(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 5, 1999 -- Decided April 15, 1999
COLEMAN, J., writing for a unanimous Court.
The issue addressed in this appeal is whether certain prosecutorial comments made during the
closing-argument phase of Albert and Barry Frost's criminal trial deprived them of a fair trial.
On November 16, 1995, cousins Albert and Barry Frost were arrested after the Newark Police
Department conducted an undercover drug investigation. The Frosts were indicted for conspiracy (count
one); possession of cocaine (count two); possession of cocaine with intent to distribute (count three);
possession of cocaine with intent to distribute within a school zone (count four); two counts of distribution of
cocaine (counts five and seven); two counts of distribution of cocaine within a school zone (counts six and
eight); possession of marijuana with intent to distribute (count nine); and possession of marijuana in a
quantity of one ounce or more, but less than five pounds, with intent to distribute (count ten).
In a joint trial, the State and defense presented conflicting accounts of the events that led up to the
arrests. Based on those conflicting versions of the facts, defense counsel attacked the officers' credibility
during closing arguments. In response, the prosecutor made several comments that the State concedes were
inappropriate. First, in an effort to rebut the defense counsel's observation that the State failed to introduce
the "buy money" at trial, the prosecutor told the jury that the State was not allowed to bring in the money
because it had been confiscated. Defense counsel objected.
Second, in an attempt to bolster the officers' credibility, the prosecutor stated that there was no
evidence of wrongdoing by the officers and that they could not act inappropriately because of the magnitude
of the charges that could be brought against them. The trial judge overruled defense counsel's objection.
Lastly, the prosecutor made several disparaging comments about the defense lawyers that were
objected to by defense counsel.
Apart from sustaining two objections, the only curative action taken by the trial court was to tell the
jury, as part of its general instructions, to disregard attorneys' comments if those comments conflicted with
the jury's recollection of the evidence.
The jury found Albert and Barry Frost guilty on counts one through eight and on count ten. Albert
Frost was sentenced to an aggregate term of ten years with a five-year parole disqualifier. Barry Frost was
sentenced to an aggregate term of five years with a three-year parole disqualifier.
Both Frosts appealed, arguing that the prosecutor's summation exceeded the bounds of fair
comment. Although it noted that the prosecutor made some inappropriate comments, the Appellate Division
upheld the convictions, finding the evidence against the Frosts overwhelming; therefore, the comments did
not have the capacity to lead to an unjust result. The Appellate Division did refer the matter to the Attorney
General for his review and necessary corrective action.
The Supreme Court granted Albert Frost's petition for certification and now grants Barry Frost's
late petition for certification.
HELD: Certain prosecutorial comments made at the closing-argument phase of the criminal trial against
Barry and Albert Frost deprived them of a fair trial.
1. Prosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so
egregious that it deprived the defendant of a fair trial. In determining if the conduct is sufficiently egregious,
the appellate court must consider: 1) whether defense counsel made timely objections to the improper
remarks; 2) whether the remarks were withdrawn promptly; and 3) whether the court ordered the remarks
stricken from the record and instructed the jury to disregard them. (pp. 7-12)
2. The prosecutor's comments regarding the "buy money" were highly improper because they were both
factually inaccurate and misleading. The prosecutor misstated the law when he told the jury that the buy
money could not be introduced at trial. Even more egregious was the statement regarding the police not
lying because of the magnitude of charges that could be brought against them. The courts have consistently
held this type of statement about a police officer's credibility to be completely inappropriate. In addition, the
prosecutor's comments disparaging the defense lawyers were highly inappropriate. (pp. 12-14)
3. Although defense counsel objected to all but one of the prosecutor's improper remarks, the trial court did
very little to cure those improprieties. The trial court's single curative instruction was insufficient to
overcome the potential prejudicial nature of the prosecutor's inappropriate remarks. Credibility was the key
issue here. Even if the evidence against the Frosts had been overwhelming, that is not a justifiable basis for
depriving them of their constitutional right to a fair trial. (pp.14-16)
4. Prosecutorial misconduct occurs frequently and often goes unpunished because there is no prejudice to
the defendant. The Court does not adopt a per se rule that requires reversal of every conviction whenever
there is evidence of egregious prosecutorial misconduct during trial. Nonetheless, prosecutors are reminded
that they are to deal with the evidence and the reasonable inferences therefrom; they are not permitted to
indulge in improper expressions of personal or official opinion as to defendant's guilt or to otherwise engage
in collateral improprieties of any type unless they wish to endanger an otherwise sound conviction.
