#03: Steven Edward Jones—NAU’s Worst Nightmare

Table of Contents:

Indictment

Proof is Evident—Presumption Great

Steven Edward Jones—NAU’s Worst Nightmare

Grand Juries & Petit Juries

“Alleged” Shooting Victims

The History of Grand Jury Indictments

Grand Juries & Stand Your Ground Cases

George Zimmerman & Others Stand Their Ground

Stand-Your-Ground v. Traditional Self-Defense Laws


Steven Edward Jones—NAU’s Worst Nightmare

Indictment

The word “indictment” cannot be fully appreciated without a collateral understanding of grand juries and the Fifth Amendment. The Fifth Amendment to the U.S. Constitution requires the federal government to seek an indictment from a grand jury to prosecute someone for a felony or “otherwise infamous” crime. Every state has its own constitution, grand jury availability, and due process protections for persons charged with crimes. Arizona like all states has a charging system that essentially mirrors the federal system. The indictment in State of Arizona v. Steven Edward Jones was inevitable, cursory, and typical of how suspects become defendants in America. The only essential difference is due process is in those few school shooting cases where the shooter is under the age of fourteen. In those cases, juvenile cases are heard, without grand or petit juries in juvenile court.

To connect the dots between the Jones case and the focus of GunsOnCampus.com requires a basic understanding the centrality of due process of constitutional law and the judiciary. The Jones case is novel because the defendant elected to admit killing another person out of “necessity.” He said he was legally justified out of fear for his own life. Indictment in such cases follows a common line of prosecution in some, but not all states. That’s because each state may exercise its legislative function in ways that burden the judicial system. The pivotal issues is the burden of proof in resolving a case where the defendant claims justification in using legal force for the admitted killing of another person. 

In Arizona, a grand jury indictment is handed up to a court, not down to prosecutors. It is based on sworn witness testimony and physical evidence, and analyzed by grand jury members made up of local citizens. Its job is to determine whether there is probable cause for criminal charges. They work in secrecy, are informed by prosecutors and law enforcement, and rarely involve suspects or defense lawyers. Under Arizona Law, “The grand jury shall return an indictment charging the person under investigation with the commission of a public offense if, from all the evidence taken together, it is convinced that there is probable cause to believe the person under investigation is guilty of such offense.”[1]

Proof is Evident—Presumption Great

The Fifth Amendment to the US Constitution says that a person suspected of a federal crime cannot be tried until a grand jury has determined there is enough reason to charge the person. Review by a grand jury protects suspects from inappropriate prosecution by the government, since grand jurors are drawn from the general population. Prosecutors have a quaint phrase they often use at the end of a grand jury session. They use the magic words to the judge presiding over the grand jury’s session: Your honor, the proof is evident and the presumption great. In almost every case, that is enough—an opinion by a prosecutor.

Whether at the state or federal level, most lawyers and all judges know that the primary reason to use grand juries is vested in the rules of evidence. These rules prohibit the introduction of hearsay evidence in a criminal trial. Grand juries often hear only hearsay evidence about the suspect. They are convened to determine mere probable cause, not absolute guilt.[2] That happened with the Steven Jones grand jury; it heard only hearsay evidence about him, and from only one witness—a police officer.

Probable cause is a low standard for a reason. By design, it’s a tool used exclusively by prosecutors who want to file charges but do not want to give away strategies and theories before actual trial. “The grand jury has come under fire as an outmoded relic that provides little, if any, protection to the accused. Often criticized as the complete captive of the prosecutor, the grand jury has a proud history and an uncertain modern practical role.”[3]

Probable cause gained traction as a charging standard in the United States because prosecutors, legislatures, and the public did not want or need a higher standard. They did not want a guilt-certain standard—guilt probable was and is enough.

