Essex County prosecutors are asking a Superior Court judge to deny Nicole Dufault's motion to dismiss her indictment
NEWARK -- Essex County prosecutors are calling on a judge to reject a Maplewood teacher's claims that they did not properly present her case to the grand jury that indicted her on charges of sexually assaulting six male students.
Saying the grand jury presentation was "extensive, detailed and thorough," prosecutors asked Superior Court Judge Michael L. Ravin in a Nov. 23 brief to deny Nicole Dufault's motion to dismiss the 40-count indictment charging her with aggravated sexual assault and endangering the welfare of a child.
"Moreover, the State gave no information that was incorrect, misleading or blatantly wrong as the case law would require in order for any defect to warrant dismissal of the indictment," according to the brief submitted by Essex County Assistant Prosecutor Gina Iosim, who is handling the case.
A language arts teacher at Columbia High School, Dufault, 36, of Caldwell, is accused of engaging in sexual activity with the six students on multiple occasions between about July 2013 and August 2014. The alleged sex acts occurred in Dufault's classroom and in her car.
The students were between 14 and 15 years old at the time of the incidents, prosecutors said. The evidence against Dufault allegedly includes a cell phone video of her performing oral sex on one student in her car, court documents state.
Dufault's attorney, Timothy Smith, has said she suffers from frontal lobe syndrome, which he claims left her vulnerable to the students' "over-aggressive behavior." Dufault developed the syndrome after brain surgery she underwent following complications due to her first pregnancy, Smith said.
Maplewood teacher Nicole Dufault, pictured left beside her attorney, Timothy Smith, appears at a hearing on Monday, Aug. 3. Dufault is charged with sexually assaulting six male students at Columbia High School. (Bill Wichert | NJ Advance Media for NJ.com) The motion to dismiss the indictment, which Smith filed in October, is based in part on his claims that prosecutors did not instruct grand jurors on the law when they presented the facts to them to support the indictment on Feb. 4, 2015.
Those legal instructions were provided to the grand jury on Dec. 3, 2014, according to an Oct. 21 brief filed by Smith. In his brief, Smith said the indictment should be dismissed as a result of the state's "laziness" in not providing the legal instructions on Feb. 4.
But Iosim claimed in the prosecutors' response brief that they provided certain legal instructions when Dufault's case was presented on Feb. 4, and they asked grand jurors if they had any questions on the law.
Iosim said that, during the Dec. 3 "orientation," prosecutors provided in-depth instructions on the laws pertaining to Special Victims Unit cases and discussed the laws in detail with the grand jury. In the grand jury sessions that followed, the panel reviewed other cases, Iosim said.
When Dufault's case was presented on Feb. 4, Iosim said the complaints against Dufault were read before the grand jury. Those complaints outlined both the law for aggravated sexual assault and endangering the welfare of a child as well as the facts relevant to each charge, Iosim said.
At that time, prosecutors also highlighted the specific provision of the aggravated sexual assault law that Dufault allegedly violated, Iosim said. That provision had been presented to the grand jury on Dec. 3, Iosim said.
MORE: Teacher seeks to dismiss sex assault charges over prosecutors' 'laziness'
Before and after the evidence was presented on Feb. 4, grand jurors were asked if they had questions on the law, but each time, no questions were asked, Iosim said. At the end of the presentation of evidence, the allegations against Dufault "were then outlined again as they were presented in the complaints," the prosecutors' brief states.
The brief also notes that grand jurors "were presented with only two short and relatively straight forward statutes to consider during this presentation."
"The State asserts the Grand Jury was completely able to understand and apply those two pieces of law appropriately after a comprehensive orientation and complete review of the charges and allegations at the outset and conclusion of this presentation," the brief states.
In response to the state's brief, Smith on Tuesday countered in a reply brief: "No human being who is a layperson, that is, one whose profession is not the law, could possibly remember legal charges from approximately two months earlier."
Smith also reiterated his separate argument that prosecutors failed to ask grand jurors to consider any mental states in connection with any counts of the indictment. His reply brief claims grand jurors were never advised they had to find the alleged crimes were committed with a "knowing" mental state.
"They, therefore, never made such a finding," the brief states. "This is an irredeemable structural flaw in the indictment."
In a statement on Tuesday, Smith added that "this matter was plead and presented to the Grand Jury as if it involved strict liability crimes, which is not the case."
"Justice accordingly requires that the indictment be dismissed in its entirety as it is 'palpably defective,'" Smith said.
Essex County Assistant Prosecutor Gina Iosim appears at a hearing on Monday, Aug. 3, for Maplewood teacher Nicole Dufault, who is charged with sexually assaulting six male students at Columbia High School. (Bill Wichert | NJ Advance Media for NJ.com) But in the prosecutors' brief, Iosim asserted they made it clear to the grand jury that the statutes under consideration required a finding that Dufault acted intentionally in her alleged sexual conduct and with a "knowing" mental state. The brief also notes grand jurors were instructed on the different kinds of culpability, including when a person acts knowingly.
"The statutes being considered by the Grand Jury against Ms. DuFault clearly and explicitly require intentional conduct, thereby indicating the 'knowing' mental state required," the brief states. "It is impossible for one to commit an intentional act of penetration recklessly, negligently or unknowingly."
Based on the legal instructions and the presentation of the case, "it is clear that the Grand Jury could not have concluded that Ms. DuFault could have committed the crimes of Aggravated Sexual Assault or Endangering the Welfare of a Child by unintentionally and unknowingly engaging in fellatio or vaginal intercourse with 14 year old students," the brief adds.
RELATED: Teacher sexually assaulted boys in Maplewood classroom, court docs allege
Prosecutors also rejected Smith's claims that they provided improper instructions to the grand jury in regard to the second-degree child endangerment charges.
Those charges require evidence that Dufault had assumed responsibility for the care of the students, but Smith has alleged prosecutors incorrectly suggested her status as a teacher was enough to satisfy that element.
In the prosecutors' brief, Iosim said Smith's assertion "is patently false and a clear attempt to mislead the court."
According to Iosim, the statements cited by Smith refer to the prosecutors' instructions on the law on aggravated sexual assault. In their instructions on the child endangerment law, prosecutors said that offense "requires that the defendant have a legal duty to care for or have assumed responsibilty to care for a child," the prosecutors' brief states.
"In the present case there is nothing false, improper or misleading in this instruction on Endangering the Welfare of a Child that would require the dismissal of the indictment," the brief states.
Bill Wichert may be reached at bwichert@njadvancemedia.com. Follow him on Twitter @BillWichertNJ. Find NJ.com on Facebook.