(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 February 26, 1996 -- Decided May 29, 1996
O'HERN, J., writing for a unanimous Court.
On May 6, 1992, a young woman withdrew cash from an automatic teller machine at a bank in Perth
Amboy. When she returned to her car, she was approached by two young men, one of whom held a gun to
her head and demanded the money. The woman complied, and the two suspects fled in a small car. The
victim was able to observe both the license plate number of the car and the two female passengers in the
back seat of the car. The victim flagged down a policeman and told the officer that she had been robbed.
She gave the officer a description of the perpretators, their female passengers, and the car, and identified the
license plate number and the direction in which the car was headed. Within hours, a Linden police officer
stopped a car matching the victim's description. The four occupants of the car were placed under arrest. At
the police station, the victim was able to identify the two male suspects as the men who had robbed her. She
gave a statement implicating Cameron Jack as the man who watched while the other suspect placed the gun
to her head.
Shortly before his sixteenth birthday, Jack was charged with juvenile delinquency for acts that would
constitute armed robbery, assault, possession of a weapon for an unlawful purpose, and unlawful possession
of a weapon if committed by an adult. Those charges were filed in Essex County, where Jack lived.
Pursuant to N.J.S.A. 2A:4A-26, the Superior Court, Chancery Division, Family Part, held a hearing
to determine whether Jack should be tried as an adult. That provision of the New Jersey Code of Juvenile
Justice creates a presumption that the Family Part shall transfer jurisdiction of a juvenile aged fourteen or
over to an adult court and prosecuting authority if it finds probable cause to believe that the juvenile has
committed any of the enumerated offenses denoted as "Chart 1 offenses." Robbery is a Chart 1 offense.
Jurisdiction may not be transferred, however, if the juvenile can show that the probability of his or her
rehabilitation before the age of nineteen substantially outweighs the reasons for a waiver.
The first phase of the waiver hearing was held on October 29, 1992. Based on the evidence
presented, the Family Part judge made a preliminary finding that sufficient reason existed to believe that
Jack had been involved in the armed robbery. In the second phase of the waiver hearing, held on
December 17, 1992, the court addressed whether the probability of Jack's rehabilitation by age nineteen
outweighed the reasons for waiver. On the basis of the record presented, the court concluded that, in light
of the presumption favoring waiver and the absence of any showing of a possibility of rehabilitation, Jack
should be waived to the adult court.
The case was transferred to the Law Division in Middlesex County. Jack pled guilty to second-degree conspiracy to commit armed robbery but reserved his right to challenge the jurisdictional waiver issue.
The court sentenced Jack to an indeterminate term not to exceed five years at the Garden State Youth
Correctional Facility, a sentence that he has served.
On appeal, Jack claims that his counsel was ineffective because, at that waiver hearing, counsel failed
to present psychiatric or psychological evidence of Jack's potential for rehabilitation. The Appellate Division
agreed that the performance of Jack's counsel was deficient and remanded the matter for a new waiver
hearing in the Family Part.
The Supreme Court granted the State's petition for certification.
HELD: To secure a new juvenile waiver hearing, a juvenile must make a prima facie showing that there was genuine evidence of a statutorily-relevant potential for rehabilitation that was not presented to the juvenile court due to the ineffective assistance of counsel. If such a showing is made, the appellate court may order a remand to the juvenile court for further proceedings to assess the attorney's
reasons for not providing the evidence, and whether there was any reasonable likelihood that the
waiver decision would have been different had the evidence been presented. Only after both tests
have been met should there be a new plenary hearing on waiver.
