By Lisa Brennan
New Jersey Law Journal
February 19, 1996
Since New Jersey restored the death penalty in 1982, the state Supreme Court has dealt with almost every issue that could arise in a death penalty case, but always in the context of appeals of death row prisoners who wanted to stop their executions.
The question the Court has never dealt with, but will deal with very soon, is whether the state -- as executioner -- has a duty to ensure that a murderer who wants to be executed was properly convicted. Whether the justices decide that question as a matter of law or as one of public policy, John Martini Sr.'s fate hangs in the balance.
Last week, Superior Court Judge Bruce Gaeta found the 65-year-old convicted murderer competent to abandon his post- conviction relief applications. Gaeta, who sits in Hackensack, decided the case on narrow grounds: Since Martini had discharged the state Public Defender as his lawyer, that office had no authority to proceed with post-conviction relief. Martini has a court-appointed lawyer who's arguing for death. Thus, in Gaeta's eyes, the public defender is a lawyer without a client.
The standing issue seems clear enough, but the larger question -- which Gaeta was content to leave to the high court - - is whether technical issues like standing should determine whether a man lives or dies when there may be grounds for reversal of the underlying conviction.
Stated differently, should the question of life or death be decided finally on the merits or as a judgment by default?
During two days of hearings last week, Assistant Deputy Public Defender William Smith argued that post-conviction relief applications should continue regardless of Martini's wishes or a determination of competence. Smith maintained that three Supreme Court decisions -- taken together -- permit a defense lawyer to present defenses and mitigating evidence regardless of whether the client consents: State v. Hightower, 214 N.J. Super. 43 (App. Div. 1986); State v. Koedatich, 98 N.J. 553 (1984) and 112 N.J. 225 (1988); and State v. Preciose, 129 N.J. 451 (1992).
Saying he expects his ruling to be appealed, Gaeta refrained from setting an execution date. Indeed, Deputy Public Defender Claudia Van Wyk in Hackensack said her office would appeal to the state Supreme Court, which in December 1994 upheld Martini's conviction and death sentence in the murder of Irving Flax. That ruling ended the two-stage, direct review process required under New Jersey law.
Martini is one of 10 inmates on New Jersey's death row. Four have undergone direct and proportionality reviews, a fifth is in the proportionality review stage, and five inmates are in the direct review stage. Nine of the 10 post-conviction defendants' cases have been handled by the Public Defender's Office, a 20-year-old organization of 210 attorneys, 38 of whom handle capital defense cases.
Similar Cases Nationwide
Although Martini is the first capital defendant in New Jersey to be permitted to forgo further appeals, similar cases are common across the country, and generally state courts favor curtailing appeals. Of the 318 people executed since 1977, 36 abandoned their appeals and asked to die; five of the first eight people executed had abandoned their appeals, according to George Kendall, assistant counsel to the NAACP's Legal Defense Fund's Capital Punishment Project.
At this point in Martini's case, Van Wyk will assert that the law requires her office to carry on and raise new claims over Martini's objections. "It's an indispensable part of the process," Van Wyk said. "If you read other cases, you'll see people often change their minds. And once the machinery of death is set in motion, you can't turn it on and off like a faucet."
Kendall agrees with that assessment. He said it's common for capital defendants to change their minds after they have decided to abandon their appeals, forcing lawyers to navigate through a narrow ethical corridor. "There's the issue of how the law handles this, and then there's the issue of how lawyers handle these issues," Kendall said Thursday. "The much more difficult question is what you do as a lawyer when you're placed in this position. It's like trying to figure out a Rubik's Cube.
"Every client I've dealt with loses hope. They're living in a room the size of a bathroom. I've had eight or nine clients who've said they can't continue their appeals anymore. It's the only control they have left over their lives.
"As it turned out, they all changed their minds."
Gaeta left plenty of room Wednesday for Martini to change his mind. In a reference to Valentine's Day, he said: "I make this decision with a heavy heart on a day when the heart is prominent in our minds. If you change your mind, Mr. Martini, Mr. Smith [the public defender] is only a telephone call away."
Martini was as resolute in his death wish Wednesday as Irving Flax's widow was thrilled at Gaeta's decision to let Martini die. Marilyn Flax was in the courtroom while Gaeta read his opinion. Flax was the man Martini admitted to having kidnapped and shot three times in Paramus in 1989 after collecting a $25,000 ransom.
Shackled at the ankles, Martini took the stand to answer questions by his lawyer, Alan Zegas, that probed his mental state. Using mostly monosyllabic words, Martini said he grew up in the Bronx with two sisters and two brothers, had an eighth grade education, was married and had four children, had worked as a truck driver, went into real estate rehabilitating old houses and eventually ran a bar in Arizona until he got into legal trouble. He said he was divorced eight or nine years ago and hasn't heard much from his children since, but received a Christmas card from one daughter two months ago and talks to his former wife occasionally from prison.
Seeking Absolution
Then Martini talked about two murders he committed in Arizona in 1988 and the killing of Flax. "Why did you kill him [Irving Flax]?" asked Zegas.
"Because I knew him," Martini said.
Asked why he wanted to be executed, Martini said: "Jail's a bad place. Food's bad. Extortion. Stabbings. Lots of noise. Rats and mice. Dirty. Absolution." Did he understand he would die? "Yeah." Martini said he had thought about his decision for two years and that anti-psychotic drugs he was taking for schizophrenia had not clouded his judgment. Asked by Gaeta why he wanted to die, Martini said he wanted to repent for his wrongdoing. "Penance. I think I should be punished," he said.
Martini, who said he is a Roman Catholic, argued he was seeking death on religious grounds to obtain absolution.
