Copyright © 2013 by D. William Subin
All rights reserved. No part of this book may be used or reproduced in any manner, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, or otherwise, without written permission from the publisher.
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ISBN 978-1-935232-69-8
ISBN: 9781935232704
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To all law enforcement and emergency responders whose split-second decision-making stays with them the rest of their lives.
To my wife Petie, and my sons Jeremy, Daniel and Zachary, and my brother Dave and sister-in-law Elissa, for their support during the trial.
To the faith of my client Robert Higbee and his wife Beth and their families.
To the hundreds of STFA members led by David Jones and Chris Burgos.
To the hundreds of present and retired law enforcement personnel, attorneys, experts, and even former judges, across the country, who volunteered their time to help us, particularly Barry Wythe, John Heenan, John Campbell and Lou Horvath.
To my trial team, including Investigator Manny Ridgeway and Attorney Donna Lee Vitale.
To my faithful office staff of Veronica Rivera, office manager and Dot Hand, secretary.
To readers Pat Goldstein and Barbara and Jennifer Altman, Jessie Noa, Esq. and Roger Adelman, Esq.
To my dedicated and unselfish copyright Attorney Joe Young-blood III.
To Illustrator Carl L. Rosner, Editor Mike Valentino, and Publisher Rob Huberman. Thank you.
Author’s Preface
Introduction
Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5
Chapter 6
Chapter 7
Chapter 8
Chapter 9
Chapter 10
Chapter 11
Chapter 12
Chapter 13
Chapter 14
Chapter 15: 2012
Trial Notes: What the Jury Didn’t See
On the Scenes Diagrams
PowerPoint Presentation
Photographs and News Clippings
There are several reasons why I chose to write this book and why I deemed the trial in this case to be the most excruciating and challenging in approximately forty-two years of practicing law at the time.
First, this case was significant to law enforcement agencies across the country. Concerns were expressed that if a conviction resulted and Robert Higbee’s actions were deemed criminal, the adverse effect on police, emergency responders, ambulance drivers, and firefighters could be immense. Imagine if the courageous individuals who respond to any emergency in order to protect us, began to second-guess themselves and hesitate to take action for fear that an unintentional mistake might lead to criminal charges and prison.
Secondly, throughout the time I was defending Trooper Higbee, I was concerned that, as his legal counsel, I would somehow fail him. As an experienced criminal attorney I was convinced, as a matter of law and on the merits of the case, that Robert was innocent of any criminal wrongdoing. It was up to me to present the facts, and to see to it that he was acquitted.
Throughout these proceedings, Robert’s conduct convinced me of his strength of character. This only added to the excruciating stress I felt every day, knowing I must do my best to defend what I had come to recognize as a fine man.
D.W.S. 7/1/13
Thirty-four-year-old New Jersey State Trooper Robert Higbee lay on his back in an Atlantic City Hospital room. His 6’8” frame hardly fit into the bed. Just hours before at 10:00 p.m., Higbee sustained a concussion when the patrol car in which he was “closing the gap” on a speeder, collided with a van crossing through an intersection ahead of him. Tragically, the two teenage sisters in the van died at the scene.
The next morning, I received a phone call from the State Troopers Fraternal Association of New Jersey (STFA), the organization that represents the state’s law enforcement officers. I was already on their approved attorney’s list and had previously answered “critical incident matters” on their behalf. I was now being asked to represent Trooper Higbee regarding any repercussions related to the accident.
Within an hour I was at the hospital. Higbee was still in a daze. I had no idea at that moment I met him, how closely our lives would become connected.
Five months later, a Cape May County grand jury indicted Trooper Higbee on the charge of vehicular homicide, a crime that carries a penalty of up to twenty years in prison. My job was to establish conclusively that Higbee had acted neither intentionally nor recklessly, only that he had made a tragic mistake in the dark of night, at a poorly marked intersection in rural Cape May County, New Jersey.
The heaviest burden that can be placed upon a defense attorney is in knowing that the fate of an innocent person rests in your hands. The following two-and-a-half years would prove to be the most demanding and excruciating I have ever experienced in my career as a criminal trial lawyer.
Lives are intertwined by unforeseen events…
The tragedy took place around 10:00 p.m. September 27, 2006 at a poorly lit and badly marked intersection in rural Cape May County, New Jersey.