Moreover, prosecutors run the risk of having the matter referred to the appropriate district ethics committee.
(pp. 16-18)
5. The convictions in this matter must be reversed because the prosecutor's conduct had the clear capacity
of producing an unjust result. (pp. 17-18)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law
Division for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and
STEIN join in JUSTICE COLEMAN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
181 September Term 1997
A-
87 September Term 1998
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALBERT FROST and BARRY FROST,
Defendants-Appellants.
Argued January 5, 1999 -- Decided April 15, 1999
On certification to the Superior Court,
Appellate Division.
Matthew Astore, Deputy Public Defender II,
argued the cause for appellants (Ivelisse
Torres, Public Defender, attorney; Mr. Astore
and Michael C. Kazer, Designated Counsel, on
the briefs).
Raymond W. Hoffman, Assistant Prosecutor,
argued the cause for respondent (Patricia A.
Hurt, Essex County Prosecutor, attorney).
Debra L. Stone, Assistant Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Peter Verniero,
Attorney General, attorney; Ms. Stone and
Carol M. Henderson, Deputy Attorney General,
of counsel; Ms. Henderson, on the brief).
The opinion of the Court was delivered by
COLEMAN, J.
The issue presented in this appeal is whether certain
prosecutorial comments made during the closing-argument phase of
defendants' criminal trial deprived them of a fair trial. The
Appellate Division in an unpublished opinion concluded that the
prosecutor's comments were inappropriate, but harmless. We
granted defendant Albert Frost's petition for certification.
153 N.J. 217 (1998). We now grant defendant Barry Frost's late
petition for certification and reverse both defendants'
2convictions.
In a joint trial, the State and defense presented conflicting accounts regarding the events of that day. The State's version of events was as follows. On November 16, 1995, Detective Hector Mejias of the Newark Police Department was instructed to attempt an undercover drug purchase at 1126 Broad Street, a suspected place of drug activity. As Mejias was approaching the building, he observed a male, later identified as James Bushrod, knock on a rear window of the building, call out “Al,” and walk a short distance to a wrought-iron gate at the end of the building. A second male exited the building, took what appeared to be paper money from Bushrod, and returned to the building. About ten seconds later, the second male reappeared, opened the wrought-iron gate, and handed Bushrod a small white object. After Bushrod walked away, Mejias's “back-up team” arrested Bushrod and found a paper fold of suspected cocaine on his person.
Mimicking Bushrod's purchase, Mejias then walked to the target location, knocked on the rear window, and called out “Al.” When a male, later identified as Barry Frost, came to the window, Mejias asked him for ten dollars worth of cocaine. Barry Frost met Mejias at the wrought-iron gate where Mejias purchased a paper fold containing what appeared to be cocaine with two marked five-dollar bills, commonly referred to as the “buy money.”
After receiving the suspected cocaine, Mejias arrested Barry Frost. Barry Frost then screamed, “Narcos, narcos, flush it.” Mejias's “back-up team” ran into an open apartment in the building and arrested Albert Frost as he was attempting to flush something down the toilet. A member of the “back-up team” testified that the police recovered thirty-one small bags of marijuana, twenty-two folds of cocaine, $225 in cash, and the “buy money” Mejias had given to Barry Frost.
The defense presented the jury with a different version of events. Barry Frost testified that at approximately 7:00 p.m. on November 16, 1995, he visited his cousin Albert Frost's apartment at 1126 Broad Street. About two hours into his visit, Barry Frost heard Bushrod calling for his cousin and went outside to see what he wanted. Bushrod asked Barry Frost if he could speak with a female named Stacy who was also in the apartment. Barry Frost went into the apartment to inform Stacy that Bushrod wanted to speak with her. She told him “okay.” Barry Frost went back outside and told Bushrod of Stacy's response. Barry Frost had no further conversation with Bushrod, and Stacy never went outside. At no other time did Barry Frost go outside of the apartment.
Approximately five minutes later, while Barry Frost was standing in the apartment corridor, he heard “rumblings” at the apartment door. According to Barry Frost, the officers banged on the door until they were able to break through the wrought-iron gate and kick in the apartment door. At that point, the police entered the premises and arrested Albert and Barry Frost.