Gaeta also heard testimony from court-appointed psychiatrist Azariah Eshkenaze of Forest Hills, N.Y., and psychiatrist Kenneth Weiss of King of Prussia, Pa., who was hired by the Public Defender's Office. Eshkenaze testified that he found Martini's drug treatment for chronic schizophrenia did not impair his ability to make a rational decision. Weiss said he found that the drugs and depression clouded Martini's judgment, but he would not pronounce Martini incompetent.
The expert questioning grew testy shortly after it began Tuesday afternoon. After Eshkenaze, who is being paid by the Public Defender's Office, gave direct testimony, assistant public defender Smith asked him on cross-examination why he billed for 9.5 hours when he only spent 1.5 hours with Martini. "The rest was travel time," said Eshkenaze, who met with Martini in a Philadelphia prison, where Martini is awaiting trial on another murder charge.
Asked about the two tranquilizers and anti-depressant that Martini has been taking for several years for the treatment of chronic schizophrenia, Eshkenaze said the drugs acted as a "calming influence" and enabled Martini to "have clarity."
Asked why he didn't call Philadelphia prisons' doctor Edward Guy to find out more about why he diagnosed Martini with chronic schizophrenia and prescribed the anti-psychotic drugs, Eshkenaze said that his observations indicated Martini was functioning in a competent way.
Zegas covered the same ground with Weiss, the public defender's expert. He pried Weiss about how much time he spent with Martini. Weiss acknowledged that he had spent no more than one-and-a-half hours with Martini and had not consulted with the prison doctor about his diagnosis. Weiss said that he found Martini to be suffering from "serious depression" and that the drugs he was taking contributed to the depression. "I would say that Mr. Martini's depression is talking in his decision not to continue living, not his best self," Weiss said.
Zegas urged Gaeta to adopt Eshkenaze's findings on the grounds that Weiss could not pronounce Martini incompetent. Zegas and Bergen County Assistant Prosecutors Fred Schwanwede and Susan Sciacca argued that Martini was competent and that the public defenders lacked standing to argue further.
Attorney-Client Privilege
Moreover, Zegas argued that the public defenders would breach the attorney-client privilege if they continued with new claims on Martini's behalf. "They have an ethical obligation to refrain from filing the proposed petition for post-conviction relief because the pleading has not been authorized by Mr. Martini and contains information obtained directly or indirectly through attorney-client conferences, which Mr. Martini does not want disclosed," Zegas argued.
Van Wyk said that public defenders had several new claims, some of which were based on nonprivileged information. "Under the circumstances, it is no more appropriate for Mr. Martini's counsel to declare his case hopeless than it would be for a doctor to declare a patient's case hopeless after discovering that one kidney was not functioning -- without examining the other kidney," she argued. "Neither this court nor the Supreme Court can be confident that Mr. Martini's death sentence was reliably and appropriately imposed without entertaining a petition for post-conviction relief. Therefore, no matter how painful it may be, the court must permit the public defender to file the petition."
Gaeta disagreed. On the competency issue, Gaeta cited, among other cases, Demosthenes v. Baal, 495 U.S. 731(1990), in which a three-judge panel imposed a death sentence after a competency hearing. The defendant filed for post-conviction relief under court rules and was later allowed to withdraw his petition.
Gaeta said he "had a full understanding" of the requirements of competency -- that he be capable of making knowing, intelligent and voluntary decisions. "In this case, I don't find Mr. Martini is suffering from any mental illness or impairment," Gaeta said. "Dr. [Edward] Guy may have put down schizophrenia but there was no support for it .... The jury heard three psychiatrists and a social worker but chronic schizophrenia never came up. Did Mr. Martini develop it since the jury rejected his defense?"
Gaeta rejected Weiss' suggestion that the drugs were clouding Martini's ability to make a rational decision. Gaeta referred to the case of Keith Zettlemoyer, who last summer became the first person executed in Pennsylvania since that state reinstituted the death penalty in 1977. "Zettlemoyer was taking anti-psychotic drugs voluntarily at the time he testified on the stand .... The court said Zettlemoyer voluntarily took the drugs for a number of health problems because he said, 'It benefits me tremendously.'"
Gaeta said it would be a "bizarre vindication of due process" if he capitulated to a presumption of incompetency, simply because Martini is in a drug-induced depression. "He's depressed and there is a life situation he finds himself in and there's no way out," Gaeta said. "I don't find it's affecting his ability to make a rational choice to proceed.
"So I find the public defenders can't proceed. In most cases, if there's someone -- a fellow inmate, a priest, family member who sought standing -- in all these cases the courts held that if the defendant is competent they cannot intercede -- it's his choice."
On the issue of standing, Gaeta adopted Sciacca's argument, citing Matter of Association of Trial Lawyers of America, 228 N.J. super. 180, 188 (App. Div.), cert. denied, 113 N.J. 660 (1988), in which state courts recognized "the traditional rule that one 'may not claim standing ... to vindicate the constitutional right of some third party.'"
Moreover, Gaeta found that the public defenders did not demonstrate that they "suffered an injury in fact," a requirement for standing. "It's not for this court to apply an untethered notion of public policy," he said.
But Gaeta rejected an assertion by Schwanwede and Zegas that the public defender's abolitionist view of the death penalty was fueling the appeals process and not Martini's best interests. "I don't think the public defenders are attempting to substitute their own beliefs for Martini's," Gaeta said. "They're acting in good faith. They believe they have a duty to proceed."
Gaeta appointed Zegas last year at the request of the Public Defender's Office to ensure that Martini's interests would be fully represented. Assistant Public Defender Dale Jones had given Gaeta a list of possible attorneys for the job.The public defender agreed to pay for Zegas' services.
(New Jersey Law Journal is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
