*1
ORDER having presented to the Court on the This matter been appeal May defendant for leave to applications of denying defendant’s motion for non- Law Division order of the motion for an sentencing and defendant’s alternative (M-1281); (M-1280) hearing stay and for a of trial evidentiary clearly the basis for having record failed to set forth And the matter; charging the Prosecutor in the decision of appearing; good And cause (M-1280) appeal the motion for leave to
It is ORDERED that denied; and it is further (M-1281) is stay the motion for a of trial ORDERED that granted; and it is further summarily remanded to the
ORDERED that the matter to determine direction to the Prosecutor Law Division with novo, independently, de charging decision forthwith Designation for the of Homicide with the Guidelines accordance Prosecutions, approved by Attorney Capital Gen- Cases for Association; and it is further County and the Prosecutors eral dissolve, stay further Or- shall without ORDERED that Court, Prosecutor’s notification to defendant der of the on the decision; charging and it the Prosecutor’s and the trial court of is further decision, charging whether that the notice
ORDERED capital prosecution or proceed with a it be to continue otherwise, set forth the reasons writing and shall shall be *2 therefor. is not retained.
Jurisdiction
HANDLER, J., dissenting. has considered time that the Court This is the second comes prosecution. The case capital of Kevin Jackson’s status appeal from for leave to motion the Court on defendant’s before prosecuted for case be court that order of the trial an prosecutor’s on the That order was based capital murder. permitted plead to not be that defendant should determination non-capital murder. guilty to murder, knowing or purposeful for was indicted
Defendant Septem- assault, degree On third theft. aggravated sexual theft guilty to the murder and 19, 1986, pleaded defendant ber murder, capital trial for ensuing penalty In charges. c(4)(c) vile mur- aggravating factors (wantonly relied on murder). jury The sentenced defendant der) c(4)(g)(felony for the factual basis Court held that appeal, On to death. intent to kill requisite plea not establish entry of the did 484, 490, Jackson, 118 N.J. capital murder. State for (1990). A.2d plea was set aside.
Thereafter, original guilty defendant’s It indicated plea negotiations. into new then entered The State accept plea to a that it would the trial court defendant and to day later. revoked one decision was non-capital murder. That murder, non-capital plea to accept guilty a to refused capital-murder a matter as prosecute the and determined result, moved As defendant penalty. a the death case and seek proffered his sentencing directly based proceed with evidentiary or to have an non-capital murder plea to guilty position. The trial change of the State’s hearing regarding stay a motion, a motion for as well as court denied stay. appeal and a leave to Division denied Appellate trial. He contends appeal to this Court. sought leave to Defendant proceed not to of the decision prosecutor’s reversal that the thereby capricious, result- arbitrary and a trial was with alternative, In the defen- punishment. ing in cruel and unusual prima case of arbitrari- argues presented he dant fade hearing in evidentiary requests an prosecutor, ness required to state his reasons would which reversing decision. his initial appeal motion for leave denies defendant’s
The Court now by the novo determination stays pending the trial de but penalty against defen- seek the death prosecutor on whether to prosecu- consistent with the is to be dant. That determination also orders the capital cases. The Court guidelines for tor’s decision on the record. place reasons for that prosecutor to *3 prosecuto- the fact that exemplifies and documents This case determining eligibility under our current death rial discretion unguided. Prosecu- regime unprincipled and capital-murder disparate that so inconsistent and charging practices are torial arbitrary capri- irretrievably have become the end results appeal. Court, opinion, grant leave to my should cious. The governing prose- objective standards set clear and It should procedures, prescribe firm charging responsibility and cutorial review, prosecutorial role in that the including judicial to assure soundly, fairly, consistently eligibility is determining death exercised.
