheriff's officer.

Honecker has said the courts and Prosecutor's Office have traditionally
left the determination of courthouse safety up to the sheriff's department
because it is their responsibility.

Grant decided to testify with the restraints, and he was accompanied by
two sheriff's officers. When he was indicted, Posnock, who had taken over
the case, filed a motion to dismiss.

Superior Court Judge Michael D. Farren, the presiding criminal judge,
denied the motion, ruling that jurors were not improperly influenced.
Posnock appealed, and arguments were heard before the appellate court May
14.

The appellate court determined the same rules that hold that a defendant
should not be restrained in front of trial juries should apply to grand
jury proceedings.

The court also said Kreizman should have convened a hearing to determine
whether the security concerns could have been met while minimizing the
prejudice to Grant.

Loughrey had argued that Grant waived his right to appear unshackled when
he agreed to testify after learning he would have to wear restraints. The
panel disagreed.

The appellate court has remanded the case to present to a grand jury.
Before the case is presented, a judge will first determine whether any
physical restraints are required.

If they are required, cautionary instructions should be given to the grand
jury.

Honecker said a concern arises as to whether sheriff's officers can be
present during testimony of a witness who is in custody.

"This has an impact on their operations within the courthouse," he said.
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