Steven Edward Jones—NAU’s Worst Nightmare

NAU’s nightmare on campus happened in the early morning hours on October 9, 2015. Just five days later the County Attorney presented its case against him to a grand jury. At first glance that would seem like a herculean effort in just five days—sorting out a crime scene involving one shooter, scores of students, one death, three serious injuries, and several dozen different versions about what happened, in what order, and who was to blame. On the plus side, the prosecution had strong, viable and reliable evidence to support the crime of the century in small town Flagstaff. There were post-mortem examinations to finish; hospital patients still under active care; hundreds of pieces of forensic evidence to test, evaluate, and report on; and substantial legal pleadings to prepare and file. That would take many months. But five days was sufficient to gather a second-hand story from a police officer, develop a few photographs, chart the killing ground, and convene a grand jury.

As luck would have it, Coconino County Grand Jury Number 120 was already in session. They could squeeze in the Steven Jones mass shooting case and secure an indictment in less than a full day. All grand juries have a specific trial judge on very case. The Steven Jones indictment was Case No. 413-215.[4]

 The Hon. Jacqueline Hatch presided as supervisory judge on his case. Coconino County prosecutor Jane Nicoletti-Jones was the lead prosecutor for the grand jury. Ammon Barker and Bryan Shea were designated as trial prosecutors and sat in on the Jones case grand jury proceedings. The sole witness called to testify was Sgt. Michael O’Hagan of the Northern Arizona University Police Department.

Grand Juries & Petit Juries

Grand juries differ greatly from petit juries in process, job definition, and outcome. Petit juries hear admissible evidence from multiple witnesses and arguments and positions from prosecutors and defense lawyers. They return guilty verdicts only when the state has proved its case beyond a reasonable doubt. Grand juries hear hearsay evidence from a few witnesses, and listen to lectures by prosecutors about the law. They need not be convinced that the suspect is guilty, only that they think there is enough evidence to return a “true bill” up to the judge, based on the probable cause standard. Petit juries sit in courtrooms under tense and sometimes stifling circumstances. Grand jurors have a more relaxed setting and make their decisions without instructions from judges but with explanations by prosecutors and law enforcement. Whatever defenses or arguments defendants might have are never presented to grand jurors. The oldest joke in American criminal justice confirms that good prosecutors could indict a hamburger if they wanted to.

The official transcript of the Steven Jones Grand Jury proceedings is 106 pages long.[5] It is a narrative conversation between prosecutor Nicoletti-Jones and NAU Sgt. Michael O’Hagan. That’s literally it. Scores of descriptions of photos and documents were paraphrased by the sole prosecutor and the sole witness. In theory, they were there to aid the grand jury in reaching a probable cause decision.

While no actual witnesses gave testimony, Sgt. O’Hagan responded to questions posed by the prosecutor and a few from individual jury members. His narrative was based on what other officers, who actually had been at the scene of the crime, told him. Double hearsay evidence is common in grand jury sessions. Hearsay evidence that never would be allowed in a trial is always used to secure a foreordained indictment.

Sgt. O’Hagan, in friendly, conversational tones, told the grand jury what four other police officers had told him. Apparently, seventeen students had told other police officers about the “incident” on the NAU campus.[6] Most individuals identified were eventually formally interviewed. Many gave trial testimony in 2017. Understandably, their recollections varied.

At the start of the proceedings, Prosecutor Nicolitti-Jones asked the panel if any of them knew Colin Brough. One juror said she knew him from the NAU campus. She was excused from service. The remaining thirteen jurors made a probable cause determination later that afternoon.  

The first presentation by Nicolitti-Jones was a discussion about a “draft indictment” her office had prepared for the grand jury to consider after they heard one witness. They could discuss the charges among themselves. She gave them a copy to read as Sgt. O’Hagan supported indictment. No one made the case against indictment. She also provided to them copies of all the Arizona statutes applicable to the charges the prosecutors were seeking.

Pages seven to twenty-two of the transcript are comments by Nicoletti-Jones about Arizona law. She covered statutes on first- and second-degree murder, manslaughter, aggravated assault and battery, self-defense, deadly weapons, dangerous instruments, homicide, premeditation, extreme indifference to human life, grave risk of death, state of mind, culpable mental state, deadly physical force, duty to retreat, reasonable belief, reasonable belief, adequate provocation, and justification defenses.