I defen- and the record for constitute the basis The facts that disturbing very appeal to are motion for leave dant’s transcript appear glossed They from over. cannot the trial by made counsel and representations statements and applications and motions. pretrial in the course of court proceedings held chambers the statements refer Some to reach a attempts of the State and defendant dealing with the plea agreement. decision,
In our plea earlier we held that defendant’s failed to establish whether he guilty capital non-capital was or mur- Jackson, der. supra, 118 at 2d 572 A 607. Accord- ingly, the Court concluded: We vacate the sentence of death and remand the matter to the Law Division proceedings guilt
for further in accordance with this A retrial of the opinion. murder, will be if the defendant does not phase required plead [/d. 492-93, A.2d 607.] 3, 1991, July presiding assignment judge On criminal vicinage, had originally, who handled the case wrote a letter In purported Septem- counsel. that letter he to set aside the 19, 1986, guilty plea interpretation ber based on his Jackson decision. The case was then transferred to another judge for trial. fully
The State asserts that it intended to seek the death penalty for defendant after the remand of the case this Florida, appears Court. It that while on vacation in the assist- prosecutor assigned ant to the case met with the victim’s ex- husband, who was the father of the victim’s children and the family spokesperson, family’s feelings opinion to elicit the or on following the case of the sentence. The reversal ex-hus- family pursue band stated that the wanted to a retrial on the phase. requested The trial court itself that the assist- again regarding ant contact the members position their seek the whether State should court, According attempt- penalty on retrial. to the trial it was ing something if short of a to see the case “could be resolved *4 seeking penalty.” the assistant second trial death When prosecutor responded any- that the would not consider trial, thing penalty urged the but a second the trial court prosecutor family’s feelings to confirm the and to assistant 17, April Accordingly, decide “once and for all.” on or about prosecutor judge’s communicated the re- the assistant ex-husband, said he would discuss it with his quest to the who get prosecutor. family and to the assistant back Monday, April At for 1992. Pretrial motions set were day, request, the p.m. on the trial court’s 12:00 that at about prosecutor telephoned for his decision. the ex-husband assistant to a family would not be adverse indicated that The latter thirty-year parole disqualifier. prison with of life a sentence motions, p.m., pretrial the trial court At 1:30 the time set prosecutor The assistant a conference chambers. conducted family avoid a retrial. had decided to related that the victim’s possibil- he would discuss the prosecutor also said The assistant report plea agreement County Prosecutor and of a with the ity Later, prosecutor informed that the assistant afternoon. back that, consistent with and defense counsel the trial court wishes, penalty, pursue the death family’s would not from County Prosecutor to have letter that the wanted but sentencing. The proceeding with the victim’s before According- April 1992. expected Wednesday, on letter was hearing date. court the case for that ly, the trial set Monday, presid- However, p.m. on approximately 4:30 in his cham- ing assignment judge called a conference criminal being in- After judge trial both counsel. with the bers case, judge expressed presiding of the status of the formed position. that if He commented displeasure with State’s penalty, it this one. the death was any case deserved presiding in chambers with Based on the discussions position. its office reconsidered judge, prosecutor’s prosecutor April the assistant morning, Tuesday, next counsel that the State judge and defense notified the trial also penalty. assistant seek the death would reported family of the decision and victim’s informed the disposition. had assented to ex-husband challenging brought April a motion on Defendant mur- plea non-capital accept his prosecutor’s refusal constitutionally, the argued to be administered He der. criteria, sought uniform established must be with He contended that unknown. the criteria were that here *5 prosecutor decided penalty Monday not to seek the death and had reversed that Tuesday only decision on when the changed presiding judge’s expression circumstance was the displeasure with the initial decision. Counsel also mentioned Jackson, male, the risk of discrimination because a black was murdering accused of a white female. prosecutor imprisonment admitted that the offer of life Monday, argued
had been made on but that because defendant it, accepted had not the State was free to it on withdraw Tuesday. Notwithstanding family’s acquiescence the victim’s forego trial, in a penalty tentative decision to a second prosecutor seeking penalty decided that the death “was the right addition, thing to do.” In the office was concerned that if case, did not penalty it seek the death in Jackson’s it which deserving penalty, considered most it would set an precedent against securing penalty high- unwanted the death ly aggravated cases. The asserted that his office “complies fully standing with committees on what cases are appropriate penalty,” readily to seek the death but he affirmed family the wishes of the victim’s are a consideration.
