STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JOHN MARTINI, SR., DEFENDANT-RESPONDENT.
Supreme Court of New Jersey
Argued May 29, 1996—Decided June 28, 1996.
144 N.J. 603, 677 A.2d 1106
Alan L. Zegas argued the cause for respondent, John Martini, Sr.
Susan W. Sciacca, Special Deputy Attorney General, Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Charles R. Buckley, Deputy Attorney General in charge, Acting Bergen County Prosecutor, attorney).
David A. Ruhnke argued the cause for amicus curiae The Association of Criminal Lawyers of New Jersey (Ruhnke & Barrett and Crummy Del Deo Dolan Griffinger & Vecchione, attorneys; Mr. Ruhnke and Lawrence S. Lustberg, on the brief).
Catherine A. Foddai, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Deborah
The opinion of the Court was delivered by
O‘HERN, J.
It is difficult to explain why a murderer who has admitted his guilt and had his conviction and sentence of death affirmed on direct appeal should not be granted his request to be executed immediately. For some, no explanation may be necessary. For others, no explanation will suffice. For those who wish to understand, we explain that under our form of government it is not the inmate on death row or the accused who determines when and whether the State shall execute a prisoner; rather, the law itself makes that determination. The public has an interest in the reliability and integrity of a death sentencing decision that transcends the preferences of individual defendants.
I
The specific question is whether to grant John Martini‘s request to dismiss the Office of the Public Defender‘s application for post-conviction relief filed on Martini‘s behalf but without his consent. The facts of Martini‘s case are set forth in detail in our two prior decisions, State v. Martini, 131 N.J. 176, 619 A.2d 1208 (1993) (Martini I), and State v. Martini, 139 N.J. 3, 651 A.2d 949 (1994) (Martini II).
Briefly, Martini kidnapped Irving Flax, a Fair Lawn business executive in 1989. He telephoned Flax‘s wife and demanded ransom money. Despite receiving the ransom money, Martini shot Mr. Flax in the back of the head three times, the jury found to prevent Flax from identifying him. A jury convicted Martini of, among other offenses, purposeful and knowing murder over his claim of drug dependency or diminished capacity and sentenced him to death. We affirmed his conviction of murder in Martini I and the proportionality of his sentence of death in Martini II.
II
Although the context differs, the issues are essentially the same as those that we faced in State v. Koedatich, reported at 98 N.J. 553, 489 A.2d 659 (1984) (Koedatich I), and 112 N.J. 225, 548 A.2d 939 (1988) (Koedatich II), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989), and State v. Hightower, 120 N.J. 378, 577 A.2d 99 (1990). In those cases, each defendant asked either that no mitigating evidence be presented on his behalf, that he be permitted to ask the jury to sentence him to death immediately, or that no appeal of his sentence of death be taken. Koedatich
Certainly tension exists between the desires of the client as expressed to his lawyer and the constitutional necessity to insure that the ultimate penalty is not extracted in a “wаnton and freakish manner.” In normal circumstances, the lawyer is required by the Rules of Professional Conduct to “abide by a client‘s decisions concerning the objectives of representation.”
Under our statutory scheme, a jury may impose the death penalty only if the aggravating factors outweigh the mitigating factors beyond a reasonable doubt. If the jury did not hear the evidence allegedly in mitigation, it could have difficulty discharging its statutory, and indeed moral, duty. Our conclusion is reinforced by a recent amendment to the death penalty statute which requires that an appeal must be taken even if defendant does not want to appeal and that our State Supreme Court must review the issue of proportionality of the sentence on defendant‘s request.
[Koedatich II, supra, 112 N.J. at 330, 548 A.2d 939 (quoting State v. Hightower, 214 N.J.Super. 43, 44-45, 518 A.2d 482 (App.Div.1986)).]
