October 2019 E-Newsletter

The Law Offices of Frederick K. Brewington

Civil Rights and Personal Injury and General Practice Law Firm, Dedicated to Social Justice

The Law Offices of Frederick K. Brewington

Court Grants Requests for Unsealing of Grand Jury Minutes in Civil Rights Case Made by Exonerated Driver in Fatal Vehicle Accident Who is Suing for Malicious Prosecution and False Arrest

Jennifer Jorgensen, who continues her pursuit of justice, was granted a request to have grand jury minutes from her criminal trial unsealed, which she said was essential in proving that she did not break any laws when she was involved in a fatal motor vehicle accident.

On May 30, 2008, Ms. Jorgensen, who was eight months pregnant, went to Michael's Craft Store in Rocky Point to purchase several items and return others. There, she interacted with several employees, including Debbie DeRocher, Virginia Gordon and Destiny Martin. She later shopped at Sonny's Card Store to buy some lottery tickets, then to Pompeii Pizzeria.

At 2:30 p.m., Ms. Jorgensen left the shopping center and headed toward Ridge. While driving on Whiskey Road, she called her fiancé's father on her Bluetooth-equipped car phone to let him know she should be at his house soon. After ending the phone call, she felt a sharp pain in her stomach and passed out. Her vehicle then collided with another vehicle after losing consciousness. Robert and Mary Kelly, the occupants in the other vehicle, were killed.

According to Ms. Jorgensen, she woke up in the recovery room at Stony Brook University Hospital. She underwent several hours of surgery for doctors to deliver her baby via emergency Caesarean section. A few days later, her daughter died.

Suffolk County Police Department officers performed a blood test on Ms. Jorgensen using a Driving While Intoxicated kit, and the hospital performed a urine test; neither test found any evidence of drugs or alcohol in her system. However, the officers sought a warrant to test her blood immediately after the accident. The blood was not tested until 26 days later, but still tested negative; however, when they tested the transfused blood in Ms. Jorgensen's daughter, they found traces of alcohol.

In June 2009, Ms. Jorgensen was indicted and falsely charged with Aggravated Vehicular Homicide, Manslaughter in the Second Degree, Operating a Motor Vehicle While Under the Combined Influence of Drugs and Alcohol, and other traffic infractions. An additional indictment was filed, charging Ms. Jorgensen with three counts of Manslaughter in the Second Degree.

Before the start of the trial, Ms. Jorgensen moved to have the grand jury minutes unsealed, but the prosecution refused. On March 3, 2010, the Suffolk County Supreme Court unsealed parts of the minutes that included expert testimony of a forensic scientist, Lori Arendt, and the collision reconstructionist, Robert Genna, both of whom are named Defendants in Ms. Jorgensen's complaint. Those limited minutes were given to Ms. Jorgensen's criminal attorney.

In 2011, Ms. Jorgensen requested to have the grand jury minutes unsealed, but her request was denied. The first jury trial resulted in a hung jury; the second jury trial found her guilty of one count of Manslaughter in the Second Degree for the death of her child, and acquitted of all other counts. She was sentenced to three to nine years in prison.

She appealed her conviction, but, on January 22, 2014, the Second Appellate Division affirmed the conviction. Ms. Jorgensen was granted leave to appeal to the Court of Appeals. In a quest to prove her innocence, Ms. Jorgensen appealed to New York's highest Court and, on October 22, 2015, the New York Court of Appeals threw out the conviction. A stay was lifted the following month. As part of her Federal lawsuit, she filed to address her wrongful arrest, malicious prosecution, fabrication of evidence and other claims. That action is still pending. However, in efforts to prove her Civil Rights case in September 2018, as required, Ms. Jorgensen filed an Order to Show Cause to have the grand jury minutes unsealed, but the state Supreme Court denied the application. She then filed an application with U.S. District Court, Eastern District of New York.

The Federal District Court applied the “tripartite analysis” set up by the United States District Court for making determinations of when and under what circumstances to unseal the minutes of a grand jury proceeding. That means the material sought by the party “is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” The latter requirement, according to the Court, “is a heavy one, and it rests with the party seeking disclosure.”

Ms. Jorgensen claimed that one of the defendants, Detective Roy Baillard, falsely testified that Ms. Jorgensen had alcohol in her system and that she was talking on a handheld cell phone because the car was not equipped with a Bluetooth device. However, it was found that the vehicle was equipped with a Bluetooth system. Ms. Arendt falsely testified that there were preservatives in her system, although the blood test showed otherwise. Despite these untruths, the Assistant District Attorney, Laura Newcombe, allowed the testimony to be admitted. Ms. Jorgensen's counsel called for Ms. Martin and Ms. Gordon to testify, both of whom claimed the Plaintiff was not impaired, but the prosecution did not allow it. On October 2, 2019, U.S. Magistrate Judge Anne Y. Shields ruled that the grand jury minutes be given to the Plaintiff in its entirety. The court ruled that, given the time that has passed since the incident and the trial occurred, the witnesses may have difficulty recalling their testimony and that the prosecutorial team engaged in misconduct by allowing false testimony to be admitted while preventing exculpatory testimony from being admitted that would have found Ms. Jorgensen not guilty.

Click here to view the Decision of the Court.


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