The trial court denied defendant’s motion to be sentenced for non-capital analyzed only murder. It the case as if the issue alleged plea agreement. involved was the withdrawal from a had not made an offer The court concluded that only preliminary because there had discussions between been parties; any receipt offer had been conditioned on the of a letter from the and that letter had not victim’s been received; purported accepted by that the offer had not been defendant; and that the had free to decide to seek been the death because there had been no detrimental re- by liance on the offer defendant. The court characterized the withdrawing offer of life State’s reasons for the tentative appropriate as a imprisonment as a belief that case was accepting plea non-capital capital case and that murder precedent. inappropriate would have set an The court added showing prosecutor. that there had been no of bad faith *6 stay any jury also of the trial and trial court denied 4, Thereafter, May proceeded as scheduled on 1992. selection appeal, to as does Appellate Division denied leave this Court.
II
authority to
initial
decide that a
Prosecutors are vested with
or
to die for his
her crime. Jackson
defendant deserves
in
exercise
hardly
capital
to observe that
the first
defendant
completely unsupervised
prosecutors are
and
authority
of that
In our first consideration
their decisions unfathomable.
statute,
capital-murder
we stressed the
constitutionality of our
determining
significance
prosecutorial
in
of
discretion
arising
eligibility
disturbing implications
and
from the lack
consistency
exercise of that discretion.
or coherence
123,
Ramseur,
(1987).
524 2d 188
That
v.
106 N.J.
A.
State
prosecutorial charging
early general
over inconsistent
concern
repeated
has
refrain.
practices
been
(1984),
McCrary,
A.2d 339
In
97 N.J.
478
State
(1989),
Matulewicz,
defen
115 N.J.
A.2d
State v.
capital prosecutions
had initiated
dants claimed that
presence
aggravating
any
suggest the
evidence to
without
(1988),
Gerald,
In
113 N.J.
attendant to unfocused
discretion in cases involv-
ing equivocal
death-worthiness,
evidence of
arguably
cases that
prosecuted
should not be
capital
as
causes. Di Frisco illus-
trates the unfairness attendant
prosecutions,
selective
which
person
charged
one
with
murder and another
equally culpable person is not. The facts of Jackson’s case
light
shed
prosecutorial
on how abuses of
discretion can occur.
far,
Thus
in response
claims,
to such
the Court has taken
relatively
steps
small
prosecutorial
corral
discretion.
In
*7
McCrary, supra,
97 N.J.
478 A.2d
it concluded that a
defendant served with
aggravating
notice of
factors is entitled
pretrial hearing
to a
in which the State must
prima
offer
facie
proof
alleged
of the
factors. McCrary recognized that defend-
case,
ing capital
itself,
burden,
in
is an enormous
and that it is
wrong
specter
“for the
hang
of death to
over the head of the
accused
without some basis in fact.” Id. at
In supra, Koedatich 112 N.J. at 2dA. this Court recommended that “adopt guidelines the State for use throughout prosecutors by determining state the selec- tion of County cases.” The adopted Prosecutors have in fact guidelines. such Designation Guidelines Homicide for Capital (.Prosecutors’ Guidelines). Cases Prosecution for They one-paragraph guidelines filling consist of seven just over double-spaced pages, preceded one and a half two-page preamble. State, According guidelines to the are in force in every county. prosecutor compliance this case claims with them. motion, appears uphold
By denying Jackson’s the Court guidelines. The Court not validity efficacy of those that the decision only defendant’s meritorious claim discounts arbitrary capricious, it capitally him was prosecute to have the instructions remands the matter with that none guidelines. Apparently the Court believes follow the surrounding case demon- compelling circumstances misguided and the kind of arbitrariness or illustrates strates capital cases decisionmaking infects all or most loose that what- throughout seemingly state. The believes Court charging practices can be wrong prosecutorial is ever with guidelines. having prosecutor apply simply by cured completely The Court’s faith unwarranted. standards of the
This case demonstrates that substantive they specify vague fail guidelines are and unfocused appropriate genuinely to determine the kind of evidence that part of as a constituent eligibility and death worthiness Further, it prosecutorial charging shows that function. to assure consist- guidelines provide procedures do effective decisionmaking. Finally, it reveals ent and sound unsupervised the exercise of discretion totally guidelines leave should or determining whether defendants by prosecutors in glaring Each of these murder. should not be tried by the Court. squarely should be addressed deficiencies *8 Ill specific or clear standards guidelines The do not contain appropriate to deter- identify the kind of evidence and define truly Indeed, opposite charac- the most eligibility. mine death unfocused, vague and guidelines they are and the terizes — irrele- encourage, wholly of they consideration permit, if do not prejudicial information. and vant guidelines can be is the ineffectual the just how Indicative these with words: guidelines’ preamble, which concludes guidelines These are not intended do and not be relied to, not, may upon rights, create or substantive at law in any procedural enforceable by any party guidelines civil or criminal. The do matter, limitation any place any upon prerogatives otherwise lawful of the Office of the prosecutorial County Prosecutor. 