An outstretched piece of land jutting south from the rest of New Jersey, the county is a unique combination of summertime seasonal resorts, small towns, rural farmland and woods. The locals travel back roads from Memorial Day through Labor Day to avoid the congestion on the Garden State Parkway, a toll road bisecting the peninsula from north to south ending just before Victorian Cape May.
Marmora, a part of Upper Township, is so small there is no local police force. Children in Upper Township attend the Ocean City High School a few miles to the east. There are pockets of mini shopping malls along Route 9, the busy road that parallels the Garden State Parkway, along with some 24-hour convenience stores, gas stations, and pizza parlors open at night. Driving south on Route 9, you intersect a two-lane road called Old Tuckahoe Road (County Road 631). Turning right, some distance later, that road intersects a smaller road named Stagecoach Road (County Road 667), running roughly north and south and parallel to Route 9.
Stagecoach Road is about 100 years old. It may have been a dirt road before the county paved it. Tourists or those unfamiliar with the area would probably never venture from Route 9 west to this intersection of Tuckahoe and Stagecoach.
Locals avoid the traffic on Route 9 and the Garden State Parkway as much as possible to do their errands. They, however, might be familiar with a little group of stores called Wayside Village along Tuckahoe Road. They might go to the little restaurant or the ice cream stand there during the day. But at night there is little or no activity in this largely residential and rural area. Probably the only store open in the evening hours is the Wawa convenience store on Route 9.
There are no full time firefighters or rescue squads in this area, only volunteers, and like in many other areas outside New Jersey cities, law enforcement is provided by the New Jersey State Police. Unlike local police, New Jersey State Police troopers are assigned to this area from the Woodbine Barracks, typically spend some months in the roughly 40-square-mile area, and then move on to other assignments in the state.
The local residents typically escape the massive crowds and excitement of the seaside resorts to the east. But one event changed all that.
Seventeen-year-old Jacqueline Becker was close to her nineteen-year-old sister Christina. Five-foot-eight with dark brown wavy hair, Jacqueline was a senior at Ocean City High School and loved history, art and drama. She spoke Italian and Spanish and loved languages with a base in Latin. Her outgoing personality was perfect for school plays.
With lighter brown wavy hair, older sister Christina wore glasses, was heavyset, and was more reserved. She had graduated a few years earlier from Ocean City High School and now attended neraby Richard Stockton College of New Jersey. Her dream was to own a bed and breakfast with her mother, Maria Caiafa, so she was taking culinary courses to further her career plans. Christina was working her way through college delivering medicine to seniors as part of her duties at an Ocean City pharmacy.
Both girls were gentle and loving. Both had baby-sat for neighbors in the Upper Township area while staying with their maternal grandparents Caesar and Geraldine Caiafa, which they did often. Maria has been the long-time principal at a middle school in North-field, a larger community in Atlantic County. Maria’s parents loved to have Christina and Jacqueline at their home in Upper Township. All five were often together. Grandfather Caesar talked about them as “his girls,” describing Jacqueline as his “white rose” and Christina as “red rose,” a reference to their complexions.
* * *
Seventeen-year-old Josh Wigglesworth attended Ocean City High School. Also a senior, he lived with his mother and stepfather in Upper Township. Like many teens his age, he enjoyed being able to drive his own car, a 1994 black BMW. Slight of build and slender, he does not stand out in a crowd. His demeanor is mild and not aggressive or assertive. He worked in the family tile business when not in school. He had a girlfriend who lived not far away on a side street just off of Stagecoach Road, about a mile south of the Wayside Village intersection. So as not to worry his parents, Josh was aware of the rules at home about coming home too late after visiting his girlfriend, especially on school nights.
* * *
Thirty-four-year-old New Jersey State Trooper Robert Higbee is an imposing six-foot-eight and weighs close to 250 pounds. His friends and former coaches refer to him as the “gentle giant.” Robert grew up in Atlantic County to the north, and played basketball and football for Ocean City High School’s rival, Mainland High School, winning awards and gaining recognition for his prowess on the football field. He also played football in college, first at University of Virginia and then transferring to the “Blue Hens” of the University of Delaware, closer to home. Robert tried out for the Dallas Cowboys but was cut from the training camp in Texas because they needed another position filled at the time of his tryout. Robert also did a short professional basketball stint around the country and in Europe, touring with the team opposing the Harlem Globetrotters. By the time he settled back down in the Somers Point area in Atlantic County, Robert Higbee was married to Bethany and had embarked on a career with the state police.
