By Michael Booth
New Jersey Law Journal
July 1, 1996
In a decision that may lead to further delays in carrying out capital sentences, a divided state Supreme Court ruled Friday that post-conviction relief applications in death penalty cases cannot automatically be waived by competent defendants.
Since a defendant facing the death penalty cannot waive a sentencing hearing, a presentation of mitigating evidence or an appeal from sentence, he cannot waive a motion for post-conviction relief either, Justice Daniel O'Hern wrote for a 5-2 majority in State of New Jersey v. John Martini Sr., A-164.
Martini, sentenced to death for kidnapping and murdering Fair Lawn executive Irving Flax in 1989, had sought to withdraw motions filed by his appointed public defender and accept the death penalty. Had the Court granted his request, Martini could have been the first person executed since New Jersey restored the death penalty in 1982.
The Court ruled instead that in future cases involving defendants who wish to die, public defenders are required to pursue post-conviction relief according to a truncated review process. In so holding, the Court sought to ensure the "reliability and integrity" of death sentences, O'Hern wrote.
Justice James Coleman Jr. dissented, saying that he would have upheld Martini's decision to waive the right to file a post- conviction relief petition because Martini was found competent to do so. "It is my belief that ... a competent defendant has the right to decide not to prosecute a post-conviction relief appeal even if it means hastening his or her own death," wrote Coleman, who was joined by Justice Marie Garibaldi.
The majority relied on prior cases that make other procedures mandatory in the imposition of the death sentence: State v. Koedatich, 98 N.J. 553 (1984), Koedatich II, 112 N.J. 225 (1988) and State v. Hightower, 120 N.J. 378 (1990). The Court rejected requests by defendants that no mitigating evidence be presented, that the defendant be permitted to ask the jury to sentence him to death immediately and that no appeal of a death sentence be pursued.
"[P]ersuasive policy reasons exist for not allowing a defendant in a capital case to execute even a knowing and voluntary waiver of his right to present mitigating evidence during the penalty phase," O'Hern wrote, quoting Koedatich II. "These reasons are based substantially on the state's 'interest in a reliable penalty determination.'"
The same logic, he wrote, applies to Martini."Thus, under our law a defendant may not waive a sentencing hearing, may not waive the presentation of mitigating evidence, and may not waive an appeal."
Prosecutors Frustrated
As are most death penalty decisions, the Court's opinion was greeted with impassioned though mixed reactions. The public defender's office praised the ruling, while prosecutors rued it. "We are disappointed in the fact that the Court has seen fit to frustrate the efforts of the defendant and prosecutors to mete out a punishment that even the Court says he so richly deserves," says Acting Bergen County Prosecutor Charles Buckley, referring to the Court's two previous rulings in Martini -- 131 N.J. 176 (1993) and 139 N.J. 3 (1994).
Deputy Attorney General Catherine Foddai, who argued the case as amicus before the Court, said she was baffled that the Court raised the issue of reliability and integrity of sentences. "The defendant was found guilty by a jury beyond a reasonable doubt, the Supreme Court affirmed the sentence and ruled that proportionality was not an issue," she says. "How much more reliable can it be? It's hard to reconcile that."
Dangerous Precedent?
Alan Zegas, a West Orange solo practitioner who was appointed to represent Martini in his effort to abandon the appeals process, says the ruling sets a dangerous precedent. He had argued that the client, not the lawyer, controls the litigation and that if Martini did not wish to proceed with a post-conviction relief application, he should not be forced to do so.
"This is the first court to hold that a competent defendant does not have the right to waive an appeal. And, the Court's opinion is at variance with the death penalty statute in that a proportionality review is available only at the election of the defendant," says Zegas, a vice chairman of the Association of Criminal Defense Lawyers of New Jersey.
But David Ruhnke, who argued the case amicus on behalf of the criminal defense lawyers' group, sees it differently. "The state completely ignores the reality that issues raised in a post- conviction relief petition have never been passed on," he says.
Issues Not Raisable Earlier
Indeed, O'Hern noted that there are three issues that Martini could not have raised on the direct appeal of his conviction and sentence: A defense based on certain, previously undisclosed information that Martini only recently passed on to the public defender. The nature of the evidence has not been made public -- even the justices didn't know what it is.