2 through prosecutors Under Guidelines No. No. must be proof beyond satisfied that there is a reasonable doubt that the eligible. provides: defendant is death Guideline No. 5 tending The shall consider all known information miti- establish prosecutor gating determining factors in the case in or whether not a case warrants penalty prosecution. provides: Guideline No. 6 If after such review the Prosecutor is satisfied that the State will be able to aggravating factors) outweigh a reasonable doubt
prove beyond mitigating factors) designated then the case shall be a Case. Capital prosecutor Under Guideline No. can withdraw notice of factors, aggravating forego pursuit penalty, of the death if change legal “there is in a the factual or circumstances of the case.” guidelines degree skepticism
The met were with certain inception. from the moment of their As Justice noted in Stein question in separate opinion Perry, his of whether guidelines prove practice sufficiently specific “will designation problem to overcome the of arbitrariness prosecution, problem cases for is addressed currently only proportionality in the course of review of a death affirmed, sentence that has been uncertain.” (1991) (Stein, J., concurring part 2d 624 A. skepticism. dissenting part). This case confirms that guidelines do not foreclose or limit consideration irrelevant, and, indeed, highly improper prejudicial, evi- ready exemplified That is in this case resort of dence. encouragement of the trial court—to —with respect of the victim’s with to whether the wishes defendant deserves to die. Recourse to the wishes prosecutor repeatedly stated family was not inadvertent. crime “extremely sensitive to the victims of that his office is *9 146 case, making on each individual their families decisions
and He defense counsel that the otherwise.” told death and family’s extent “going great to defer to a to office was going to capital punishment not was be as to whether or desires again.” matter pursued this important that defendant does not purposes For our it not family as a challenge reliance on the wishes the victim’s penalty. to seek the death prosecutor’s for the decision basis Hence, surviving happened kin to merciful. The victim's understandably, defendant describes the consultation with family “obviously proper as an How victim’s consideration[ ].” ever, advantage any that accrues to defendant cannot validate proper feelings and as a wishes victim’s charging That information neither adds to nor consideration. If evidence is from defendant’s blameworthiness. subtracts statutory to that focus on blame clearly related factors admissible, notwithstanding worthiness, it is not breadth of Rose, See, e.g., mitigating factors. the standards 543-44, I) (1988) (Rose (sympathy .2d 112 548 A 1058 N.J. sentencing de compassion inappropriate considerations and 123, 171, (1988) liberations); 548 A .2d887 Bey, State v. N.J. — States, III) (same); also v. United U.S. (Bey see Wade 1840, 1844, (indicat —, —, (1992) 118 L. 2d 524 S.Ct. Ed. sentencing abused if based on ing prosecutor’s discretion any legitimate to rationally “not related Government factors end”). apply guilt penal heightened protections charging their phases apply equally causes
ty See, phases. e.g., McCrary, supra, 97 N.J. pretrial Hence, stigmatize 2d the same considerations A 339. jury’s to influence a determination of of such evidence use impugn prosecu its or the sentence use capital guilt determining charge prosecute defendants for tors expounded were in State considerations capital murder. Those II). (1988)(Williams Williams, A.2d 1172 inflammatory victim- held that the use There the Court *10 capital improper. The Court impact evidence trial was explained: evidence trial involve will necessarily testimony physical
Any capital
though
pertaining
cannot be used in a
admissible,
victim. This evidence,
to the
jury
it
to so confuse or
inappropriately
manner calculated
impassion
There
emotional considerations with relevant evidence.
intertwines
irrelevant
relating
evidence
to the victim’s character
personality
are occasions when
e.g.,
assertion of
of the
defendant’s
trial,
critical aspects
may
probative
us,
as in the matter before
Where, however,
self defense or provocation.
guilt
bearing
or the
no
on the substantive
issue of
victim’s character has
in a
not comment on the evidence
to be
imposed,
prosecution may
highlight
in order to inflame the
the victim’s
manner that serves
virtues
only
jury.
