*1
Catherine (Peter respondent Harvey, Acting Attorney for cause C. General Jersey, attorney). of New opinion of the Court was delivered
VERNIERO, J. capital previously
This is a
case. This Court
affirmed defen
murder,
DiFrisco,
capital
dant’s conviction for
v.
118
State
N.J.
(1990) (DiFrisco
253,
I),
sentence,
upheld
203 (PCR) petition court’s post-conviction denial of his relief which he he asserts that was denied assistance of effective during penalty phase of trial. We affirm.
I. History Facts Procedural correctly “cold-blooded, In what this Court has described as a I, 256, supra, DiFrisco 118 N.J. at execution-style Wiling,” 571 914, Potcher, A.2d defendant murdered Edward owner of Pizzeria, Maplewood 12, August Jack’s at his restaurant 1986. Defendant fired four bullets into the head and victim’s a fifth body. bullet into his Defendant to the confessed homicide after being charges. arrested in York on New unrelated Defendant also admitted man Anthony paid that a named Franciotti him relating commit the murder. The other facts to our $2500 I, supra, in DiFrisco previous set length decisions are forth at 118 II, supra, 255-60, 914, N.J. at DiFrisco 137 N.J. at 448- 571 A.2d III, 157-59, supra, and DiFrisco 142 N.J. A.2d only A.2d 442. We recite those facts relevant to defendant’s PCR petition necessary background disposition. or as to our
A. Penalty The Homicide and the First Trial prison ap- Defendant and Franciotti had met in a New York proximately years shooting, two before the when defendant inwas early twenties and Franciotti was in his fifties. Franciotti befriended after prison defendant defendant at the *8 arrived and him friendly during period remained that their sentences together, overlapped. spent great The men a of time two deal other, together eating talking often and each re- meals to and mained in touch Franciotti’s When defendant after release. parole, released visited and him he Franciotti often relied on drug to support narcotics habit. told night in the summer of Franciotti defendant One and his planning to accuse Franciotti associates someone was person drug that he to have that killed. illegal activity, and wanted to the homicide. Defendant defendant commit Franciotti asked before, anyone agreed never but he responded that he had killed explained why he asked. Defendant later to do what Franciotti I request, to “I mean owed [Franciotti] acceded Franciotti’s know, up guess the man I money. You I kind of looked to like, money go prison rather him to and that I owed him than see drugs him, yes.” getting my I was from I said murder, up in night picked of the Franciotti defendant
On Bronx him to a a few Because and took bar for drinks. nervous, bought Franciotti him some After defendant was heroin. Franciotti, drug, “If ingested the he better and told defendant felt - this, get let’s then going we are to do it over with.” Franciotti in Maplewood. York Pizzeria drove defendant from New to Jack’s pizzeria Defendant into the Franciotti waited in the went while pizza ear. a whole Jack’s did not sell Defendant ordered because slices, delivery person a few bites from one slice. After a took delivery, left the to make a defendant asked Potcher for store turned, water. him some As Potcher defendant shot five times range, using gun a close a with silencer. Defendant then returned day killing, paid car. The after the Franciotti’s Franciotti money
defendant cash. Defendant later used to visit his sister New Mexico. 1, 1987, April
Potcher’s murder remained until unsolved when alerted, Jersey New authorities were to defendant’s confession crime. had been in New Defendant arrested York for car endangerment, theft and told a New reckless and he York detec- cooperate get charges. that he out of the The tive wished suggested provide a detective defendant information about detective, more more serious crime. Defendant asked “who is guy guy guy pays or him guilty, a who shoots a who to shoot replied, pays him guy?” guy “A who to shoot the detective intermediate, guy guy guy only only ... The killed the an who is
205 pawn.” killing pizzeria Defendant admitted in a in someone New Jersey, but offered few details. The detective contacted New authorities, Jersey Maple- who identified an unsolved murder hours, wood fit the that offense described defendant. Within Maplewood police Essex County homicide officers arrived precinct. York the New Jersey Defendant recounted details of the crime to the New gave taped signed authorities. Defendant also statement and later, implicating days Jersey confession Franciotti. Several New arrangements authorities made for defendant to make a recorded Franciotti, telephone call to to connect Franciotti murder. A public defender with whom defendant consulted advised him to Franciotti, ultimately make call. Defendant refused to call explaining cooperate that father him defendant’s advised not to police paid further with the without the advice of counsel. Defendant was for capital weapons indicted murder charges. guilty plea He jury entered a and waived a for his trial, sentencing sentencing trial. At the first the trial court found killer, aggravating two factors: was a defendant hired 2C:ll-3c(4)(d), N.J.S.A and that he killed avoid the detection of 2C:ll-3c(4)(f). another, single N.J.S.A. The court found as a mitigating factor cooperated that defendant in the authorities prosecution murder, person 2C:ll-3c(5)(g). another N.J.S.A Finding aggravating outweighed mitigating factors doubt, beyond factors a reasonable the trial court sentenced here, defendant death. For reasons relevant this Court I, supra, overturned the death sentence remand DiFrisco sentencing ed the matter for a 118 new trial. N.J. at A.2d 914.
B. Sentencing Representation Prior to Retrial remand, DeLuca, attorney, On defendant’s Samuel for a moved imprisonment. argued that no directed verdict life DeLuca the aggravating to corroborate factors additional evidence existed court gave rise to the death sentence. trial denied *10 motion, grant declined to leave to Appellate and the Division court, appeal. September wrote a letter to In defendant expressed requesting appointment of new Defendant his counsel. representation. with DeLuca’s The court allowed dissatisfaction stead, and, in DeLuca to withdraw from the case his ordered represent defendant. Public Defender assigned Deputy The Public Defender’s Office Assistant Public Lapidus Lapi- and the ease. Defenders Barbara Michelle Soto to counsel, dus, experience in assigned was as lead had no who capital public had cases but was a seasoned defender. Soto also cases, only years experience trying capital experi- no and had two trying Lapidus ence and criminal eases. Soto were chosen be- attorneys experience already previous capital cause were engaged penalty Lapidus initially in other cases. death case, capital supervisor, Joseph to defend but her reluctant Krakora, division, expressed that chief of the homicide confidence job. she do the He also her that would do the could assured Soto necessary legal writing. supervisor The talked to them about the questions case made himself available discussions. Guilty 1. The Motions to Withdraw Defendant’s Plea retrial, sentencing Lapidus Prior to and Soto filed two motion, guilty plea. first motions to withdraw defendant’s In the argued guilty plea counsel that defendant’s should be withdrawn plead involuntary because his decision to was rendered DeLu- ca’s erroneous assurances that defendant receive a life would subsequent the ground sentence. Counsel’s motion was based on plea that resulted assistance of coun- defendant’s from ineffective sel. motions, support presented testimony
In both counsel essence, argued defendant and DeLuca. that DeLuca develop mitigation did behalf evidence defendant’s because he was convinced that defendant would not receive death counsel, so penalty. According grossly DeLuca misinformed regarding consequences pleading guilty defendant plea voluntarily. did not knowingly defendant enter motions, trial finding court denied both DeLuca had not any promises. improper misled defendant nor made The court to investigate also found DeLuea’s decision not had been ultimately reasonable. This Court affirmed the trial court’s deter II, supra, motions DiFrisco 137 N.J. mination on both at 451- 59, 645A .2d734. Mitigation Investigation
2. The began mitigation investigation Counsel their about the time that they begun preparing the had motions to withdraw defendant’s guilty They plea. psychologist, retained a licensed Dr. Ronald Silikovitz; psychiatrist abuse, specializing in substance Dr. Annitto; mitigation specialist, William and a Cessie Alfonso. They requested investigator also the assistance of an the Public Office, investiga- Defender’s Pam the end of the Cuevas. Toward *11 tion, mitigation specialist, counsel asked a different Carmeta Alba- rus, Finally, place to take the of Alfonso. counsel retained Dr. Schiffinan, psychiatrist, expert drag Peter a as an on witness abuse. Dr.
Although capital Silikovitz had never on a case worked ease, participating specialties before in defendant’s his included modification, psychological testing, neglected behavior and chil- experience involving dren. He had with child welfare eases the Family Division of Youth and Krakora approved Services. reten- tion of Dr. Silikovitz evaluate for purposes to defendant the plea. guilty motion to withdraw defendant’s did Counsel not provide legal plea Dr. Silikovitz the with standards for withdrawal. However, task, provided to assist him in his counsel Dr. Silikovitz report, report, transcripts with their case the incident and the guilty plea original sentencing hearing. and hours, met performed Silikovitz with defendant three and he tests, including evaluation, a a number WAIS-R for intellectual H-T-P, D-A-P, Bender, Rorscharch, Projective Drawings, WRAT, TAT, completion, sentence and Three Wishes. Dr. Siliko- February on report first to defense counsel delivered his
vitz prior hearings for both motions to months several defen- guilty plea. report discussed The withdraw defendant’s reported and defendant’s ac- psychological overall status dant’s of his confession authorities. count any phase not “recall Dr. stated that defendant could Silikovitz high on and process” because “he was cocaine of the confession made.” time when the ‘confession’was probably also heroin report people, including defendant’s The indicated that several attorney, and defendant’s condition. The mother his witnessed guilt report also “manifests and remorse indicated defendant activity.” report history drug of criminal and related observed, may more of [defendant] has the be “One sense and than an individual follower a victim circumstance rather initiate, difficulty.” originate, tends to and create Based who defendant, meeting psycholo- three-hour with Dr. Silikovitz’s diagnosed personality disorder gist defendant with antisocial (ASPD) drug multiple dependencies. report Dr. was harmful to defen- believed that Silikovitz’s
Soto case, Krakora, diagnosis. particularly the ASPD Soto’s dant’s hand, Lapidus, supervisor, agreed. on the other felt that conjunction diagnosis, report, viewed the entire doubts, Notwithstanding damaging. Soto’s and Krakora’s too possible Lapidus Dr. asked Silikovitz evaluate assess mitigating Dr. factors. Silikovitz met with defendant second time, again for three hours. Dr. Silikovitz relied on defendant’s put why reasons he should not be to death. After defendant’s own interview, copy of gave statutory Dr. Silikovitz a mitigating capital aggravating and factors used cases told Cuevas, Lapidus investigator, if him to call or he had *12 either any questions. counsel, telephone
Dr. Silikovitz met with conducted interviews family girlfriend, four former with members and defendant’s and Diagnostic of Disor- reviewed the and Statistical Manual Mental (DSM-III-R). ders, produced He revised third edition then a report. changed diagnosis diagnosis revised He his a ASPD of report “Adult Antisocial Behavior.” Dr. Silikovitz’s revised also provided greater regarding detail defendant’s remorse for his crime; home, included information about defendant’s lack broken supervision, models, of and of need for male role all which were abuse; history linked to defendant’s of substance discussed at addiction; length drug defendant’s abuse and and included some positive of defendant’s character traits.
Lapidus report conveyed liked the it revised because defen- remorse, regard figure, dant’s his for Franciotti as a father and susceptibility drug his to Franeiotti’s influence of because his Soto, dependency however, and need for. a male role model. “adamant” that Dr. Silikovitz should not be as a called witness because of initial ASPD and revised “Adult Antisocial Behav- himself, diagnoses. lawyers ior” As for Dr. Silikovitz the two also Lapidus genuine, differed. felt that he was that he cared defendant, credible, qualities that he was those would Soto, hand, jury. come across to on the other felt that doctor was inarticulate and unclear. Dr. met Silikovitz with completing report. counsel twice after his revised Annitto, psychiatrist expertise Dr. a with in the board-certified abuse, of field substance met defendant submitted brief report addressing drug of defendant’s use the time his Dr. confession. Annitto concluded defendant’s use cocaine, Valium, impact and heroin would had a dramatic have physical his condition at the time of his arrest and confession. report further concluded that defendant would have been confession, suffering severe withdrawal the time which just “say anything get as would have led him to about so some peace.” symptoms defendant described his relief Because Annitto, any prompting withdrawal without from Dr. the doctor found defendant’s account be credible. Associates, consulting
Counsel also retained Alfonso firm that in, specializes among things, presentation other the collection and Alfonso, psychosocial mitigation evidence. Cessie who ran *13 firm, Office. Coun- highly regarded in the Public Defender’s was background, history, and Alfonso defendant’s sel asked to evaluate family relationships mitigation purposes. Soto told Alfonso for “bad,” it possible, even if because much information as obtain as mitigating factors. also developing be in some Soto might useful Cuevas, for Defender’s Office who had worked at asked Public investigation of year, a her own defendant’s about conduct background. Although met counsel with Cuevas discuss case, they on how focus her did not direct Alfonso she should they investigation. Lapidus later relied on and testified Soto and, therefore, super- expertise not feel the need to Alfonso’s did her. vise reports, Dr. and the work
Alfonso never saw Silikovitz’s with Dr. Siliko- Alfonso Associates and Cuevas was never shared reports Lapidus vitz. later testified that were never shared Alfonso, they being prepared “contemporaneously.” because were however, report during had seen testified that she Dr. Silikovitz’s substantially investigation, would have more re- her she done Franciotti, relationship defendant’s search into defendant’s during figure, father the losses that occurred defen- need adolescence, depression, and dant’s childhood and defendant’s Likewise, Dr. defendant’s later testified that remorse. Silikovitz incorporated had he school records received defendant’s testing he report, Alfonso have conducted further because would learning disability. the records indicated discovery up appointments all Cuevas reviewed available set to interview a number of witnesses. interviewed defendant She spoke prison to his relatives. She obtained defendant’s County jail. the Essex records from State and from records, investigator also received some defendant’s school However, girlfriend. defen- she interviewed defendant’s former DiFrisco, it stepmother, made difficult to involve dant’s Janet half-sister, Theresa, Although investigation. defendant’s supposedly felt she Theresa close to defendant and Soto defense, testify. might helpful be she did not Soto decided subpoena not to Theresa because counsel did not know what she say at would the retrial.
In June Alfonso Associates sent defense an initial *14 associates, report prepared Alfonso and two one whom was report Carmeta Albarus. The revealed that defendant’s father unavailable, emotionally depressed was that his mother was and provide discipline, unable to and that defendant received little family support. report attention or provided also information use, drug about defendant’s that ex- stated defendant was posed drug to in young age. Finally, use the home at a report the models, that appropriate noted defendant never had male role neglect that father’s to led defendant’s lack of self-esteem. 1992, In Lapidus expressed October dissatisfaction about work- (the ing disagreement with Soto over Dr. helped put Silikovitz a relationship). strain their Krakora then removed Soto from assigned Liguori replace the ease and Peter to her. Soto and Liguori backgrounds legal had similar at the Public Defender’s Office. that,
In November Alfonso notified defense counsel due to problems, health she testify sentencing would be unable to Billy Feinberg, retrial. She recommended a social worker with experience testifying cases, in capital to replace her. in Also November, approximately retrial, six weeks sentencing before the Lapidus resigned from the Public Defender’s Office. Krakora try asked Soto to as resume work on case lead counsel and to Liguori. the ease with Krakora later testified that he had decided reassign presiding to judge Soto the case because the strictly deadlines, enforcing only court person and Soto was the knowledge position who a case was in to take over. Liguori Albarus,
Soto and that decided one Carmeta of Alfon- associates, testify place Although so’s would of Alfonso. Alba- experience testifying, rus had no counsel felt that she would abe satisfactory They witness. believed that she came across as genuine, person, attorneys warm and other Public Defend- agreed er’s Office be appropriate Albarus would the more prior to had no contact with defense counsel choice. Albarus rejected Alfon- Liguori they later 1992. testified November Feinberg, witness, Billy to call different so’s recommendation did. ease Albarus Feinberg did not know defendant’s because pre- turned toward defense counsel’s focus December testify. paring conducted re-interviews Albarus Albarus personal knowledge have people several so that she would Also, report. Alfonso individuals and the information in Alfonso’s incorporated infor- prepared report a second Associates gained The cover letter mation from those additional interviews. “no report report’s substance bore to the second stated that significant changes and and issues remain consistent” the themes report. with the first Alfonso counsel, Dr. becoming lead Soto decided not call
After expected of the testify. She believed that the benefits Silikovitz *15 by testimony outweighed diagnosis his of ASPD. doctor’s were Soto, Additionally, in Dr. Silikovitz described a conversation with reject “sociopath.” jury defendant as a Soto feared that would mitigation if it that defendant’s defense heard defendant suffered ASPD, “sociopath.” if it a from or heard him labeled Soto Silikovitz, rejected replacing ultimately but that considered Dr. say expert might idea she could be sure what another because not thought stressing drug about that defendant’s ASPD. Counsel family background approach and be a addiction would better under the circumstances. expert call Peter as an witness on
Soto decided to Dr. Schiffman drug judgment. a to person’s abuse and its effects on Soto chose drug scope testimony limit Dr. to the of Schiffman’s effects his general. abuse in believed that she had to confine She (the entirely not it testimony so that the court would disallow discovery long passed), had deadlines and because defense sufficient evidence to corroborate defendant’s had not uncovered using drugs specific claim that he was at the time of offense.
