New Jersey Law Journal

By MARY P. GALLAGHER

Bolstered by U.S. Supreme Court rul­ings that have placed death-penal­ty laws under new, enhanced scruti­ny, New Jersey pub­lic defend­ers with sup­port from pros­e­cu­tors and the Attorney General’s Office are seek­ing a statewide freeze of cap­i­tal cas­es so the full effect of those rul­ings can be assessed.

The test case is State v. Figueroa, a pend­ing mur­der tri­al in Camden County. Assistant Deputy Public Defender Joseph Krakora last Tuesday asked the New Jersey Supreme Court to stay the case pending appeal.

Included with the motion was a let­ter by Assistant Attorney General Peter Harvey, stat­ing that the issues raised by the recent U.S. high court rul­ings are of ​“such tremen­dous statewide import” that all cap­i­tal tri­als should be stayed until the state Supreme Court addresses them.

The prin­ci­pal basis for the motion is the June 24 rul­ing in Ring v. Arizona, 122 S. Ct. 2428, which calls into ques­tion the valid­i­ty of the indict­ment and the death-penal­ty statute. In Ring, the jus­tices struck down an Arizona law that allowed judges rather than juries to decide death sentences.

Krakora con­tends that Ring and oth­er recent rul­ings require that aggra­vat­ing fac­tors be pre­sent­ed to a grand jury and that New Jersey’s statute, which does not so pro­vide, is unconstitutional.

If the Court grants a stay in Figueroa, in which jury selec­tion start­ed last Thursday, the ratio­nale for doing so would extend equal­ly to all pend­ing capital cases.

Harvey’s let­ter — orig­i­nal­ly sub­mit­ted in State v. Koskovich, where a defense appeal from adverse rul­ings on Ring issues is pend­ing — notes that sim­i­lar chal­lenges to the valid­i­ty of the New Jersey law have been raised in at least four cas­es await­ing tri­al and two on appeal, and that the pub­lic defend­er’s office has stat­ed its intent to lit­i­gate the claim in the state’s 26 pend­ing death prosecutions.

Harvey warned of the ​“poten­tial for an incal­cu­la­ble waste of judi­cial and pros­e­cu­to­r­i­al resources” if the cap­i­tal pros­e­cu­tions pro­ceed to tri­al with­out guid­ance on this issue. ​“Indeed, so sig­nif­i­cant is the issue and so press­ing is the neces­si­ty for imme­di­ate and defin­i­tive res­o­lu­tion, in this case and oth­ers, that in State v. Fortin, a cap­i­tal case cur­rent­ly pend­ing before the Supreme Court, the State has tak­en the unprece­dent­ed steps of not object­ing to the Public Defender’s fil­ing of a sup­ple­men­tal brief rais­ing a new claim and cross-mov­ing to accel­er­ate con­sid­er­a­tion of the issue,” he wrote.

THROWING ​‘APPRENDI’ INTO ​‘RING’

At first blush, Ring might not appear to have much effect here. Unlike Arizona and eight oth­er states where juries con­vict and judges mete out death sen­tences, New Jersey juries decide guilt and pun­ish­ment, includ­ing whether the aggra­vat­ing fac­tors required for a death sen­tence are present.

Capital defense coun­sel, how­ev­er, have cou­pled Ring with the Court’s deci­sion in State v. Apprendi, 530 U.S. 466 (2000), on which Ring relied, to argue that New Jersey’s death-penal­ty statute is uncon­sti­tu­tion­al because aggra­vat­ing fac­tors are not pre­sent­ed to the grand jury as part of the indictment process.

Apprendi struck down New Jersey’s hate-crimes law because it allowed a judge to enhance the pun­ish­ment for a crime based on a find­ing by the judge, rather than the jury, that the crime was moti­vat­ed by bias or hate. Relying on Apprendi, the Court held, 7 – 2, in Ring that Arizona, by allow­ing the judge to decide the exis­tence of aggra­vat­ing fac­tors that ele­vate a sen­tence to exe­cu­tion, vio­lat­ed the Sixth Amendment right to a jury.

As defense coun­sel now argue, Ring also applies to grand jury indict­ments in juris­dic­tions that require them. The Fifth Amendment grand jury require­ment has not been held to extend to the states but New Jersey is among the states with its own grand jury requirement.

Krakora argues in his brief in Figueroa that ​“for a death penal­ty statute to pass con­sti­tu­tion­al muster post Ring, it must estab­lish a pro­ce­dure by which a Grand Jury reviews the pro­posed aggra­vat­ing fac­tors. It must either incor­po­rate aggra­vat­ing fac­tors as ele­ments of a greater crime of cap­i­tal mur­der (thus requir­ing that they be part of the indict­ment) or, alter­na­tive­ly, define some oth­er mech­a­nism by which the Grand Jury deter­mines that they are appropriately charged.”