Based on those conflicting versions of the facts, defense counsel attacked the officers' credibility during closing arguments. Defense counsel suggested the officers' testimony that Barry Frost opened the wrought-iron gate to consummate the drug transaction made no sense because the area was a high-crime area, and because Barry Frost could have easily completed the transaction through the spaces in the gate. Additionally, defense counsel pointed out that the State failed to produce either the “buy money” or a photocopy of the “buy money” that Detective Mejias said he used to purchase drugs from Barry Frost.
In responding to defense counsel's closing argument, the prosecutor made several comments that the State now concedes were inappropriate. First, in an apparent attempt to rebut defense counsel's observation that although the officers claimed that cash was confiscated at the time of the arrest, none was produced at trial, the prosecutor told the jury that “[t]he [S]tate is not allowed to bring the money in. It's confiscated.” When Albert Frost's attorney objected, the trial court instructed the prosecutor to “Please continue.” Accordingly, the prosecutor stated: “[The] State is not allowed to bring the money in. It's confiscated, it's in the reports.” This time, Barry Frost's attorney objected to the prosecutor's reference to police reports that were not in evidence; the court sustained that objection. However, the court did not strike the comment from the record or instruct the jury to disregard the statement.
Second, in an attempt to bolster the officers' credibility, the prosecutor argued:
I would submit to you, ladies and gentlemen, there is absolutely no evidence in this case that shows wrongdoing by the officers. There's no evidence that locks are cut. There's no evidence that doors were smashed. No evidence of any wrongdoing whatsoever. I'd submit this to you, ladies and gentlemen, do you know the magnitude of the charges that could be brought against officers for such actions.
[Emphasis added.]
Defense counsel objected, but the trial court overruled the
objection.
Lastly, the prosecutor made several disparaging comments
about defendants' lawyers. He suggested that the jurors dismiss
defense counsel's arguments as “lawyer talk”:
Look at the evidence, ladies and gentlemen,
the Judge will tell you that. Look at the
evidence before you, look at the counts
before you, don't be distracted by lawyer
talk. I'd ask you this. When you go into
the jury room and an individual starts
talking about, what about that lock -- time
out, time out. That's lawyer talk.
[Emphasis added.]
Soon thereafter, the prosecutor told the jurors that “the bottom
line in this case comes down to . . . credibility and I would
submit to you that defense counsel is banking on that maybe one
of you got a ticket last week and you got a bad taste in your
mouth towards officers.” (Emphasis added). The court sustained
defense counsel's objections to this last comment. Again, the
court failed to strike the comment from the record or instruct
the jury to disregard it. Apart from sustaining two objections,
the only curative action taken by the trial court was to inform
the jury, as part of its general instructions, to disregard the
attorneys' comments on the evidence if those comments conflicted
with the jury's recollection of the evidence.
The jury found defendants guilty on counts one through eight
and on count ten. The court sentenced Albert Frost to an
aggregate term of ten years with a five-year period of parole
ineligibility. It sentenced Barry Frost to an aggregate term of
five years with a three-year period of parole ineligibility.
On appeal, defendants argued that the prosecutor's summation
exceeded the bounds of fair comment. The Appellate Division
recognized that the prosecutor “struck several foul blows in this
case.” However, noting that the evidence against defendants was
“overwhelming” and that “the trial record fairly shrieks of
defendant's [sic] guilt,” the panel determined that the
prosecutor's comments did not affect the fairness of the trial,
and were not so grievous as to have the capacity to lead to an
unjust result. Nonetheless, the panel was “concerned that by
affirming defendants' convictions despite the prosecutor's
derelictions, [it] may be encouraging future misconduct.”
Therefore, the panel referred the matter to the Attorney General
“for his review with the hope that corrective action [would] be
taken.”
Defendants argue simply that the prosecutor's comments during summation deprived them of a fair trial. Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented. State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988). Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries. Harris, supra, 141 N.J. at 559. Justice Clifford's observations in his dissent in State v. DiPaglia, 64 N.J. 288 (1974), are worth repeating:
Criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented.
[Id. at 305 (Clifford, J., dissenting) (citations omitted).]
Nevertheless, “the primary duty of a prosecutor is not to
obtain convictions, but to see that justice is done.” State v.