1. The Sixth Amendment right to counsel provides for the right to the effective assistance of counsel.
Whether counsel is effective is measured by the standard of reasonable competence. These principles apply
equally in the context of juvenile waiver proceedings. (pp. 5-7)
2. There is a two-part test for determining whether counsel's assistance was so defective as to require the
reversal of a conviction: 1) defendant must identify specific acts or omissions that are outside the wide range
of reasonable professional assistance; and 2) defendant must show by demonstrating a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
Moreover, pursuant to State v. Cronic, when the level of counsel's participation makes the idea of a fair trial
a nullity, prejudice need not be shown, it is presumed. On the other hand, if counsel's representation merely
falls below the standard of reasonable competence, a reversal is required only if the court finds prejudice to
the defendant. (pp. 7-8)
3. This record is inadequate to evaluate the effectiveness of Jack's counsel in respect of the failure to
produce any evidence of rehabilitation. On remand, the court should focus on two considerations: whether
the basis for the tactics and strategy that motivated Jack's attorney to refrain from presenting a case of
potential for rehabilitation were acceptable and whether any prejudice ensued. The scope of the remand
hearing should explore the rationale for counsel's decision at the waiver hearing not to offer evidence of a
potential for rehabilitation. The court should assess whether the rationale is acceptable as an informed
choice or unacceptable as a total lack of decision. (pp. 8-10)
4. If the court finds counsel's rationale for not presenting rehabilitation evidence unacceptable, it should
then assess whether the Cronic presumption should apply, i.e., whether counsel's ineffectiveness was so
egregious that prejudice should be presumed. There must be an assessment of the evidence that competent
counsel could have presented. Based on its assessment of Jack's preliminary showing that he could have
been rehabilitated and the countervailing evidence of his extensive record of juvenile delinquency, the
juvenile court should next assess whether there was a reasonable likelihood of retention of the matter in the
juvenile court. In this phase, the court will not decide the issue of waiver, but only whether there was a
reasonable likelihood that the waiver decision would have been different had Jack's counsel made a strong
showing of a potential for rehabilitation. If there was such a likelihood, the court should then proceed to the
final phase and allow Jack to present evidence that would have supported his potential for rehabilitation.
(pp. 10-13)
5. Not every claim of ineffective assistance of counsel at a juvenile waiver hearing requires a new waiver
hearing. Because the Cronic presumption of prejudice does not apply automatically in Chart 1 juvenile
waiver cases, a juvenile claiming ineffective assistance of counsel must show that expert or otherwise qualified
testimony was available to establish a specific plan of rehabilitation such that there was a reasonable
probability that but for counsel's unprofessional errors, the result of the proceedings would have been
different. If the juvenile makes such a showing, the remand court will consider his or her case as it would
have if effective counsel had been provided. If, on the other hand, the court finds that the best efforts of
competent counsel would not have prevented waiver because the prospects for rehabilitation did not
substantially outweigh the reasons for waiver, then Jack's conviction in the adult court must stand. (pp. 13-15)
The judgment of the Appellate Division is AFFIRMED, as MODIFIED.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, GARIBALDI, STEIN, and COLEMAN
join in JUSTICE O'HERN's opinion. JUSTICE HANDLER did not participate.
SUPREME COURT OF NEW JERSEY
A-
96 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CAMERON JACK,
Defendant-Respondent.
Argued February 26, 1996 -- Decided May 29, 1996
On certification to the Superior Court,
Appellate Division whose opinion is reported
at 281 N.J. Super. 404 (1995).
Paul H. Heinzel, Deputy Attorney General,
argued the cause for appellant (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
Bernadette N. De Castro, Assistant Deputy
Public Defender, argued the cause for
respondent (Susan L. Reisner, Public
Defender, attorney; Ms. De Castro and Jane E.
Haburay; designated counsel, on the briefs).
The opinion of the Court was delivered by
O'HERN, J.
This appeal concerns the standard that should govern on
direct appeal the assessment of a claim of ineffective assistance
of counsel in the context of a juvenile waiver proceeding. We
hold that to secure a hearing on the claim, a juvenile must make
a prima facie showing that there was genuine evidence of the
statutorily-relevant potential for rehabilitation that was not
presented to the juvenile court due to the ineffective assistance
of counsel. If such a showing is made, the appellate court may
order a remand to the juvenile court for further proceedings to
assess the attorney's reasons for not providing the evidence, and
whether there was any reasonable likelihood that the waiver
decision would have been different had the evidence been
presented. Only after both tests have been met should there be a
new plenary hearing on waiver. In this case, we find the
evidence to have been marginally sufficient to justify a limited
remand. We modify the scope of the remand in accordance with the
terms of this opinion.
