Nicole Dufault has filed a motion to dismiss her indictment, in part because she claims prosecutors did not instruct grand jurors on the law on Feb. 4, 2015, when they presented the facts to them to support the indictment.
Those legal instructions were provided to the grand jury about two months beforehand, according to a brief filed on Oct. 21 by Dufault's attorney, Timothy Smith.
"It doesn't matter that the State may have had many other grand jury cases to get through on February 4th. Defendant Dufault is entitled to a proper presentation in her case," the brief states.
"Her right to a fair and complete presentation may not be sacrificed by the State for the sake of shortening the State's day. The State's laziness requires the dismissal of this indictment."
In a statement, Essex County Chief Assistant Prosecutor Clara M. Rodriguez, who oversees the Special Victims Unit, said there was no basis to dismiss the indictment and said prosecutors will file a written response to the motion on Nov. 23.
"These are routine filings. As per the Court, we will file our reply brief on Nov. 23, responding to these claims. We do not believe there is any basis for dismissing the indictment. As such, we are moving forward with the case. However, we will provide a detailed response to Mr. Smith's brief later this month," said Rodriguez, who supervises Essex County Assistant Prosecutor Gina Iosim, who is handling the case.
A language arts teacher at Columbia High School, Dufault, 36, of Caldwell, is facing a 40-count indictment charging her with aggravated sexual assault and endangering the welfare of a child.
Dufault — a divorced mother of two young sons — 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. The video was allegedly recorded by another student who was also present at the time, court documents state.
Smith, her attorney, has said Dufault 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.
The grand jury handed down the indictment against Dufault on Feb. 11, 2015, court records show.
According to the brief filed by Smith, "the charges on the law as to the crimes set forth in the indictment were given to the grand jury on December 3, 2014." At the time, those charges were presented along with other charges, the brief states.
But when the facts were presented to the grand jury on Feb. 4, 2015, "no charge was given on the law," the brief states. The brief asserts it "defies common sense and experience" to expect the grand jury to recall the charges from two months beforehand.
"A willing suspension of disbelief may be necessary for the theatre and fiction, but it should play no part in assessing the adequacy of indictments," the brief states.
The brief notes that, at the end of the 132-page presentation on Feb. 4, grand jurors were asked whether there were any "additional questions with regard to the law."
But as for whether grand jurors understood the law, Dufault's attorneys asked Superior Court Judge Michael L. Ravin to consider "the intimidation factor, the exhaustion factor, the shyness factor, and sheer boredom factor" that would have affected the grand jury after such a presentation, the brief states.
The brief adds that "it would be absurd to conclude that the grand jurors must not have asked for additional law because they all recalled the charges they had been given two months ago."
In the brief, the attorneys also claim Dufault's charges should be dismissed, because grand jurors were not asked to consider any mental states in connection with any counts of the indictment.
The brief also states prosecutors provided improper instructions related to the second-degree child endangerment charges.
Those charges require evidence that Dufault had assumed responsibility for the care of the students, but prosecutors incorrectly suggested her status as a teacher was enough to satisfy that element, the brief states.
Earlier this year, Smith filed a motion to dismiss the child endangerment charges.
The judge rejected that motion and downgraded four of the charges from second- to third-degree crimes, because of differences in Dufault's alleged relationships with the students. Those four charges relate to two of the student.