550
451-52,
at
A2d
[Id.
1172.]
condemning
II
regularly in
Williams
has cited
Court
jury
inappropriate references before a
it has seen as
what
families.
of crimes on victims and victims’
regarding the effect
85;
See,
Marshall,
State
161,
supra, 123 N.J. at
586 A .2d
e.g.,
v.
(1990);
State
407, 425,
Harvey,
121
148 the Booth Court Powell, initially by opinion Justice
In an during jury considered that all evidence stated bearing on the defendant’s sentencing phase must have “some ” 502, 107 482 U.S. at responsibility guilt.’ and moral ‘personal omitted) (citations (quoting 96 L.Ed.2d at 448 S.Ct. at Florida, 801, 102 S.Ct. U.S. Enmund (1982)). held that victim- The Court then L.Ed.2d describing personal characteristics impact evidence of their families to the crimes “are the reactions victims and Id., U.S. at sentencing decision.” to a irrelevant 502-03, 448. Admission of L.Ed.2d at S.Ct. *11 Court, constitutionally unac evidence, a said the “creates such impose penalty in an jury may the death ceptable risk that the 2533, 503, 107 capricious manner.” Id. at S.Ct. at arbitrary Maryland’s position Rejecting the State of 96 L.Ed.2d at 448. must family-reaction evidence victim-impact evidence and full extent of the harm appreciate the be considered order actions, the the Court said that by the defendant’s caused sentencing precluded the fact- requirement of individualized Id. than the defendant. focusing anything on other finder from 2533-34, (citing 96 L.Ed.2d Woodson 504, at 449 107 S.Ct. at at 2978, Carolina, 49 L.Ed.2d 280, 944 428 U.S. S.Ct. 96 v. North evidence, impact observed (1976)). The “focus” of the victim defendant, character and Court, but on the “is not on the the Id., family.” his 482 and the effect on reputation of the victim 96 L.Ed.2d at 449. The Court 107 S.Ct. at U.S. at “may wholly of information that sort said that because particular defendant” of a to the blameworthiness unrelated by jury jury,” it could not be heard may “inflame the Booth was followed Ibid. choosing life and death. between Gathers, 109 S.Ct. 104 U.S. 490 Carolina South held the admission (1989), in the Court L.Ed.2d 876 which communi to church and commitment victim’s evidence ty error. was Tennessee, 111 S.Ct. —, 115 501 U.S. Payne
In much of (1991), Supreme Court overruled L.Ed.2d 720
149 According Payne, to the and all of Gathers. Court Booth “deprives prohibition against victim-impact evidence the Booth full may State of the moral force of its evidence and having from it all prevent jury before the information degree necessary proper punishment first to determine the for at-, at 735. murder.” Id. S.Ct. L.Ed.2d Nevertheless, Payne, after there remained from Booth its holding may opinions the state of a introduce family regarding appropriate sentence victim’s 2,n. at 2611 115 L.Ed.2A defendant. Id. at-n. S.Ct. 2. did not familial Payne at 739 n. Because the facts involve die, testimony jury that the deserved before defendant surviving no expressed opinion Court whether that last scrutiny of Booth would withstand in future cases. remnant Booth, however, precisely aspect aspect of Ibid. That case, most to Jackson’s for the based the relevant capitally large prosecute decision on whether to the case opinions part That of the family. measure on the Booth holding remains, my applies and in view Jackson’s case. may to allow the consideration Payne,
Under
state
choose
sentencing
violating
without
victim-impact
evidence
Amendment,
may
states
retain the
Eighth
but individual
victim-impact
their
regarding
evidence under
own
rule
Booth
at-,
at-,
at 736.