On May 6, 1992, a young woman withdrew cash from an automatic teller machine at a bank in Perth Amboy. She returned to her car and, while counting her money, was approached by two young men. One stood by as the other held a gun to the woman's head and demanded her money. She handed over her money and the bank card. The gunman threw the bank card back at the woman and the two suspects fled in a small car. The woman was able to take down the license number of the car and to see that there were two female passengers in the back seat. She flagged down a police car and told the officer that she had been robbed. She gave the officer a description of her assailants and their female passengers, the car, including its license plate, and the direction in which the car was headed. An all-points teletype
notified all state police departments to be on the alert to
apprehend the suspects. Within hours, a Linden police officer
stopped a car that matched the description provided by the victim
of the robbery. The officer searched the car and located in the
passenger compartment what appeared to be a small, automatic
pistol. It was actually a tear gas gun. The officer placed all
four occupants of the car under arrest. Perth Amboy officers
then arrived and transported the suspects to police headquarters
in Perth Amboy.
The victim was also brought to Perth Amboy police
headquarters, where she identified the two males as the men who
had robbed her. She gave a statement implicating Cameron Jack as
the one who had been watching while the other suspect placed the
gun to her head.
Shortly before his sixteenth birthday, Jack was charged with
juvenile delinquency for acts that would constitute armed
robbery, assault, possession of a weapon for an unlawful purpose,
and unlawful possession of a weapon if committed by an adult.
The charges were made in Essex County, the county of the
juvenile's residence. R. 5:19-1. The Superior Court, Chancery
Division, Family Part, held a hearing pursuant to N.J.S.A. 2A:4A-26 to determine whether Jack should be tried as an adult.See footnote 1 The
hearing was in two phases.
N.J.S.A. 2A:4A-26 of the New Jersey Code of Juvenile Justice
creates a presumption that the Family Part shall transfer
jurisdiction of a juvenile aged fourteen or over to an adult
court and prosecuting authority if it finds probable cause to
believe that the juvenile has committed any of certain enumerated
serious offenses denoted in our cases as "Chart 1 offenses."
State v. R.G.D.,
108 N.J. 1, 12 (1987). Robbery is a Chart 1
offense. Jurisdiction may not be transferred, however, if the
juvenile can show that the probability of his or her
rehabilitation before the age of nineteen substantially outweighs
the reasons for a waiver. Ibid.
At the first phase of the waiver hearing on October 29,
1992, the Family Part addressed the question of whether there
existed probable cause to believe that defendant had committed
one of the enumerated offenses. Based on the evidence, the court
made a preliminary finding that sufficient reason existed to
believe that Jack had been involved in an armed robbery. The
court held the second phase of the waiver hearing on December 17,
1992, to determine whether the probability of defendant's
rehabilitation by age nineteen outweighed the reasons for waiver.
This hearing prompts the claim of ineffective assistance of
counsel. Jack's counsel presented no psychiatric or
psychological evidence of the juvenile's potential for
rehabilitation at the hearing. The attorney called no witnesses
and limited his presentation to a summation emphasizing that "the
nature of the incident, although on its [face] appearing to be
serious, was not one where we had an actual gun involved," and
that "the jurisdictional aspect that the matter, I believe, is
one that occurred in Middlesex County," arguing presumably that
the waiver hearing should have been held in Middlesex, not Essex.
On the basis of this record, the Family Part concluded that, in
light of the presumption favoring waiver and the absence of any
showing of a possibility of rehabilitation, Jack should be
treated as an adult.
The case was transferred to the Law Division in Middlesex
County and Jack pled guilty to second-degree conspiracy to commit
armed robbery, reserving his right to challenge the
jurisdictional waiver. The court sentenced Jack to an
indeterminate term not to exceed five years at the Garden State
Youth Correctional Facility, a sentence that he has served. Jack
has pursued his appeal, contending that he was denied effective
assistance of counsel at the waiver hearing. In an unreported
opinion, the Appellate Division agreed that the performance of
Jack's counsel was deficient and remanded the case for a new
waiver hearing in the Family Part. The State petitioned for
review of that decision. We granted certification.
142 N.J. 517
(1995).
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984), the Supreme Court set forth the constitutional threshold for vindication of the Sixth Amendment's
guarantee to every citizen of the assistance of counsel in the
defense of all criminal prosecutions. "An accused is entitled to
be assisted by an attorney, whether retained or appointed, who
plays the role necessary to ensure that the trial is fair." Id.
at 685, 104 S. Ct. at 2063, 80 L. Ed.
2d at 692. In other words,
"the right to counsel is the right to the effective assistance of
counsel." Id. at 686, 104 S. Ct. at 2063, 80 L. Ed.