Ramseur,
106 N.J. 123, 320 (1987). “It is as much his duty to
refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about
a just one.” State v. Farrell,
61 N.J. 99, 105 (1972) (quoting
Berger v. United States,
295 U.S. 78, 88,
55 S. Ct. 629, 633,
79 L. Ed. 1314, 1321 (1935)).
Thus, this Court has held that prosecutorial misconduct can
be a ground for reversal where the prosecutor's misconduct was so
egregious that it deprived the defendant of a fair trial.
Ramseur, supra, 106 N.J. at 322; State v. Siciliano,
21 N.J. 249,
262 (1956). In determining whether a prosecutor's misconduct was
sufficiently egregious, an appellate court “must take into
account the tenor of the trial and the degree of responsiveness
of both counsel and the court to improprieties when they
occurred.” State v. Marshall,
123 N.J. 1, 153 (1991); see also
State v. Scherzer,
301 N.J. Super. 363, 433 (App. Div.), certif.
denied,
151 N.J. 466 (1997). Specifically, an appellate court
must consider (1) whether defense counsel made timely and proper
objections to the improper remarks; (2) whether the remarks were
withdrawn promptly; and (3) whether the court ordered the remarks
stricken from the record and instructed the jury to disregard
them. Marshall, supra, 123 N.J. at 153; Ramseur, supra, 106 N.J.
at 322-23; State v. G.S.,
278 N.J. Super. 151, 173 (App. Div.
1994), rev'd on other grounds,
145 N.J. 469 (1996); State v.
Ribalta,
277 N.J. Super. 277, 294 (App. Div. 1994), certif.
denied,
139 N.J. 442 (1995). Generally, if no objection was made
to the improper remarks, the remarks will not be deemed
prejudicial. Ramseur, supra, 106 N.J. at 323. The failure to
object suggests that defense counsel did not believe the remarks
were prejudicial at the time they were made. The failure to
object also deprives the court of an opportunity to take curative
action. State v. Bauman,
298 N.J. Super. 176, 207 (App. Div.),
certif. denied,
150 N.J. 25 (1997).
In State v. Acker,
265 N.J. Super. 351 (App. Div.), certif.
denied,
134 N.J. 485 (1993), a case that charged the defendant
with second-degree sexual assault upon two females less than
thirteen-years old, the prosecutor characterized the defense
attorney and the defense as “absolutely preposterous” and
“absolutely outrageous.” The prosecutor also argued that it was
the jury's function to protect young victims of alleged sexual
offenses; that defendant was intoxicated in one instance, despite
knowing that the accusation was baseless; and that if the jury
believed one of the victims, it essentially had to believe the
other. Id. at 356-58. The court found the prosecutor's conduct
to be improper and misleading, and concluded that the
prosecutor's conduct was sufficiently egregious to warrant a
reversal of defendant's conviction. Id. at 358.
Similarly, prosecutorial misconduct in State v. Staples,
263 N.J. Super. 602 (App. Div. 1993), required reversal of a
defendant's conviction. That case involved a narcotics
conviction stemming from an undercover officer's alleged purchase
of cocaine from the defendant. The Appellate Division held that
“in personally vouching for the credibility of the State's
witnesses, in suggesting that police witnesses are believable
because of their status as policemen and in suggesting that an
acquittal could significantly jeopardize their professional
careers, the prosecutor violated fundamental restraints against
prosecutorial excesses.” Id. at 606-07. In reversing the
conviction, the panel stated that the prosecutor had strayed
beyond the acceptable limits of advocacy. Ibid.
The prosecutor's conduct in the present case was neither
appropriate nor harmless. His statements regarding the “buy
money” were highly improper. Prosecutors should not make
inaccurate legal or factual assertions during a trial. See State
v. Engel,
249 N.J. Super. 336, 381 (App. Div.), certif. denied,
130 N.J. 393 (1991) (recognizing that prosecutor erred when he
made inaccurate factual assertion). They are duty-bound to
confine their comments to facts revealed during the trial and
reasonable inferences to be drawn from that evidence. State v.
Marks,
201 N.J. Super. 514, 534 (App. Div. 1985), certif. denied,
102 N.J. 393 (1986). Here, the prosecutor's statement that the
“buy money” could not be introduced at trial was simply a
misstatement of the law. There is no legal impedient that
prevented the State from introducing the “buy money” into
evidence. Indeed, that is precisely why undercover officers use
marked bills to make drug purchases. Here, the officers
retrieved the “buy money” from the seller at the time of his
arrest. The fact that the “buy money” was Detective Mejias's own
personal money did not change the purpose for using marked bills.