The transcript confirms that she had earlier interacted with Grand Jury 120 by briefing it on other crimes on prior occasions. The grand jurors had interacted with her regarding legal definitions and terms in the past. This was a well-prepared and experienced grand jury.

“Alleged” Shooting Victims

She gave them the names of all “alleged” shooting victims, and a short description of their injuries. She showed them still and aerial photographs of the part of the NAU campus where the shootings occurred, and the private property across Franklin Street where private apartment buildings existed to house students off campus. Once the initial briefings and explanations were out of the way, she called the State’s only witness, Sgt. Michael O’Hagan. He gave the jurors a list of names he would be talking about: Colin Brough, Nick Piring, Nick Prato, Kyle Zientek, Shay McConnell, Jacob Mike, Abbey Norcutt, and Steven Jones. He told them he would be telling them what he had learned from Officers Keegan Park and Mathew Hiente.[7]

He said Officer Park was the first officer on the scene and the first to engage with Steven Jones. Park told him that when he got out of his police car at the scene, he saw Jones. Jones said, “I’m the shooter.” So he “prones him down on the ground put handcuffs on him and put him in his police car.”[8] Jones’s gun, a Glock semi-automatic .40 caliber, had five rounds in the magazine and one in the chamber. Sgt. O’Hagan told them what Shay McConnell told other officers. He, Steven Jones, Jacob Mike, and Hunter Todd were there that night. They got into an altercation with some Delta Chi members. “McConnell sees Jones pointing his gun at the Delta guys, yelling at them to get on the ground. One of them lunged Jones. He fired two rounds nine to ten feet away. He, McConnell, thought Jones was crazy so he ran away. Jacob Mike said Jones ‘had his gun at the low-ready position.’”[9]

He told the jurors what he had learned from other officers about Nick Prato, and gave brief rambling comments about female students on the third floor of Mountain View Hall. They were looking out their windows at the shooting in the parking lot below them. He talked about “a female named Katrina, a gal named Valerie Pabon, one named Paloma Rochin, and one named Kayla Hartman.” All had different views of what was happing just below them.[10]

He identified Austin Contreras as the student who punched Steven Jones.[11] And he told the jury a little about Steven Jones.

Sgt. O’Hagan answered their questions about what other students had seen or said about the shooting. Eventually, Nicoletti-Jones asked him whether Steven Jones had been interviewed by the officers. Up to this point in the grand jury proceedings, the jurors did not know whether Jones had been interviewed. All they knew is what Sgt. O’Hagan told them he had learned from other officers actually at the crime scene.

The History of Grand Jury Indictments

As is true for much of American law, our grand jury system is credited to 12th century England. It originally had two fundamental goals—to produce revenue for the Crown and to rebut ecclesiastical courts. As royal income and opposition to religious courts waned, grand juries became guardians between citizens and the monarchy. The historical significance may lie in what is known as the Clarendon jury of inquest of 1166, which established in each community by Henry II as an accusatory body of twelve “good and lawful men.” Their job was to report all offenses committed in the venue of knights, who in turn reported the accusation to visiting royal officers, now known as judges. At the time oath taking, battle, and ordeal had yet to be replaced by what we now know as a civil or criminal trial in court.  

By the 18th century in England a grand jury came to stand between a prosecutor and the accused to ensure that the government was not pursuing charges for improper purposes.[12] Under colonial American law, grand juries were thought of as voices of the people. Our Founding Fathers, wrote the process into our Constitution in the Fifth Amendment; “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ….” Under the Fifth Amendment, criminal prosecution of any federal crime that would be punishable by more than one-year imprisonment must be initiated by a grand jury’s indictment.