2d at 692
(quoting McMann v. Richardson,
397 U.S. 759, 771 n.14,
90 S. Ct. 1441, 1449 n.14,
25 L. Ed.2d 763, 773 n.14 (1970)).
Adequate assistance of an attorney is measured according to
whether the counsel has professional skills comparable to other
practitioners in the field. This has been equated with a
standard of "reasonable competence." State v. Fritz,
105 N.J. 42, 53 (1987). "`Reasonable competence' does not require the
best of attorneys, but certainly not one so ineffective as to
make the idea of a fair trial meaningless." State v. Davis,
116 N.J. 341, 351 (1989).
Although those principles have developed in the context of
criminal jury trials, they apply equally in the context of
juvenile waiver proceedings. It has long been settled that a
potential loss of liberty involves the loss of a fundamental
right entitling one to the assistance of counsel. Strickland,
supra, 466 U.S. at 684, 104 S. Ct. at 2063, 80 L. Ed.
2d at 691;
State v. Fritz, supra, 105 N.J. at 50; State v. Ferguson,
255 N.J. Super. 530, 539 (App. Div. 1992), certif. denied,
138 N.J. 265 (1994). Our Legislature has accorded juveniles all rights
guaranteed to an adult charged with a crime. Ferguson, supra,
255 N.J. Super. at 537.
The United States Supreme Court has developed a two-part
test for determining whether counsel's assistance was so
defective as to require the reversal of a conviction. This test
requires the defendant to identify specific acts or omissions
that are outside the "wide range of reasonable professional
assistance" and to show prejudice by demonstrating "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland,
supra, 466 U.S. at 689, 694, 104 S. Ct. at 2065, 2068, 80 L. Ed.
2d at 694, 698. That standard also applies to the State
Constitution's guarantee of effective assistance of counsel.
Fritz, supra, 105 N.J. at 58. The test recognizes that when the
level of counsel's participation makes the idea of a fair trial a
nullity prejudice need not be shown, it is presumed. United
States v. Cronic,
466 U.S. 648, 659,
104 S. Ct. 2039, 2047,
80 L.
Ed.2d 657, 668 (1984) (decided the same day as Strickland). If
this category of ineffective assistance is established, a
defendant is not required to show prejudice. That degree of
deficient performance is tantamount to a complete denial of
counsel. Ibid.
On the other hand, under Strickland, if counsel's
representation merely falls below the standard of reasonable
competence, a reversal is required only if the court finds
prejudice to defendant. Thus, in Burger v. Kemp,
483 U.S. 776,
794-95,
107 S. Ct. 3114, 3126,
97 L. Ed.2d 638, 657 (1987),
although observing that counsel did not investigate evidentiary
material to present in mitigation of defendant's sentencing
phase, the Court did not invalidate the conviction because the
decision not to investigate was a strategic decision supported by
"reasonable professional judgment" that such investigation "would
not have minimized the risk of the death penalty." See also
Government of the Virgin Islands v. Weatherwax,
77 F.3d 1425,
1435 (3d Cir. 1996) (holding that defense counsel's racially-motivated decision not to investigate possibility of tainted jury
"fell squarely within the realm of strategy and tactics" and thus
did not amount to ineffective assistance of counsel in violation
of Sixth Amendment).
Applying those principles to this case requires us first to
consider whether the quality of the juvenile's representation was
so deficient that, under Cronic, supra, prejudice must be
presumed as a matter of law.
In State v. Scott,
141 N.J. 457, 465 (1995), the Court
explained that even a well-documented showing of the probability
of rehabilitation prior to a juvenile's reaching the age of
nineteen will not foreclose waiver. The reason is that juveniles
charged with a Chart 1 enumerated offense are "`the primary
candidates for waiver to the adult courts' because the statute
has created a `presumption' of waiver for such juveniles." Id.
at 463 (quoting R.G.D., supra, 108 N.J. at 11) (citations
omitted). As noted, to overcome that presumption of waiver, the
juvenile must show that the probability of rehabilitation
"substantially outweighs the reasons for waiver." Scott, supra,
141 N.J. at 464 (quoting N.J.S.A. 2A:4A-26(a)(3)). In Scott, the
juvenile court found that the presumption of waiver, the brazen
and violent nature of the juvenile's current crimes, the need to
protect the public and the defendant's past record established an
adequate basis to support the court's determination that the
reasons for waiver outweighed any probability of rehabilitation.