L.Ed.2d
laws.
US.
S.Ct.
*12
previously,
independent
is an
New
As I have stated
there
on
source for the ban
consideration
Jersey State constitutional
capital prosecu
in
family-opinion evidence
victim-impact and
112, 163,
Erazo, 126
Another
reason to
families must be
of the victims and their
teristics and beliefs
by the
fosters discrimination
stressed. Resort to such evidence
expressed
itself
justice system as a whole. Booth
criminal
presentation of
assumption implicit in the
over the
concern
deserve more
some murder victims
victim-impact evidence that
do others.
“We are
legal system
than
sympathy from
Court,
defendants
troubled,”
“by
implication
said the
community are more deserv-
assets to their
victims were
whose
perceived to
whose victims are
ing
punishment
than those
at 2534 n.
worthy.” 482
at 506 n.
S. Ct.
less
U.S.
course,
justice
does not
system
our
at 450 n. 8. “Of
L.Ed.2d
distinctions.” Ibid.
tolerate such
thinking.
Pennington
In
to that
fully
This
subscribes
Court
culpability
murder
stated that a defendant’s
we
good
person,
was a
or bad
“depends not on whether the victim
at
575 A.2d
the elements of the offense.”
N.J.
but
2d 1172.
816;
II,
at
550 A.
supra,
see Williams
“effectively
family
devalue
about the victim’s
Comments
those
have no
or
whose
those victims who
deaths of
describing
feelings even
their
‘less articulate
relatives are
”
equally
Pennington,
severe.’
though
of loss
their sense
Booth,
(quoting
482 U.S.
575 A2d
supra,
Victim-impact is be evidence pri from jury’s it the attention the potentially cause diverts sentencing the mary that should control the decision: factors As statutory aggravating mitigating factors. Justice Gari IV, Biegenwald supra, 126 in her explained baldi dissent 92, 172, victim-impact prohibition 2d N.J. at 594 A. jurors not be so over evidence exists to ensure that will emotionally they fail conduct a will “careful whelmed ‘ characteristics “regarding individual balance of evidence ’ ” (quoting v. Biegen and his defendant offense.” 539, III) wald, 521, (1988) (Biegenwald .2d442 110 N.J. 542 A 992, 1006, Ramos, 463 (quoting U.S. S.Ct. California 1171, (1983))). Justice Garibaldi 77 L.Ed.2d concerning the aptly status observed certain evidence through from lenses which the the victim can be “transformed mirrors which it jury examine the defendant into should at .2d172. She 126 N.J. 594 A the victim.” Id. [would see] a mirror reflection in such concluded that “[w]hen crime, it has no directly related to the circumstances at Ibid. place trial.” focus relating to that does not on the
Evidence the victim prescribed by the standards of the crime distorts commission have legislature govern deliberations. We insisted jury statutory to the information unrelated that such extraneous mitigating not be introduced aggravating and factors (1990) Rose, 2d 235 576 A. E.g., 120 N.J. cases. concerning propriety and (Rose II) (views persons of third inadmissible). pun Recourse to the efficacy sentence of death fla even more preferences of the victim’s survivors ishment legislative governing decisions standards grantly flouts capital cases. because, disruptive as especially
Victim-related information Erazo, subtly supra, 126 594 A2d it I noted in creating “contest question presented jury to the alters the Implicitly, jury is his victim.” the defendant and between deserving of if the more life than asked decide victim was life, is; deserving of if the more then defendant victim was may juries not ask “to as defendant must die well. Prosecutors families,” for weigh comparative grief of the both two require the consider- the constitution capital-murder statute and *15 prosecu- fixing Ibid. If factors in a sentence. ation other surely they then pose juries, such questions cannot tors pose That constraint worthless cannot them themselves. evidence, victim-impact prosecutors consider when themselves sentencing encompasses the if evidence especially most that surviving family. wishes of the victim’s personal so their own guided must that jurors Just as be ability to make rational not interfere with their prejudices do guided. prosecutors The must judgments, so life-and-death prosecutor functioned without forcefully proves record and, further, that the direction any guidance or clear effective redressing that to the task of up are not guidelines current deficiency.