Legal historians tell us that the first American Colonists used the grand jury system to refuse to authorize prosecutions sought by the Crown. The most famous case is the Zenger case of 1737 in which an American grand jury served as the instrument of resistance, which morphed into a revolutionary organizing body.[13]

As of 2020, all but two states have traditional grand juries. Connecticut and Pennsylvania   abolished the use of grand juries for criminal indictments. But both still make use of grand juries for investigations of criminal activity.[14]

Grand Juries & Stand Your Ground Cases

While there are modest exceptions, most stand your ground criminal cases originate or die in grand jury hearings. Five recent cases illustrate the connective tissue between the days of old before SYG became an American “thing” and our current reality of standing one’s ground in front of a grand jury. These cases were reported online by Syracuse.com.[15]

George Zimmerman & Others Stand Their Ground

In the most famous Stand Your Ground case, George Zimmerman killed Trayvon Martin on February 26, 2012, in Sanford, Florida. Martin was a 17-year-old African-American high school student. Zimmerman, a 28-year-old man of mixed race, was the neighborhood watch coordinator for his gated community where Martin was visiting his relatives at the time of the shooting. Zimmerman shot Martin, who was unarmed, during a physical altercation between the two. Zimmerman claimed self-defense. The police chief said there was no evidence to refute Zimmerman’s claim of having acted in self-defense, and that under Florida’s Stand Your Ground statute, the police were prohibited by law from making an arrest. The police chief also said that Zimmerman had a right to defend himself with lethal force.

Florida has a grand jury system, but because the police sided with Zimmerman and released him, his case never went to a grand jury. Instead, Zimmerman was released. Then on April 11, 2012, an “affidavit of probable cause” was filed in support of second-degree murder charges against Zimmerman. The affidavit described what investigators alleged took place between Zimmerman and Martin on the night of the shooting.[16] In their affidavit, county prosecutors alleged that Zimmerman profiled Martin as he was walking back from a nearby 7-Eleven store to the townhouse where he was temporarily living. Prosecutors said Zimmerman was driving in his vehicle when he saw Martin and assumed he was a criminal and perceived that Martin was acting suspicious and felt he did not belong in the gated community. Zimmerman was acquitted at trial claiming self-defense. The incident was reviewed by the Department of Justice for potential civil rights violations, but no additional charges were filed, citing insufficient evidence. The reason there was insufficient evidence likely can be traced to the police refusing to support a grand jury indictment.

Florida was the first to enact a Stand Your Ground law. Thirty-eight other states have since passed similar legislation. Syracuse.com added four additional cases to the Stand Your Ground defense log.

(1) “In November 2007, a Houston-area man pulled out a shotgun and killed two men whom he suspected of burglarizing his neighbor’s home. Joe Horn, a 61-year-old retiree, called 911 and urged the operator to ‘Catch these guys, will you? Cause, I ain’t going to let them go.’ Despite being warned to remain inside his home, Horn stated he would shoot, telling the operator, ‘I have a right to protect myself too, sir. The laws have been changed in this country since September the first, and you know it. Two months earlier, the Texas Legislature passed a Stand Your Ground law removing a citizen’s duty to retreat while in public places before using deadly force. In July 2008, a Harris County grand jury declined to indict Horn of any criminal charges.”

(2) In Louisiana early this year, a grand jury cleared 21-year-old Byron Thomas after he fired into an SUV filled with teenagers after an alleged marijuana transaction went sour. One bullet struck and killed 15-year-old Jamonta Miles. Although the SUV was allegedly driving away when Thomas opened fire, Lafourche Parish Sheriff Craig Webre said to local media that as far as Thomas knew, someone could have jumped out of the vehicle with a gun. Thomas said the sheriff had “decided to stand his ground. Louisiana’s Stand Your Ground law was enacted just a year after Florida introduced its law.”

(3) “In March 2012, Bo Morrison was shot and killed by a homeowner in Wisconsin who discovered the unarmed 20-year-old on his porch early one morning. According to friends, Morrison was trying to evade police responding to a noise complaint at a neighboring underage drinking party. The homeowner, thinking Morrison was a burglar, was not charged by the local district attorney. While Wisconsin doesn’t have a Stand Your Ground law that extends to public spaces, Gov. Scott Walker signed an ‘intruders bill’ in December 2011 that presumes somebody who uses deadly force against a trespasser in their home, business or vehicle acted reasonably, whether or not the intruder was armed. Before the law was enacted, homeowners could only use deadly force if their own lives were at risk.”