It is especially difficult to assess the issue of a Cronic
presumption in the context of a juvenile waiver proceeding. The
two presumptions (the Cronic presumption of prejudice and the
statutory presumption in favor of waiver) tend to balance each
other out. In State v. Savage,
120 N.J. 594, 619 (1990), after a
remand to assess the reasons offered for counsel's decision, we
found it "incomprehensible that [defendant's counsel at trial]
never even considered a psychiatric defense" in light of evidence
"strongly indicat[ing] that [defendant] may have been suffering
from mental problems." We determined that the lawyer's rationale
was completely unacceptable and failed to demonstrate minimal
competence. His decision was not a strategic decision but a
total lack of decision. Permissible trial strategy can never
include the failure to conduct a substantial investigation into
any of the juvenile's plausible lines of defense.
We find this record, however, inadequate to evaluate the
effectiveness of counsel regarding trial counsel's failure to
produce any evidence of rehabilitation. Scott, supra, presents
an example of a well-documented case for rehabilitation. There,
the juvenile presented evidence from a psychiatrist that the
mental illness that had contributed to his criminal activities
could be brought under control before age nineteen and that he
could be rehabilitated through the services and procedures
available to the juvenile court. No effort at such documentation
was made by Jack's counsel.
Ordinarily we will require that before an appellate court
directs a remand to consider a claim of such ineffective
assistance of counsel, the defendant shall make a showing that he
could have presented a case for rehabilitation. Defendant has
attempted to piece together a case for rehabilitation from
various record matters to be discussed later in this opinion.
Because of the age of this case, we are willing to permit it to
proceed to the next phase on remand to the juvenile court. That
remand should focus on two considerations: whether the basis for
the tactics and strategy that motivated the juvenile's counsel to
refrain from presenting a case of potential for rehabilitation
were acceptable and whether any prejudice ensued. "Cronic
represents a narrow exception which the Supreme Court has carved
out of the general rule that a petitioner claiming ineffective
assistance of counsel must demonstrate that he was prejudiced by
specific alleged errors in his counsel's performance.
Consequently, the burden of proof under Cronic is a very heavy
one." Stone v. Dugger,
837 F.2d 1477, 1479 (11th Cir. 1988) (per
curiam) (quotation and citation omitted), cert. denied, 489 U.S.
1071,
109 S. Ct. 1354,
103 L. Ed.2d 821 (1989). Thus, the
Eleventh Circuit has concluded that it "`becomes evident that
Cronic's presumption of prejudice applies to only a very narrow
spectrum of cases where the circumstances leading to counsel's
ineffectiveness are so egregious that the defendant was in effect
denied any meaningful assistance at all.'" Stano v. Dugger,
921 F.2d 1125, 1153 (11th Cir.) (quoting Chadwick v. Green,
740 F.2d 897, 901 (11th Cir. 1984) (footnote omitted), cert. denied sub
nom., Stano v. Singletary,
502 U.S. 835,
112 S. Ct. 116,
116 L.
Ed.2d 85 (1991).
In this case, the scope of the remand hearing should, as in
Savage, supra, explore the rationale for the decision of counsel
at the waiver hearing to offer no evidence of a potential for
rehabilitation. The court shall assess whether the rationale is
acceptable as an informed choice or unacceptable as a total lack
of decision. State v. Dixon,
125 N.J. 223, 261 (1991). State v.
Bryant,
237 N.J. Super. 102 (App. Div. 1988), rev'd on other
grounds,
117 N.J. 495 (1989), illustrates that kind of
unacceptable choice by counsel.
If the court finds that latter type of rationale, it should
then assess whether the Cronic presumption should apply, i.e.,
whether counsel's ineffectiveness was so egregious that prejudice
should be presumed. As noted, Scott, supra, undermines an
automatic application of a Cronic presumption to the outcome of a
waiver hearing for a Chart 1 offender. The State thus insists
that prejudice simply cannot be presumed in the face of such a
heavy burden and the need for such particular proofs.
There must be an assessment of the evidence that competent
counsel could have presented. Defendant has suggested in his
papers that there were doctors, teachers, probation officers and
family members who could have testified on his behalf. In
addition, he asserts that he was not informed of his right to
testify on his own behalf, presumably regarding his potential for
rehabilitation. The only proffered expert evidence is in the
form of a letter from a psychiatrist who attempted to treat Jack
at the Middlesex County Youth Detention Facility that assesses
his psychiatric well-being but does not directly discuss his
potential for rehabilitation.