OTHER ​‘RING’ MOTIONS

So far, two Ring motions have been decid­ed in New Jersey.

The first was on Aug. 23, when Morris County Assignment Judge Reginald Stanton denied a motion by defense coun­sel Pamela Brause and Lucas Phillips Jr. in Koskovich. Stanton also refused a stay pend­ing appeal; the mat­ter is before the Appellate Division. Jury selec­tion is sched­uled to start Tuesday in the new penal­ty tri­al for Thomas Koskovich, con­vict­ed, along with Jayson Vreeland, of mur­der­ing two piz­za deliv­ery­men in 1997.

On Sept. 5, Camden County Superior Court Judge Irvin Snyder denied a sim­i­lar motion in Figueroa and like­wise refused to stay the tri­al of Michael Figueroa for the 1995 mur­der of a 13-year old girl. Snyder was affirmed on Sept. 10 and that same day Krakora moved for leave to appeal or, alter­na­tive­ly, for direct cer­ti­fi­ca­tion to the Supreme Court.

There have been no Ring motions in New Jersey fed­er­al courts thus far for the sim­ple rea­son that there are no cap­i­tal cas­es pend­ing, but ​“if one comes up, we will make the argu­ment,” says Federal Public Defender Richard Coughlin.

Elsewhere, how­ev­er, fed­er­al defense coun­sel have been fil­ing Ring motions to throw out indict­ments and declare the fed­er­al death penal­ty uncon­sti­tu­tion­al. A Ring motion is pend­ing in the only case brought against an alleged con­spir­a­tor in the Sept. 11 attacks, U.S. v. Moussaoui.

Federal pros­e­cu­tors have respond­ed with super­sed­ing indict­ments that include the aggra­vat­ing fac­tors in a sec­tion labeled ​“Notice of Special Findings,” says cap­i­tal defense attor­ney David Ruhnke, of Montclair’s Ruhnke & Barrett.

In one of Ruhnke’s cas­es, U.S. v. Sampson, a triple homi­cide case pend­ing in the U.S. District Court for Massachusetts, U.S. Attorney Michael Sullivan announced the re-indict­ment in an Aug. 8 press release. The announce­ment explained that the new indict­ment was meant ​“to avoid any poten­tial legal issues that might arise” under Ring and ​“to pre­serve the Attorney General’s right to deter­mine” whether the case should be charged as a cap­i­tal case. Ruhnke planned to file a Ring motion in Sampson last Friday.

Federal judges have been equal­ly unre­cep­tive to Ring motions thus far, deny­ing the motions as well as requests to strike the ​“Special Findings” from amend­ed indict­ments in two pub­lished cas­es. U.S. v. Church, 2002 U.S. Dist. LEXIS 16696 (Sept. 5, 2002 W.D. Va.); U.S. v. Lentz, 2002 U.S. Dist. LEXIS 16336 (Aug. 22, 2002, E.D. Va.).

“Nothing in … Ring sug­gests that the United States Supreme Court … over­turned the act or the over­all struc­ture of cap­i­tal sen­tenc­ing,” U.S. District Judge Gerald Bruce Lee wrote in Lentz.

In an unpub­lished rul­ing on Aug 22, Judge Malcolm Muir of the Middle District of Pennsylvania also denied a Ring motion filed by Ruhnke in U.S. v. O’Driscoll.

Coughlin and Ruhnke both men­tion a Ring motion argued last month before Vermont U.S. District Judge William Sessions III in U.S. v. Fell as one where com­ments by Sessions indi­cate he might be inclined to grant the motion.

A more dif­fi­cult ques­tion raised by Ring is whether it can be used by those already on death row, who must over­come the argu­ment that, what­ev­er the defects of the indict­ment, they have been cleansed by the sub­se­quent beyond-a-rea­son­able-doubt jury find­ing that the req­ui­site aggra­vat­ing fac­tors are present.

As Harvey’s let­ter men­tioned, one such appeal has been filed in New Jersey in the Fortin case. Steven Fortin is one of 14 inmates on death row in New Jersey.

Krakora declines com­ment, as does the New Jersey Attorney General’s office, stat­ing that Harvey’s let­ter speaks for itself.

The U.S. Department of Justice did not return a call request­ing com­ment not did Assistant Camden County Prosecutor Gregory Smith, in the Figueroa case, or Assistant Sussex County Prosecutor Michael Briegel, in the Koskovich case.

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