O'Hern cited the U.S. Supreme Court's ruling in Simmons v. South Carolina, 114 S. Ct. 2187 (1994), that prosecutors cannot "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 will never be released on parole." The New Jersey Court had previously ruled that the prosecutor in Martini's case need not have told the jury that Martini would be sentenced to consecutive prison terms for murder and kidnapping and would have died in jail.
The Harris Factor
Finally, the Court referred to evidence discovered in another pending New Jersey death penalty case, State v. Joseph Harris, No. 36,962, in which the Court is scheduled to hear oral arguments on Sept. 10. A study commissioned by the Administrative Office of the Courts suggests that the state's death penalty may be constitutionally flawed because of evidence suggesting that there is a systemic discrimination against blacks and minorities.
"That demonstrates the bankruptcy of the state's argument," argues Ruhnke, a partner at West Orange's Ruhnke & Barrett. "Those three issues could not have been raised on his appeal."
Garibaldi dismissed the Harris case in her dissent, saying that Martini was well aware that there is evidence that could show the death penalty is unconstitutional, and that he still wants to waive his right to a post-conviction relief hearing.
O'Hern, in his majority opinion, said it is understandable that some may find it difficult to understand why the Court should not simply grant Martini's wish to die.
"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."
Truncated Process
The Court acknowledged the public's legitimate interest in seeing criminals like Martini executed. Thus, the majority issued a set of guidelines to be followed in future instances where the defendant does not want to proceed with a post-conviction relief petition. This does not apply to Martini since the majority ruled that no sentence should be carried out until Harris is decided.
First, there shall be only one proceeding. In addition to being allowed to raise the most common appeal issues, defense lawyers also will be allowed to raise issues which normally would be barred, such as newly discovered evidence of innocence, unconstitutionality or illegality of a death sentence. There will also be a requirement of accelerated disposition "in the interest of the public that seeks to know that justice is done."
When counsel learns that the defendant does not want to pursue post-conviction relief claims, the application must be filed within 30 days, and standby counsel will be appointed to represent the defendant. Cases should be assigned to judges who can handle matters on an expedited basis. Additionally, the AOC will be required to provide services so each party can be provided with real-time transcripts.
A trial judge can issue either an oral or written opinion, but must immediately certify to the Supreme Court the transcribed record and copies of all exhibits and briefs. The party that loses at the trial level must file a notice of appeal with the Court within 15 days of the trial judge's ruling. The Court will then issue its ruling within 45 days of the receipt of the notice of appeal and any supplemental briefs, or within 30 days of any oral argument.
Ruhnke says he understands why the Court decided to create a truncated schedule for post-conviction relief petitions in cases like Martini.
"There is sort of a drumbeat out there," he says. "People are saying that these cases are going on too long. The Court certainly is going to recognize that feeling. It's an obvious compromise."
Deputy Public Defender Claudia Van Wyk, who argued on behalf of the public defender's office, says she is realistic about the Court's decision to hasten such hearings, but warns that "anytime you try to speed something up, there is a risk that there will be mistakes made."
She adds that she does understand, however, that the Court also had to weigh the view of the majority of the public that the process goes on too long against the constitutional rights of those facing the death sentence.
Foddai says she is glad to see that the Court, at least, offered that compromise. "It's hard to say whether it will provide any finality on an expedited basis, but it should help these cases to move forward more quickly."
Attorney-Client Privilege
When Bergen County Superior Court Judge Bruce Gaeta found last February that the 65-year-old Martini was competent to abandon his post-conviction relief applications, he ruled on the narrow grounds that since Martini had discharged the public defender as his lawyer, that office had no authority to proceed on his behalf.
Zegas argued that the public defender would have to violate attorney-client confidentiality to proceed with the post- conviction relief appeal using the confidential information Martini supplied to his public defenders.
The majority briefly addressed this question, saying that the information will first be heard in camera. Van Wyk said an attorney will be present during that in camera hearing to represent Martini's interests.
Nonetheless, Zegas decried the Court's decision to allow a judge to listen to the information Martini divulged in confidence to the public defender. "The decision sets a horrible precedent for attorney-client privilege," he says. "The decision has the potential to chill attorney-client communication in the future, if the public learns that ... an attorney does not have the obligation to honor promised confidentiality."
(New Jersey Law Journal is an affiliate publication of Court TV.)
Copyright 1996 American Lawyer Media)