Robert went through extensive training at the rigorous state police academy at Sea Girt, New Jersey. In both physical and mental terms, that training has been compared with the best in the country, like the FBI training at Quantico, Virginia, where only the strongest and best emerge as law enforcement officers. As a “road trooper” for about five years before that night, Robert had patrolled the superhighways of the Garden State, handling various traffic and criminal violators. He had no blots on his service record and no disciplinary actions of any kind. Careful and meticulous, according to his superiors’ evaluations, he was given the additional assignment of coaching newer troopers, when he was assigned to the Woodbine Barracks about seven months earlier. Robert helped his young trainees gain patrol experience by concentrating on the higher-crime areas within his jurisdiction.
Unlike some of the other troopers in the barracks, Robert Higbee was only somewhat familiar with the intersection of Tuckahoe and Stagecoach Roads, having had no reason to pass by there except for a few times he may have been on patrol during daylight hours. The troopers from the Woodbine barracks patrol a large regional area, much of it rural with narrow back roads, residential developments and some commercial and tourist areas that account for the bulk of their arrests for traffic and criminal activities.
The territory Robert covered was so expansive that he had to keep maps in his patrol car or to sometimes ask the dispatcher for directions in order to locate an address within the area where state troopers like himself provided the only police presence. Becoming familiar with every turn and intersection was just not practical.
Trooper Higbee also did not know what many locals believed—that the intersection of Old Tuckahoe and Stagecoach Roads at night could be perilous.
* * *
The close-knit Italian family of three generations gathered for dinner at an Ocean City restaurant. The girls wanted to leave early, and they asked their grandfather if they could borrow his Dodge van to go back to the grandparents’ house, where the girls were staying. It was only a short ride from the restaurant. Upon arriving they found they needed milk for breakfast, and decided to drive to a local store on Route 9.
Christine was in the passenger’s seat and Jacqueline was in the driver’s seat, even though she had only a learner’s permit, and Christine was two years shy of the New Jersey age requirement to supervise Jacqueline’s driving at night. For some unknown reason, Christine Becker did not put on her seat belt. They turned right, off of Route 9 and onto Tuckahoe Road where the posted speed limit is 35 miles per hour.
Suddenly, as they approached the intersection of Stagecoach Road, there was a tremendous crash. Then there was darkness and silence.
* * *
Seventeen-year-old Josh Wigglesworth had been at his girlfriend’s house that evening. When he realized he was past his 10:00 p.m. curfew, he sped off down the road, hoping to make it home before he was noticed missing by his parents. His foot hit the accelerator as he headed north. For a brief time he was on the road alone, when suddenly he saw a pair of headlights heading in his direction in the opposite lane. As he passed the oncoming vehicle, he realized it was a New Jersey State Police patrol car.
Josh quickly glanced at his dashboard and believed his headlights were not on, only the fog lamps of the BMW in which he was driving. He flipped on his headlights and began to slow down.
Josh watched in his rear view mirror as the patrol car turned around and began to follow him. He had a lead on the police of at least 0.2 miles. He then lost sight of the trooper’s headlights for a few seconds as he reached a slight elevation in the road. As Josh came down off the rise, he passed the Frito Lay warehouse on his right and the car wash on his left. He continued driving.
Crossing the intersection, he saw no red lights and heard no siren behind him, so he figured that there was no reason to stop. Josh had been through the drill before…the red lights come on and a siren sounds until the cop got close enough to run his license plate.
As Josh made it to the next intersection at Roosevelt Road, his headlights illuminated the red stop sign. He then heard a noise from behind him that sounded like a crash. As he looked into his rear view mirror he saw bright lights at the intersection of Tuckahoe and Stagecoach. He thought he also heard the sound of a horn blaring.
Josh Wigglesworth turned right onto Roosevelt and went directly home. As he pulled up to his house he heard the sound of the volunteer fire and rescue horn blaring its signal for help. He ran into his house to reassure his mother that he was all right. Josh hoped she would not notice the time. He said nothing to her about the accident he had just seen
* * *
Rob Higbee has a routine. Even though his wife Beth goes to sleep early so she can be at her job in the morning, Robert stays up until around 1:00 a.m. He sleeps until 11:00 a.m. so that he will be wide awake for his night shift. He drinks no alcohol and takes no medicine that would impair him from being alert.