Defendant also relies on the materials contained in the
presentence report that were accepted by the trial court in
Middlesex County and led it to conclude that the mitigating
factors substantially outweighed the aggravating factors,
authorizing a sentence one degree lower than that for which he
had been indicted. Based on those materials, the trial court
stated: "He's got a bright future ahead of him. He's not a bad
person but he's done some terrible things . . . [a]nd he's got to
answer for the terrible things he's done."
State v. Ferguson, supra,
255 N.J. Super. 530 (App. Div.
1992), certif. denied,
138 N.J. 265 (1994), illustrates the type
of evidence that does, indeed, establish prejudice due to
ineffective assistance of counsel. Counsel had presented only a
"net opinion" from a psychiatrist. The court noted "several
examples, among many, from the record of what could have been
done," referring to testimony from a senior corrections official
that "this youngster [Ferguson] represents one of the most
appropriate candidates for being treated as a juvenile of any
that we have seen. I cannot recall another juvenile offender who
had the potential for being rehabilitated that James [Ferguson]
does in my over twenty years with the Department of Corrections."
Id. at 542.
The countervailing considerations on Jack's potential for
rehabilitation consist of his rather extensive record of juvenile
delinquency involving auto and other theft, supplemented after
release on these charges by his 1994 conviction of another theft
offense. We do not intend that there be a trial within a trial
on the rehabilitation evidence.
Based on its assessment of the defendant's preliminary
showing that he could have been rehabilitated under the processes
available to the juvenile court and the countervailing evidence,
the juvenile court should next assess whether there was a
reasonable likelihood of retention of the matter in the juvenile
court. In this first phase the court will not decide the issue
of waiver, but only whether there was a reasonable likelihood
that the waiver decision would have been different had Jack's
counsel made a strong showing of potential for rehabilitation.
If there were such a likelihood, the court should then proceed to
the final phase and allow the juvenile to present the evidence
that would have supported his potential for rehabilitation. Rule
5:3-3 authorizes the juvenile court, in its discretion, to
appoint an expert whenever it determines that the disposition of
an issue would be assisted by expert opinion. State v. R.G.D.,
supra, 108 N.J. at 18.
Thus, not every claim of ineffective assistance of counsel
at a juvenile waiver hearing requires a new waiver hearing. The
usual standards of the Strickland/Fritz test for measuring a
claim of ineffective assistance of counsel shall apply. If a
prima facie showing of ineffective assistance of counsel is
shown, a hearing may be required to assess the two aspects of
such a claim, ineffectiveness and prejudice. State v. Preciose,
129 N.J. 451, 463-64 (1992). Because the Cronic presumption of
prejudice does not apply automatically in Chart 1 juvenile waiver
cases, a juvenile claiming the ineffective assistance of waiver
counsel must show that expert or otherwise qualified testimony
was available to establish a specific plan of rehabilitation such
that there was "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would have
been different." Fritz, supra, 105 N.J. at 60-61 (quoting
Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed.
2d at 698).
If the juvenile makes such a showing, the remand court will
consider the offender's case as it would have if effective
counsel had been provided. On the other hand, if in the opinion
of the court the best efforts of competent counsel would not have
prevented waiver because the prospects for rehabilitation did not
substantially outweigh the reasons for waiver, then defendant's
conviction in the adult court shall stand.
In sum, more is required to justify a new hearing on the waiver of a juvenile to adult court than a prima facie showing that the juvenile's counsel failed to present evidence of a potential for rehabilitation. Before the appellate court orders a remand, the juvenile must also demonstrate to the appellate court that there was evidence of a genuine potential for rehabilitation that counsel did not present to the juvenile court. If those conditions are met, the juvenile court should then consider on remand whether that potential for rehabilitation was not presented to the waiver court due to the ineffectiveness of counsel and whether a showing of that potential by effective counsel could have made a difference in the waiver proceedings. Only if the answer to both questions is yes, should there be a new waiver proceeding.
As modified, the judgment of the Appellate Division is affirmed.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, GARIBALDI, STEIN, and COLEMAN join in JUSTICE O'HERN's opinion. JUSTICE HANDLER did not participate.
NO. A-96 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CAMERON JACK,
Defendant-Respondent.
DECIDED May 29, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1References in the opinion to the Juvenile Court or Family Court refer to the Superior Court, Chancery Division, Family Part.