c. Sentencing The Retrial sentencing days, day The retrial lasted five one of which was mitigation to expert devoted defendant’s case. Two witnesses testified, Also, sister, Albarus and Dr. Schiffman. defendant’s father, brother, and mother testified. mitigation specialist, stating
Albarus testified as a that she performed psychosocial assessment of defendant. She narrated family background history drug and abuse. Albarus also briefly relationship discussed defendant’s with Franciotti. On cross-examination, prosecutor attempted to discredit Albarus by bringing undergraduate out the fact that did not have an she degree psychology, any degree.beyond did not have advanced level, undergraduate training and lacked in substance abuse. prosecutor highlighted also the fact that Albarus had never court, very before her report testified was similar to prior report by submitted Alfonso. regard testimony to sentencing With Dr. Schiffman’s at the retrial, testimony “devastating Soto recounted that his testimony, [defendant’s] defense.” Soto noted that the doctor’s anticipated, which deviated from that which Soto it had “made like danger.” example, look For Dr. [defendant] was Schiffman jury heavy usually paranoia, told the use cocaine leads psychosis,” may followed “out out and that a cocaine addict point “hurting people trying get even be driven to the [drugs].” supervisors One Soto’s testified he would agreed present have Dr. Schiffman as a witness. family They
Members of defendant’s testified. recounted defen- home, unhappy neglect, drug dant’s his father’s his- abuse. *16 rested, After both sides had defendant made a brief statement jury asking spare to the the members to his life. Outside the jury’s presence, engaged colloquy counsel a with the court permitted to to about whether defense counsel would be allude defendant’s remorse. to Counsel intended in their summation jury mitigating to as a factor. remorse the submit defendant’s striking as considering remorse told that it was The court only no evidence of it.” The because “there’s mitigating a factor observed, remorse, was in defendant’s suggestion of the court objected, stating jury. to Defense counsel statement the of is of the central themes our defense.” “remorse one stretch, ultimately “although may be a The ruled that it court ... may continuing presence the of remorse from jury the infer they testimony, prior if prior [the confession] the statements closing, argue In did defendant’s remorse so wish.” Soto contending an otherwise unsolved that defendant’s confession to against penalty, as as weigh heavily, the death well murder should Finally, spoke of police. Soto cooperation defendant’s with the drug how that affected Franciotti’s influence use and defendant’s over defendant. verdict, jury unanimously aggrava- first found that the its factor, pecuniary gain, been
ting the murder was for had beyond jury a reasonable doubt. The did unani- established find, rejected, the existence of the mously and therefore second factor, aggravating pur- was committed for the murder pose escaping of detection for another crime. form, jury’s findings mitiga-
As reflected on the verdict as tion were follows: of or
a. The defendant was under the influence extreme mental emotional to to disturbance insufficient constitute defense prosecution[.] (12) (0)No Yes wrongfulness of his conduct or to
b. The defendant’s capacity appreciate significantly as conform his conduct law impaired requirements degree intoxication, or or but not to a the result mental disease defect sufficient constitute defense prosecutiont.] (0) (12) No Yes
c. defendant rendered substantial assistance to the State in the prosecution murder[.] another crime person
(6) (6)No Yes upbringing of DiFrisco. Anthony d. The childhood and (0) (12) No Yes *17 recognition
e. DiFrisco suffered from Anthony love, his father’s lack of and attention. (0) (12) No Yes f. Anthony DiFrisco’s mother was unable to him with the provide discipline guidance growing he needed while up. (12) (0) No Yes g. guidance DiFrisco could not turn his two Anthony to older brothers for drug because were abusers. support they (12) (0) No Yes h. DiFrisco never Anthony self-esteem. developed any (0) (12) No Yes i. DiFrisco’s emotional level Anthony was stunted due to his maturity early drugs. addiction (12) (0) No Yes j. drug Anthony DiFrisco’s excessive abuse affected his sound ability make judgments.
(8) (4)No Yes k. DiFrisco was Anthony vulnerable and to the older Franciotti susceptible figure. he him because looked as a father up (0) (12) No Yes drugs. l. DiFrisco was Franciotti Anthony dependent upon (1) (11) No Yes m. DiFrisco allowed Anthony himself to be Franciotti. manipulated Anthony (0) (12) No Yes confessing n. motivation Anthony DiFrisco’s to the was murder remorse. (0) (12) No Yes killing o. DiFrisco Anthony remains remorseful about Edward Potcher. (11) (1)No Yes killing Edward Potcher’s p. would have remained if unsolved, DiFrisco Anthony himself had not confessed. (0) (12) No Yes other factor is which relevant to or q. Any the defendant’s character or record the circumstances of the offense. (12) (0)No Yes indicated, jurors As mitigat- one or more found thirteen of the thirteen, ing jury factors. Of those found nine factors unani- mously, including maturity' that defendant’s emotional was level addiction, drug stunted due to that defendant was vulnerable Franciotti, susceptible to that defendant allowed be himself to Franciotti, manipulated by and that the murder itself would have jury con- not confessed. The defendant unsolved had remained aggrava- “unanimously that the one satisfied” that it cluded beyond mitigating a reasonable' outweighed the factors ting factor *18 to Consequently, the trial court sentenced defendant doubt. death.
D. Relief The Petition Post-Conviction present petition for PCR February defendant filed assistance of counsel alleging he had been denied the effective sought experts Defendant also sentencing at his retrial. and of jurors from the- permission for to interview the court’s leave retrial, by provided an sentencing information based unsolicited defendant, information, juror. according sug- That alternate jury extraneous information and gested that had received attempted verdict. Defendant also to return a non-unanimous opportu- evidentiary hearing he have the sought an in which would expert testimony by and four nity present factual witnesses experts, by newly-retained counsel. witnesses retained PCR thorough, competent investiga- argued, defendant conducted the by counsel at the that should have been conducted defense tion penalty retrial.
First, testimony Alan sought to introduce the of M. defendant Goldstein, Ph.D., psychologist, twenty- a who conducted forensic defendant, family interviewed hours of interviews with six friends, psychological set Dr. Gold- and administered a of tests. and is remorseful and does not concluded that defendant was stein that defendant suffers from ASPD. Dr. Goldstein also found suffer Deficit/Hyperaetivity Disor- learning a Attention from disability, abuse, which, (ADHD), years of substance der combined reliance on others in explained poor judgment and excessive his Finally, report, Dr. Goldstein discussed social situations. his which, ways opinion, Dr. of in his Silikovitz’s evaluation inadequate compared as to the incomplete was defendant competent psychologist. of care of a standard Second, sought testimony defendant to introduce the of Wilfred Ph.D., Gorp, neuropsychologist. Van Gorp Dr. Van concluded. childhood, from ADHD defendant had suffered since and his years were by abilities further diminished of substance abuse. Gorp Dr. impairments Van concluded that defendant’s made it situations, difficult for him to make sense social and resulted in excessively being figures his mentor-type influenced Fran- like ciotti.
Third, sought present testimony defendant L. Robert Smith, Ph.D., psychologist expertise diagnosis with an in the treatment of substance abuse. Dr. Smith evaluated effects of drug cognitive functioning defendant’s abuse on his and concluded that, offense, ability appreciate the time of the defendant’s wrongfulness his actions was due to his sub- diminished stance cogni- abuse. Dr. Smith further concluded that defendant’s capacity severely impaired confession, tive at the time *19 due to the combination of from withdrawal heroin and acute cocaine intoxication.
Fourth, sought testimony defendant the of introduce Jill Miller, mitigation specialist, completed comprehensive a who a psychosocial history of defendant. Miller found defendant to be remorseful, a supported by conclusion her interview Sister with Gnam, prison chaplain met many who with defendant times and reported that defendant was remorseful. Based interviews life, with people throughout who have known defendant his Miller capable concluded that defendant was of In addi- rehabilitation. tion, mitigation investigation Miller evaluated the conducted the defense counsel retrial and concluded that it inade- quate and deficient.
Finally, sought expert report defendant to introduce the Brack, attorney testimony capital of I. an with expertise David litigation. report, analysis Brack that defen- his stated his of performance dant’s case led him conclude that retrial counsel’s fell capital well below national standards for defense counsel. reports pre- the accepted into evidence above
The court PCR report. exception of Brack’s pared by experts, new any testimony those hear in-court from The court declined to Instead, testimony from experts their the court heard or sources. lawyers repre- previous experts, and who defendant’s from sentencing supervisors. at his retrial and their sented defendant jurors. motion The court denied defendant’s to interview PCR testified, argued points had six After all witnesses defendant defendant’s of counsel. The court denied ineffective assistance issue, court retrial petition. As to but one found that all had The sole issue on performance counsel’s been reasonable. conduct was the second motion to which the court found deficient however, issue, guilty plea. withdraw defendant’s On prejudiced by counsel’s court held defendant had been performance. deprived that he was Defendant also contended experts, and right effective assistance of constitutional penalty is unconstitutional. The court ruled that the death scope hearing. beyond were of the PCR both claims 2:2-l(a)(3). appeals right. as B. Defendant this Court II. of Review
Standard
may
legal principles governing our review
stated
be
briefly.
Washington,
Supreme
In Strickland v.
the United States
applicable
determining
Court set forth the
test for
whether
assistance of
as
criminal defendant has received effective
required by the
Amendment to the United States
Sixth
Constitu
(1984). First,
tion.
219
that,
probability
unprofessional
“reasonable
but
counsel’s
er-
rors,
Id.
proceeding
the result
would
of the
have been different.”
694,
2068,
S.Ct. at
at
104
prong
This
42,
(1987).
N.J.
105
[Id. 336.] at 519A.2d Davis, v. State the Strickland standard to applied this Court phase 341, 356-57, trial. 116 N.J. guilt capital of a A.2d (1989). We appropriate reasoned that the standard was the test, stating: guaranteed defendants are counsel. Capital competent Obviously capital of an
measure advocate’s the task be competency depends accomplished. The best intentions the most efforts do devoted not necessarily equate We to have an competence. expect defense counsel capital capital expertise regarding the considerations cases. The special present capital Strickland/Fritz standard demands no less.
[Id.
1082.]
at
561 A.2d
Marshall,
In State v.
prejudice
the Court differentiated the
Strickland standard when
prong
evaluating
per
counsel’s
(1997)
89, 250,
148 N.J.
penalty phase.
formance
220 during penalty jury’s
substantially affected the deliberations (1999). 252, 233, A.2d 469 Bey, v. 161 N.J. 736 phase.” State probability reasonable that explained “[t]he We further penalty phase capital a counsel in the ineffective assistance of substantially jury’s penalty-phase deliberation affected case probability confidence in equates ‘a sufficient undermine ” 250, III, A .2d 1 supra, 148 at 690 the outcome.’ Marshall N.J. 2068, Strickland, 694, 80 supra, 466 at 104 S.Ct. at (quoting U.S. 698). relevant petition, the context of this L.Ed.2d at Within argu prejudice prong is whether defendant’s inquiry under the errors, mitigation, as his asserted respect ment as well other penalty- in the outcome of the undermines the Court’s confidence phase Ibid. deliberations.
Ultimately,
satisfy
prongs,
a defendant must
both
of the
capital
court
aside a
test before a
will set
Strickland/Marshall
grounds
Strick
sentence on
of ineffective assistance
counsel.
land,
697,
2069,
699;
at
at
supra,
ments.’
v.
160 N.J.
III. now argues We consider defendant’s claims. Defendant that (1) sentencing counsel the retrial was they ineffective because: (2) present remorse, failed to available evidence of defendant’s they present failed to available evidence of defendant’s relation- (3) crime, ship they with Franciotti and its role in the failed to present positive of evidence defendant’s character attributes and (4) potential, rehabilitative their the cumulative errors at sentenc- (5) defendant, ing prejudiced they pursue retrial failed to defen- State, (6) cooperation performance dant’s with the their on the guilty plea prejudiced motions to withdraw defendant’s defendant. appeals Defendant also the PCR court’s exclusion of the ex- perts’ testimony, report in-court the refusal to consider of Brack, David of denial the motion for leave to interview jurors sentencing Finally, argues from the retrial. defendant deprived right that he was his constitutional to effective experts, penalty assistance of and that the is death unconstitution- if al. We that even claims of counsel conclude defendant’s error prong, have merit under first we are satis- Strickland/Marshall’s substantially jury’s penalty- fied that such errors did not affect the phase deliberations. We further conclude no asserted error part of the PCR court reversal warrants court’s disposition. ultimate
A. Ineffective Assistance of Counsel 1. Evidence of Defendant’s Remorse argues Defendant first that he assistance received ineffective sentencing counsel at his retrial counsel when failed discover The evidence to which present evidence of remorse. possessed at the refers is both information counsel defendant by and Jill gathered Dr. Goldstein time of retrial and information Miller, Specifical- mitigation specialist, petition. this PCR for incompetent for that retrial counsel was ly, defendant contends expert; psychological failing replace Dr. Silikovitz with new expressions remorse present that counsel failed relevant possession, namely, Dr. were in their Silikovitz’s defendant that notes; and reports interview that counsel and Carmeta Albarus’s Alfonso, failing mitigation to instruct incompetent ' investigate specialist, to remorse. present counters that retrial counsel did evidence of State strategically present as but chose not to Dr. Silikovitz remorse n witness. Although report the Silikovitz referred defendant’s remorse, aspects of it would have devastated the defendant’s other mitigation argues that was not case. The State also *23 testify obligated expert witness to about defen- to seek another fundamentally, disputes the State dant’s remorse. More evidence, in arguing of essence that because power remorse impact anyone express regret, such evidence has a limited on can jury. a points
The out the PCR State also that Albarus testified at hearing testify supposed that was that she knew she about Thus, State, was remorse at the retrial. contends the counsel not testimony responsible if Albarus’s was deficient the issue of remorse. further notes that defendant cannot demon- The State any present prejudice greater from counsel’s failure to strate prong evidence remorse under the second of of Stricklcmd/Mar- shall. that did
The PCR court found not overlook remorse at retrial, presentation not in its of and that counsel was ineffective The court noted that Dr. Goldstein’s and Miller’s remorse. Jill although “dilemma” faced reports, impressive, reflected same report. The dilemma regarding retrial counsel Dr. Silikovitz’s every piece good was that of information about defendant seemed
223 carry Consequently, it information. the court conclud- with bad call ed that it was reasonable for counsel to choose not to Dr. Silikovitz as a witness. may although
The court also found that Dr. Silikovitz not PCR defendant, battery he performed comprehensive have a of tests on necessary did assure counsel that he had conducted all tests. Therefore, concluded, it reasonable for counsel to the court rely replace not to Dr. on those assurances and to decide Silikovitz expert. with another explained:
The PCR court
in
in
trial counsel
omitted to
The record
this case is not one
which
completely
investigation
mitigation.
factual
of
A number of
conduct any
potential
experts
investigation mitigating
although
not
were utilized
factors
were
called
they
at
trial.
as witnesses
testify
prejudice
a
is reserved for those cases where there has been
presumption
deserving
in this
is not
denial
counsel. Counsel’s
case
complete
performance
jury
judgment.
Remorse was an issue that was submitted to the
jury rejected
evidence,
manner described
in this record. The
previously
at
of his
not convinced that the defendant was remorseful
the time
arrest
obviously,
and confession. Additional evidence of remorse elicited
after the fact
many years
convincing.
more
would
be
likely
principle,
duty
a
agree.
general
We
As a
“counsel has
investigations or to make a reasonable decision
make reasonable
Martini,
unnecessary.”
particular investigations
that makes
su
Strickland, supra,
pra,
(quoting
ing factors on remorse. escape a that defendant confessed to short illogical to believe rather, theft; is he “did it because the remorse jail term for car get why he He had to it off his overwhelming. That’s confessed. addition, reached to clean the slate.” In chest. He had testimony family presented their at the out to defendant’s sentencing retrial. generated through experts information
Based on the reasonable, case, investigators retrial counsel made on benefit, decision not to call Dr. Silikovitz. To defendant’s tactical jury diagnoses from the and other that decision shielded reports negative information that the Silikovitz revealed about replace defendant. That counsel decided not to Dr. Silikovitz with expert given is the fact that psychological a new understandable performed assured counsel that he had all the Dr. Silikovitz necessary Dr. had tests and interviews defendant. Silikovitz diagnosed defendant with and then modified that to “Adult ASPD Thus, Behavior.” counsel would have been reasonable Antisocial like expecting expert that another would have arrived at a conclusion.
Although
may
an
when the choice
there
be
occasion
investigation,
replace
expert
fatally inadequate
an
indicate a
would
replace
counsel’s decision not to
Dr. Silikovitz was within an
Calderon,
range
appropriate
of discretion. See McDowell v.
(9th
1351,
Cir.), superceded
part
grounds,
F.3d
on other
(9th Cir.1997),
denied,
Defendant, prong has not satisfied the first otherwise, Even if we were to conclude we Stricklcmd/Marshall. not met that test’s are confident our view that defendant has aggravating prong. jury the murder-for-hire second found brutality the nature and factor based on evidence reflected Moreover, silent about defendant’s crime. defendant remained months, eight confessing only the murder for after he had been Lastly, charges in a different had arrested unrelated state. Goldstein, replaced by jury Dr. Dr. have Silikovitz been would statements, in the exposed been to defendant’s reflected Goldstein guy” a “rat “scum report, that he considered Poteher to be my Those bag” and that he killed him to “make life easier.” extremely difficult it have statements demonstrate how would jurors purported contrition. Un been to convince defendant’s circumstances, greater por we are satisfied that some der those trayal significantly have of defendant’s remorse would not affected jury’s deliberations. Relationship Franciotti
2. Evidence of Defendant’s story argues next the “real” of how defendant Defendant jury murder was not told to the because came to commit the *26 develop dependence of defendant’s counsel had failed to evidence present that counsel failed to to on Franciotti. Defendant adds why grew to jury a narrative of how and Franciotti coherent important in life. Before the occupy such an role defendant’s court, dependence attempted defendant to demonstrate his PCR life, family by presenting on evidence of his troubled his Franciotti abuse, long history drug desperate figure, for a of his need father neurological impairments, and the numerous traumatic losses defendant, According explained why in his life. to that evidence he had committed murder at Franciotti’s behest. essentially that counsel aware
Defendant contends retrial was of investigation that and that further would have led them evidence ADHD, Goldstein, diagnosed by Dr. to learn of defendant’s later tragic during teenage and and the loss of loved ones his childhood years. Though presented that retrial defendant concedes Franciotti, dependency ar- evidence defendant’s defendant testimony gues justify that such was minimal and insufficient to apparent willingness defendant’s to kill for Franciotti. testimony presented The court found that at PCR sentencing painted background picture retrial a of defendant’s and life, including figure drug home his lack of a father and his use. court, According presented to the the evidence that PCR counsel was, best, not new and was cumulative. court concluded present mitigation that the fact that more could have been done to evidence does not establish ineffective assistance of counsel. similarly. dispute
We reason There is no serious that presented relationship retrial counsel evidence about defendant’s Franciotti, relationship weighed heavily that and that in Additionally, defendant’s commission of the murder. retrial coun testimony presented personal sel of defendant’s difficult life and abuse, history drug portrayed and defendant as Franciotti’s brief, accurately summa- In its the State “victim” summation. testimony: rizes strained Carmeta Albarus defendant’s relation- spoke At the penalty phase, to look for a With replacement. with his father and defendant’s attempts ship
regard York met at a New Franciotti, Albarus testified they penitentiary what attracted him to defendant Franciotti, When she asked defendant State. strong was him, that Franciotti had a about he answered “presence” intelligent that Franciotti listened to and reminded defendant of his father except father did not do. Because of that defendant quality, him which defendant’s him with Franciotti who told that when he was released formed a close relationship [out].” him That on Franciotti deepened from he could “check dependence prison, drugs him with which defendant used himself. when Franciotti sale provided drugs telling that he Defendant was nervous about Franciotti that he had used gave Franciotti told defendant not to However, worry sell. supposed drugs. him defendant became addicted to totally more Eventually, completely drugs. Albarus indicated that because he was defendant, When asked assess guidance and emotional which he needed to become nurture, stability deprived could not resist Franciotti. adult, socialized he who did not wrong. who because her. while She believed that defendant defendant told brothers were unavailable father abandoned the family wanted his father when attributed to children into adulthood. end of the stick” because school concert where defendant performed; ment father was defendant’s family. construction industry no defendant’s and how he would Fran Albarus also testified about defendant’s Fred Fran also described her father’s relationship believed Fran, He was “dressed when, they DiFrisco, DiFrisco, their father In She ill, 1986, were his dropping father know how to show having in defendant as a peer pressure noted that when defendant was about being her about Franciotti. He described Franciotti surrogate with defendant. She spoke while Fran was defendant’s growing defendant’s around, provided cry told helped only in New York. out of school and ask beautifully” to leave the As for mother, he had no real to teach him paid defendant’s up, run the flower and his no emotional support, sister, to brother, began to use there person attention to his children when defendant, why love begin living moved California when was testified that their father was affair and non-nurturing shop by his father did not love and want his children and who had no was no constructive role model to lead the father had a new wife and and was testified about positive in relationship he to relationship New “really Fred indicated that he of how defendant “idolized” his father shop home of defendant’s his father. drugs Mexico, things. going [13] looked [his life, including family negative and of defendant’s disappoint- with a to with his father and and his brothers also relationship his 6 or father’s defendant came out to visit get including give good.” During his visit, drug life. Fred claimed feeling 7, her father’s attention younger woman; him a impact not as at an they business] addiction, wonderful, daughter and had showing got the “shortest how defendant’s with defendant. of abandonment good job cold, did it had on the age *27 something hard while his which he when his older up left; a man in the for a man how he 228 hurt father. Fran around him. Fran believed that defendant was his very by drug described the use in the her brothers and revealed an incident in family by high drugs.
which defendant saw Fred beat Fran while Fred was on Defen- up drug catalogued. own use was Fran talked about when she how, dant’s Finally, left defendant felt all alone and abandoned. home, drug began 12 Fred talked about his which when he was about addiction, in intensified when his father was incarcerated. He mentioned incidents which drugs in brother, both his and he would use and overdose the house and be Richie, drug he could not addiction, seen defendant. Fred admitted that because by being drugs” be a for his as tried “on as much as he could brother, role model he During getting drugs, be. his teen defendant started involved with years, “stay anything.” drug numb and not feel Once he kicked his Fred tried to habit, help defendant but defendant did listen. When asked Fred answered: why, “[d]rugs something It does niimbs It from you. you. separates you yourself. get You don’t hear it. You have to be in pain help.” regard With to the traumatic losses that retrial counsel allegedly investigate, did not the record indicates neither family defendant’s nor defendant mentioned those losses inter failing views with the defense team. cannot be faulted for Counsel expend analyzing they time or resources events about which Norris, (8th 621, were never alerted. Fretwell v. 133 F.3d 627 denied, Cir.), 846, cert. 115, U.S. S.Ct. L.Ed.2d 92 142 Strickland, supra, (1998). along Court observed those same lines: The reasonableness of counsel’s actions be determined or may substantially influenced the defendant’s own statements or actions. Counsel’s actions by are strategic based, informed choices made the defendant usually quite properly, by investigation and on information the defendant. what supplied particular, decisions are reasonable on such For information. depends critically example, generally
when the facts that a certain line defense are known support potential investiga- to counsel because of what the defendant has said, the need for further altogether. tion be diminished or eliminated may considerably
[466 695-96.] U.S. at 104 S.Ct.at 80 L.Ed.2d at presented problems. One event known to counsel its own paralyzed Counsel knew that defendant’s Mend had been shot and *28 high-speed police Virginia in connection with a chase with when years reasonably defendant was sixteen old. Counsel chose not to present tragic jury incident to the because it also involved chase, defendant. Defendant had driven the car involved in the passenger. support mitigation, with his Mend as the Rather than negative light in a likely placed have defendant that incident would jurors’ minds. in the regarding of evidence Franciot- adequate presentation
Counsel’s unanimously jury found the by the fact that ti is confirmed (1) from his following mitigating factors: that defendant suffered (2) love, attention; that defendant recognition, and father’s lack of Franeiotti, he susceptible to the older whom was vulnerable and (3) figure; that defendant allowed himself up looked to as a father (4) Franeiotti; manipulated by that defendant’s mother was to be guidance discipline and he needed provide him with the unable (5) up; defendant could not turn to his two growing while they drug guidance support, because were older brothers (7) (6) self-esteem; abusers; developed that defendant never to his maturity level was stunted due that defendant’s emotional drugs. early addiction to drug
Additionally, jurors that defendant’s excessive four found judgments. ability to make sound While affected his abuse may have been suggested by mitigation PCR case for presentation, we are thorough cohesive in its more and more representation adequate received persuaded that deféndant this issue. Positive Character Evidence of Defendant’s
3. Potential Attributes and Rehabilitative conduct a reason- argues counsel failed to that retrial Defendant positive char- regarding defendant’s investigation of evidence able that he potential. Defendant states acter traits rehabilitative offenses, many positive character and had history of violent had no positive prison. He cites the positive record in attributes and a' by retri- interviewed descriptions provided by witnesses who were sister, brother, mother, counsel, and father. namely, al defendant’s ele- persons, such as defendant’s interviewed other PCR counsel teacher, defendant in favorable mentary who characterized school prison records demon- also submits terms. Defendant potential. his rehabilitative strate *29 only pre- Defendant that the evidence retrial contends counsel positive testimony sented about his attributes was the of his siblings. argues investigate He that his counsel failed to thor- information, oughly background positive defendant’s for and that objectively given attempt that failure was unreasonable the State’s depict defendant as a cold-blooded contract killer. Defendant, however, acknowledges that retrial counsel directed investigate adjustment Cuevas to defendant’s to incarceration over years during the five which he had been incarcerated for this investigation, crime. As a result of that Cuevas found that scam,” defendant had been involved in a “sneaker in which he prisoners. obtained brand-name sneakers and sold them to other hearing, At the PCR Soto recalled that defendant described hobby stealing himself as a wild kid whose was cars. Soto also had notes shooting that contained references to defendant some- one, juvenile he possessing gun. was arrested as a for Albarus, In an interview with defendant long history described a stealing cars and appearances characterized his court as a “joke.” presenting good Soto thus chose to limit character evi- dence to prior avoid admission of defendant’s bad acts. argues presented
The State
positive
retrial counsel
some
information, and
present
made a wise tactical decision not to
potential
evidence of
opening
rehabilitative
to avoid
the door to far
damaging
more
information. Had retrial
argued
rehabili-
tation, the
responded
State could have
history
with defendant’s
activity.
respect,
criminal
In that
points
the State
out that
defendant
years
was sentenced to one-and-one-half to three
im-
prisonment
burglary in
absconded from a work release
program
for two months in
and killed Edward Potcher
shortly
parole.
after his release from
agreed
State,
finding
PCR court
with the
the new
presented by
evidence
regarding
PCR counsel
positive
defendant’s
“significantly
character attributes
different
than that
trial,”
presented
which was
the time of
and that “[t]he new
evidence is at best cumulative.” The PCR court further found
reasonable,
that retrial counsel had made a
tactical decision to
counsel,
proffered by
avoid much of the evidence
PCR
because
damaging
opened
evidence
the door to
rebuttal evidence.
*30
Soto,
deciding
in
to limit
of defen
We concur.
evidence
character,
good
strategic
made a
decision that was not
dant’s
prevent
prior
unreasonable.
She wanted to
rebuttal evidence of
damaging testimony,
bad acts and other
and that tactical decision
supra,
“heavy
is entitled to a
measure of deference.” Martini
160 N.J. at
In the like defendant had that Martini present mitigation his trial counsel’s failure to certain evidence at penalty-phase trial constituted ineffective assistance of coun claim, Id. at rejected A.2d 257. The sel. 734 Court that effect, concluding that of the evidence as “[i]n usefulness seriously mitigation by aspects.” undermined its unfavorable [was] Ibid. Our rationale for that conclusion informs our decision here: recognize [] that if We the evidence used would have the door to opened damaging rebuttal evidence the State. In a the State is trial, by penalty-phase mitigation entitled to with relevant evidence of defendant’s testimony impeach subject to an instruction that the evidence is admissible for the conduct, only past rebutting mitigating factors and cannot be used to add to the limited purpose jury
weight assigned aggravating limiting to the factors. Even with a by mitigating in of limited value instruction, this case the evidence presentation countervailing would have the door to that could have testimony opened powerful jury against defendant. swayed (internal omitted).]
[Id. 257
citations
261-62,
A.2d
v.
conclusion,
defendant cites Collier
arguing
contrary
In
for a
Collier,
(11th Cir.1999).
Turpin,
Collier, however, case, In trial counsel distinguishable. is in a little more than one hour. presented mitigation ten witnesses cursory of the at 1201. conducted a examination Id. Counsel witnesses, questioned merely respect in a number of whom were veracity. reputation of the defendant’s for truth and Ibid. contrast, presented gave a retrial counsel here witnesses who background attempted detailed account defendant’s jury. defendant for the Those efforts are demonstrat- “humanize” jury mitigating ed the various factors the identified on its verdict form.
Thus, respect of defendant’s character attributes and rehabili- potential, performance tative we find no deficient under Strick- prong prejudice first and no under the second land/Marshall’s prong. Mitigation
4. Cumulative Errors Case *31 that Defendant contends that the cumulative errors retrial presentation mitigation counsel committed their evidence require penalty-phase disagree. a trial. of our new We view previous analysis, that not we conclude defendant has demonstrat- presented mitigation ed cumulative error. that Counsel case childhood, use, drug dependence stressed defendant’s Franciotti, engaged mitigation psycho- the assistance of logical experts investigate background. in an effort to defendant’s decisions, time, Counsel also made understandable at the to avoid may presentation of evidence that have led to the revelation of damaging information about defendant. important, assuming that retrial
As
counsel had been deficient
areas,
jury’s
in one or more
we do not believe that the
delibera-
substantially
tions would have been affected
as
result of those
unpersuaded
are
that the cumulative force of all
deficiencies. “We
penalty-phase
measurably greater
than that of the
claims is
III,
supra,
individual claims.” Marshall
5. Counsel’s Failure to Pursue Defendant’s Cooperation
Possible With State argues pursue Defendant next that retrial counsel’s to failure possibility cooperation defendant’s with the State prosecution of Franciotti performance constituted deficient prejudiced attorney, defendant. Defendant asserts that his first DeLuca, rejected coopera- the State’s efforts to secure defendant’s subsequent tion. Defendant contends that retrial counsel’s refusal explore possibility cooperation, in the even absence an sentence, compounded deficiency. offer of a life DeLuca’s claim, summarily The finding PCR court dismissed this support defendant had made no record to it. The court noted testify hearing, DeLuca was not called to as a witness at the PCR proving and therefore defendant did not meet his burden of However, directly entitlement to relief. the PCR court did not counsel, DeLuca, address whether retrial rendered ineffective by failing pursue cooperation assistance of counsel defendant’s with the State. DeLuca, regard previously we
With
have
determined that his
representation
constitutionally
of defendant was not
deficient in
II,
DiFrisco
plead guilty.
relation to his advice that defendant
find,
supra, 137 N.J.
With to retrial the record indicates that conveyed being repeatedly defendant his concerns about Soto perceived day if cooperated. opening as a “snitch” he before retrial, arguments sentencing Liguori in the Soto and met with the *32 prosecutor assistant and made clear that defendant would not testify grand jury agreed before the unless the State to a life subject spoke sentence. before Counsel defendant about this presenting position prosecutor. their to the are that We satisfied concerning possible cooperation counsel had consulted defendant State, representation was that retrial counsel’s with the prejudicial. nor neither deficient 6. Performance on the Motions Withdraw Guilty Defendant’s Plea claim centers on retrial Defendant’s final ineffective assistance guilty plea. Ac- to withdraw defendant’s counsel’s failed effort defendant, performance it counsel’s deficient is cording to but for permitted to reasonably probable that defendant would have been guilty plea not have received the death withdraw his and would penalty at retrial. guilty to withdraw defendant’s respect
In of the first motion guilty plea not know- plea, counsel asserted that defendant’s was voluntary. argument support of that motion ing and Counsel’s defendant, what primarily rested on what DeLuca said to consequences plea. Defen- understood to be the of his defendant approach unreasonable dant maintains that retrial counsel’s evidence, they through report, because had Dr. Silikovitz’s gave authority figures. If that defendant deference excessive psychological developed appropriately, been de- information had why unduly argues, explained it would have DeLuca fendant and, why consequently, plea was not influenced defendant knowing voluntary. Echoing argument, or an earlier defendant replace not to Dr. contends counsel’s decision Silikovitz psychologist another constituted ineffective assistance of counsel. motion, argued respect of the second to the motion advising plead court that DeLuca was ineffective defendant to guilty investigate possible because DeLuca did not defenses for erroneously that defendant’s confession the case and assumed suppressed. Although ample of defendant’s would not be evidence prior drug use at the time of the confession existed to defendant’s guilty plea, to uncover it. The motion court denied DeLuca failed motion, noting produce failed to the second retrial counsel they produce: DeLuca had failed to same evidence that claimed
235 drugs that was defendant under the influence of at the time of his confession. now that
Defendant contends that evidence was available to motion, retrial counsel at the time of second as was evidence drugs was under defendant the influence of time of the argues that present- murder. Defendant thus had retrial counsel argument ed that evidence in their of DeLuca’s ineffectiveness at motion, the second defendant have permitted would been guilty plea. withdraw his rejected relating
The PCR court claims both to defendant’s guilty plea. The deficiency court no found retrial counsel’s present authority failure to evidence of defendant’s deference figures. “newly The court noted discovered evidence simply by [that defendant overborne DeLuea’s did not advice] posed by overcome ‘formidable barrier’ the record made (That the trial court[.]” record indicates that defendant under- consequences plea.) stood the of his only deficiency court found as the that counsel had PCR. present drug faded to evidence of the time of defendant’s use at However, during his confession the second motion. the PCR court concluded that had it presented that evidence would Accordingly, not have affected the outcome of motion. court held that defendant had satisfied Strickland/Marshall’s prejudice standard. admissibility may governing
The law be confessions succinctly only “A if stated. custodial confession is admissible knowing, intelligent, voluntary there has been waiver of 354-55, 326, rights.” Cooper, Miranda 151 700 State v. N.J. A.2d (1997) Arizona, 444, (citing 306 Miranda v. 384 U.S. 86 S.Ct. 1602, 1612, (1966)). evaluating 16 L.Ed.2d 707 When volun tariness, circumstances, totality a court reviews the of the includ ing the characteristics of the defendant and the nature of the Miller, 392, 402, interrogation. State v. N.J. A.2d 218 388 (1978). suspect’s has inquiry is whether will At the root Ibid. been overborne. case, supports the conclusion
In this the record *34 voluntary applicable under standards. confession was defendant’s rights, the Miranda waiving his defendant confessed to After murder, crime, gave description of the and he drew a he detailed surrounding diagram pizzeria its area. Defendant of the pizza by pizzeria did sell the slice. further recalled that Jack’s not vividly suggests recount those facts so That defendant was able to unduly impaired spoke police. when he to the that he not was Moreover, present confession testified a detective at defendant’s drugs appear to be the influence of that defendant did under circumstances, speaking he him. Under those evi when was to likely drug of use at the time of the confession dence defendant’s the disposition on motion to would not have resulted in a favorable plea. the withdraw properly that court dismissed defen-
We thus conclude the PCR relating guilty to dant’s assistance of counsel claims the ineffective plea.
B. Testimony Experts’ Exclusion the PCR refusing court to hear Defendant asserts that the PCR erred Goldstein, testimony experts, Gorp, in-court from Dr. Dr. four Van court, Smith, Before the asked Dr. and Jill Miller. PCR testimony permit well as receive the that the court such as experts’ reports Specifically, into evidence. PCR counsel stated testimony certainly be the four that would within corners “the reports, opportunity I’m like the to the but sure the State would cross-examine, opportunity present and —and like the to we would testimony.” their record,
After review of the trial court stated: some PCR I’m now what would if had been the say aware of your they experts experts trial____ original during were called psychologi- I know there is now some difference as opinion to what true get prong, was. cal condition And if we quite [I] the first could frankly, past accept that that’s what witnesses would your wouldn’t need to hear from one of say, legal ruling. those witnesses. And I could still amake going do I them to what I point is, need know You repeat they’re say? thorough____ have couldn’t been more single [I] don’t know that I need hear necessarily come here and every person tell me what best would be. You have done a your presentation very, very thorough job presenting to me your what best case would have like. looked challenging ruling, argues the PCR court’s defendant that the experts’ testimony necessary in-court experts for the explain findings significantly their were different from those presented sentencing responds by retrial. The State that, detail, arguing reports because of their obviated need testimony. for in-court agree “Ordinarily,
We
necessity
State.
admissibility
expert testimony
are
matters
be deter
within
mined
the sound exercise of discretion
the trial court.”
Berry,
280, 293,
(1995) (citation
State v.
140 N.J.
*35
We are satisfied the PCR court did not abuse its discre excluding testimony. experts tion in the The were offered to show findings significantly findings that their were different from the of experts recognized pur the at retrial. The court PCR that the pose expert reports of the new towas demonstrate that the which experts retrial failed to uncover. reports explicitly
Dr. Goldstein’s and the Miller’s state how performance allegedly experts of the retrial With was deficient. defendant, respect to Dr. Silikovitz’s evaluation Dr. Goldstein expressed his view that Dr. Silikovitz had to failed administer of personality series essential element tests that are “an of a psychological the evaluation conducted comprehensive forensic Similarly, report reasonably prudent professional.” Miller’s ex- investiga- tensively deficiencies of the Alfonso details the asserted many tion, noting to their failure interview addition “[i]n information, made Associates mis- potential sources of Alfonso conduct, in they did that resulted their in the interviews takes significant and information.” failure to obtain valuable helpful the from might PCR court to hear the It have been experts diagnoses investigations on- their differed new how view, experts. permitted In our to have from the former said, experts testify preferable. have been That would experts are clear from differences between new former Indeed, acknowledged defense counsel reports. written testimony certainly be within the four corners “the would subject reports,” indicating reports that those covered the matter experts testify. those circum- about which the would Under stances, rely solely its the PCR court was within discretion experts’ written submissions.
C. Report Refusal to Consider the of David Bruck argues Defendant the PCR court’s denial of his PCR petition must due to the court’s exclusion be reversed Bruck, testimony report of David who was offered an as capital litigation. question defense is whether the expert opinion excluding its PCR court abused discretion Brack’s and, so, report if considering without the content Brack’s requires that error reversal of the lower court’s ultimate whether disposition. *36 Brack, argued to the court an
Defense counsel PCR twenty attorney years experience working in the with over of area defense, present opinion of on the capital should be allowed to capital attorneys prevailing at competent norms for defense sentencing argued that the time of defendant’s retrial. Counsel
239 permitted put expert be to defense “should an on so a record way rejected right made as to do this.” is Counsel testimony calling State’s characterization of Brack’s as for a approach,” but “cookie-cutter rather described as outlining it capital litigation. “certain fundamentals” of defense testimony PCR court declined to consider Brack’s report, any as as testimony experts well other from other PCR on proper relationship capital between defense ex- concluded, perts. “I lawyer The court don’t need a from lecture capital presided I presentations. as over may the cases. You argue law to I can me. understand that. But I don’t need to hear separate presentation subject.” on that The court added that complicated proofs defendant’s case is not in either terms of its or presentation, expert testimony and that if the content is knowledge within the experience, court’s there then is no requirement hear it. agree
We with defendant that the PCR court erred when opinion. capital it refused to consider Brack’s The field of defense litigation constantly evolving, specialized is a area of law. See State, (1993) Bailey v. 309 S.C. S.E.2d (quoting capital expert specialized capital litigation). defense on area All level, judges, irrespective experience of their can be informed Thus, information. such when PCR counsel that form offers case, testimony capital in a the court it or at should hear least in consider it written form. ease, however, this of our view earlier conclusion counsel,
that retrial counsel did not render ineffective assistance Significantly, report the PCR court’s error was Brack’s harmless. solely prong. focuses first Because de Strickland/Marshall’s ultimately satisfy fendant prong has failed second of the test, opinion Thus, disposition. Brack’s would alter our no required remand or reversal is these circumstances.
D. Leave to Interview Jurors Denial of the Motion for petition of his PCR must be argues that the denial Defendant jurors that and case remanded to the PCR court so reversed main- sentencing retrial can be interviewed. Defendant from the juror by an to counsel statements made alternate tains that jurors and that considered extraneous information indicate the jury the instructions. misunderstood these. Three respect facts in of defendant’s claim are The retrial, juror, sentencing years an alternate after defendant’s Whittaker, appellate defendant’s counsel that Margaret stated to way,’ ‘that felt that jurors the “did not want to come down but .gave way judge the the the they had no choice because of information, moved for Based on that defendant instructions.” permission jurors. to The motion court denied the interview the hung of threads.” request, stating that the claim “on the thinnest later, motion before months PCR renewed the Several represented in that court. an affidavit Whittak- PCR Counsel unsolicited, times, provided him and him with er called several jurors. jurors alleg- deliberating about more information edly relayed to that one or more of them believed that: Whittaker (1) executed, death, if not be even sentenced defendant would (2) long; process takes defendant was appellate because so York, charges although jury facing criminal New serious (3) charges; any told of had visited the victim’s was not defendant (4) murder; during pizza prior to the parlor on occasions deliberations, jurors return a life one or more believed life, verdict, jury because the had be unanimous life, jurors unanimously just along find for some went would not death with the verdict. The court
The PCR court denied defendant’s renewed motion. room, deliberating was not reasoned Whittaker hearsay; commu- the information was mere Whittaker’s thus years given were “stale” that Whittaker waited three nications counsel; make first her overture to that there was no indication in respect jurors many of how troubling made the statements to Whittaker; and that substance the statements were not sufficient the presumption against interviewing ju- to overcome *38 rors. in “Calling jurors
The law
area is
this
well settled.
back
interrogation
they
discharged
after
have been
is an extraordi
nary procedure
only upon
strong
which should be invoked
showing
litigant may
that a
by jury
have been harmed
miscon
Athorn,
247, 250,
(1966).
duct.”
v.
46
State
N.J.
Defendant first that Whittaker’s statement relat ing length appellate process to the jury of the indicates that the may incorrectly have believed it not responsible that was for the disagree. Nothing recounting verdict. We in the affidavit Whit- jurors taker’s statements lengthy indicates that the considered the process appeals during in respect deliberations. The same is true regarding pending charges Whittaker’s second statement against Although jury defendant New the York. knew from testimony York, that had defendant been arrested in New DiFris II, 492-94, supra, 137 co N.J. at 645 A.2d there is no evidence jury improperly that the during considered other-crimes evidence deliberations. statement, regard
With to Whittaker’s third that defendant had previously pizza parlor, argues jury visited the the defendant may premeditated have concluded that his actions were more than supported by argument the evidence. Defendant’s is mis- restaurant, placed. diagram Defendant’s of the which was intro- 242 retrial, pizzeria, the parking lot behind depicts the the
duced at
stairs,
bus
pizzeria,
of the
the
the
and rear doors
the
back
view,
presented supports
the evidence
stop
the corner.
our
on
pizze-
may
defendant
have visited
inference that
a reasonable
Therefore,
jury
if
drawn that
had
ria before
murder.
improper.
it
inference would not have been
erroneously
argument
jury
is
believed
final
Defendant’s
verdict,
required.
life
a unanimous decision was
that to return a
statement,
is
argument,
on Whittaker’s fourth
also
That
based
ultimately
say
jury
merit.
did not
without
Whittaker
unanimity.
Our conclu
the court’s instructions
misunderstood
explicitly
the fact that
verdict sheet
sion is buttressed
verdict,
gave
court
for a non-unanimous
trial
allowed
(which
unanimity
we reviewed
instructions on the issue
734).
II,
483-89,
A.2d
supra,
N.J.
DiFrisco
interviewing jurors
exceptional remedy of
Defendant seeks the
juror
alleging
deliberating
presented
an affidavit
not because
*39
misconduct,
Kociolek,
92, 95,
v.
20
E. Experts Ineffective Assistance on the Defendant seeks reversal of his death sentence ground right under deprived that he was federal and State sentencing experts at the law to receive effective assistance claim of ineffective phase of his trial. We conclude that defendant’s
243
experts
separately cognizable
is
assistance
in the context of
petition.
differently,
this
Stated
defendant’s claim is subsumed
auspices
under the
of an ineffective assistance of counsel claim.
Oklahoma,
Supreme
v.Ake
meaning-
Court declared that
justice,
ful access to
under
Fourteenth
Amendment
Constitution, requires
government
federal
provide
an
indigent
basic
adequate
defendant
“the
of an
tools
defense or
appeal.”
68, 77,
1087, 1093,
53,
470 U.S.
105 S.Ct.
84
62
L.Ed.2d
(1985) (internal
omitted).
quotation marks and citation
Court
determined that
a
sanity
when
defendant
demonstrates
will
trial,
be a significant
government
factor
must assure that
“a competent psychiatrist
defendant has access to
who will
evaluation,
appropriate
conduct an
examination and assist in
prep-
aration,
presentation”
83,
of the defendant’s ease.
Id. at
1096,
note,
S.Ct. at
Numerous have proposition courts cited Ake for the that due process requires appointment expert indigent of an an when defendant appointment, establishes substantial need for such an without which the fairness of his or her trial bewill called into See, Rees, (6th question. 283, Terry e.g., v. 985 F.2d 284-85 Cir.1993) (involving pathologist death); on cause of Little v. Armontrout, 1240, (8th Cir.1987) F.2d 1243-45 (involving (Iowa expert Coker, hypnosis); State v. 412 N.W.2d 592-93 1987) (involving expert defense); on intoxication Harrison v. State, (Miss.1994) (involving 635 So. 2d 900-02 pathol forensic ogist). *40 Ake, Jersey
Prior to
New
courts had found the
of
assistance
experts
guaranteed by
right
be
to
to effective
of
assistance
I, paragraph
Jersey
counsel under Article
10 of the New
Constitu-
Green,
13, 18,
(1969)
tion. See State v.
55 N.J.
right
Additionally,
this Court determined
to
2A:158A-5,
Act,
specific provision of the Public Defender
N.J.S.A.
Jersey
statutory right
New
grants indigent defendants in
re
experts necessary to their defense.
of
the assistance
(1991);
486, 492,
also In re
Cannady,
N.J.
We no reason of analyzed right to effective assistance similar cases that have of right to the assistance experts part as of a defendant’s effective merely confirming guarantees read Ake counsel. We as already provided through to defendants regarding expert services Public Act. To conclude our Defender State Constitution Jersey to sort out difficult require otherwise would New courts expert opinions. As have federal courts distinctions between unusual, noted, experts opinion among a is not difference (9th denied, 1497, 1522 Cir.1991), Vasquez, v. F.2d cert. Harris 949 (1992), 117 501 and to allow 503 U.S. S.Ct. L.Ed.2d litigate disagreements place would courts in “a defendants to such [experts] appointed purpose ... for the sole never-ending battle of Peters, prior [expert’s] diagnoses.” Silagy discrediting of v. (7th Cir.1990). 986, 1013 F.2d expert may provide psychiatric other are mindful that or
We However, performance services. the deficient substandard right respect performance in that is the of implicates a defendant’s presented expert’s examinations or counsel who obtained progeny, trial. with Ake and its New evidence at Consistent competence of Jersey courts should continue evaluate the of a claim ineffective experts within the framework defendant’s rejection Accordingly, of our of counsel. view assistance claims, reject also ineffective assistance we defendant’s experts claim. defendant’s ineffective assistance
245
F.
Constitutionality
Penalty
of the Death
Statute
Relying
prior
on
precedent,
agree
our
we cannot
with defen
argument
remaining
penalty
dant’s
that
the death
statute is
unconstitutional under either the federal or State Constitution.
Ramseur,
(1987);
State v.
106 N.J.
524 A.2d
re
(II),
Proportionality
Project
Review
165 N.J.
IV. Summary suggest performance We do not that retrial counsel’s was the representation capital contrary, model of in a To ease. that greater record indicates counsel could have in exercised care case, managing experts investigators the various in the given guidance experts finding better charged to those with Moreover, mitigation experience evidence. counsel’s level was not expect capital litigation. what prevail we have come to in To in however, setting, this defendant must do more than show that his retrial counsel with experience Jersey’s capital lacked New sen- system. tencing He must inexperience demonstrate that such objectively reflected an performance, unreasonable level of ultimately substantially that it or resulted errors omissions that jury’s affected the deliberations.
Defendant has carried that considerable burden. Demon- strating purported remorse was difficult task for even an experienced capital litigator because of nature of defendant’s possible mitigation, conduct. As other jury the fact that the unanimously relationship found two factors related defendant’s adequately performed Franciotti indicates jurors aspect focusing Additionally, coun- of the defense. portray positive light sel’s efforts to in a defendant more were past. blunted defendant’s criminal Prosecutors could have presented damaging given rebuttal evidence had counsel them opportunity by opening to that evidence. door appellate our function. that we misconceive
The dissent asserts
capital litigator acts
not conclude that a
reason
Not so. We do
any negative
by avoiding mitigating evidence that contains
ably
*42
Rather,
analysis merely recog
slight.
component,
our
however
dissent,
by
that
the
reality, seemingly ignored
the
the
nizes
mitigation
signifi
aspects
the
evidence
of
available
unfavorable
by
As
made clear
cantly diminished its usefulness
defendant.
261-62,
Martini,
A .2d
supra,
The aggravating factor out- that the and nonetheless determined beyond Ac- mitigating factors a reasonable doubt. weighed the they heavy deference to which are cording counsel the measure of circumstances, trespass jury’s in these we cannot on entitled if finding. retrial counsel are confident in our belief even We counsel, by performed to level PCR it would had advocated substantially jury’s penalty-phase affected the deliberations. have of and of reject thus all of ineffective assistance counsel We claims part on of the experts, and likewise find no reversible error PCR court.
V.
Conclusion petition judgment denying of Division defendant’s the Law is affirmed.
LONG, J., dissenting. cases, anything capital of it
If we have learned from our review juries persons of who have committed spare is that often the lives society legitimately the cruelest and what could characterize as due, measure, lenity savage great if not most murders. That is of the completely, quality to the of the defense advanced behalf accused. who
Those have tried cases have capital found competent presentation right evidence often results in sentences less than death. But the to have any meaningless the diverse frailties of humankind taken into account is if the accused finding presenting mitigating is not provided capable effectively circumstances. Bright, Counselor B. the Poor: The Death Sentence Not [Stephen for for (1994) Worst Crime but the Worst Yale L.J. Lawyer, 1835, 1865 (footnotes omitted).] It light reality is in of that that we majority’s should assess the disturbing meager conclusion Anthony efforts of DiFris- co’s defense team met constitutional shockingly standards. The DiFrisco, poor crime, defense despica- afforded whose although ble, approach savagery does not cruelty we have seen in law, capital our substantially case penalty phase affected the deliberations. plagued inception
The defense was from its the inexperience not, It inexperience defense counsel. is true that does in and of itself, prove investigation, ineffectiveness. With industrious *43 strategy, coherent appropriate experts, and the of an advice mentor, experienced relatively it possible is for a unseasoned attorney defense to capital advance an effective case on of behalf defendant. possibility
That did not only come to fruition here. Not was totally DiFrisco’s defense team of capital experience, devoid but presentation mitigation their of incoherent, case was ill-con- ceived, scattershot, betraying disagreements, the internal disregard advice, investigation, mentors’ incompetent lack of preparation place result, that took behind the scenes. As a provided wholly DiFrisco inadequate representation was at his trial, resentencing penalty has been condemned to the terrible having minimally death without legal repre- received effective sentation.
I majority opinion adequately surrounding recounts the facts DiFrisco’s murder of previously Edward Potcher. As have we offense, described the DiFrisco range the Potcher, into head Edward owner four bullets at close the Fired August fired a fifth bullet 12,1986. store on He Pizzeria, Jack’s at his Maplewood him to Franciotti man named Anthony paid
into the victim’s body____[A]
$2500
kill Mr. Potcher.
(1990) (DiFrisco I).]
[State
A. Matters 22, 1991, during on DiFris- February post-appeal'hearing On verdict, trial informed that for a directed court was eo’s motion 1990, cooperate to in the prosecutor invited DiFrisco August DeLuca, lawyer, investigation of Franciotti. His Samuel State’s letter because the told court he did not answer State’s fact, penalty. In offer not include a waiver of the death did 1991, respond to overture until March DeLuca did not .prosecutor that he the offer as a bad when he to the viewed .wrote prosecutor attempt replied case. The faith to buttress the State’s response a further indication that DiFrisco was that DeLuea’s not, been, cooperating. DeLuca and never had interested accept had DiFris- that it was the State that refused to countered cooperation by imposing co’s “conditions”. requesting September DiFrisco wrote the court had
appointment enclosed a letter he sent of new counsel. He DeLuca, representa- expressing with DeLuca’s his dissatisfaction n complained generally about DeLuca’s failure tion. DiFrisco particularly pursue him and about DeLuca’s failure consult with *44 the court allowed DeLuca cooperate to State. The desire case, the and the of the Public Defender to withdraw from Office provide DiFrisco. was ordered to counsel to 15,1991, Kay, Deputy the court to Patricia On November wrote Office,. County Regional charge of Essex Public Defender in the reminding her no public defender assigned had been represent Kay delegated assignment responsibility DiFrisco. the Krakora, to Joseph chief of the homicide division. Krakora as- signed Lapidus, capital experience, Barbara who had as no lead counsel, attorneys experience because of the all with relevant were Soto, busy capital with other matters. He selected Michelle who (cid:127) experience only years also capital general had no two all, experience writing criminal defense to assist with the Although Lapidus case, capital briefs. was reluctant to on a take acquiesced job she when Krakora convinced her she could do the necessary legal writing. and assured her that Soto would do the 21, Lapidus and their on appearances Soto entered November 1991, 27, April at which time the court set a trial 1992. date of caseloads, Lapidus told court that she and Soto had full murders,” “ready including requested some and some trials prepare responded more time to for DiFrisco’s trial. The court “five, gave that the date defense counsel almost five-and-a-half ready matter, get adequate I months to this and think that’s schedule, ordering time.” The later court modified that expert reports by file by defense to March 1992 and the State 6, 1992, April requiring pretrial that all filed motions be 16,1992. 4,May March The court a “firm trial set date” 1992. Guilty
B. The Motion To Withdraw The Plea 14, 1992, trial, February On less than before two months plea guilty capital defense moved to vacate DiFrisco’s Silikovitz, They murder. psychologist, retained Ronald evalu- ate plea application. DiFrisco for the withdrawal At a March hearing, they requested adjournment an May of the 4 retrial they ground yet mitigation date prepared had not necessary ease. Soto told court a continuance because the experts complete defense to have Mr. “need[ed] visit DiFrisco and reports investigation complete background as well as a of Mr. DiFrisco.” When the court asked what defense counsel had been doing they earlier, assigned since were case four months guilty plea Soto said their focus had of the been withdrawal and that the sole witness had who interviewed DiFrisco had done
250 adjourn- the court only purpose in mind. The denied that
so merits of the motion. refused to hear the ment and Appel- appeal. In its brief the for leave to DiFrisco moved adjournment Division, was neces- the that an late defense stated “strenuously had focused” on sary counsel because defense essentially guilty plea was motion to withdraw DiFrisco’s Appellate granted unprepared penalty trial. The Division for the reversed, hearing remanding for a the motion and leave on Septem- than be held no earlier directing penalty that the retrial 8,1992. ber evidentiary hearing on motion an DiFrisco’s
The trial court held May hearing, plea 1992. At the guilty his to withdraw if he led him to believe that testified that DeLuca DiFrisco sentencing phase, he jury for the pleaded guilty and waived a years prison. life DiFrisco thirty sentenced to would be a penalty he the death was realistic testified that had known plea. entered a DeLuca testified possibility he never would have that, extremely opinion, in his it was that he had advised DiFrisco a ease. unlikely impose the court would death sentence developed mitigation explained he evi- DeLuca also never he believed the court would dence on behalf of DiFrisco because argued that DiFrisco impose life sentence. Defense involuntary plea withdraw his because it was should be allowed to that he would receive in view of DeLuca’s erroneous assurances However, argument its life the defense made clear that sentence. assistance of counsel. premised was not on ineffective motion, 12,1991, finding May On the trial court denied he penalty possible was a outcome when DiFrisco knew the death the inconsis- agreed plead. ruling, In so the court underscored tency argument that he was misinformed between DiFrisco’s consequences plea and his failure to raise issue of his ineffective assistance of counsel. phase September penalty
Retrial of scheduled for mitigating all factors be filed within 1992. The court ordered that prosecutor’s days expert reports provided be ten days. within Appellate office Division affirmed court’s decision.
Counsel then moved before this for the opportunity Court reopen guilty plea ground the motion to withdraw the on the that been DiFrisco had denied the effective This assistance counsel. expedited hearing Court ordered trial court to conduct an on DiFrisco’s ineffective assistance of counsel claim. hearing, 1992, place days August
At the which took over four in testified, previously, DeLuca as he had that he had advised plead guilty penalty-phase jury DiFrisco to and to waive a because he was impose certain trial court would not a death sentence. confession, said that DeLuca because DiFrisco’s he believed the guilt case to be He insurmountable. could not remember how many guilty plea, times he with DiFrisco consulted before the but acknowledged any investigation, gathered that had he not done evidence, any mitigating any experts. or consulted DiFrisco that, entering plea, upon testified in he entirely his relied DeLu- ca’s assurances that he would not receive a death sentence. The again trial court guilty denied DiFrisco’s motion to withdraw the plea, finding improper promises that DeLuca did make re- garding DiFrisco’s sentence and that DeLuca’s decision not to investigate was reasonable. moved for leave defense 20,1992. appeal, this which Court denied on October On Novem- 20, 1992, jury ber court trial informed counsel that selection 11, 1993, January begin possible would all list of 7,1992. by produced witnesses should be December Mitigation Preparation Investigation C. Trial & ready Defense counsel was not for the retrial. As will be below, mitigation investigation detailed incomplete; changes hampered in counsel preparation; the defense team’s experts any inadequate extent that there were —to —were unprepared. to the task and
1. Ronald Silikovitz noted, February through August Lapidus As from guilty had Soto focused their efforts on the motion withdraw the end, they to evaluate DiFrisco. plea. To that retained Silikovitz expert an “to approved retention as evaluate Krakora Silikovitz’s capital plea in ease.” purposes guilty motion to retract client for. Evidently, is unclear. How Silikovitz came to counsel’s attention the Public Defender’s worked on cases for previously he had reflecting his provided office with brochures had Office and February in contacted Soto experience. education and When already had been made led believe that a decision he was testifying him, experience did not discuss his to retain but Soto fact, no relevant expertise. Silikovitz had or areas children, “special needs experience. evaluating He specialized Jersey ... kind New Division [of cases] [the sexual abuse which include Family investigate would Services] of Youth and parental rights.” He never bonding termination of had [and] also capital case. worked on *47 1992, syllabus, February a
On sent Silikovitz a case Soto report, guilty plea, transcript a of DiFrisco’s detective bureau case evaluating transcript penalty the first trial for his use and of on spent then hours with DiFrisco DiFrisco. Silikovitz three 21,1992. February had to evaluate DiFrisco for
Although Silikovitz been retained guilty plea, legal told the motion to retract his he was never the withdrawal, plea never those for and he discussed standards Moreover, although trial counsel standards with trial counsel. be for the claimed to have intended that DiFrisco evaluated disabilities, they learning never to do presence of asked Silikovitz so, Indeed, provided he not even with and he did not. was asked evalu- school records. Neither was Silikovitz DiFriseo’s disorders, any he did not. ate DiFrisco other and emphasized receiving of urgency trial had the Because deadline, report produced the March before Silikovitz February 25,1992, days meeting four after with report his first on purpose in re- Notwithstanding trial counsel’s stated DiFrisco. Silikovitz, report taining did address voluntariness of Instead, guilty plea. DiFrisco’s it recited DiFrisco’s version psycho- circumstances of his his confession and discussed overall logical reported that state. Silikovitz DiFrisco could not “recall any phase of process,” high the confession because “he was probably cocaine and also heroin the time when the ‘confession’ made,” was personnel that DiFrisco’s and mother at the Parole Department had his day, witnessed his condition that and that attorney physician and the drug who treated him for his withdraw- al following likely his and arrest “witnessed most documented the being questioned.” state that he was in he while was “guilt Silikovitz found that DiFrisco manifested and remorse related history drug activity,” to his and criminal and that “he fully specific specific understands crimes deserve conse- quences.” intelligence Analyzing results he tests had performed, reported greatest Silikovitz that DiFrisco “had his difficulty requiring pictures arrange depicting on tasks him to logical social sequence,” situations in a and “Mr. DiFrisco may be of a more follower and a victim of rather circumstances initiate, than originate, an individual who tends to and create difficulty.” figure drawings Silikovitz found that DiFrisco’s simi- “tentativeness, larly self-doubt, suggested uncertainty his and, regarding identity precisely, who he is.” Silikovitz further rehabilitation,” “appears noted that DiFrisco be interested “optimistic goal-directed.” and that he was He said that [him],” “fully cooperative DiFrisco was and that “had he candid, being totally open sense that Mr. DiFrisco and honest regarding being tendency the issues that were discussed. This apparent credibility.” Despite further reflected his observa- tion good right that DiFrisco have “does sense what is *48 however, wrong,” diagnosis what is Silikovitz’s was Anti- ultimate (ASPD)1 Personality multiple dependen- social drug Disorder and cies. 1 The American defines Association Antisocial Disorder Psychiatric Personality
as follows: that, upon reviewing that hearing at the PCR
Soto testified In particu- to that it was harmful DiFrisco. report, she concluded lar, diagnosis “may that the ASPD have caused was concerned she Lapidus less as a was the not to use Silikovitz witness.” defense that, in thought when diagnosis, and viewed about the concerned terribly damaging. not report, of the it was the context of the rest Krakora, capital litigator only experienced to review “awful,” it report, it and considered to herald concluded that was view, expressed to “the of Krakora’s which he end Silikovitz.” did have Lapidus, report that Silikovitz not and indicated Soto picture,” and did not to understand grasp big a of “the seem capital ease for a evaluation a murder “this forensic pled guilty capital murder.” someone who Krakora, only Lapidus Despite misgivings Soto and role. expanded also maintained contact with Silikovitz but irresponsible pattern and feature of this disorder is a essential early beginning con- in childhood or adolescence and antisocial behavior diagnosis given, person tinuing must be at into adulthood. For this to be years history age age and have a of Conduct Disorder before least 18 15. vandalism, fights, running stealing, truancy, initiating away Lying, from home, cruelty signs. physical typical childhood In adulthood and are continues, may pattern to honor and include failure financial antisocial ahead, plan obligations, responsible parent an as a or to and function people inability fail to conform to sustain consistent work behavior. These grounds repeatedly perform acts that are social norms and antisocial others, arrest, having destroying harassing stealing, property, an such as illegal occupation. Personality aggres- People with tend to be irritable and Antisocial Disorder assaults, get physical fights including spouse- repeatedly sive and to into safety child-beating. regard personal is or Reckless behavior without common, getting frequently driving while intoxicated or as indicated (defined people promiscuous speeding Typically, never tickets. these are as year). monogamous having relationship Final- for more than sustained a ly, they generally their behavior on have no remorse and the effects of others; having they may justified feel hurt mistreated others. even or diminish, age flagrantly may particu- After more antisocial behavior larly promiscuity, fighting, criminality. sexual Association, Psychiatric Diagnostic [American and Statistical Manual of Disorders, 1987) (DSM-III-R).] (3d ed. Revised Mental
255 7,1992, Specifically, on March she asked Silikovitz to evaluate and factors, possible mitigating sending background assess him mate- purpose. for that rials Silikovitz’s notes from the March try conversation indicate that he understood he was to to “save Lapidus DiFrisco’s life.” asked Silikovitz meet with DiFrisco a time, report second and to add to his mitigating discussion of preparation May factors in for the trial. That was the first time anyone mitigating had discussed factors with Silikovitz. On 11,1992, March Silikovitz met with DiFrisco for three more hours. DiFrisco, meeting bringing That was his last with thus the total spent time Silikovitz with DiFrisco to six hours. interview, 17, 1992, Cuevas, on March Pamela an
After investigator Defender, with the Office of the Public faxed to copy Silikovitz witness list and a of the section of the New Jersey listing aggravating criminal code mitigating factors cases, penalty pursuant Lapidus’s death direction. Prior to information, receiving given complete experi- his lack of cases, in capital ence legally Silikovitz did not know what consti- aggravating mitigating tuted factors. Because he was un- legal aware of the relevant standards when he conducted his DiFrisco, simply second interview of Silikovitz relied on DiFrisco’s why put own reasons for he should not be to death. conducting telephone After interviews with four of DiFrisco’s family girlfriend, members and his former met Silikovitz 18, 1992, factors, Lapidus May possible mitigating to discuss i; 1992, Lapidus and with and Soto on June to discuss the pertinent diagnostic Lapidus criteria listed the DSM-III-R. requested diagnosis. and Soto revisit his Silikovitz ASPD reviewing counsel, Upon the DSM-III-R with trial Silikovitz diagnosis, concluded that his upon earlier which had been based criteria, faulty recollection of the DSM-III-R had been incor- rect. 8, 1992, again Lapidus
On June Silikovitz met with and Soto to additional, mainly stylistic, discuss report. revisions to his Trial psychological never asked Silikovitz to conduct further or develop additional DiFrisco or otherwise neurological tests on that Silikovitz com- mitigating evidence. Soto testified potential *50 “comprehen- of DiFrisco was her that his municated to evaluation testing not that further was therefore believed sive” and that she stated, as the necessary. certainly [Silikovitz] “I relied on She any testing regard to further guide me with expert in this case to done would warrant.” test that he had felt the results of the he added). Thus, told her that because Silikovitz (Emphasis testing. request additional adequate, did not testing was Soto Indeed, entirely assessment of what relied on Silikovitz’s Soto because, acknowledged, never she she appropriate as tests were types psychological test- herself with different familiarized generally in similar cases. She ing and used that were available report initial with even was unable to review Silikovitz’s therefore opinion sophistication and unable to form an modicum of was a testing completeness of the to determine whether regarding the necessary. tests were additional however, admission, testing was not
By Silikovitz’s own any example, he had not administered ob- comprehensive. For (as jective projective with or intel- psychological tests contrasted tests), com- an essential element of a ligence which constitute Moreover, psychological forensic evaluation. prehensive perform did were administered psychological tests that Silikovitz that, due to time con- incomplete manner. He testified an straints, sub-parts of the intel- perform he did not the standard expert, Alan ligence PCR counsel’s Dr. test he administered. Goldstein, only of the nine tests Silikovitz explained that three Nevertheless, complete. produced administered were Silikovitz diagnosis and report. It deleted the former ASPD a revised Behavior.”2 replaced diagnosis it of “Adult Antisocial 2 Adult Antisocial Behavior as The American Association Psychiatric explains follows: category focus of attention or treatment is adult can be used when the
This such as disorder, is not due to a mental antisocial behavior that apparently Disorder, or Antisocial an Control Disorder, Conduct Personality Impulse Although report completed it was dated June 22, 1992, August until incorporated changes sug- additional Silikovitz, gested meeting Lapidus, at the June 12 between Soto. first, report, explicitly
The second unlike the included a section discussing mitigating summarizing factors and interviews with family DiFrisco’s girlfriend. members and his former It also provided greater support detail Silikovitz’s conclusion that DiFrisco was remorseful: grief Mr. DiFrisco of the remorse that he has suffered as a result of the spoke crime. He notes that “this crime has so wasn’t me—I was pressed deep really —it drugs. like machine—I was a different while under influence He person” about stated, remorse and He with considerable affect and spoke depression. change “if I could cut arm off to I I credibility, it, would. feel bad and feel my —I worse than this I feel remorse. I it out. It is blot hard person’s family. try with the other me.” He further indicated that has had he “bouts
.identify during the course of his incarceration. depression” *51 psychologist’s feelings In this these and expert remorse, opinion, quilt, depres- genuine. thought given sion are reflect the that Mr. They DiFrisco has over the five to the of his act to the years decedent’s and to past implication family society. psychologist’s inwas, The crime this a somewhat traumatic event for Mr. view, DiFrisco. report second Silikovitz’s summarized information about DiFris- childhood, in particular supervision co’s his lack of and need for models, report. male role that had not been It included his first aspects history also tethered those of DiFrisco’s childhood to his abuse: substance Mr. DiFrisco’s was not father an role model and was never adequate Anthony sought close with his father. he emotionally Consequently, desperately approv- siblings, al of his his and Mr. who was a father ultimately Franciotti, peers clearly figure. began drugs, Mr. DiFrisco involved with first on a become casual basis include thieves,
Disorder. the behavior of some Examples professional illegal racketeers, or dealers in substances. psychoactive [DSM-III-R, 359.] above, As indicated Silikovitz relied the information that DiFrisco upon thought mitigating, would be because Silikovitz was unaware of the statutory mitigating meeting factors at time of his second with DiFrisco. drug He is a addict and has been dependent on a addicted basis. and then heavy, abuse and criminal activity, heroin. to substance on both cocaine and Predisposed seeking
increasingly influence of his and peers, desperately susceptible Franciotti vulnerable at the time that Mr. Mr. DiFrisco was particularly approval, n made the offer that he did. about DiFrisco’s remorse and reiterated his conclusions Silikovitz Finally, by the second susceptibility to influence others. opined DiFrisco was candid report with first — —consistent sensitive, potential. that he had rehabilitative responded differently to Silikovitz’s second Lapidus and Soto useful, part it report because report. Lapidus found remorse, to be the conveyed which she considered DiFrisco’s I mitigation that “when first met “key” to the case. She stated speak him and interview Anthony, opportunity and had the him, clearly apparent to me that he was remorseful.” it was report conveyed DiFrisco’s Lapidus further believed that regard figure susceptibility and his for Franciotti as a father drug dependency influence of his and need for Franciotti’s because Finally, approved she of Silikovitz’s recitation a male role model. drug linkage drug of the abuse to of DiFrisco’s extensive use hand, Soto, the other remained troubled Siliko- his crime. antisocial original diagnosis of ASPD and revised “adult vitz’s not be diagnosis. She was “adamant” Silikovitz behavior” called as a witness. expert testify he as an witness at the
Silikovitz believed would However, exception phone administrative trial. with the one investigator from Pam Cuevas in October Silikovitz call again. He learned that he had never heard from the defense team fact, testify only called to at trial after the when a not been synagogue him DiFrisco had been sentenced to member of his told *52 out, dropped it was from the defense death. As turns Silikovitz witness, another, replaced by competent team and was not more counsel. because of a shift DiFrisco’s Annitto
2. William expert by Dr. mitigation hired defense counsel was second Annitto, psychiatrist expertise in the field of William Although approving substance abuse. the form his retention develop mitigation that Annitto would be consulted to indicated life, drug impact evidence about DiFrisco’s addiction and its on his apparently testimony Annitto believed his was to be used for plea purposes. report withdrawal He submitted a brief address- ing only drug DiFrisco’s use at the time of his confession. Annitto cocaine, valium, heroin, concluded that DiFrisco’s use of and as he it, reported impact physical would have had a dramatic on his report condition at the time of his arrest and confession. The suffering stated that DiFrisco would have been severe withdrawal confession, “say the time of his which would have led him to just anything get peace.” about so as to some relief and Annitto mitigation report, did not address other issues relevant to in his approved for which the Office of the Public had Defender retention, and, reasons, for unknown his conclusions were not relied on in defense counsel’s motions to withdraw DiFriseo’s guilty plea.
3. Alfonso Associates Associates, consulting Defense counsel retained also Alfonso in, specializes among things, firm that other the collection and Alfonso, presentation psychosocial mitigation evidence. Cessie firm, highly regarded the director of the was inside outside retaining the Office of the Public Defender. After Alfonso Associ- ates, Lapidus entirely Soto deferred to Alfonso Associates respect mitigation investigation. They provided guid- of the no regarding mitigation ance to Ms. Alfonso the focus of the investi- gation any overarching theory did not inform Ms. Alfonso of strategy mitigation Lapidus explained that or for the case. she Associates, supervise “mainly did not Alfonso because [she] that [Ms. comfortable with the fact knew what she was Alfonso] doing.” Although acknowledged Soto that the team had a defense work, responsibility supervise Ms. Alfonso’s she also viewed experts” guide Alfonso as Associates “the and relied on them to fact, mitigation months, investigation. for several Pam Cuevas, cases, prior experience training capital who had no or *53 only of the Public Defender to was the member the Office communicate with Alfonso Associates. provide reports did Silikovitz’s to Alfonso
Lapidus and Soto Associates, reports. and Ms. Alfonso and her staff never saw the Likewise, Associates never was shared with the work of Alfonso explained reports Although Lapidus never Silikovitz. and Alfonso Associates were exchanged were because Silikovitz “contemporaneously,” that is not accurate. preparing them Siliko- 1992; February report was submitted in Alfonso Asso- vitz’s first 1992; and Silikovitz’s report ciates’ initial was submitted June report completed August 1992. second was Hitehcock, associate, Jeffrey testified that Ms. Alfonso and her they conducting they report if had seen Silikovitz’s while were investigation, they significantly would done more re- their have report, including into a number of issues raised in his search Franciotti, relationship DiFrisco’s the connection between figure, relationship and DiFriseo’s need for a father place during youth, traumas and losses that took DiFriseo’s Likewise, depression testified had and remorse. Silikovitz records, by which had been obtained he seen DiFrisco’s school Cuevas, learning disability, indicated a he would have which psychological testing probe cogni- further DiFrisco’s conducted functioning. tive 5, 1992, Alfonso sent defense counsel a
On June Associates Alfonso, Hitchcock, preliminary report prepared Ms. and an- associate, report other Carmeta Albarus. The cover letter to the indicated that it was submitted for defense counsel’s review. Ms. final, teachers, report Alfonso did not consider the as interviews of members, done, family and others remained to be and records Nonetheless, according needed to be examined. to Ms. Alfonso Albarus, calls, repeated Alfonso Associates received no despite Accordingly, word from counsel for five months. Ms. defense investigation, believing the Alfonso “discontinued” the ease dormant or resolved. Change in
4. First Counsel 1992, Lapidus complained Krakora and In October went to *54 response, removed difficulty working with Soto. In Krakora Soto assigned Liguori and Peter as counsel. from the case assistant go honeymoon a Liguori was scheduled to be married and on Nevertheless, penalty picked retrial. Krakora month before Soto, “thought good he was a replace him to because he worker job.” Liguori working at good would had been who do just years of the Defender over two at the time of his Office Public and, Soto, assignment Lapidus experience working and had no like case, assigned Liguori In capital on cases. his first weeks mitiga- himself the file. He did not initiate new familiarized retaining experts, investigations tion or consider new because he impression preparation had been was under the that all of the n simply preparing for trial. done and he would be case, however, Liguori assigned to the the trial Soon after was dramatically. Alfon- preparation changed November Ms. that, problems, due to health she would so notified defense counsel Billy Feinberg, a testify at trial. recommended be unable to She cases, testifying capital replace in experience worker with social they rely counsel that on her. She did not recommend to defense testify mitigation experts. At any employees to as of her own motion, adjournment an request, anticipation and in counsel’s provided explaining a letter circumstances Ms. Alfonso However, testifying. defense counsel did prevented her from adjournment they assumed it application an for an because file anger it the court. would be denied and feared would Change in 5. Counsel Second not made regarding replacement Alfonso’s was The decision Ms. because, Liguori at the same time that Ms. by Lapidus and case, yet change another Alfonso withdrew from the there 23, 1992, just six weeks before the defense team. On November trial, country Liguori of the during and the time that was out honeymoon, Lapidus resigned from the Office of the Public re-assigned as lead counsel. At the Defender. Krakora Soto hearing, assigned that he never would have PCR Krakora testified relatively inexperienced attorneys Liguori as two such Soto Nonetheless, trial, capital case at the outset. one month before cases, Soto, years’ only experience trying had two criminal who training investigation presentation and had no in the of a case mitigation penalty, of the death became lead counsel for DiFris- sentencing Liguori, co’s trial. who had the same amount of Soto, experience training as was assistant counsel. Further- more, leading up Soto retained her full caseload for several weeks trial. to the
6. Carmeta Albarus Thus, Liguori regarding it was Soto and who made the decision replacement. adjourn- requesting Ms. Alfonso’s Instead of an ment, assistants, they decided that one of Ms. Alfonso’s Carmeta Albarus, replace mitigation expert. would Ms. Alfonso as the decision, opposed telling Alfonso Albarus was not *55 appropriate an choice because of her lack of educational creden- experience testifying. Liguori explained tials and her lack of although Billy that Ms. Alfonso recommended social worker Fein- berg, she was not chosen because she did not know the case. work, Although degree Albarus lacked a in social she was “familiar with the file.” witness, assignment testify expert
Prior to her anas Albarus Associates, manager was a case at Alfonso which meant that her involvement filing making case had been limited to and being things sure “the client was and being seen certain were done.” characterized the Soto decision to use Albarus as “tacti- her, According preferable cal.” Feinberg Albarus was file, because Albarus was familiar with DiFrisco’s had worked on many cases, capital heavily” by and “relied Ms. Alfonso. supervisors, Soto stated that she consulted with her Krakora and Kapin, attorneys Office, and other at the Public Defender’s and they agreed with her that “Albarus would be the more appropriate put psycho-social witness to forth that evidence.” However, conversations, Krakora did Kapin not recall those and Indeed, that decision with Soto. he ever discussed denied that “that there was a he never even knew Kapin testified that problem.” replacement witness rate, the attention of defense counsel any in December
At expert an witness. Those transforming Albarus into turned to of the having re-interview several included Albarus preparations employees so by other Alfonso previously interviewed witnesses knowledge of the individuals and the personal have that she would resume, information; she had not “developing” Albarus’ because resume; prepared and and did not have a previously testified 22, 1993, January reiterat- report, submitting second dated incorporated information ad- preliminary conclusions and ed the information cov- interviews. The new from the additional duced unsigned in the cover report was described ered in the second report: accompanied the letter that his Alfred DiFrisco, father, with Mr. conducted Anthony interviews Follow-up Janet and his DiFrisco; Anna and his mother, step-mother, DiFrisco; DiFrisco, with his siblings, DiFrisco[.] [W]e have also conducted interviews and Fran Fred granted of divorce Grillo. A the decree uncle, copy and Mary Joseph aunt was also reviewed. dated DiFrisco, to Alfred 11/29/72 report bore “no of the the substance The letter stated remain consistent” changes the themes and issues significant investiga- 9,1992 the additional report. The bulk of with the June necessary to as originally had identified that Ms. Alfonso tion teachers, fami- mitigation investigation interviews complete the records, members, parole girlfriends, review of ly and former prior to the offense— drug addiction investigation of DiFriseo’s never was done.
7. Peter Schiffman *56 retrial, Dr. penalty Soto retained before the three weeks Just drug abuse and testify expert witness on as an to Peter Schiffman departure from marked a judgment. That decision its effects keep to from strategy, which had been earlier defense counsel’s Liguori explained, drug use. As jury evidence of DiFrisco’s “drug- that DiFrisco was impression to avoid the counsel wanted explained crazed fiend.” Soto that the decision to use Schiffman tactical, drug very explanation because addiction was “a viable offense,” committing although agreed this she it was not a evidence, remorse, replacement mitigating for other such as which planned present through she said she a witness other than Schiffman. Soto that she made the stated decision to call Schiff- consulting man supervisors, after with her Kapin. Krakora and again, speaking Once Krakora had no recollection of to Soto about advising the matter or Kapin her to use Schiffman: testified that that, he did not discuss Schiffman with Soto and if he had issue, strongly discussed the he would have advised Soto not to prior Schiffman because of a experience bad he had retain with Liguori actually him. testified that he Kapin advising recalled against using Soto Schiffman. Soto,
According plan testimony was to limit Sehiffman’s drug general. to the effects of abuse He would not address drugs whether had DiFrisco used at or near the time of the scope offense. Soto limited the testimony discovery of his because long passed, deadlines had since and she was concerned the trial court would permit testify. not otherwise Schiffman to Further- more, investigation, was, such as it had failed to uncover documentary sufficient supporting corroboration DiFrisco’s claim using, drugs that he had been at the time of the offense. 16, 1992, On December proffer defense counsel made a to the regarding trial court testimony. Schiffman’s Soto told the court testify that Sehiffinan would pharmacology, about “the the varia- usage tions in use, which would free-basing, include IV [and] snorting” “general and the effects of cocaine and heroin on the that, individual.” represented Soto further although the court Schiffman had conducted siblings interviews with DiFrisco and his and had come to the long history conclusion that DiFrisco had a drug abuse that had up continued to the time of his incarceration Potcher, killing for the opinion Schiffman would not offer “an respect specific to the defendant’s state of mind at the moment when the crime was done or when he was hired do the
265 crime,” the testify “that the defendant did know nor would he upon doing.” Based those was] of his acts or what [he nature testimony limitations, essentially use- rendered Schiffman’s which less, testify. the witness to the court allowed Penalty Retrial
D. The January through January place Jury took from selection 1,1993, penalty trial commenced. On the February the 1993. On given, to be Soto and morning opening statements were Menz to discuss assistant Prosecutor Norman Liguori met with investigation of cooperation with the State’s once more DiFrisco’s would not offer a prosecutor’s Because the office still Franciotti. Soto, like DeLu- cooperation, in DiFrisco’s life sentence return for communication, her, in the view that it persisting off ca before cut cooperate. in DiFrisco’s interest was not argument, described DiFrisco’s confes- opening In its the State offense as a killing portrayed and DiFrisco’s sion to the Potcher Di- prosecutor underscored murder for hire. The premeditated the cooperate, and concluded with statement: Frisco’s failure to get death should were a case where someone ever there “[I]f case, and the time is now.” penalty, this is the opening statement and on the confession his Liguori focused jury that sign remorse. He told the argued that it was a return, confession, nothing in he received DiFriseo’s for which suffering the crime he only by internal explained could be extent to which Liguori emphasized also committed. had had, fact, regarding Fran- cooperated police DiFrisco including family generally, DiFrisco’s life ciotti. He described models, Franciotti pointed out male role absence of void, drugs acting providing DiFrisco with stepped into that manipulated Liguori suggested that Franciotti figure. a father as “manipulated had this committing the offense and DiFrisco into not, Liguori conclud- process.” DiFrisco was ... this whole case one-time, man,” “drug ed, again again kill hit but a “MU “older, directed an control- killer whose crime was dependent” ling man.” evidence, presented days,
The State’s over the course two trial, largely it penalty same as had been at the first scene, recounting investigation, crime and DiFrisco’s *58 testimony confession. penalty DiFrisco’s from the first trial was jury, expert read to the and dental testified that the tooth marks pizza on a slice of left recovered from the crime scene were made by day. DiFrisco. The defense case lasted one It consisted of the testimony Albarus, Schiffman, sister, father, of and DiFrisco’s brother, and mother. Testimony
1. Carmeta Albarus’ mitigation Albarus testified as a specialist.4 acknowledged She psycho-social full history that a completed had not been but story by narrated basic family recounted the DiFrisco includ- ing Fred life-long unavailability DiFrisco Sr.’s emotional to Di- Frisco; depression; history his mother’s drug among of abuse boys, son, all of the including DiFrisco the 1987 death of the eldest Richard, by Finally, briefly overdose. she discussed DiFrisco’s relationship Franeiotti, stating supplied that Franeiotti Di- drugs. Frisco with
Albarus was discredited as a prosecutor witness when the undergraduate elicited that she did not an degree psychol- have ogy, kind, let an degree any alone advanced and that she lacked training in substance abuse. impeached She was further based on the contrast qualifications between her lack of and the credentials Finally, of Ms. prosecutor Alfonso. when the elicited that the expert report by submitted virtually Albarus was identical to the prior report by Alfonso, submitted jury Ms. it left the with the negative impression adopted that Albarus had —but accurate — findings supervisor, her simply reproducing signing Alfon- report presenting so’s it as her own.
ly argued anything. It is interesting that Albarus was not a to note that during pretrial mitigation expert motions, and, indeed, prosecutor not an vigorous- expert Testimony 2. Peter Schiffman’s was, testimony penalty according Schiffman’s at the retrial Soto, “devastating Anthony DiFrisco’s defense.” Schiffman greatly anticipated say. deviated from what Soto he would He using drugs, including testified that DiFrisco had been cocaine and heroin, years jury since he was 14 or 15 old and then told the heavy usually paranoia, by use of cocaine leads to followed “out psychosis.” explained and out qualities Schiffman the addictive by relaying experiment cocaine an in which rats chose cocaine death, they over food until starved to and said that humans ¿ddicted anything they to cocaine would “do to feel better” when going through are withdrawal. Schiffman said lives of cocaine getting drug, point addicts revolve around even to the heroin, “hurting people” get jury it. He then told the contrast, dangerous drug community is “a far less to the than cocaine, people only things they’re because do bad it on when *59 counsel, trying get According to it.” to defense Schiffman’s testimony DiFrisco, jury impression left the with the that as a heroin, danger community. user of both cocaine and was a to the evidence, At the conclusion of the DiFrisco made a brief state- jury, asking jurors spare ment to the the his life: gentlemen jury, taking and I Ladies of the am the of life deeply, deeply sorry Mr. Potcher. Pm for his as well as mine. I ask and I equally sorry family you give not life, me the death Thank Thank plead you spare my penalty. you. all. you evidence, jury’s Also at the conclusion of the but out of the presence, considering striking told the court counsel that it was mitigating pre- a remorse as factor because defense counsel had remorse, only suggestion no sented evidence of it. The the observed, allocution, court was in DiFrisco’s which not evi- objected, informing dence. Defense counsel the court that re- mitigation morse was one of the “central themes” of their case. Implicitly acknowledging they presented that had no evidence of remorse, however, argued present the re- defense struck, mitigating present morse factor should be because “past expressions remorse could be inferred from of remorse.” remain, ruling mitigating factor to the remorse The court allowed stretch, jury may infer the “although may it be a prior from the continuing [confession] of remorse presence testimony, they if so wish.” Closing Arguments
3. summation, jury argued that DiFrisco’s confes- Soto heavily against weigh an unsolved murder should sion to otherwise argued that imposition a death sentence. She further police investigation in their cooperation with the DiFrisco’s favor, that his re- in his Franciotti should be considered police conveyed through his statements to both morse — inability sleep after the the slate and his he wanted to clean a against finding that he was cold- weigh murder —should influ- briefly Franciotti’s for hire. discussed killer Soto blooded him, DiFriseo, manipulat- had stating that Franciotti used ence on thing that couldn’t ing by providing him him with “the one he craved, control,” parental drugs, thing that he other approval. in the closing argument reviewed all of the evidence
The State’s specifically con- supported aggravating factors and case that remorse. The that there was no evidence of DiFrisco’s tended painted portrait of DiFriseo as a cold-blooded hit- prosecutor man for hire. aggrava- jury day. the next In terms of returned a verdict factors, jury unanimously that the murder was for
ting found rejected aggrava- of the pecuniary gain the existence second but factor, purpose for the ting that the murder was committed crime. escaping detection for another *60 rejected mitigating DiFriseo unanimously It four factors —that influence of extreme mental or emotional distur- was under the wrongfulness actions appreciate and unable to of his bance was intoxication; dependent on Franciotti on account of he was drugs; confessing to the murder was for that his motive remorse; “any and other factor.” factors, remaining jury Of the unanimously found that nine (1) (2) had been established: upbringing; DiFrisco’s childhood and (3) suffering attention; his due to his father’s lack of love and his (4) inability provide mother’s discipline guidance; and unavailability of his support older brothers for drug due to their (5) abuse; (6) self-esteem; his failure develop any his stunted (7) maturity drugs; level due to vulnerability his to Franciotti as a (8) figure; Franciotti; (9) father manipulation by his and killing Potcher’s would have remained unsolved but for his confes- sion. jury split
The 6-6 whether DiFrisco had rendered substan- tial prosecution assistance to the State another Regarding murder. drug whether his excessive use affected his ability judgments, eight to make sound yes. voted no and four Finally, on whether DiFrisco remained remorseful about killing, yes. jury eleven voted no and unanimously one concluded aggravating the sole factor that had been estab- outweighed factors, lished the mitigating accordingly and DiFrisco sentenced death.
E. DiFrisco’s Petition for Post-Conviction Relief DiFrisco’s PCR thorough, counsel carried out the kind of com- petent mitigation investigation that should have been conducted prior penalty-phase hired, to the experts they retrial. The whose below, testimony be corporeal will detailed rendered the evanes- mitigation brief, cent case adduced defense counsel. PCR . presented expert Goldstein, Ph.D., report of Alan psychologist, forensic twenty-six who conducted hours of inter- DiFrisco, with family friends, views interviewed DiFrisco’s , comprehensive battery administered a psychological tests. Goldstein concluded that DiFrisco was remorseful after his crime today. to be remorseful Goldstein found that continues DiFrisco does not suffer learning from ASPD but from a disabili- ty, Deficit/Hyperactivity (ADHD), which, Attention Disorder com- abuse, years bined explained poor judgment of substance guide and excessive reliance on others to his social behavior. *61 ways in Silikovitz’s which also laid out report Goldstein’s inadequate, grossly incomplete and DiFrisco was evaluation competent care of a dramatically from the standard deviating psychologist. addition, report of presented expert Wilfred PCR Gorp Ph.D., attested Gorp, neuropsychologist. a Van
Van ADHD since suffered from conclusion that DiFrisco Goldstein’s abilities, childhood, cognitive exacer- resulted in diminished which opined that those Gorp by years of substance abuse. Van bated of social DiFrisco to make sense it difficult for impairments made susceptibility to the influence of in his and resulted situations Franciotti, a Gorp characterized as others, who Van such as figure. mentor Smith, Ph.D., psychologist with an L. a report
The of Robert abuse, also diagnosis and treatment of substance expertise in the drug of DiFrisco’s use evaluated the effects proffered. Smith that, at the time of cognitive functioning and concluded on his offense, ability appreciate wrongfulness of his DiFrisco’s actions was diminished. MSW, Miller, a report of Jill expert counsel offered the
PCR psycho-social completed comprehensive mitigation specialist who remorseful, to be history Miller found DiFrisco of DiFrisco. a nun who advised by her interviews with conclusion reinforced him of individuals who knew prison. By interviewing in a number life, numerous throughout his Miller also discovered DiFrisco indicated he was a generosity incidents of kindness mitiga- Miller also evaluated person capable of rehabilitation. that it performed by trial counsel and concluded investigation tion falling established many respects, in well below was deficient development presentation practice for the standards of penalty phases capital trials. mitigation evidence for Brack, attorney report Esq., I. an Finally, expert of David Analyzing offered. with.significant experience capital cases was case, ways in trial Brack detailed the which this record performance capital fell counsel’s far below national standards defense counsel. psychological declined to experts testify, court allow the *62 evidence;
although reports it received their excluded Brack’s report altogether; and doing, denied DiFrisco’s motion. In so opined Court performance PCR DiFrisco’s defense team’s appeal met constitutional standards. This ensued.
II right “An represented accused’s to be counsel is a fundamen justice component system.” tal of our criminal v. United States Cronic, 648, 2043, 653, 104 2039, 657, 466 U.S. S.Ct. 80 L.Ed.2d 664 (1984). United Supreme repeatedly recog The States Court has counsel, right nized that in absence of “the trial itself to a ” Ibid, Alabama, (quoting would be ‘of little avail.’ Powell v. 287 45, 69, 55, 64, 158, 170 (1932)). U.S. 53 S.Ct. 77 L.Ed. Jersey guarantee
Both the federal and the New
Constitutions
counsel,
only
right
right
not
also a
but
to “the effective
Cronic,
654, 104
supra,
assistance of counsel.”
466 U.S. at
at
S.Ct.
2044,
Richardson,
at
(quoting
80 L.Ed.2d
664
McMann v.
397 U.S.
759,
14,
1441, 1449,
763,
(1970));
771
90
25
n.
S.Ct.
L.Ed.2d
773
see
(“Because
17,
(1980)
Sugar,
also State v.
84 N.J.
State
105 N.J.
There'
no
set of
Strickland,
688-89,
supra, 466 U.S. at
performance.
able
supra,
105 N.J. at
694;
Fritz
at
S.Ct.
at
80 L.Ed.2d
Instead,
any
presenting an
“[I]n
A.2d 336.
case
ineffectiveness
claim,
performance inquiry
assis
must be whether counsel’s
Id. considering
all the
tance
reasonable
circumstances.”
*63
2065,
at 694. See also State v.
688,
104 S.Ct. at
80
L.Ed.2d
617,
(1990)
Savage,
594,
N.J.
(noting
120
A.2d 455
577
“[prevailing
practice
of
reflected
American Bar
norms
as
guides.”).
general
Association standards and
like ... are
As a
matter,
consultation,
adequate
loyalty,
legal proficiency
“client
determining
are relevant
whether assistance was effective.”
Fritz,
52,
supra,
105 N.J.
at
“The of a defendant’s reasonably principle is competent counsel. ‘The so fundamental may pretrial investigation that the failure to conduct reasonable ” v. Harris in itself ineffective amount assistance counsel.’ 1239, (1994) Blodgett, F.Supp. States v. United (quoting 853 1255 Tucker, Cir.1983); McQueen (9th v. 576, n. F.2d 716 583 16 Swenson, (8th Tay 207, Cir.1974)); Williams v. 498 217-18 F.2d lor, 389, (2000); May 362, 1495, 529 U.S. 120 S.Ct. 146 L.Ed.2d Cir.2001) (en banc);. Woodford, (9th v. Cole 915, 270 F.3d field Mitchell, (6th 417, v. v. Cir.2001); man Ainsworth 268 F.3d 449 Horn, (9th Cir.2001); Jermyn Woodford, v. 868 266 F.3d 268 F.3d (3d (6th Cir.2001); 581, Carter 257, v. F.3d 218 596 312 Bell
273 Cir.2000); Stewart, (9th 1004, Cir.1999); v. F.3d Smith 189 1008 Morton, (3d Berryman 1089, Cir.1996); v. 100 F.3d 1101 Hen Calderon, (9th 1032, 1043 Cir.1995); dricks v. 70 F.3d Workman v. Tate, 1339, (6th Cir.1992); Armontrout, Kenley 957 F.2d 1345 v. (8th Cir.1991). P.2d 1298, 1309 937 performance Courts also have found deficient where counsel appropriate expert failed to hire and call Mayfield, witnesses. 927; Anderson, supra, 695, at 270 F.3d v. Lockett 230 F.3d 716 (5th Calderon, Cir.2000); 1148, (9th Jackson 211 v. F.3d 1163 Cir.2000); Calderon, (9th 1223, Cir.), v. Caro F.3d 165 1227 cert. denied, 1049, 2414, (1999); 527 U.S. 119 144 811 S.Ct. L.Ed.2d (2d Tarricone, 1414, Cir.1993); United v. States 996 F.2d 1418-19 (6th Cir.1992). 1575, 1580-81 Livesay, Sims v. 970 F.2d Performance has been deficient where deemed counsel failed to provide expert expert’s an information that was critical to Smith, 1112; Stewart, analysis. supra, 189 F.3d Wallace v. 184 (9th 1112, Cir.), denied, 1105, F.3d 1118 cert. 528 120 U.S. S.Ct. 844, Lewis, (2000); 1373, 145 713 v. L.Ed.2d Clabourne 64 F.3d (9th Cir.1995). 1385
Although present counsel’s failure to available evidence favor may performance able to a defendant not alone constitute deficient Strickland/Fritz, prong inadequate under the first “an investi gation compe law or fact ... dispels presumption might strategic tence that otherwise from a v. arise choice.” State (1999) V). Bey, 161 If (Bey N.J. 736 A.2d counsel’s deficient, performance shown to inquiry is be then the turns to the prong analysis. second of Strickland Davis, 341, 356-57, (1989), In State v. 116 N.J. 561 A.2d rejected this Court the notion that it should alter the ineffective *64 case, guilt capital phase assistance counsel test for the of of a stating “adequately that the test would fulfill the Strickland/Fritz However, guarantee.” on apply constitutional when to called trial, penalty-phase to a the Court determined to Strickland/Fritz doing, alter the the that a standard. so Court noted literal application prejudice prong reviewing of the would force a court to
274 jurors. that “a sentencing Recognizing the
step into the of shoes attempts if it strays function reviewing court from its traditional jury penalty-phase a would have predict probability that to the deficient,” if not the Court changed its verdict counsel had been prejudice the propounded a new standard to better accommodate Marshall, State v. appellate 148 “circumscribed review function.” (1997) (Marshall III). 250, 89, N.J. A.2d 1 690 prejudice an of the test view, capital-case In our adaptation Strickland/Fritz proceedings our reflects function would faithfully appellate more penalty-phase but for that, courts there is reasonable probability to determine whether require jury’s would deliberations have errors, counsel’s the unprofessional penaliy-phase been affected substantially. mm standard, announcing new said: “The reason- After the the Court penal- of in the probability that ineffective assistance able substantially jury’s penalty- the ty phase capital of a trial affected ‘probability phase equates with a sufficient under- deliberations ” Ibid, Strickland, (quoting mine confidence the outcome.’ su- 698). 466 U.S. at 104 S.Ct. pra, at L.Ed.2d explained preju- Finally, reasoning changing the its for the Court phase capital sentencing the of a trial: dice standard for regard understanding prejudice prong reviewing our We of the Strickland/Fritz proceedings of of counsel to be a claims ineffective assistance penalty-phase of the to the literal Strickland standard realistic limitations necessary adaptation jury Although of an review deliberations. appellate penalty-phase appellate jury’s deliberations, court cannot the outcome of it is penalty-phase predict assessing mitigating of whether additional entirely production capable jury’s been to have on the evidence would have a substantial likely effect prejudice are that our of the Strickland deliberations. We satisfied adaptation prong proceedings meaning is faithful to the core of the standard penaliy-phase announced the Strickland court. added).] (emphasis [Id. at 690 A.2d 250-51, the Marshall III Notwithstanding that statement Court’s Strickland, “equates” they are it is clear that standard compelled Otherwise the not have felt same. Court would meaning modify Clearly standard. Strickland/Fritz probability” “reasonable is the same in both contexts. differ- III Marshall process jury’s ence is scrutinizes deliberations, whereas focus is on outcome. Strickland/Fritz
275 spotlight process The is consistent with the concern ex- pressed by Court, Supreme specific United States to the penalty phase capital of trials: underlying Eighth [I]n cases the fundamental for capital respect humanity (1958)] (plurality see v.
Amendment,
Dulles,
[86], 100[,
356 U.S.
factors broad latitude consider human amorphous factors, effect, weigh against the worth one’s life culpability. Presumably imposition jury of a death is a is sentence entrusted to because it moral decision in uniquely bright which rules line have a limited place. [Hendricks, 1044.] 70 F.3d supra sum, if unprofessional performance counsel’s compromised the process penalty proceeding by keeping of the jury from the that, presented, reasonably information if probable was to sub- stantially prejudice process, affect deliberative is established. See, Smith, 1013; e.g., supra, Turpin, 189 F.3d at Collier v. 177 (11th 1184, Cir.1999); Tate, F.3d 1202 v. Glenn 71 F.3d (6th Fulcomer, Cir.1995); (3rd 1210-11 Frey v. 974 F.2d Cir.1992). backdrop against analysis
That is the proceed. which our should
Ill essentially There were two narratives about DiFrisco could by capital expert be culled from the facts. As described cause Brack, David he “self-indulgent, one was that was a amoral and persistently parasitic lifestyle who selfish individual chose the of a abuser, drag chronic and who entered into cold-blooded contrac- arrangement organized tual figure with an crime murder a stranger money.” for other that he committed the
murder, paid, because he was pittance he was but long- neurological damaged by impairments emotional spell under the of a father drug led him to fall term abuse that *66 (Franciotti), truly his that was remorseful for figure and he unregenerate; the former cast DiFrisco as actions. The narrative latter, life would capable redemption. of Whether DiFrisco’s as narratives depended great in measure on which of those be saved jury the believed. is that DiFrisco’s defense team perspective,
From it clear that required capital of counsel and that fell short of what is jury’s process. inadequate performance affected the deliberative A. REMORSE always prosecution pivotal a issue. See capital remorse is Capital Stephen Garvey, Economy Sentenc- P. The Emotional of (2000) 26, (noting jurors that who ing, 75 N.Y.U. L.Rev. 58-59 him as “likable as found a defendant remorseful also tended to see Garvey, Stephen Aggravation Mitigation person”); P. 1538, Capital Think? L.Rev. What Do Jurors 98 Colum. Cases: (1998) that (referring analysis that showed 1560-61 statistical jurors likely to death if the ex- were more vote for defendant “only pressed remorse and that the defendant’s no for offense history more prior dangerousness of violent crime and future were remorse,” jury’s determining aggravating than lack of verdict); Eisenberg, Garvey, Stephen & Martin T. Theodore P. Wells, Sorry? Capital He The Role Remorse in But Was of 1599, (noting Sentencing, 83 Cornell L.Rev. 1633 that statistical analysis jurors “if demonstrated that believed that the defendant done, they him to sorry what had to sentence was he tended death”); Jury imprisonment, Sunby, Capital E. life Scott Remorse, Strategy, Trial and Absolution: The Intersection of (1998) 1557, Penalty, (stating L.Rev. 1565 the Death 83 Cornell jurors “if reported that the defendant had made some show- they ing might have switched their votes from death remorse “in in which life” thirteen the nineteen studied [cases juror imposed] explicitly penalty was at least one death
277 that he insisted would have voted for life rather than had death remorse”); Anthony defendant shown William S. Geimer and Amsterdam, Why Operative Jurors Vote or Death: Fac- for Life Cases, Penalty Ten tors in Florida Death Am. L. 15 J.Crim. (1987-88) (noting jurors demeanor, report 39-40 that defendant’s including remorse,” “lack operative was an factor in their impose penalty percent decision to the death in thirty-two examined, in significance only cases second manner of the killing). penalty
At DiFrisco’s first trial was conducted without a mitigation investigation, imposed penalty. court the death remorse, Finding no appeal evidence of on direct the Court unique, part characterized the as ease because the defendant I, supra, so “remorseless.” N.J. at DiFrisco trial, A.2d At penalty 914.5 DiFrisco’s second the defense offered *67 (1) mitigating two remorse-related that he confessed factors — (2) of his and presently because remorse that he is remorseful. jury unanimously rejected mitigating the first factor rejected by the a of 11 That second vote to 1. outcome is unsurprising essentially presented because no evidence to fact, undergird the idea of DiFrisco’s at the remorse. close case, proposed the striking mitigators the trial court remorse the altogether because there was support no evidence to them. Even- tually, desperately argued because defense counsel that remorse case, lynchpin was a mitigators their the Court allowed the solely past jury. remain the because confession was before the How PCR could the Court have concluded that defense counsel’s present passed failure to remorse evidence muster is difficult to comprehend. 5 Review, On this. Court DiFrisco’s lack of remorse Proportionality relied-upon determining against the of offenders whom his death sentence be should pool refusing and, result, as a to find his death to be sentence compared dispropor (1995). v. DiFrisco,
tionate. State
N.J.
Had defense remorse, might have been seen present evidence ing the failure to Or, strategic had offered if defense a reasonable choice. as then some regarding presented remorse and mitigating factors them, have demonstrated a testimony support that would Instead, mitigating the defense offered two strategy. coherent issue, remorse, thereby drawing attention to the about factors impossible It support them. is presented no evidence to then performance justify the course of action because their defense’s not was reasonable. expert presented supposed two witnesses and
DiFrisco’s counsel they initially lay penalty Although at the retrial. four witnesses Silikovitz, specialized in sexual and termi- hired who child abuse they parental rights, did use him as a witness. nation of report DiFrisco times in his first stated several Silikovitz to “undo all deeply for his crimes and that he wished remorseful him really things” he done. described as a bad had Silikovitz “capable empathizing closely “sensitive individual” who is feelings thought others.” also found that Silikovitz good right is sense of what and what is DiFrisco “does have fully specific wrong, and he crimes deserve understands conveyed consequences.” report, In his second Silikovitz specific describing strongly, specifically DiFrisco’s remorse even more family, point lacking trial court remorse Potcher’s found phase. penalty report in the first second observed Silikovitz’s that, crime, years given over the five since his had DiFrisco implications thought “to of his to the considerable acts dece- family society.” dent’s and to diagnosis made in his of DiFrisco
Given errors Silikovitz *68 general knowledge capital litigation, his lack of counsel’s and about penalty not call him at the trial was decision to as a witness him, however, replace clearly decision to reasonable. The was a unreasonable. Once counsel determined Silikovitz psycho- liability, opinion seek of a new it defied reason not to the expert’s expert. particular logical If counsel determines that a deficient, report investigation significant is but the area of is to the (which mitigation was), obviously case duty remorse the to investi- subject gate requires inquiry by further into the covered the incompetent expert.
Significantly, to defense also failed instruct Alfonso investigate to mitigation Associates remorse as a source of evi- goes saying dence. It without that when defense counsel hires a mitigation client, expert to responsi- evaluate the counsel remains management for monitoring ble of the case and devising for and remorse, strategy. coherent respect With to that did not occur. expert reports presented hearing at the PCR underscored availability spent the of remorse Dr. evidence. Alan Goldstein battery hours with DiFrisco psychological and administered a of tests. Goldstein concluded that DiFrisco was remorseful: Mr. DiFrisco at is, times, the effects that his incarceration and his preoccupied sentence have had his his mother. feels upon He considerable family, particularly guilt being thoughts her, in not available and to at focuses on about her help times, Feelings eventual death. of and from his to depression remorse stem failure take advantage drugs of and school the effects have had on his A life. considerable killing regrei^-taking amount of of remorse focuses on the Edward Potcher: “I self-serving, life.” While such as responses may be the of interpreted consistency through suggests genuine- such and in other responses interviews records feelings.
ness of such The “other records” referred Goldstein include DiFrisco’s arrest, police upon spoke statement his in which he of his feeling “very sorry desire to “clean his killing” the slate” and for past present Potcher. Goldstein found expressions DiFrisco’s findings remorse be consistent and summarized his on the question of DiFrisco’s remorse: acknowledges significant drugs Mr. DiFrisco role this crime played recognizes judgment thinking
he that existed his impairments poor acknowledges time the crime. while he these However, newly found insights, is it clear that Mr. DiFrisco does not offer as them an “excuse” his recognizes wrongfulness feelings conduct. he Rather, act; his shame According drugs and remorse are ... “If readily DiFrisco, Mr. not for apparent [I] ... would not have committed a never.” The murder; Petitioner was able to stating I “I have a understand ... did a express empathy, family terrible, —I thing.” terrible *69 findings significance his explained the of report, Goldstein In his highly been in terms that would have DiFrisco’s remorse about that He would have testified jury’s deliberations. relevant the “significantly past insight into his acts remorse and his DiFrisco’s acting-out behavior.” of future violent the likelihood reduces counsel, Miller, Jill mitigation specialist retained PCR inter- on numerous on her own observations and reported, based Gnam, nun a Catholic and Elizabeth views with DiFrisco Sister capacity Chaplain as of the New in her who with DiFrisco worked Prison, sincerely Ac- remorseful. that DiFrisco was Jersey State cording report, Sister Elizabeth: Miller’s [cjonfirmed during that about once a week the time he that she met with Petitioner general he was in from population
was in and less when CSU, frequently somewhat spring, spring that she has had many of 1990 to 1993. Sr. Elizabeth stated has addition, with over the she conducted years. individual sessions Anthony religious to be on his unit. She that' she found always Anthony services reported length adding at of that he “Shared and about the events very responsive, deeply to relate well to his Sr. Elizabeth noted that has Anthony always appeared life.” good. adjustment at the has been prison his overall others; in with her about his actions has talked Anthony Sr. Elizabeth reported genuinely is remorseful. Sr. Elizabeth stated offense. She believes he grown He and has matured. has has more reflective over Anthony years including in that, stated contrast to on own his mistakes. She actions, reflected his for has his mistakes others she sees, Anthony always accepted responsibility many wrongfulness of and his actions. understands clearly that, DiFrisco, reported Miller own interactions with Based on her forward, Anthony that he shooting the time states “[f]rom of terribly guilty something wrong. He felt and knew he had done Miller’s assessment of DiFrisco was consistent remorseful.” Goldstein’s assessment: agent high drugs reporting viewed as in to his on could be parole actions
Anthony’s a in homicide, to be His confession to the commission of cry stopped. help, being charged of the need to theft, to avoid with auto indicates possibility order guilt His his his actions and take both. responsibility, possibly relieve about waiving providing offense, details of the extradition with authorities in cooperation wrongful- understanding pleading guilty remorse, and are further indicators ness, acceptance responsibility. rehabilitative potential There are a number of indicators of positive present among time of these are the behaviors he displayed Chief Anthony’s part. spring continuing arrest in New York 1987, the time of his plea confession, 1988. His waiver of January, extradition, with authori- cooperation guilty an ties, *70 all indicate of plea remorse, and an acceptance responsibility, understanding wrongfulness of his actions. has not, at time Anthony any projected interviews with this on author, blame for his actions else. He anyone (immediately) something wrong “I knew stated, 1 did ... I’m terribly responsible understanding wrongfulness 100%.” He has a exhibited clear of the his conduct, genuinely regarding and appears remorseful the death of Edward Potcher. specifically recognized significance PCR court “the of re- mitigation morse in capital inexplicably as cases” and then found presentation that defense had acted reasonably their First, above, insupportable. remorse. That decision is as noted present Second, no evidence remorse was adduced. there was ample proof available of DiFrisco’s remorse that defense counsel Third, replace overlooked. the decision not to Silikovitz with a psychological expert present different to evidence of DiFrisco’s totally remorse Presumably, was a competent inexcusable. re- placement not diagnosis would have reached Silikovitz’s incorrect that troubled It Soto. was thus unreasonable to for counsel not Indeed, consult expert. another the evidence adduced at the PCR hearing made replace clear that Soto’s failure to Silikovitz with expert simply another occurred because she out ran of time and comprehend not did consequences terrible of her decision. Although Lapidus they they both Soto and testified that knew witness, needed a remorse Soto decided not to call Silikovitz when approximately she became lead counsel six weeks before trial. Indeed, nearly the remorse thin case so that the trial court dismissed it. present testimony
Because defense counsel’s failure to
expert
strategic decision,
remorse cannot be viewed as the result of a
it is
Ward,
any
not
entitled
deference whatsoever. See Cooks v.
165
(10th
1283,
Cir.1998)
F.3d
1295
(stating that where
is “no
there
otherwise,
strategy,
explain”
reasonable or
perfor
counsel’s
mance,
warranted);
Thomas,
no deference is
v.
45
Baxter
F.3d
(11th
Cir.1995)(noting
1513
if counsel’s decision “was
tactical,”
V,
prejudice
court
proceed
inquiry); Bey
must
(“An
supra,
251-52,
In evidence remorse, actions were analo- defense counsel’s factors based in attorney have ineffective gous to of the found to been those Savage: mitigating
Although linked five factors —two presented specifically defense regarding no defendant’s expert testimony to defendant’s mental state —he offered developing mitigation, counsel failed to In his ease in defense mental state. background regarding and of information defendant’s obvious sources explore factors____In mitigating sum, counsel relevant to those five state, mental directly jury mitigating factor. with little or no evidence find provided any [Savage, 455.] 120 at 577 A.2d 623-24, N.J. supra, dispute really whether defense There can be no serious over have prejudiced DiFrisco. Numerous courts counsel’s actions penalty phase of at the recognized unique significance remorse See, 633, e.g., Dugger, v. 922 F.2d 635-36 capital of a trial. Booker Cir.1991) (11th precluded jurors (noting instruction that from harmless); considering remorse not Rus- evidence defendant’s (5th Cir.1989) 1205, (holding Lynaugh, F.2d 1215 sell v. 892
283 “capable evidence that defendant remorse” to be relevant question “to dangerousness”); Delap of future Dugger, v. 890 (11th Cir.1989)(instruction 285, F.2d precluding jury’s consid alia, of, remorse, eration inter evidence of defendant’s harm not less); (11th Magill Cir.1987) Dugger, v. 824 F.2d 893-94 (holding error not where harmless evidence of was ex remorse consideration); jury’s cluded from Page, United States v. cf. (N.D.Ill.2000) (additional WL *16 mitigating evidence unlikely change proceeding outcome of where defendant’s testi mony “bespoke remorse”). lack contrition or majority’s contrary
The
conclusion suffers from a number of
fundamental
is
flaws. The first
its notion that because DiFrisco’s
brutal,”
“calculating
crime was
the remorse evidence would
not
analysis
have made a
ignores
difference. That
that the crime
point
departure
case,
is
mitigation
in a
not the determinant.
More importantly,
directly in
it flies
face of
what social science
judicial
taught
decisions have
power
us about the
of remorse
sway juries.
For remorse to
an
mitigator,
be
effective
required
is
defendant
not
“good.”
reveal,
to be
theAs
cases
remorse has been considered
involving
ameliorative
situations
brutality
cruelty
greatly
exceeded DiFrisco’s.
majority
is also
wrong
justify defense counsel’s failure to
present evidence of
ground
DiFrisco’s remorse on the
that the
remorse
negative
evidence carried with it
information about Di-
Frisco. That
only
experience
determination not
belies our
capital jurisprudence, but also misconceives the Court’s role in a
Indeed,
case
this.
it
capital
like
is the rare
murder case that does
present
two-edged
evidence.
the absence of a reasonable
*72
strategic
justify
decision
alleged
its omission—which
not
is
even
here —such
weighed by
evidence should
jury.
be
the
short,
defense counsel’s failure to adduce evidence of DiFris
remorse,
only
objective
co’s
“fell below an
standard of reason
Strickland,
ableness,”
688, 104
supra,
2064,
466
atU.S.
S.Ct. at
693,
L.Ed.
unquestionably
2d at
but also
jury’s
affected the
deliber
ations, thereby prejudicing DiFrisco under the standards of Mar
Williams, supra,
shall (stating determination that that lower court’s at 420 146 L.Ed.2d required of death sentence reversal mitigation omitted evidence totality the the of on his assessment of appropriately “rested evidence”); (stating that Jermyn, supra, 266 at 309 F.3d omitted if there a reasonable prejudice this case is defendant “can show disturbing presentation specific of the probability that mitigating factor neglect as a abuse and evidence childhood mitigating factors juror to find the have one would convinced relied single aggravating factor Commonwealth outweigh the case”). upon in this petition, on the PCR jury heard the evidence adduced
Had the counsel, likely it indisputably available to trial is all of which was mitigating the two have found the existence of it would importance regarding submitted to it remorse. Given factors remorse, likely jurors would have attributed it is also that the said, fairly It be significant weight to those factors. cannot therefore, reasonably were not that defense counsel’s omissions substantially jury’s Sav- probable to affect deliberations. See 623-24, 626, (holding that 577A.2d 455 age, supra, 120 N.J. at diminished produce evidence of defendant’s counsel’s failure having mitigating factors capacity, despite submitted two mental mental jury “specifically linked to the defendant’s state” to the prejudicial). Cooperation B. to pursue failure
I am as well that trial counsel’s convinced ineffective assis- cooperation with the state constituted DiFriseo’s confession, already given By of counsel. DiFrisco had tance Although the up. prosecutors wanted Franciotti. himself exchange DiFriseo’s never a life State offered sentence Jury, gain from testimony still had much to before the Grand he plan cooperating. Specifically, given trial counsel’s to submit sub- jury mitigating that “the defendant rendered factor prosecution in the another stantial assistance to State murder,” cooperation, if attest- person for DiFrisco’s the crime *73 State, by toed the would have the increased chances that addition- jurors al important would have found the existence of mitigat- that ing factor, jury or given greater that would have it weight.
There support was little evidence to the cooperation mitigating because, although prosecutor factor made efforts to obtain cooperation, DiFrisco’s steadfastly rejected DeLuca those efforts table, unless death was off prosecutor taken and he led to believe that DiFrisco cooperating was interested in in the absence of that passed condition. Even if DeLuca’s actions mus- case, as negotiating early stages ter tool at the of the at the point at which he his successors reached court house steps, explore their refusal issue in the absence “bargain” for clearly a life sentence ineffective assistance of counsel.
Indeed, on morning prosecutor again trial when the sought cooperation sentence, but refused a life DiFrisco had lose, absolutely nothing everything to gain, cooperating. report As the explained, David I. Brack trial counsel’s failure to pursue cooperation point at that “inexperience” capital reflected defense, proffer because “even an unsuccessful would have strengthened mitigation claim Mr. DiFrisco’s that had he done everything possible to prosecuting assist the state in Mr. Franeiot- present jury ti.” Had counsel been able to the additional cooperation, jurors may evidence of more than six have found the mitigating existence of that significant factor and accorded it weight. rejecting claim, incorrectly the PCR court held that the it, support
record failed to “attorney because DeLuca was not testify course, called to as hearing. a witness” the PCR Of ignored the uncontested evidence of correspondence DeLuca’s with the establishing position State respect inflexible cooperation. importantly, DiFrisco’s ignored More the PCR court altogether portion addressing the claim DeLuea’s succes- pursue cooperation sors’ failure to they with the State even as prepared penalty for the retrial. out, true, points that DiFriseo stated that majority is as the
It *74 However, is a far as “snitch.” that known a did not want to be he of the Notably member cooperate. no cry from a refusal DiFriseo, fact, in hearing that testified at the PCR defense team seeking of DeLuca as his removal cooperate, and letter refused to testimony at the contrary. stated the specifically in Nothing the record DeLuca’s attitude. hearing focused on strongly advise obligation DiFrisco’s counsel to the of eliminated case, mitigation especially his cooperation in order to enhance by cooper- absolutely nothing agreeing had lose because he ate. “bargain” the cooperation with the State because ruling out offered, provided had been defense counsel
of a life sentence not constitutionally ineffective assistance counsel.
C. Cumulative Error standing of trial counsel Even if none of the individual omissions sufficiently grievous require finding a of ineffective alone was counsel, aggregate, in the when considered the assistance noted, remedy. cumulatively cry for a As missteps in this out case despite adduced the fact two no evidence of remorse was jury. surprising is mitigators the It not remorse were before Second, and 11-1. DiFrisco’s counsel jury rejected them 12-0 cooperation prosecutor despite advanc- pursue refused to Third, totally mitigator. the defense team ing cooperation a competent psychological to secure a responsibility abdicated its only jury’s have affected overall view evaluation could character, impacted jury’s also could have of DiFrisco’s but ability judgment to exercise was impression of whether his sound rejected. psycho- eight jurors Without impaired, a notion documenting neurologi- logical DiFrisco’s emotional and evidence picture of his impairments, presenting true cal chance Fourth, by radically was diminished. relationship with Franciotti Alfonso, factual spite of her lack of substituting Albarus credentials, training, and DiFrisco’s entire knowledge, professional mitigation investigation presentation, poor was, as as it essentially eviscerated.
Contrary court, to the conclusions of the PCR the evidence proffered hearing at the quality PCR was different in quantity presented Indeed, from the defense case at trial. it impossible is to review the realizing facts this case without persuasive that a case for life could have been advanced on behalf of DiFrisco but jury was not. only single Given that the found aggravator, there probability is a more than reasonable that its deliberations would substantially by have been affected mitigating wealth of evidence hearing adduced at the PCR but omitted due to cumula- tive error defense clearly supported counsel. That evidence the narrative about DiFrisco that could have saved his life. conclusion,
In reaching opposite an both the PCR Court and the *75 bounds, majority overstepped weighing their the PCR evidence simply focusing instead of potential on its nature its substantially process. affect the deliberative Had the lens been directed, properly question there is no penalty but that a new trial, phase informed, at jury fully which the could be should have been ordered.
IV
Finally,
penalty
DiFrisco contends that the death
is unconstitu
Koskovich,
expressed
tional. For the reasons I
in State v.
168
448,
(2001),
N.J.
Ramseur must be revisited in and, a moratorium must interim, be imposed the use of the extreme and irreversible sanction of death. 288
[Koskovick, and dissenting supra, part) ]. N.J. 581, [776] A.2d (Long, J., concurring in part
V
quality
Traditionally,
prided
have
ourselves on the
of defense
we
Jersey.
representation
capital
disappointing
cases in
New
reliability
capital jurisprudence
of the
decision
undercuts
labored,
today
majority
over which
have
sanctions
we
in which
imposition
penalty
of the death
in a case
defense
“entirely
subject
meaningful
case
prosecution’s
failed[ed]
Cronic,
659,
testing.”
supra,
COLEMAN, and LaVECCHIA —4. VERNIERO STEIN, For reversal —Justices LONG and ZAZZALI —3.
ORDER *76 Court, having duly presented This matter been to the it is ALAMPI of ORDERED that CARMINE R. ENGLEWOOD CLIFFS, 1977, this who was admitted the bar of State in practice period suspended who was from the of law for a of three 25, 2002, May April months filed effective Order this Court law, immediately. practice be to the restored effective