On September 27, 2006, Robert did some chores around the house. He showered and changed after jogging around the neighborhood. He was in his slate blue uniform, checking the computer information at the barracks in preparation for his 6:00 p.m. to 6:00 a.m. shift. This time, there were no warrants to be served or suspects reported to be out on the streets. Cape May County was in no way immune from robberies, drug deals, or homicides. Troopers have often been faced with armed motorists in various standoffs.
Every day on patrol was different. Throughout the summer, Robert took his cadet trainee to areas where the cadet might have more opportunities to make arrests. The cadet was off that night, so Robert decided to patrol some areas in which he was less familiar. Robert checked out his assigned 2005 Ford Crown Victoria patrol car to be sure all of his equipment was working and headed out on patrol. He made some stops during the course of his shift, issuing warnings instead of tickets to drivers with headlights out and other minor infractions. As part of his duties, he would check the locks and doors of local businesses along Route 9.
Robert stopped to escort the owner/instructor of a dance studio to her car in a poorly lit parking lot after her students had left. Robert then drove north passing the Triton Tavern. No activity tonight, so he moved on. He traveled Old Tuckahoe Road, up along the deserted highways through woods, undeveloped land and some swamp areas.
The trooper headed further north toward the more developed spots in Upper Township. He had been around the area of Wayside Village during the daylight hours when the restaurants were open. But now, just before 10:00 p.m., everything was closed, so he turned right on Stagecoach Road just before he got to Route 9, and headed south through some of the residential neighborhoods heading back toward areas that might yield more activity.
Suddenly, he observed a pair of oncoming headlights approaching rapidly in his direction on the opposite side of the road. He could not immediately see the driver or details of the car. His radar activated a warning that told him the oncoming vehicle was going 65 mph, almost twice the speed limit for that stretch of road. As he locked in the radar signal, Robert pulled off the road. He checked for traffic and made a “K-turn” to head back in the opposite direction, since his patrol car could not negotiate the narrow highway to complete a U-turn.
Robert was not able to make out the license plate on the fast moving vehicle. He could only tell that it was dark-colored, but he could not yet call it in to dispatch. The only things he could see in the distance were two circular taillights. Robert fixed his eyes on the target and attempted to close the gap with the speeding vehicle. His training and state police protocol took over—no red lights and siren until he could get close enough to call in a description and license plate to dispatch. He could not yet pull over the suspect. Robert needed to find a safe spot off the road that would not pose a danger to passing motorists. He could not let the suspect dart away down a side street, and he still needed to get close enough to read the license plate.
Robert reached out to grab the radio’s microphone, checked the radar and looked all around. He watched for other traffic, obstacles in the road and for signs the suspect might be trying to flee. The taillights of the car ahead flickered for a few seconds. He then lost sight of the car. As he saw the car again, he was vaguely aware that he had just passed a Stop Ahead sign somewhere in the darkness on the right hand side of the road. Robert knew he would need to slow down, activate his overhead red flashing lights, and look both ways for oncoming cars at the intersection when he got to the stop sign. But where exactly the stop sign was ahead, he wasn’t sure.
Then the suspect’s headlights illuminated a stop sign just ahead of the speeding car. Robert immediately focused his attention on the speeder’s taillights and closed the gap on the speeder. Suddenly, there was a flash of light. Robert slammed on his brakes. There was a tremendous crash and then there was only darkness and silence.
* * *
Anthony Cinaglia used to be a tough union organizer. At 47 years old he was now a consultant, trying to put his life together. He used to have a relationship with Melinda Lipstein and he was trying to help her talk about some things in her life. They would just sit and talk, like old times. Maybe get some ice cream, but the little stand at Wayside Village was closed for the night.
Melinda sat on the railroad tie in the parking lot, with her back to Old Tuckahoe Road, facing Anthony and the closed Wayside stores. He paced back and forth looking at her sitting under the tree. Her face was barely visible to him in the dim light from the store windows behind him. An occasional passing car was the only sound in the background as they carried on their conversation. Anthony thought he heard the sound of a car coming from around the corner of the building to his left. By the time he looked in that direction down the road toward Stagecoach, something had happened.
Melinda did not see anything behind her back and to her right as she sat looking at Anthony. Then she heard a crash from the darkened intersection. Anthony rushed toward the sound, then ran back to get Melinda’s cell phone to call 911. The garbled message through the regional communications dispatcher in Ocean City was about an accident on Tuckahoe near Route 9 in Upper Township.