The mention of the “buy money” in a report that was not in
evidence was not a legal substitute for the "buy money" as
evidence. Thus, the prosecutor's comments were not only
inaccurate, they were misleading as well.
Even more egregious was the prosecutor's suggestion that the
police officers would not lie because of the “magnitude” of
charges that could be brought against them. Our courts have
consistently held that such statements by a prosecutor about a
police officer's credibility are wholly inappropriate. See,
e.g., State v. Goode,
278 N.J. Super. 85, 90 (App. Div. 1994)
(recognizing that it was improper for prosecutor to tell jury
that police had no motive to lie); Staples, supra, 263 N.J.
Super. at 604-06 (recognizing impropriety of prosecutor asking
officer “is your career and the penalties that you would sustain
for perjuring yourself worth the conviction for a $20.00 bag of
cocaine?” during direct examination); Engel, supra, 249 N.J.
Super. at 379 (recognizing that it was improper for prosecutor to
tell jury that investigators were “good men who leave their
family [and] work day and night” and would not “jeopardize their
careers” over defendants); State v. West,
145 N.J. Super. 226,
233-34 (App. Div. 1976), certif. denied,
73 N.J. 67 (1977)
(finding improper prosecutor's statements that police officer
would not lie because “[t]here is a lot of harm that could come
to him” and because “the police officer's career would be
finished in a minute”); State v. Jones,
104 N.J. Super. 57, 65
(App. Div. 1968), certif. denied,
53 N.J. 354 (1969) (stating
that it is “obviously improper” to imply that police testimony
should be accepted, “not because of its believability but because
the witnesses were policemen”). The problem with this kind of
exhortation is that it unfairly invites the jury to speculate
concerning whether the effect of an acquittal would be to
terminate the officer's career. As we explained in Ramseur,
supra, 106 N.J. at 322, “[s]tatements such as those made by the
prosecutor are improper because they divert the jurors' attention
from the facts of the case before them.”
Likewise, we find the prosecutor's comments suggesting that
defense counsel's closing arguments were “lawyer talk,” and that
defense counsel hoped that one or more jurors had “a bad taste in
[their] mouth towards officers” to be improper. “A prosecutor is
not permitted to cast unjustified aspersions” on defense counsel
or the defense. State v. Lockett,
249 N.J. Super. 428, 434 (App.
Div.), certif. denied,
127 N.J. 553 (1991); see also Scherzer,
supra, 301 N.J. Super. at 445; Acker, supra, 265 N.J. Super. at
356. Defense counsel should not be subjected to disparaging
remarks for simply doing his or her job.
A review of the record reveals that although defense counsel
immediately objected to all but one of the prosecutor's improper
remarks, little if anything was done by way of curative action.
Besides sustaining two of defense counsel's objections, the
court's only action was to instruct jurors in its subsequent
general charge to disregard the attorneys' comments on the
evidence during summation if those comments conflicted with their
recollection of the evidence. Sometimes such a general charge
may serve to ameliorate potential prejudice caused by remarks
that are only slightly improper. State v. Setzer,
268 N.J.
Super. 553, 566 (App. Div. 1993), certif. denied,
135 N.J. 468
(1994); State v. Watson,
224 N.J. Super. 354, 362 (App. Div.),
certif. denied,
111 N.J. 620, cert. denied,
488 U.S. 983,
109 S.
Ct. 535,
102 L. Ed.2d 566 (1988). However, considering the
cumulative effect of the prosecutorial improprieties in this
case, the single curative instruction was insufficient to
overcome the potential prejudicial nature of the prosecutor's
improper remarks. See State v. Rose,
112 N.J. 454, 523 (1988).
We disagree with the Appellate Division's conclusion that
although many of the prosecutor's comments were improper, because
the “evidence of defendant's [sic] guilt was overwhelming” a
reversal was not warranted. Credibility was the critical issue
in the case. All of the prosecutor's improper remarks related to
the credibility of the officers' testimony. The State's entire
case rested on the testimony of the officers. When a jury must
choose which of two opposing versions to credit, it simply cannot
be said that the evidence is overwhelming. Here, the jury's
determination hinged completely on whether the jurors believed
the officers' testimony or defendant Barry Frost's testimony.