The Koedatich Court explained: “Essential to our [capital punishment] statute is that its application cannot result in death sentences that are ‘wantonl[y] and freakish[ly] imposed.‘” 112 N.J. at 331, 548 A.2d 939 (quoting Furman v. Georgia, 408 U.S. 238, 310, 92 S.Ct. 2726, 2762-63, 33 L.Ed.2d 346, 390 (1972) (Stewart, J., concurring)). Our procedures for trial and appeal are established
not only to protect the interests of the accused, but also to enable a state to enact a constitutional death penalty statute. . . . A defendant who prevents the presentation of mitigating evidence “withholds from the trier of fact potentially crucial information bearing on the penalty decision no less than if the defendant was himself prevented from introducing such evidence by statute or judicial ruling.” People v. Deere, supra, 222 Cal.Rptr. at 19, 710 P.2d at 931.
Courts have recognized that the qualitative difference between death and any other penalty gives rise to “a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed. 2d 944, 961. It is self-evident that the state and its citizens have an overwhelming interest in insuring that there is no mistake in the imposition of the death penalty. Accordingly, we have the constitutional and statutory duty to review every judgment of death.
[Id. at 331-32, 548 A.2d 939 (citation omitted).]
We strongly disagree with the position of the Public Defender that Martini has had only half an appeal. Post-conviction relief is not in any sense a half appeal. We have repeatedly emphasized that post-conviction relief is not a substitute for a direct appeal. State v. Mitchell, 126 N.J. 565, 583, 601 A.2d 198 (1992) (citations omitted).
The State has a strong interest in achieving finality. Without procedural rules requiring the consolidation of issues, litigation would continue indefinitely in a disconnected and piecemeal fashion. Each time a petitionеr brought forward a new issue, attorneys and courts would waste their limited resources acquainting themselves with all of the complex details necessary to adjudicate it. When the grounds for challenging a conviction are consolidated, that investment need occur only once, and judicial resources can be more efficiently used to decide cases in a timely fashion.
[Mitchell, supra, 126 N.J. at 584, 601 A.2d 198.]
On the other hand, there are some issues that one simply cannot raise on direct appeal and other issues that are best raised on PCR. “Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding.” State v. Preciose, 129 N.J. 451, 460, 609 A.2d 1280 (1992) (citations omitted). Other particularly well-suited claims arise when “new case law has changed the applicable standards and should be retroactively applied to the case [undergoing post-conviction review],” when “the challenge is to the appellate proceedings themselves,” or when “the claim is based on testimony outside of the trial court that could not have been raised on direct appeal.” Mitchell, supra, 126 N.J. at 585, 601 A.2d 198. Examples of claims that are often based on facts outside the record include claims based on
In her 1995 Madison Lecture at New York University, Judge Betty B. Fletcher of the Ninth Circuit gave two examples of the need for post-conviction relief. Betty B. Fletcher, The Death Penalty in America: Can Justice be Done?, 70 N.Y.U.L.Rev. 811, 822 (1995). The first involved Randall Adams. Mr. Adams was tried and convicted for the murder of a Dallas police officer. Subsequent events revealed significant questions about the evidence used to convict him. That evidence prompted the court to grant a post-conviction hearing that resulted in one of Adams’ chief accusers confessing to the crime. Ibid.
The second involved Clarence Brandley. An all-white jury sentenced Brandley to death for the rape and murder of a white student from the high school where Brandley worked as a janitor. The conviction was based on circumstantial evidence. After Brandley‘s conviction, the ex-wife of a white janitor from the same high school informed authorities that her former husband had admitted committing the crime. In a PCR hearing, a state court judge reviewed that new information, along with statements of others who had come forward, and ordered a new trial. Ibid. These men, unlike Martini, were innocent and protested their innocence. The point is that without post-conviction relief procedures they would have been executed. Of course, such examples of successful petitions for PCR are rare. Many PCR petitions do seek only to rerun the trial. The problem lies in separating the wheat from the chaff.
In this case, the Public Defender informs us that there are three issues that defendant could not have raised on direct appeal: (1) a defense based on certain undisclosed confidential information that has been imparted to the Public Defender and presumably was not disclosed to the jury below; (2) a new constitutional principle announced by the Supreme Court after Martini‘s trial in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129
We are obviously unable to assess the significance of the first issue because we do not know the nature of the confidential information. We do know that the Public Defender received this information as attorney for Martini and may be obliged to respect the confidences of her client. Presumably there will be an in camera hearing. The trial court will have to balance the interests of the client against any public interest in the disclosure of the information.
Concerning the second issue, Simmons, supra, held that “[t]he State may not create a false dilemma by advancing generalized arguments regarding the defendant‘s future dangerousness while, at the same time, preventing the jury from learning that the defendant never will be released on parole.” 512 U.S. at —, 114 S.Ct. at 2198, 129 L.Ed. 2d at 147. In Martini I, defendant argued that the trial court should have instructed the jury that it would sentence Martini to consecutive terms for the murder and kidnapping, thus assuring that he would die in jail. 131 N.J. at 308-09, 619 A.2d 1208. Martini‘s defense counsel did make the argument that defendant was not likely to live long enough to be released after a thirty-year period of parole ineligibility. Defendant was sixty years old at the time of trial. Having served more than a year in jail prior to trial, his release, at the earliest, would have come as he approached ninety. The jury was well aware of those circumstances. Id. at 308, 619 A.2d 1208. Based on that record, the lack of defense counsel‘s request, and the jury‘s knowledge of the practical consequences of defendant‘s life sentence, the Court found no error in the trial court‘s failure to instruct the jury about defendant‘s potential consecutive sentence for his kidnapping conviction. Id. at 313, 619 A.2d 1208. The issue is similar, but not identical, to the one raised in Simmons. In any event, disposition of the issue should not require extended proceedings.
In Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976), the United States Supreme Court declined on standing grounds to consider an appeal by Gary Gilmore‘s mother that the Utah death penalty act was unconstitutional. That approach may be constitutionally permissible for the United States Supreme
Unless we regard as meaningless the procedures for post-conviction relief set forth in our Rules of Court, even were there no Office of the Public Defender in New Jersey, we would undoubtedly be required to appoint standby counsel for defendant in order to perform a “meaningful appellаte review” of his death sentence. Because the issues potentially raised in a PCR petition are so varied and important, “[f]rom our state perspective, finality is achieved [only] when our courts grant or deny post-conviction relief.” Preciose, supra, 129 N.J. at 475, 609 A.2d 1280. This is because when “meritorious issues are presented, our interest in affording defendants access to both state post-conviction and federal habeas review outweighs our interest in finality. . . . Simply put, considerations of finality and procedural enforcement count for little when a defendant‘s life or liberty hangs in the balance.” Id. at 475-76, 609 A.2d 1280.
We acknowledge that other jurisdictions do not recognize the standing of one such as the Public Defender to prosecute a post-conviction relief application on behalf of a death row inmate who
Of course, we cannot stay scheduled executions for each new issue that arises. There must be an end to the process. We recognized in State v. Marshall, 130 N.J. 109, 219, 613 A.2d 1059 (1992), that someone will die before every avenue of inquiry will have been ended: “Ours is a finite role defined by our obligation to see that justice is done at a given time.” Consequently, for capital defendants who do not desire post-conviction review, we tailor the process to the limited demands of integrity and reliability, establishing the following truncated procedure. There shаll be one proceeding. Such post-conviction relief will be limited to matters that have always been capable of being raised in post-conviction relief, even when procedurally barred, such as newly discovered evidence of innocence, unconstitutionality, or illegality of a death sentence. In addition, we shall specifically require accelerated disposition of any such claim, both in the interest of the defendant who wishes to conclude the appeal process as soon as possible, and in the interest of the public that seeks to know that justice is done.
We direct that a PCR application for a capital defendant opposed to PCR be filed by the Public Defender or other designated counsel within thirty days after knowledge that a defendant does not wish to pursue post-conviction relief. (In this case, within thirty days of today.) Standby counsel should be appointed
That abbreviated hearing schedule for capital defendants who do not desire PCR will enable the Court to determine whether waiver of PCR will result in an execution that would be unconstitutional or illegal. Some issues may not be amenable to summary disposition. The one issue in this case that would require further consideration is an issue of constitutional dimension that has been raised directly in the appeal of Joseph Harris, which will be argued before the Court on September 10, 1996. That issue concerns a challenge to the constitutionality of the death penalty based on recent data that suggests that New Jersey‘s death penalty may be constitutionally flawed because of systemic discrimination against blacks and other minorities. In Harris, the defendant argues that the statistics gathered by the Administrative Office of the Courts “establish that the race of the defendant is a strong factor in explaining why some defendants get life
“New Jersey‘s history and traditions would never countenance racial disparity in capital sentencing.” Marshall, supra, 130 N.J. at 207, 613 A.2d 1059. The Court is the appropriate branch of government to vindicate that tradition and our own constitutional guarantee of equal protection of the laws under
The Attorney General acknowledges that her office would not seek to have a prisoner executed by waiver under a system of laws later determined to be unconstitutional. She believes firmly, however, that there is no question of constitutionality and thus no waiver of any procedures that assure the reliability of a death sentence. The Bergen County Prosecutor acknowledges in her brief that there is a narrow class of cases in which PCR would be institutionally required even over a prisoner‘s objection, as when there was newly-discovered evidence of innocence or when the death penalty had been declared unconstitutional. She cites Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 177 (1978), in which the Pennsylvania Supreme Court held that because the State‘s death penalty statute was declared unconstitutional, defendant‘s death sentence “must be vacated, appellant‘s professed desire to the contrary notwithstanding.” If, then, there are exceptions to the doctrine that a capital defendant may waive all rights to PCR, standing is not a conceptual obstacle to the administration of justice. Thus, it is not issues of standing or
We have considered the other issues raised concerning the competency of Mr. Martini. We are satisfied that the trial court correctly resolved on the basis of psychiatric evidence before it that Martini is competent to make this decision and has voluntarily expressed a desire to prosecute no further appeals. We respect his choice. We have a constitutional responsibility to ensure reliability in the implementation of the death penalty. We shall discharge that responsibility with dispatch. We have accelerated the argument and decision of this appeal and will continue that practice until the matter is resolved.
Finally, we conclude that the trial court was correct to order the Public Defender to pay for the cost of the court-appointed psychiatric expert who evaluated Martini. “In In re Cannady, 126 N.J. 486, 600 A.2d 459 (1991), . . . we held that the Public Defender Act mandates that the OPD [Office of the Public Defender] pay for expert services that are necessary to any indigent defendant‘s case.” In re Kauffman, 126 N.J. 499, 501, 600 A.2d 465 (1991). An expert evaluation of Martini‘s competence, like his representation by private counsel, is a service necessary to defendant‘s case. The trial court has an independent interest in assessing Martini‘s competence. It is not unfair to permit the court to impose those fees on the OPD. We are confident that there will be no abuse of that authority at the expense of the OPD budget.
COLEMAN, J., dissenting.
Due to the unique facts in this case that indicate that defendant is competent and that he has made a voluntary, knowing, and intelligent waiver of his right to pursue post-conviction relief, I dissent from the Court‘s holding that defendant cannot waive his right to prosecute a post-conviction relief application.
I
On October 3, 1995, one day after the denial of certiorari, the trial court issued a death warrant setting defendant‘s execution for November 15, 1995. Although defendant expressed his desire not to pursue post-conviction relief, the Office of the Public Defender filed a motion for permission to pursue post-conviction relief over defendant‘s objection. The public defender also sought a stay of execution pending the projected petition for post-conviction relief and an evidentiary hearing on defendant‘s competence.
On October 30, 1995, the trial court held a hearing on the motions. The public defender argued that it should be permitted to pursue a petition for post-conviction relief in the absence of defendant‘s consent. Furthermore, the public defender challenged defendant‘s competence and the voluntariness of his decision. The trial court questioned defendant extensively at that hearing. Defendant responded affirmatively when asked whether he thought he had received a fair trial and whether his death sentence was proper. Defendant indicated that the public defenders had discussed the post-conviction relief process with him, and had explained thаt they might be able to present certain arguments to the court that could prevent defendant‘s execution, at least temporarily. Defendant further indicated his wish that the public defenders not file a petition for post-conviction relief on his behalf. When asked why, defendant replied:
I think that living in jail is terrible to live there, I have been locked up 7 years now and it‘s been murder and everything is always publicity about this thing so I have enough trouble with my family, I want to do it for once and get it over with.
Additionally, defendant stated that although his former wife “told [him] to do what [he] feel[s] is right,” no one was forcing him to make those decisions. Defendant also indicated his understanding that the governor can decide to exercise the power of clemency.
At the close of the hearing, the court issued a temporary stay of execution, and appointed Dr. Azariah Eshkenazi, a psychiatrist, to examine defendant on behalf of the court. By order dated November 8, 1995, the court appointed Alan L. Zеgas to represent defendant. In a subsequent order dated November 17, 1995, the court ordered all relevant records to be released to Dr. Eshkenazi and Mr. Zegas.
On December 7, 1995, and January 4, 1996, defendant submitted two affidavits in which he reiterated his desire to forego post-conviction relief and have the death penalty imposed. In his affidavit dated December 7, 1995, defendant states:
6. Mr. Smith and Mr. Friedman [public defenders] have fully described to me the reasons they have for wanting to file a petition for post-conviction relief for me, and they have outlined to me the arguments they intend to make on my behalf. I understand what they want to do and why they want to do it, and I appreciate their good intentions. I have instructed Mr. Smith and Mr. Friedman, however, to not file the proposed petition because I wish to be executed. In giving out this instruction, I am freely, knowingly and voluntarily giving up any right I may have to further review of the judgment of conviction by any court. I further understand that by giving up any right to further review, I am increasing the chance that I will be executed quickly. This is what I want.
7. I have, for a long time, given a lot of thought to whether I wished to continue challenging the judgment of conviction. Approximately two years ago, I decided that I would prefer being put to death over spending the rest of my life in jail or delaying the time for my execution. In my view, any legal challenge will ultimately prove to be useless. Continuing the appeals process only creates more uncertainty for me as to when exactly I will die. I no longer wish to live with this uncertainty and I no longer wish to continue to exist under the hellish conditions I am existing under in prison.
8. In my view, death is preferable to the day-to-day conditions I have to endure on death row. I have almost no contact with people. I am confined to a dirty cell in which there are mice and rats. When I leave my cell, I am strip searched. The
food I am given to eat is bad and not tolerable. I have not had visitors from any family members for over 6 years. The longer I live, the more my family name is damaged by publicity about my crime.
9. I committed the murder of Irving Flax and I did this deliberately, knowingly, intentionally and willfully. The verdict of the jury was correct. I have no excuse for my crime and I was not adversely effected by drugs or alcohol at the time I committed it. I fully understood what I was doing, and I was not operating under a diminished capacity. I had a clear mind. I also knew what the potential consequences were for the murder I committed, and I knew that those consequences included the death penalty. Although I am facing execution, I have never been opposed to the death penalty on moral, religious or other grounds.
10. My decision to die and to have no further challenges raised to the judgment of conviction is my own decision and has been made by me after thinking carefully about life and death, the conditions I am living under, and the chance I have of ever regaining my freedom. Though I am currently taking certain prescribed medications, I do not feel that these mеdications have, in any way, effected my ability to make a clear decision about what I want to do with my life.
11. In addition to death being preferable to the conditions I am currently living under, I further believe that I have a greater chance for religious absolution if I acknowledge my crime and take no further legal action to prevent my death. In my view, the action that the public defender wishes to take on my behalf will only delay the time for my death, cause my victim‘s family more pain, and cause me to endure for a longer time the intolerable conditions I am living under in prison.
On February 13 and 14, 1996, a hearing was held to determine defendant‘s competence to waive his right to file a petition for post-conviction relief. The court took testimony from Dr. Eshkenazi, the court-appointed expert, and Dr. Kenneth Weiss, the public defender‘s expert. Defendant also testified.
Dr. Eshkenazi diagnosed defendant as suffering from a “life circumstance,” and concluded that defendant was not suffering from schizophrenia. Dr. Eshkenazi opined that defendant has the capacity to make a rational choice with respect to continuing or abandoning his further appeals.
Dr. Eshkenazi reported that at the time of his evaluation of defendant, defendant was taking the following minimal doses of medication: 25 milligrams of Mellaril, an anti-psychotic tranquilizer, twice a day; 25 milligrams of Thorazine, an anti-psychotic, at bedtime, and 100 milligrams of Sinequan, an anti-depressant, at bedtime. According to Dr. Eshkenazi, those low doses of Mellaril and Thorazine sedate defendant and help him sleep better. The
I believe that they have really calmed him down. They enable him to think a little better maybe and he‘s and they have enabled him to survive in the jail system.
Dr. Eshkenazi stated that he “did not see any psychiatric condition or illness that would interfere with [defendant‘s] ability to make rational and competent decisions.” He further stated that defendant denied ever having any visual or auditory hallucinations, and stated that his examination revealed no mental illness, defect, or psychoses. While observing the possibility that defendant may suffer from depression, Dr. Eshkenazi “did not see clinical symptoms of depression.”
On cross-examination, the public defender challenged Dr. Eshkenazi with defendant‘s prior prison medical records, in which Dr. Guy, the prison psychiatrist, had repeatedly notated, “Schizophrenia, chronic, medication control paranoia and voices. Medication: Mellaril 50 milligram[s] in the morning, 50 milligram[s] at bedtime and Thorazine, 50 milligram[s at] bedtime times 60.” Dr. Eshkenazi responded that Dr. Guy practiced “poor psychiatry,” because he had spent only a few minutes at a time with defendant,3 recorded no symptoms, and provided no explanation of the diagnosis of schizophrenia. Dr. Eshkenazi stаted that because Dr. Guy failed to substantiate his opinion, Dr. Eshkenazi gave that opinion little weight. Further, Dr. Eshkenazi explained that if defendant was actually schizophrenic, then the medical doses would not be sufficient to treat the schizophrenia because of the tolerance for medications that defendant had built up over many years of taking drugs. Dr. Eshkenazi added that when Mellaril and Thorazine are used to treat schizophrenia, they are typically prescribed in doses ranging from 400 to 600 milligrams per day, and 600 to 4,000 milligrams per day, respectively.
On thе subject of defendant‘s desire to die, Dr. Weiss indicated in his report that defendant had “ma[de] a case for being executed,” which he explained to mean that defendant “did everything he could to throw me off the trail of any psychiatric conditions.” The doctor stated:
[I]t‘s pretty clear to me that Mr. Martini is depressed, that he has sad mood[s], that he‘s lost his will to live and whatever one might think about whether that is completely rational or not rational, it‘s fairly clear to me that his mood was low, he was despondent. The only thing he hoped for was that he could prevail in this legal setting so that he would come closer to his execution date.
On cross-examination, Dr. Weiss conceded that the realities of prison life and the uncertainty faced by a death row inmate would tend to make the average person depressed and suicidal.
Dr. Weiss testified that defendant‘s current drug treatment is consistent with Dr. Guy‘s diagnosis of chronic schizophrenia. He stated, however, that “the symptoms of schizophrenia if present were not strong enough for me to draw any independent conclusions about whether [defendant] in fact has [schizophrenia].” Dr. Weiss concluded that defendant is suffering from depression and that the medication he is taking is inadequate to treat it. Dr. Weiss indicated that defendant‘s current medication could actually lower his mood and deepen his depression.
On the ultimate question of defendant‘s capacity to choose to forgo further appeals, however, Dr. Weiss was equivocal. He testified that defendant is well aware of the nature of his decision and fully understands what is at stake. He indicated, however, that he felt “troubled” by his observations of defendant‘s depression, and had “some doubts in [his] mind about whether this was the depression talking or whether this was a completely rational
Defendant‘s testimony was presented almost entirely through leading questions. In response to his attorney, defendant admitted to intentionally killing the victim, Irving Flax. He agreed that the jury had properly found him guilty, that he had no excuse for his crime, and that he is satisfied with the legal representation he received both at trial and on appeal.
Defendant testified that he understands that he has a right to an appeal and that his death sentence could be vacated if that appeal is successful. He responded affirmatively when asked if he is willing to give up that right. He agreed that his decision to forgo an appeal was voluntary, that he was not influenced by other people, and that the drugs he is taking were not affecting his decision.