IV procedures for or, precisely, the lack procedures The more un- further charging prosecutors structuring the decisions present system. prosecu- The of the derscore the arbitrariness how to resolve his own views on followed tor this case Compounding eligibility. death defendant’s question of judge. presiding the intercession problem was every followed in were Prosecutors’ Guidelines Even if the death-eligibility and guidelines call for vicinage, themselves prosecutors. judgments individual death-worthiness is neither desirable guidelines states preamble to “[i]t dependent capital charging standard acceptable to have nor Further, attitudes.” under on individual Guideline No. each up county every is to set a committee to review homicide case prosecutor prosecutor’s “to assist the in the determination as to Nevertheless, eligibility.” guidelines call for each prosecutor judgment or her to make his own about whether the penalty. case “warrants” the death See Prosecutors’ Guide- If line No. 5. he or she thinks that the death warranted, prosecutor guess is further instructed to wheth- jury aggravating er outweigh would find that the factors mitigating factors. See Prosecutors’ No. 6. Guideline Of course, prosecutor attempt apply to do so the must what he perceives juries vicinage. or she as the values of in the guidelines prosecutor also authorize the to withdraw notice of legal “change,” factors if factual or circumstances Prosecutors’ prosecutor, Guideline No. as can occur whenever the at his discretion, plea or her own elects to offer the defendant a whenever, here, bargain, or as occurred chooses to receive different advice from some outside source. prosecutors’ vary, prosecutors’
To extent own values good-faith predictions jury vary, juries’ decisions values vary, plea bargaining practices vary, inconsistency is inev- Thus, and, charging eventually, itable. arbitrariness in in sen- *16 tencing inescapable guidelines rigor- even if the are followed ously conscientiously by every single prosecutor and in the (revealing Report geographic dispari- state. See Final table 4 decisions). capital charging ties in case, prosecutor In this believed that the wishes of the and, indeed, important justify were could that a defen- prosecuted capitally. dant not The Matulew- icz, supra, baby-shaking 557 A 2d felt that a N.J. sufficiently justify death was wanton and vile to the death vary penalty. The statistical evidence indicates that attitudes widely throughout the state on certain kinds of homi- whether See, Leigh justify capital punishment. e.g., cides B. Bienen et al., Reimposition Capital Jersey: The Punishment in New of Discretion, Rutgers The Role Prosecutorial L.Rev. of deaths, (1988)(classification involving stabbing of cases
246-58
county).
murders, etc.,
greatly
county
from
to
felony
varies
difficult,
impossible,
not
reduce and reconcile the
It is
to
but
charg-
currently
prosecutorial
many variables that
characterize
study
throughout
proportionality
The
review
ing
the State.
compiles
from across the state
before the Court
data
now
juries
strike
as death-
regarding the sorts of cases that tend to
6, 8,
Report
10 and 11. The contin-
worthy. See
tables
Final
its
compilation of such information and
consideration
ued
procedural
and
stan-
prosecutors under sufficient substantive
bring greater
uniformity to their
consistency
should
and
dards
however,
appear
recognize
to
guidelines,
do
decisions.
use
such
information.
or accommodate the
relevant
noted,
forego
notwithstanding
prosecutor’s decision to
As
after
prosecution,
prosecutor reversed himself
capital
assignment judge.
hearing
presiding
of the
criminal
views
proceedings
judge
presiding
intervention of the
decision and
irregularity
prosecutor’s
added to the
below
require that critical
volatility
charging process.
We
honor
prosecution
causes
in the
determinations
decisions
record;
justify
life-and-death
evidence and reasons
341, 372,
Davis, 116
fully exposed. E.g., State v.
N.J.
must be
383-90,
(Handler, J.,
(1989);
.2d1082
id. at
561 A
561 A .2d
Smith,
dissenting
part);
concurring
part
and
Div.1985)
(Law
(determining
495 A .2d507
N.J.Super.
discovery
procedure
on criteria and
entitled to
defendant was
prosecu
claim
capitally
support
prosecuted
cases
select
arbitrary
capricious).
We
charging decisions were
tors’
carefully structured
plea arrangements be
have insisted
483, 493-96,
Kiett, 121
handled.
meticulously
discharge of
(1990). Minimally,
proper
A.2d 630
procedures
fair
en
requires clear and
charging responsibility
evidence, integrity of
probative
genuinely
tailing recourse to
determinations,
review,
record,
internal
explanations
full
supervision.
coordination and
centralized
*17
circumstances,
interposition by the
unilateral
Under
eligibility of defendant
of his views of the death
presiding judge
surrounding these
and confusion
the misdirection
underscored
any procedural
of
charging proceedings.
the absence
Given
decisionmaking process, the views
guidelines to funnel the
influence, com-
an extraneous
judge
outside
constituted
an
result.
of the ultimate
pounding the arbitrariness
V
importance,
separation-of-powers
from a
dispute
I do
flexibility
prosecutorial discretion even
standpoint, of the
Frisco, supra, 118
at 265-
capital causes.
v. Di
N.J.
See State
States,
598,
(citing Wayte v.
470 U.S.
157 danger application of guided, and the of uneven enhanced 31, 601 A 2d To significantly.” increases Id. at 698. sentences treatment, remedy potential disparate for Court con- prosecutors adopt guidelines, require that strued the statute seeking for state the trial court record the reasons an sentence, judicial extended and to allow intervention when the prosecutor’s an that decision was defendant established arbitrary capricious prosecutorial exercise discretion. — 698; Wade, 32-33, supra, 2d at Id. at 601 A. see also U.S. (“a -, subject prosecutor’s discretion ... S.Ct. at limitations”). to constitutional any Capital-murder prosecutions vastly are different from prosecution. discretionary other kind of criminal When in profound impact Lagares, than as decision has an even more assuredly capital prosecutions, the Court should it does recognize need to limit the exercise of that discretion. See Kiett, (recognizing supra, 582 A 2d also procedures directly capital-murder plea address bar- that must procedures, including judicial gaining). prescribe should firm It review, arbitrary discharge or prevent abusive prosecutor. power vested in the discretionary VI alarming intol- All conducted to date reveal an studies prosecutorial degree of decisions erable arbitrariness in some That has been foreshadowed capital causes. conclusion Professor Baldus as study by undertaken of our cases. Court, currently part being considered as Special Master conducting in now of the review that Court in the since Marshall, analyzes every homicide committed 246 homicides commit- Report finds that there were 1982. The prosecuted have as during time could been ted cases, only prosecutors sought but that Report independent 10. An (fifty-six Final percent) them. Office, Dr. Herbert Attorney General’s expert retained Weisberg, virtually reached identical conclusions. He estimat- ed eligible (fifty-eight percent) that 154 of 264 death cases in capital prosecutions. Propor- Weisberg, resulted Herbert I. tionality Review (Nov. 26, Jersey Death Sentences in New 1991). Regardless of this case falls on spectrum, where it inconsistency disparity illustrates the that surround the prosecutorial exercise of capital-murder discretion under the *19 statute.
When the State relies on the family, wishes as the case, prosecutor did in this and when the State defers to the personal opinions judges who have no direct responsibility cases, case, over their it as did in this then the likelihood of arbitrary capricious charging and magnified. cases is
This case important drives home several lessons: the need to develop adopt and clear and definite substantive standards relating prosecutorial eligibility; decisions of death the need procedures, including to establish firm supervision central functions, administration of prosecutorial-charging all to assure uniformity a modicum of consistency determining eligibility; judicial and the need for charging review of critical decisions to process, fairness, assure basic due fundamental and the avoidance of the arbitrariness that results cruel and punishment. unusual ratify Court’s remand does not either the decisional
factors considered application or his actual guidelines Nevertheless, in this case. I accept would appeal in this case because the current constraints on the charging authority prosecutors plainly inadequate, are woe- so, fully arbitrary capital prosecutions real, the risks of are manifestly so. I believe that this Court must confront and aspects address these crucial capital-murder system. of our For denial —Chief Justice WILENTZ and Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and. STEIN— 6.
Dissenting HANDLER—1. —Justice