(4) “In April, 22-year-old Cordell Jude shot and killed Daniel Adkins Jr., a pedestrian who walked in front of Jude’s car just as Jude was pulling up to the window of a Taco Bell drive-thru in Arizona. Jude claimed Adkins had waved his arms in the air, wielding what Jude thought was a metal pipe – it was actually a dog leash. Jude shot the 29-year-old Adkins, who was mentally disabled, once in the chest. As of May, an arrest had not been made in the April 3 shooting. Arizona passed a Stand Your Ground law in 2010.”

(5) “In January, a judge in Miami tossed out a second-degree murder charge against Greyston Garcia after he chased a suspected burglar for more than a block and stabbed him to death. The judge decided the stabbing was justified because the burglar had swung a bag of stolen car radios at Garcia – an object that a medical examiner at a hearing testified could cause ‘serious harm or death.’ The judge found Garcia was ‘well within his rights to pursue the victim and demand the return of his property.’”

Stand-Your-Ground v. Traditional Self-Defense Laws

As the Steven Jones case and the five other cases reported here, the difference is profound. Even with the historic role of grand juries in establishing probable cause before trial, shooters in SYG states have a decided advantage.

“These laws allow a person to kill another person in a public area, even when they could have clearly and safely de-escalated the confrontation by retreating, upending traditional self-defense law. Under traditional self-defense law, people can use force to defend themselves anywhere and at any time. When they are outside their home, however, they cannot use force that is likely to kill or seriously injure someone if there is a safe way to avoid it. Stand Your Ground laws are often misrepresented as simple adjustments or codification of common law, but in reality, they aggressively alter criminal procedure in a way that makes it difficult for a person who invokes the law to be arrested, prosecuted, or convicted for using deadly force. In addition to these legal mechanisms, these laws distort the public perception of lawful self-defense and encourage people to shoot first and ask questions later. Traditional self-defense law already gives people the right to protect themselves. These laws only require a person to de-escalate a situation if there is a clear and safe way to do so; they do not require a person to attempt to de-escalate if doing so would put them in danger. In this way, traditional self-defense laws respect both a person’s right to defend themselves and the value of human life.”[17]


[1]. A.R.S. & 21-413. 

[2]. Costello v. United States, 350 U.S. 359 (1956).

[3]. Professor Roger A. Fairfax Jr., Reforming Criminal Justice. Grand Jury 2.0: Modern Perspectives on the Grand Jury. Durham, NC: Carolina Academic Press, 2010.https://law.asu.edu/sites/default/files/pdf/academy_for_justice/1_Reforming-Criminal-Justice_Vol_3_Grand-Jury.pdf.

[4] State of Arizona v. Steven Edward Jones. In the Superior
Court for the County of Coconino, CR-2015-00862. Hon. Dan Slayton, Presiding.

[5]. 106-page transcript prepared from stenographic notes taken by Rossana K. Baker, RPR-RMR, Arizona Certificate No. 50662, Nov. 4, 2015.

[6]. Grand Jury Transcript, Nov. 4, 2015.

[7]. Ibid.

[8]. Ibid.

[9]. Ibid. at 51.

[10]. Ibid. at 51-69.

[11]. Ibid. at 74.

[12] https://www.pooleshaffery.com/news/2014/december/a-crash-course-in-the-american-grand-jury-system/

[13] Edited by Kermit L. Hall, “The Oxford Guide to the Supreme Court.” Oxford University Press, New York, 2005 at p. 400.

[14] https://www.findlaw.com/legalblogs/criminal-defense/which-states-use-criminal-grand-juries/

[15] The Post-Standard is a newspaper serving the greater Syracuse, New York, metro area. Published by Advance Publications, it and sister website Syracuse.com are among the consumer brands of Advance Media New York, alongside NYUp.com and The Good Life: Central New York magazine.

[16] https://en.wikipedia.org/wiki/Killing_of_Trayvon_Martin#Affidavit_of_probable_cause

[17] https://everytownresearch.org/report/stand-your-ground-laws-are-a-license-to-kill/

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