* * *
Seventeen-year-old Michael Taylor had to ride with his father while his car was in the shop. His fifty-seven-year-old father, Robert had driven Michael in Robert’s Mazda to pick up a CD Michael had inadvertantly left in his car at the shop. They were on their way home from their errand when they turned down St. Martin’s Place and then made a left heading south on Stagecoach Road.
It was dark on the stretch of road above Tuckahoe, surrounded on both sides by dense woods. Nothing unusual caught the attention of father and son until their headlights illuminated an animal scurrying across the road in front of them and into the bushes on the side on the road. They figured their headlights had startled maybe a possum or a muskrat.
The dense trees and underbrush on the sides of Stagecoach Road obscured Robert Taylor’s view of the upcoming intersection at Tuckahoe. You can’t see what is coming from either direction until you creep out into Tuckahoe to look both ways. Robert Taylor had barely glanced to his right when he heard a car approaching rapidly. He never saw the white van hit them. There was a crash. The impact sent shattered glass from his driver’s side window flying onto Robert as they sat at the stop sign. He felt blood on his face.
Michael did not see the white van either. He heard the sound of a car he thought was accelerating and saw headlights coming in their direction right before the crash. In an instant there was impact on the driver’s side as Michael sat frozen in the passenger’s seat. Then he saw a trooper patrol car come to an abrupt stop in the trees to his right, careening over the curb into the bushes.
* * *
Janet Harmelin was a registered nurse for some twenty years before she retired to take over as office manager for her husband’s medical practice. They lived a few miles south of Tuckahoe on Stagecoach Road. She was coming back home on the main road from Ocean City on Roosevelt Boulevard and turned left, heading down Stagecoach toward Tuckahoe. She was vaguely aware on her left of a white van off to the side of the road. As she got closer to the intersection at Tuckahoe she saw two more vehicles that appeared damaged. One was right in front of her at the stop sign; another was in the woods to her right. She quickly got out of her car, relying upon her training and experience to make some quick assessments, because no emergency crews were there yet.
She was about to call 911 when a male voice indicated he had just done that. She checked the Mazda. Michael Taylor recognized her and asked,“Mrs. Harmelin, what are you doing here?” Janet quickly determined neither he nor his father had life-threatening injuries. She turned her attention to the mangled patrol car against the trees in the brushes to her right. The state trooper was still in the driver’s seat. He kept moving his arm toward his chin and up and down toward his chest as if he was trying to reach for a radio. He was not alert and Janet could get no verbal response from him, but he appeared to be breathing. She started back down the road to check on the van, but saw emergency vehicles arriving.
Janet now returned her attention to the trooper who was lying across the seat on his back, trying to get up. She tried to have him stay there, as she saw Chief Jay Newman of the Marmora volunteer Fire and Rescue squad approaching.
* * *
Chief Jay Newman is one of those small town individuals who dedicates a good deal of his spare time to public service. He is stocky, middle aged and balding, but with a robust appearance. He is a funeral director, but he is best known as an elected representative on the Upper Township governing body, as well as for his longtime work as head of the volunteer firefighter and rescue squad. Chief Newman took numerous courses for EMT and firefighter training. He is actively involved in the regional Chiefs Association. He makes himself available on short notice by radio or phone dispatch to respond to emergencies in his hometown.
That night, Chief Newman was at his home adjacent to his business on Route 9 a short distance south of the intersection with Tuckahoe Road in Marmora. He received the alert from Ocean City Dispatch at 10:01 p.m. to respond to a serious accident at Route 9 and Tuckahoe. He immediately responded by driving north on Route 9 but could see no accident when he arrived there. He thought to himself that the location had to be at Tuckahoe and Stagecoach Roads, where there had been some twenty-six previous accidents in the past few years. As part of his elected duties on the Upper Township Committee, Chief Newman had been instrumental in sending some strong resolutions to the County of Cape May, urgently requesting a traffic control device be installed at the Stagecoach and Tuckahoe Roads intersection. Both being county roads, preliminary approval for changes came from the county, not from the township. He thought to himself that this accident had to be at Stagecoach as well. So he turned his emergency vehicle, with blue lights flashing, and headed down toward Stagecoach. Chief Newman reported in to dispatch that he arrived at the actual accident scene at 10:06, within about five minutes of the original dispatch call.