When asked why he wants to be put to death, defendant stated, “Jail is a bad place; the food is bad, extortion, stabbings, loud, noisy, dirty, rats and mice, absolution.” The defense attorney then asked whether defendant meant religious absolution, to which defendant responded, “Yes, I do, and that I should be punished for what I did—I want to—I want to, you know, repent for what I did. I‘m sorry for what I did. I think that I should be punished.” When offered the opportunity to say something to the judge, defendant said, “Listen to me and let [me] have the death penalty.”
At the conclusion of the proceedings, the trial court determined that defendant is competent to waive his processing of a post-conviction relief petition and that the public defenders may not proceed with the petition for post-conviction relief. The court further concluded that defendant is not suffering from any metal illness or impairment. It noted that if defendant is suffering from
II
I disagree with the majority‘s view that the issues presented here are essentially the same as those presented in Koedatich I and II and in Hightower. Those cases involved presenting mitigating evidence in the penalty phase, permitting defendant to request the death penalty during the trial, and prohibiting a direct appeal of a sentence of death. In all those cases, the reliability of the conviction and the sentence of death had not bеen tested in direct appeals. In the present case, however, defendant‘s direct appeals have been exhausted, and he concedes his guilt and proper imposition of the death penalty. I agree that the State‘s interest in the reliability of the determination of guilt and the sentence of death must be established at trial and on direct appellate review before an execution should be permitted. That does not, however, prevent a competent defendant from waiving his or her personal right to file for post-conviction relief.
I am also persuaded that the majority‘s reliance on the two cases cited by Judge Fletcher in her lecture,
Although certain claims are best pursued in a post-conviction relief proceeding, such as ineffective assistance of counsel or a claim based on a violation of Brady v. Maryland, supra, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, defendant has expressly waived his right to pursue such claims. The Simmons issue,
I agree with the majority that the death penalty should not be carried out until defendant‘s guilt and the lack of disproportionality have been reliably established. I part company with the majority‘s conclusion that post-conviction relief proceedings are required before reliability can be sufficiently established. Both
It is my belief that once guilt, the application of at least one aggravating factor, and the lack of disproportionality are reliably established, a competent defendant has the right to decide not to prosecute a post-conviction relief application even if it means hastening his or her own death. While a capital defendant has no right to compel the State to execute him or her, he or she has the right not to institute legal proceedings that would delay execution. Martini‘s decision not to seek post-conviction relief was no doubt influenсed by the fact that he has two life terms for murder awaiting him in Arizona. As Justice Broussard of the California Supreme Court so aptly stated, “A man facing the awful alternatives of execution or life imprisonment without possibility of parole could rationally prefer execution, or at least feel that the comparative advantage of life imprisonment was not worth the humiliation and loss of dignity he believes entailed in the presentation of mitigation evidence.” People v. Deere, 41 Cal.3d 353, 369, 222 Cal.Rptr. 13, 23-24, 710 P.2d 925, 935 (1985) (Broussard, J., concurring). The same is true with respect to presenting a post-conviction relief application.
IV
Whether Martini can waive his right to pursue post-conviction relief should not be influenced by the pendency of proportionality review in the case involving defendant Joseph Harris. Even if the data submitted in that case persuade this Court to vacate Harris‘s sentence of death, this Court may not necessarily declare our Death Penalty Act unconstitutional. Martini is aware of the pendency of the Harris case and that it could result in declaring the Act unconstitutional. Notwithstanding that information, he
If Martini is executed and the Death Penalty Act is eventually declared unconstitutional, Martini‘s execution will have been based on his waiver decision. That position would be analogous to that of death-row inmates executed under our previous Death Penalty statute,
Finally, I agree that many of the rules that control post-conviction relief applications should be relaxed for a death-row inmate who has filed his or her own first petition for post-conviction relief.
I would affirm the judgment of the Law Division.
GARIBALDI, J., joins in this opinion.
For reversal and remandment—Chief Justice WILENTZ, and Justices Handler, Pollock, O‘Hern and Stein—5.
For affirmance—Justices GARIBALDI and COLEMAN—2.