Sean Higgins will appear in court on Tuesday, Oct. 13 for a pre-indictment conference in the deaths of Johnny Gaudreau and his brother Matthew
Sean Higgins, the 43-year-old driver charged in the August deaths of former Calgary Flames star Johnny Gaudreau and his brother Matthew is to return to court in New Jersey on Tuesday.
American news outlets have reported Tuesday’s hearing will be a pre-indictment conference where the defence and prosecution have an opportunity to discuss how to proceed with the case.
Johnny Gaudreau, 31, and his 29-year-old brother died Aug. 29 after they were hit while riding bicycles on a rural road on the eve of their sister Katie’s wedding.
Johnny played in nine seasons with the Calgary Flames, scoring 210 goals and 609 points. He played the past two seasons with the Columbus Blue Jackets after signing there as a free agent in summer 2022.
The Blue Jackets will play their first home game of the new NHL season on Tuesday, hours after Higgins’ scheduled court appearance.
When asked for details on expected next steps in the legal case against Higgins, a spokesperson for Jonathan M. Flynn, the trial prosecutor, declined comment, citing the “ongoing nature of this case.”
Higgins’ attorney, Michal Portella, did not respond to requests for comment.
Higgins remains in custody in a Salem County jail ahead of Tuesday’s court date.
Here’s what we know about the case so far and what’s expected to happen next:
Who is Sean Higgins?
“We received the heartbreaking news regarding the tragic crash that took the lives of Johnny and Matthew Gaudreau, along with the charges brought against Sean Higgins,” the post reads.
A married father of two daughters, ages 8 and 10, Higgins is as an “empathetic individual” and a “loving father,” his lawyer, Portella, has said.
The New Jersey Army National Guard would not comment on Higgins’ service, but released a statement. “We are profoundly saddened by this tragedy,” said Col. Yvonne L. Mays, Acting Adjutant General of New Jersey, in the statement, quoted in Independent. “Our hearts go out to everyone affected, and we share in the grief of the Gaudreau family.
A record of Higgins’ driving history obtained by NBC Philadelphia showed he has been cited numerous times for unsafe driving, driving while intoxicated, speeding, improper display of plates and improper operations in a highway with marked lanes.
The state of New Jersey Motor Vehicle Commission listed Higgins “in good standing” at the time of the crash in August, according to NBC Philadelphia.
What are the charges and where does the case currently stand?
Higgins is charged with two counts of death by auto as well as charges of reckless driving, possession of an open container and consuming alcohol in a motor vehicle.
He has remained in custody since the day of the crash and appeared in court virtually for the Sept. 13 detention hearing to determine if he could be released on bail.
New Jersey does not operate on a cash bail system, unlike some other U.S. states, said Jeremy Lackey, a New Jersey criminal defence attorney and partner at Lackey & Miller LLC. Instead, the state has 48 hours to decide whether to release someone on bail while monitoring them to some degree, or detaining them, he said.
The decision comes down to how the accused scores on his public safety assessment (PSA), which determines how likely the person is to not appear in court and their danger to the community, if released. Scores range from one to six, with six being the highest.
“If you’re a six, there’s a high probability you will be detained,” said Lackey, who is not involved in the case, but said he is familiar with its workings. Higgins, he said, was given a score of one one, which put him on the lowest end of the scale.
The state, however, still moved to detain him. Lackey speculated it might be due to the severity of the case. “You have two people who are deceased,” he said, “so I’m not surprised.”
Prosecutor Flynn said a driver who was ahead of Higgins before the crash described him as speeding toward their vehicle, then slowing down, accelerating again and tailgating before deciding to pass the vehicles.
Silviano likened the actions to “road-rage-like behaviour.”
Any appeal of the decision to keep Higgins detained would go through the Appellate Division of the Superior Court, Lackey said. “They won’t necessarily go after (the judge’s) reasoning,” Lackey said. They’ll just “make sure he followed the law on the appeal.”
What is a pre-indictment conference?
According to New Jersey state law, the state has 90 days to indict the case. If motions are filed or events happen pre-indictment, the time period can be tolled up to two years, Lackey said.
On one hand, the state may offer the defendant a plea deal. “In New Jersey, the state has what’s called an escalating plea policy,” Lackey said, which means that if an offer was made, it could increase as the process continues. In some cases, the first offer may be the best offer.
Lackey couldn’t say for certain whether an offer would be made or how the defence might respond.
“I do know that prior to accepting it, the defence attorney is going to want to explore a lot of things in this case,” for example, bringing in an expert to counter the allegations that Higgins was under the influence when the accident occurred, he said.
During the detention hearing, Flynn stated Higgins had a blood alcohol level of 0.87, above the 0.8 legal limit in New Jersey.
Scott Aalsberg, a New Jersey criminal lawyer with experience in DWIs and DUIs, said the defence attorney could raise questions on how the blood alcohol reading was taken, who took it and how the evidence was stored.
“These are all sorts of questions that you would expect the defence attorney would try to look into to see if they were done properly,” he said.
The state is not obligated to provide an offer, Lackey said, and if a resolution cannot be reached, then the alternative is to go to grand jury trial.
“The common course is that there (will be) some negotiations between the (pre-indictment) date and indictment, especially if you think it’s going to be beneficial to your client,” Lackey said. Parties don’t choose a grand jury trial; rather, the trial is opted for only if no resolution can be reached during negotiations.
By default, a defendant will go through a trial by jury, unless they decided to waive their right to a jury and choose a trial with a judge. In Aalsberg’s experience, the choices have varied.
“If you have an innocent person, they’ll tend, in most cases, to ask for a trial (by jury)”, he said. Some might opt for a plea deal due to the expenses of hiring a defence attorney and the risks of “rolling the dice on 12 people who are your jury members.”
It may also depend on which judge gets assigned to the case or whether the defendant is likely to resonate with the make up of the jury, he added.
In this case, Lackey anticipated that if a trial does occur, it will be a trial by jury. “It just seems like factual issues, not legal issues in this case,” he said. “In my experience, those types of cases you want to bring before a jury not a judge.”
What are the possible outcomes for a guilty verdict?
At most, Higgins could face a sentence of up to 20 years — 10 years for each victim’s death, Lackey said, of which he would have to serve a minimum 85 per cent of the sentence, according to the state’s No Early Release Act, before being eligible for parole. At best, he could get three years, subject to the same conditions.
Realistically, Lackey said the outcome would fall somewhere in between, depending what kind of sentence the judge opts for and how Higgins scores on his aggravating and mitigating factors.
“Looking at his PSA score, which is a one one, tells me that he doesn’t really have any criminal history,” Lackey said, “so the judge will start in the middle.”
The judge could also opt to give Higgins a concurrent or a consecutive sentence, wherein he either serves his sentences for the two deaths at the same time or one after the other.
What would a plea deal look like?
It’s uncertain if prosecution will use the hearing Tuesday to offer Higgins a plea deal and what a prospective plea deal could look like.
When asked if a plea deal is on the table, a spokesperson for Flynn’s office declined to comment.
“Nobody can really give an answer for that,” Lackey said. He said he presumes that an offer will be given at some point, but it’s also possible that Tuesday’s date may be postponed as prosecution is yet to provide all information of evidence that they will use at trial.
“A lot of times with the pre indictment conference, full discovery hasn’t even been provided at that point,” he said.
If a plea deal is offered, Higgins and his attorneys would have to weigh that against the worst outcome should he go to trial, Lackey said.
“Let’s say if (he) go to trial, the state’s case is good … and (he) loses and is convicted, he could be looking at anything between 14 and 16 years, but the state is currently offering eight or 10 years,” Lackey posed as an example. Higgins, in that case, would have to weigh his chances and look at the case and go through evidence with his attorney.
How will the Columbus Blue Jackets honour Johnny and Matthew Gaudreau?
Tuesday marks the Blue Jackets’ first home game of the new NHL season, against the Stanley Cup champion Florida Panthers.
A media release shared by the team outlined a number of activities planned to honour the brothers.
Throughout the season, the team is wearing a blue sticker with a grey trim on their helmets. The sticker features GAUDREAU and two doves between the numbers 13, which Johnny wore throughout his career, and 21, which Matthew wore during his time at Boston College, in white.
Blue Jackets’ players will also wear a patch with Johnny’s number 13 on their jerseys.
A special concourse tribute will be set up for fans to visit, which includes jerseys and other items. Everyone attending the game will also be given a “13” patch to match the ones the players will be wearing.
Fans will also be able to help raise funds for the John and Matthew Gaudreau Foundation either by participating in auctions and purchasing raffle tickets to win signed and game-worn jerseys featuring Johnny’s name and number, team-signed memorabilia and/or buy lapel pins with the same artwork as the stickers on the team’s helmets.