Even if the evidence were overwhelming, that could never be
a justifiable basis for depriving a defendant of his or her
entitlement to a constitutionally guaranteed right to a fair
trial. The impact of violating a defendant's right to a fair
trial cannot be measured by, or weighed against, the quantum of
evidence bearing upon his or her guilt. State v. Simon,
79 N.J. 191, 206 (1979); State v. Salzman,
228 N.J. Super. 109, 115 (App.
Div. 1987).
This Court has repeatedly expressed concern for
prosecutorial propriety. We have said time
and again that "because the prosecutor
represents the government and people of the
State, it is reasonable to say that jurors
have confidence that he will fairly fulfill
his duty to see that justice is done whether
by conviction of the guilty or acquittal of
the innocent." His comments during opening
and closing carry the full authority of the
State. Hence, we cannot sit idly by and
condone prosecutorial excesses.
[State v. Spano,
64 N.J. 566, 568 (1974)
(citations omitted).]
Despite those concerns, "instances of prosecutorial excesses
. . . seem to come to [our appellate courts] with numbing
frequency." Watson, supra, 224 N.J. Super. at 362. Often, as
occurred in this case, such derelictions go unpunished because it
is clear that no prejudice to the defendant resulted. Id. at
363. It has been suggested that an automatic reversal rule
"might well have prophylactic value in deterring future
misconduct." Ibid.
Today we do not adopt a per se rule that requires reversal
of every conviction whenever there is evidence of egregious
prosecutorial misconduct during trial. We stress, nonetheless,
“that prosecutors should confine their summations to a review of,
and an argument on, the evidence, and not indulge in improper
expressions of personal or official opinion as to the guilt of
the defendant, or [otherwise engage] in collateral improprieties
of any type, lest they imperil otherwise sound convictions.”
State v. Thorton,
38 N.J. 380, 400 (1962), cert. denied sub nom.,
Thorton v. New Jersey,
374 U.S. 816,
83 S. Ct. 1710,
10 L. Ed.2d 1039 (1963); see also Spano, supra, 64 N.J. at 569 (noting that
sometimes severe action is necessary to curb prosecutorial
misconduct); Farrell, supra, 61 N.J. at 104 (citing rules of
professional responsibility to remind prosecutors of their role
as State's attorneys); State v. D'Ippolito,
19 N.J. 540, 549
(1955) (stressing that the “[t]he primary duty of a lawyer
engaged in public prosecution is not to convict, but to see that
justice is done”). They also risk having the matter referred to
the appropriate district ethics committee.
Although we do not establish a per se rule, a reversal is
required in this case. The critical issue was credibility, and
the prosecutor improperly impugned the credibility of defendants'
version of the facts, thereby interfering with the jury's right
to make the credibility determination. Consequently, we are
satisfied that the prosecutor's misconduct had the clear capacity
to have led to an unjust verdict. State v. McCloskey,
90 N.J. 18, 30 (1982); State v. Macon,
57 N.J. 325, 335 (1971).
In view of the egregious prosecutorial misconduct that
occurred in this case, we are compelled to consider what if any
action should be taken against the trial prosecutor personally to
discourage such blatant misconduct in the future. See Ramseur,
supra, 106 N.J. at 323-24 (stating possible violations of special
ethical rules governing prosecutors may be referred to
appropriate district ethics committee for disciplinary action);
see also Watson, supra, 244 N.J. Super. at 363 (same). The
Appellate Division referred this matter to the Attorney General
who, as the chief law enforcement officer of the State, has
supervisory powers over prosecutors. See N.J.S.A. 52:17B-98.
The Attorney General wrote the assistant prosecutor a letter of
reprimand. Because this was the young assistant prosecutor's
first jury trial, and because he had left the Essex County
Prosecutor's Office, that letter was a sufficient personal
sanction in this case. Again, we remind prosecutors that they
have "a unique role and responsibility in the administration of
criminal justice and, therefore, have an extraordinary power to
undermine or destroy the efficacy of the criminal justice
system." In re Rachmiel,
90 N.J. 646, 656 (1982). "The sound
administration of criminal justice in our democracy requires that
both the end and the means be just." State v. Orecchio,
16 N.J. 125, 129 (1954).
The judgment of the Appellate Division is reversed, and the
matter is remanded to the Law Division for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and STEIN join in JUSTICE COLEMAN's opinion.
NO. A-181 SEPTEMBER TERM 1997
A-87 SEPTEMBER
TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALBERT FROST and BARRY FROST,
Defendants-Appellants.
DECIDED April 15, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY