(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 May 29, 1996 -- Decided June 28, 1996
O'HERN, J., writing for the Court.
Defendant was convicted of the kidnapping and murder of a Fair Lawn business executive, Irving Flax,
and was sentenced to death. This Court affirmed his conviction and the proportionality of his sentence of death.
The United States Supreme Court denied defendant's petition for certiorari on October 2, 1995. The
Public Defender applied to the Law Division for permission to pursue post-conviction relief on behalf of
defendant over his objection, or for an evidentiary hearing on defendant's competency, as well as for a stay of
execution. The Public Defender acknowledged that defendant did not wish to stay his execution or to seek any
post-conviction relief.
With defendant's consent, the trial court appointed independent counsel for defendant. It also appointed
a psychiatrist to examine defendant to determine his competence to waive post-conviction proceedings. At the
conclusion of a two-day competency hearing, the trial court ruled that defendant was competent to waive post-conviction proceedings and that the Public Defender could not seek post-conviction relief on defendant's behalf
over his objection.
The Public Defender appealed the denial of her motion to pursue post-conviction relief on defendant's
behalf. This Court expedited review of the matter and held argument on May 29, 1996.
HELD: Because the public has an interest in the reliability and integrity of a death sentencing decision that
transcends the preferences of individual defendants, a special, truncated procedure for post-conviction relief is
established for capital defendants who do not desire post-conviction review.
1. Under established law, a capital defendant may not waive a sentencing hearing, may not waive the
presentation of mitigating evidence, and may not waive an appeal. Given the importance of post-conviction relief
to ensuring the reliability and integrity of death sentences imposed in New Jersey, a capital defendant may not
waive post-conviction relief, either. (pp. 4-7).
2. The Court strongly disagrees with the position of the Public Defender that defendant has had only half an
appeal. Post-conviction relief is not a substitute for a direct appeal. On the other hand, there are some issues
that simply cannot be raised on direct appeal, like certain ineffective assistance of counsel claims or a change
in applicable standards created by subsequent case law. (pp. 7-8).
3. The Public Defender advises that there are three issues that defendant could not have raised on direct appeal.
One of these is that there is new evidence suggesting that New Jersey's death penalty system is constitutionally
flawed because of systemic discrimination against blacks and other minorities. The State argues that the Public
Defender has no standing to raise the issue on defendant's behalf. The question, however, is not whether the
Public Defender has standing, but whether the judiciary, in the discharge of its duty, must consider the issue in
order to ensure the reliability of the decision to execute the defendant. (pp. 9-12).
4. One requirement for the constitutionality of a death penalty statute is the safeguard of meaningful appellate
review. Post-conviction relief is part of that meaningful review. Finality of review is achieved only when our
courts grant or deny post-conviction relief. (pp. 12-14).
5. There shall be a special, truncated procedure for defendants who do not desire post-conviction review. The
post-conviction proceedings will be concluded expeditiously and the appeal will be accelerated. (pp. 14-16).
6. Some issues may not be amenable to summary disposition. The issue of constitutional dimension raised by
the Public Defender here -- that recent data suggests New Jersey's death penalty may be constitutionally flawed
because of systemic discrimination against blacks and other minorities -- is one such issue. This issue has been
raised directly in the appeal of Joseph Harris, which is scheduled to be argued before the Court on September
10, 1996. The trial court may take judicial notice of the pending appeal in Joseph Harris and its effect on this
defendant's case. Both the majority and dissent agree that a stay of defendant's execution based on the appeal
in Joseph Harris would be in order. (pp. 16-18).
7. The trial court correctly resolved that defendant is competent and that his decision not to prosecute any
further appeals was knowing and voluntary. The trial court also was correct to order the Public Defender to pay
for the cost of the court-appointed psychiatric expert who evaluated defendant. (pp. 18-19).
Judgment dismissing the post-conviction relief application is REVERSED and the matter is remanded
to the Law Division for further proceedings in accordance with this opinion.
JUSTICE COLEMAN, dissenting, in which JUSTICE GARIBALDI joins, disagrees that a defendant
cannot waive his right to prosecute a post-conviction relief application. Post-conviction relief proceedings are
not required to establish the reliability of a death sentence. This defendant has already had the benefit of a trial
and a direct appeal, including proportionality review. Whether this defendant can waive his right to pursue post-conviction relief should not be influenced by the pendency of proportionality review in the Joseph Harris case.
Nonetheless, staying defendant's execution until that proportionality review is conducted by the Court is not
opposed.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, and STEIN join in JUSTICE
O'HERN'S opinion. JUSTICE COLEMAN filed a separate dissenting opinion in which JUSTICE GARIBALDI
joins.
SUPREME COURT OF NEW JERSEY
A-
164 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN MARTINI, SR.,
Defendant-Respondent.
Argued May 29, 1996 -- Decided June 28, 1996
On appeal from the Superior Court, Law
Division, Bergen County.
Claudia Van Wyk, Deputy Public Defender II,
argued the cause for appellant, Office of the
Public Defender (Susan L. Reisner, Public
Defender, attorney).
Alan L. Zegas argued the cause for
respondent, John Martini, Sr.
Susan W. Sciacca, Special Deputy Attorney
General, Acting Assistant Prosecutor, argued
the cause for respondent State of New Jersey
(Charles R. Buckley, Deputy Attorney General
in charge, Acting Bergen County Prosecutor,
attorney).
David A. Ruhnke argued the cause for amicus
curiae The Association of Criminal Lawyers of
New Jersey (Ruhnke & Barrett and Crummy
Del Deo Dolan Griffinger & Vecchione,
attorneys; Mr. Ruhnke and Lawrence S.
Lustberg, on the brief).
Catherine A. Foddai, Deputy Attorney General,
argued the cause for amicus curiae Attorney
General of New Jersey (Deborah T. Poritz,
Attorney General, attorney; Ms. Foddai and
Craig V. Zwillman, Deputy Attorney General,
of counsel; Mr. Zwillman, of counsel and on
the brief).
The opinion of the Court was delivered by
O'HERN, J.
It is difficult to explain why a murderer who has admitted
his guilt and had his conviction and sentence of death affirmed
on direct appeal should not be granted his request to be executed
immediately. 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. The public has an interest in
the reliability and integrity of a death sentencing decision that
transcends the preferences of individual defendants.
The specific question is whether to grant John Martini's request to dismiss the Office of the Public Defender's application for post-conviction relief filed on Martini's behalf but without his consent. The facts of Martini's case are set forth in detail in our two prior decisions, State v. Martini, 131 N.J. 176 (1993) (Martini I), and State v. Martini, 139 N.J. 3 (1994) (Martini II).
Briefly, Martini kidnapped Irving Flax, a Fair Lawn business executive in 1989. He telephoned Flax's wife and demanded ransom money. Despite receiving the ransom money, Martini shot Mr. Flax in the back of the head three times, the jury found to prevent
Flax from identifying him. A jury convicted Martini of, among
other offenses, purposeful and knowing murder over his claim of
drug dependency or diminished capacity and sentenced him to
death. We affirmed his conviction of murder in Martini I and the
proportionality of his sentence of death in Martini II.
On October 2, 1995, the United States Supreme Court denied
Martini's petition for certiorari. Martini v. New Jersey, ___
U.S. ___,
116 S. Ct. 203,
133 L. Ed.2d 137. The following day,
the Law Division issued a warrant for defendant's execution, to
take place on November 15, 1995. On October 30, 1995, the Public
Defender applied to the Law Division for permission to pursue
post-conviction relief on defendant's behalf over his objection,
or for an evidentiary hearing on his competency, as well as for a
stay of execution pending post-conviction relief proceedings. At
a hearing that same day, the Public Defender acknowledged that
defendant did not wish to stay his execution or seek any post-conviction relief. Defendant informed the court that this was
correct. With his consent, the court appointed independent
counsel for defendant from a list supplied by the Public
Defender. The Court also appointed a psychiatrist to examine
defendant to determine his competence to waive post-conviction
proceedings. On February 14, 1996, at the conclusion of a two-day competency hearing, the trial court ruled that defendant was
competent to waive post-conviction proceedings, and that the
Public Defender could not seek post-conviction relief on
defendant's behalf over his objection. The trial court continued
the stay of defendant's execution pending review by this Court.
The Public Defender appealed the denial of her motion to pursue
post-conviction relief. We expedited review of the matter and
held oral argument on May 29, 1996.
Although the context differs, the issues are essentially the same as those that we faced in State v. Koedatich, reported at 98 N.J. 553 (1984) (Koedatich I), and 112 N.J. 225 (1988) (Koedatich II), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed.2d 803 (1989), and State v. Hightower, 120 N.J. 378 (1990). In those cases, each defendant asked either that no mitigating evidence be presented on his behalf, that he be permitted to ask the jury to sentence him to death immediately, or that no appeal of his sentence of death be taken. Koedatich attempted to waive a jury during the penalty phase and instructed his attorney to introduce no mitigating evidence. Koedatich II, supra, 112 N.J. at 327. Defense counsel followed those instructions and made neither an opening nor closing statement, and presented no evidence in the penalty phase. Ibid. After the jury imposed the sentence of death, the Public Defender filed an appeal on Koedatich's behalf over his objection. An automatic stay of Koedatich's execution was entered. Koedatich asked this Court to vacate the stay of his execution and to dismiss the appeal that the Public Defender had filed on his behalf. Koedatich I, supra, 98 N.J. at 553. He asked to be executed immediately. We denied
Koedatich's motion to dismiss his appeal or to vacate the stay of
execution, but ordered that in addition to the appeal prosecuted
by the Public Defender, the defendant might secure other counsel
or proceed pro se in order to raise such argument on the appeal
as he might feel necessary or appropriate. Ibid. The Public
Defender prosecuted a successful appeal on Koedatich's behalf.
In our decision of that appeal, we set forth the reasons for our
earlier decision that the Public Defender's appeal should not be
dismissed. We noted that "persuasive 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. These policy reasons are
based substantially on the State's `interest in a reliable
penalty determination.'" Koedatich II, supra, 112 N.J. at 329-30
(quoting People v. Deere,
710 P.2d 925, 931 (Cal. 1985)). We
also quoted with approval the Appellate Division's interlocutory
opinion in the Hightower caseSee footnote 1 in which the court allowed a
defense attorney to present mitigating evidence even over the
client's express order not to contest the imposition of the death
sentence:
Certainly tension exists between the desires
of the client as expressed to his lawyer and
the constitutional necessity to insure that
the ultimate penalty is not extracted in a
"wanton and freakish manner." In normal
circumstances, the lawyer is required by the
Rules of Professional Conduct to "abide by a
client's decisions concerning the objectives
of representation."
Under our statutory scheme, a jury may impose
the death penalty only if the aggravating
factors outweigh the mitigating factors
beyond a reasonable doubt. If the jury did
not hear the evidence allegedly in
mitigation, it could have difficulty
discharging its statutory, and indeed moral,
duty. Our conclusion is reinforced by a
recent amendment to the death penalty statute
which requires that an appeal must be taken
even if defendant does not want to appeal and
that our State Supreme Court must review the
issue of proportionality of the sentence on
defendant's request.
[Koedatich II, supra, 112 N.J. at 330
(quoting State v. Hightower,
214 N.J. Super. 43, 44-45 (App. Div. 1986)).]
The Koedatich Court explained: "Essential to our [capital
punishment] statute is that its application cannot result in
death sentences that are `wantonly and . . . freakishly
imposed.'" 112 N.J. at 331 (quoting Furman v. Georgia,
408 U.S. 238, 310,
92 S. Ct. 2726, 2762-63,
33 L. Ed.2d 346, 390 (1972)
(Stewart, J., concurring)). Our procedures for trial and appeal
are established
not only to protect the interests of the
accused, but also to enable a state to enact
a constitutional death penalty statute. . . .
A defendant who prevents the presentation of
mitigating evidence "withholds from the trier
of fact potentially crucial information
bearing on the penalty decision no less than
if the defendant was himself prevented from
introducing such evidence by statute or
judicial ruling." People v. Deere, supra,
710 P.
2d at 931.
Courts have recognized that the
qualitative difference between death and any
other penalty gives rise to "a corresponding
difference in the need for reliability in the
determination that death is the appropriate
punishment in a specific case." Woodson v.
North Carolina,
428 U.S. 280, 305,
96 S. Ct. 2978, 2991,
49 L. Ed.2d 944, 961. It is
self-evident that the state and its citizens
have an overwhelming interest in insuring
that there is no mistake in the imposition of
the death penalty. Accordingly, we have the
constitutional and statutory duty to review
every judgment of death.
[Id. at 331-32 (citation omitted).]
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. The question is whether a defendant
who has presented mitigating factors to a jury and has had his
conviction and sentence affirmed on direct appeal may waive post-conviction relief (PCR). The answer depends on the importance of
post-conviction relief to ensuring the reliability and integrity
of death sentences imposed in New Jersey.
We strongly disagree with the position of the Public
Defender that Martini has had only half an appeal. Post-conviction relief is not in any sense a half appeal. We have
repeatedly emphasized that post-conviction relief is not a
substitute for a direct appeal. State v. Mitchell,
126 N.J. 565,
583 (1992) (citations omitted). Rule 3:22-4 sharply limits what
may be raised on PCR.
The State has a strong interest in
achieving finality. Without procedural rules
requiring the consolidation of issues,
litigation would continue indefinitely in a
disconnected and piecemeal fashion. Each
time a petitioner brought forward a new
issue, attorneys and courts would waste their
limited resources acquainting themselves with
all of the complex details necessary to
adjudicate it. When the grounds for
challenging a conviction are consolidated,
that investment need occur only once, and
judicial resources can be more efficiently
used to decide cases in a timely fashion.
[Mitchell, supra, 126 N.J. at 584.]
On the other hand, there are some issues that one simply
cannot raise on direct appeal and other issues that are best
raised on PCR. "Ineffective-assistance-of-counsel claims are
particularly suited for post-conviction review because they often
cannot reasonably be raised in a prior proceeding." State v.
Preciose,
129 N.J. 451, 460 (1992) (citations omitted). Other
particularly well-suited claims arise when "new case law has
changed the applicable standards and should be retroactively
applied to the case [undergoing post-conviction review]," when
"the challenge is to the appellate proceedings themselves," or
when "the claim is based on testimony outside of the trial court
that could not have been raised on direct appeal." Mitchell,
supra, 126 N.J. at 585. Examples of claims that are often based
on facts outside the record include claims based on Brady v.
Maryland,
373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed.2d 215 (1963)
(failure to disclose exculpatory evidence), and ineffectiveness
of counsel claims.
In her 1995 Madison Lecture at New York University, Judge
Betty B. Fletcher of the Ninth Circuit gave two examples of the
need for post-conviction relief. Betty B. Fletcher, The Death
Penalty in America: Can Justice be Done?,
70 N.Y.U. L. Rev. 811,
822 (1995). The first involved Randall Adams. Mr. Adams was
tried and convicted for the murder of a Dallas police officer.
Subsequent events revealed significant questions about the
evidence used to convict him. That evidence prompted the court
to grant a post-conviction hearing that resulted in one of Adams'
chief accusers confessing to the crime. Ibid.
The second involved Clarence Brandley. An all-white jury
sentenced Brandley to death for the rape and murder of a white
student from the high school where Brandley worked as a janitor.
The conviction was based on circumstantial evidence. After
Brandley's conviction, the ex-wife of a white janitor from the
same high school informed authorities that her former husband had
admitted committing the crime. In a PCR hearing, a state court
judge reviewed that new information, along with statements of
others who had come forward, and ordered a new trial. Ibid.
These men, unlike Martini, were innocent and protested their
innocence. The point is that without post-conviction relief
procedures they would have been executed. Of course, such
examples of successful petitions for PCR are rare. Many PCR
petitions do seek only to rerun the trial. The problem lies in
separating the wheat from the chaff.
In this case, the Public Defender informs us that there are
three issues that defendant could not have raised on direct
appeal: (1) a defense based on certain undisclosed confidential
information that has been imparted to the Public Defender and
presumably was not disclosed to the jury below; (2) a new
constitutional principle announced by the Supreme Court after
Martini's trial in Simmons v South Carolina, 512 U.S. ,
114 S.
Ct. 2187,
129 L. Ed.2d 133 (1994); and (3) evidence disclosed
after Martini's conviction that suggests that New Jersey's death
penalty system may be constitutionally flawed because of systemic
discrimination against blacks and other minorities.
We are obviously unable to assess the significance of the
first issue because we do not know the nature of the confidential
information. We do know that the Public Defender received this
information as attorney for Martini and may be obliged to respect
the confidences of her client. Presumably there will be an in
camera hearing. The trial court will have to balance the
interests of the client against any public interest in the
disclosure of the information.
Concerning the second issue, Simmons, supra, held that
"[t]he State may not 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 never will be released on parole."
512 U.S. at ___, 114 S. Ct. at 2198, 129 L. Ed.
2d at 147. In
Martini I, defendant argued that the trial court should have
instructed the jury that it would sentence Martini to consecutive
terms for the murder and kidnapping, thus assuring that he would
die in jail. 131 N.J. at 308-09. Martini's defense counsel did
make the argument that defendant was not likely to live long
enough to be released after a thirty-year period of parole
ineligibility. Defendant was sixty years old at the time of
trial. Having served more than a year in jail prior to trial,
his release, at the earliest, would have come as he approached
ninety. The jury was well aware of those circumstances. Id. at
308. Based on that record, the lack of defense counsel's
request, and the jury's knowledge of the practical consequences
of defendant's life sentence, the Court found no error in the
trial court's failure to instruct the jury about defendant's
potential consecutive sentence for his kidnapping conviction.
Id. at 313. The issue is similar, but not identical, to the one
raised in Simmons. In any event, disposition of the issue should
not require extended proceedings.
The third issue, if meritorious, would fit within a
traditional category for which post-conviction relief would be
granted. The State does not dispute that the new data on capital
sentencing make this an issue that could be raised only on post-conviction relief. Rather, the State argues that the Public
Defender has no standing to raise the issue on defendant's behalf
because defendant has waived the issue.See footnote 2 The problem is that
the judiciary is constitutionally involved in the administration
of the death penalty; the judiciary issues the death warrant.
N.J.S.A. 2C:49-5; Judges Bench Manual for Capital Cases, March
10, 1995 (Appendix N). Thus, the question is not whether the
Public Defender has standing to raise an issue on behalf of the
defendant, but whether the judiciary, in the discharge of its
"constitutional and statutory duty to review every judgment of
death," Koedatich II, supra, 112 N.J. at 332, must consider the
issue in order to ensure the reliability of the decision to
execute. Consequently, we need not debate or decide the
differences between standing under Article III of the United
States Constitution and under Article VI of the New Jersey
Constitution. See Crescent Park Tenants Ass'n v. Realty Equities
Corp.,
58 N.J. 98, 107-08 (1971) (explaining that "overall [in
evaluating standing] we have given due weight to the interests of
individual justice, along with the public interest, always
bearing in mind that throughout our law we have been sweepingly
rejecting procedural frustrations in favor of `just and
expeditious determinations on the ultimate merits.'") (citations
omitted).
In Gilmore v. Utah,
429 U.S. 1012,
97 S. Ct. 436,
50 L. Ed.2d 632 (1976), the United States Supreme Court declined on
standing grounds to consider an appeal by Gary Gilmore's mother
that the Utah death penalty act was unconstitutional. That
approach may be constitutionally permissible for the United
States Supreme Court because it is not part of a state system of
administration of the death penalty. In contrast, the New Jersey
judiciary is an integral part of the administration of the death
penalty. There are three requirements for the constitutionality
of a death penalty statute: (1) that sentencers be "given
guidance regarding the factors about the crime and the defendant
that the State, representing organized society, deems
particularly relevant to the sentencing decision," Gregg v.
Georgia,
428 U.S. 153, 192,
96 S. Ct. 2909, 2934,
49 L. Ed.2d 859, 885 (1976) (opinion of Stewart, Powell, and Stevens, JJ.),
(the aggravating and mitigating factors); (2) that there be an
individualized determination of the sentence on the basis of the
character of the individual and the circumstances of the crime,
Eddings v. Oklahoma,
455 U.S. 104, 110-12,
102 S. Ct. 869, 874-75,
71 L. Ed.2d 1, 8-9 (1982); and (3) that "the further
safeguard of meaningful appellate review is available to ensure
that death sentences are not imposed capriciously . . . ."
Gregg, supra, 428 U.S. at 195, 96 S. Ct. at 2935, 49 L. Ed.
2d at
886-87.
Unless we regard as meaningless the procedures for post-conviction relief set forth in our Rules of Court, even were
there no Office of the Public Defender in New Jersey, we would
undoubtedly be required to appoint standby counsel for defendant
in order to perform a "meaningful appellate review" of his death
sentence. Because the issues potentially raised in a PCR
petition are so varied and important, "[f]rom our state
perspective, finality is achieved [only] when our courts grant or
deny post-conviction relief." Preciose, supra, 129 N.J. at 475.
This is because when "meritorious issues are presented, our
interest in affording defendants access to both state post-conviction and federal habeas review outweighs our interest in
finality . . . . Simply put, considerations of finality and
procedural enforcement count for little when a defendant's life
or liberty hangs in the balance." Id. at 475-76.
We acknowledge that other jurisdictions do not recognize the
standing of one such as the Public Defender to prosecute a post-conviction relief application on behalf of a death row inmate who
does not seek their assistance. It is a natural reaction for
some to wish to be rid of an admitted murderer who asks to be
executed. The Court is nonetheless required to ensure the
integrity of death sentences in New Jersey. In State v. Ramseur,
106 N.J. 123, 190 (1987), we said that Article I, paragraph 12 of
the New Jersey Constitution requires "consistency and
reliability" in enforcement of the death penalty. There can be
no illusions for us that there is a bureaucracy of death that
discharges for us that responsibility. Ralph P. Hummel, The
Bureaucratic Experience 90-93 (2nd ed. 1982). The Court must
decide if issues that could not be raised on direct appeal make
the prisoner's sentence of death unconstitutional or illegal.
Of course, we cannot stay scheduled executions for each new
issue that arises. There must be an end to the process. We
recognized in State v. Marshall,
130 N.J. 109, 219 (1992), that
someone will die before every avenue of inquiry will have been
ended: "Ours is a finite role defined by our obligation to see
that justice is done at a given time." Consequently, for capital
defendants who do not desire post-conviction review, we tailor
the process to the limited demands of integrity and reliability,
establishing the following truncated procedure. There shall be
one proceeding. Such post-conviction relief will be limited to
matters that have always been capable of being raised in post-conviction relief, even when procedurally barred, such as newly
discovered evidence of innocence, unconstitutionality, or
illegality of a death sentence. In addition, we shall
specifically require accelerated disposition of any such claim,
both in the interest of the defendant who wishes to conclude the
appeal process as soon as possible, and in the interest of the
public that seeks to know that justice is done.
We direct that a PCR application for a capital defendant
opposed to PCR be filed by the Public Defender or other
designated counsel within thirty days after knowledge that a
defendant does not wish to pursue post-conviction relief. (In
this case, within thirty days of today.) Standby counsel should
be appointed to represent the interests of one such as Martini.
We direct that the Assignment Judge of the vicinage assign the
petition to a judge capable of conducting the proceedings on a
continuous day-to-day basis from the date of the assignment.
Preciose, supra, 129 N.J. at 462, outlines the circumstances in
which a PCR court may dispose of a petition without a hearing.
We direct that the Administrative Office of the Courts provide to
the trial court the services of a computer-assisted court
reporter so that transcripts may be generated simultaneously with
the proceedings. Upon the conclusion of any hearings, we direct
that the judge conducting the post-conviction relief proceedings
immediately certify to the Supreme Court the transcribed record
and copies of any exhibits and briefs filed in the Law Division.
The trial court may render its decision either orally from the
bench or by written opinion promptly after the conclusion of the
hearings, as did the trial court below. An aggrieved party must
file with the Supreme Court its notice of appeal with any
supplemental briefs within fifteen days after the trial court's
ruling. The Court shall thereafter render its own decision
within forty-five days of receipt of the notice of appeal and any
supplemental briefs or within thirty days of any scheduled oral
argument.
That abbreviated hearing schedule for capital defendants who
do not desire PCR will enable the Court to determine whether
waiver of PCR will result in an execution that would be
unconstitutional or illegal. Some issues may not be amenable to
summary disposition. The one issue in this case that would
require further consideration is an issue of constitutional
dimension that has been raised directly in the appeal of Joseph
Harris, which will be argued before the Court on September 10,
1996. That issue concerns a challenge to the constitutionality
of the death penalty based on recent data that suggests that New
Jersey's death penalty may be constitutionally flawed because of
systemic discrimination against blacks and other minorities. In
Harris, the defendant argues that the statistics gathered by the
Administrative Office of the Courts "establish that the race of
the defendant is a strong factor in explaining why some
defendants get life sentences and others get death, to a
sufficient significance as to implicate the State Constitutional
guarantees of equal protection and protection from cruel and
unusual punishment."
"New Jersey's history and traditions would never countenance
racial disparity in capital sentencing." Marshall, supra, 130
N.J. at 207. The Court is the appropriate branch of government
to vindicate that tradition and our own constitutional guarantee
of equal protection of the laws under Article I, paragraph 1 of
the New Jersey Constitution. In Marshall, we specifically
reserved the power to re-evaluate the constitutionality of the
death penalty statute if statistical evidence were to illustrate
a racial disparity in death sentences. Id. at 212-14. Plenary
briefs have been filed on the issue by Harris and the State.
Consequently, Martini's PCR court may take judicial notice of the
pending appeal and its effect on Martini's case. Both majority
and dissent agree that a stay of Martini's execution until that
date would be in order.
The Attorney General acknowledges that her office would not
seek to have a prisoner executed by waiver under a system of laws
later determined to be unconstitutional. She believes firmly,
however, that there is no question of constitutionality and thus
no waiver of any procedures that assure the reliability of a
death sentence. The Bergen County Prosecutor acknowledges in her
brief that there is a narrow class of cases in which PCR would be
institutionally required even over a prisoner's objection, as
when there was newly-discovered evidence of innocence or when the
death penalty had been declared unconstitutional. She cites
Commonwealth v. McKenna,
383 A.2d 174, 177 (1978), in which the
Pennsylvania Supreme Court held that because the State's death
penalty statute was declared unconstitutional, defendant's death
sentence "must be vacated, appellant's professed desire to the
contrary notwithstanding." If, then, there are exceptions to the
doctrine that a capital defendant may waive all rights to PCR,
standing is not a conceptual obstacle to the administration of
justice. Thus, it is not issues of standing or waiver that
determine the matter but whether the Court provides meaningful
appellate review of a capital sentence when it authorizes the
execution of a prisoner at the same time that it is considering
whether the Death Penalty Act is constitutional. It seems to us
that the answer to that question must be no unless we no longer
believe that it is "self-evident that the state and its citizens
have an overwhelming interest in insuring that there is no
mistake in the imposition of the death penalty." Koedatich II,
supra, 112 N.J. at 332.
We have considered the other issues raised concerning the
competency of Mr. Martini. We are satisfied that the trial court
correctly resolved on the basis of psychiatric evidence before it
that Martini is competent to make this decision and has
voluntarily expressed a desire to prosecute no further appeals.
We respect his choice. We have a constitutional responsibility
to ensure reliability in the implementation of the death penalty.
We shall discharge that responsibility with dispatch. We have
accelerated the argument and decision of this appeal and will
continue that practice until the matter is resolved.
Finally, we conclude that the trial court was correct to
order the Public Defender to pay for the cost of the court-appointed psychiatric expert who evaluated Martini. "In In re
Cannady,
126 N.J. 486 (1991), . . . we held that the Public
Defender Act mandates that the OPD [Office of the Public
Defender] pay for expert services that are necessary to any
indigent defendant's case." In re Kauffman,
126 N.J. 499, 501
(1991). An expert evaluation of Martini's competence, like his
representation by private counsel, is a service necessary to
defendant's case. The trial court has an independent interest in
assessing Martini's competence. It is not unfair to permit the
court to impose those fees on the OPD. We are confident that
there will be no abuse of that authority at the expense of the
OPD budget.
The judgment dismissing the post-conviction application is
reversed and the matter is remanded to the Law Division for
further proceedings in accordance with this opinion.
Chief Justice Wilentz and Justices Handler, Pollock, and
Stein and join in this opinion. Justices Coleman has filed a
separate dissenting opinion in which Justice Garibaldi joins.
SUPREME COURT OF NEW JERSEY
A-
164 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN MARTINI,
Defendant-Respondent.
COLEMAN, J., dissenting.
Due to the unique facts in this case that indicate that
defendant is competent and that he has made a voluntary, knowing,
and intelligent waiver of his right to pursue post-conviction
relief, I dissent from the Court's holding that defendant cannot
waive his right to prosecute a post-conviction relief
application.
On October 3, 1995, one day after the denial of certiorari,
the trial court issued a death warrant setting defendant's
execution for November 15, 1995. Although defendant expressed
his desire not to pursue post-conviction relief, the Office of
the Public Defender filed a motion for permission to pursue post-conviction relief over defendant's objection. The public
defender also sought a stay of execution pending the projected
petition for post-conviction relief and an evidentiary hearing on
defendant's competence.
On October 30, 1995, the trial court held a hearing on the
motions. The public defender argued that it should be permitted
to pursue a petition for post-conviction relief in the absence of
defendant's consent. Furthermore, the public defender challenged
defendant's competence and the voluntariness of his decision.
The trial court questioned defendant extensively at that hearing.
Defendant responded affirmatively when asked whether he thought
he had received a fair trial and whether his death sentence was
proper. Defendant indicated that the public defenders had
discussed the post-conviction relief process with him, and had
explained that they might be able to present certain arguments to
the court that could prevent defendant's execution, at least
temporarily. Defendant further indicated his wish that the
public defenders not file a petition for post-conviction relief
on his behalf. When asked why, defendant replied:
I think that living in jail is terrible to
live there, I have been locked up 7 years now
and it's been murder and everything is always
publicity about this thing so I have enough
trouble with my family, I want to do it for
once and get it over with.
Additionally, defendant stated that although his former wife
"told [him] to do what [he] feel[s] is right," no one was forcing
him to make those decisions. Defendant also indicated his
understanding that the governor can decide to exercise the power
of clemency.
At the close of the hearing, the court issued a temporary
stay of execution, and appointed Dr. Azariah Eshkenazi, a
psychiatrist, to examine defendant on behalf of the court. By
order dated November 8, 1995, the court appointed Alan L. Zegas
to represent defendant. In a subsequent order dated November 17,
1995, the court ordered all relevant records to be released to
Dr. Eshkenazi and Mr. Zegas.
On December 7, 1995, and January 4, 1996, defendant
submitted two affidavits in which he reiterated his desire to
forego post-conviction relief and have the death penalty imposed.
In his affidavit dated December 7, 1995, defendant states:
6. Mr. Smith and Mr. Friedman [public defenders]
have fully described to me the reasons they have for
wanting to file a petition for post-conviction relief
for me, and they have outlined to me the arguments they
intend to make on my behalf. I understand what they
want to do and why they want to do it, and I appreciate
their good intentions. I have instructed Mr. Smith and
Mr. Friedman, however, to not file the proposed
petition because I wish to be executed. In giving out
this instruction, I am freely, knowingly and
voluntarily giving up any right I may have to further
review of the judgment of conviction by any court. I
further understand that by giving up any right to
further review, I am increasing the chance that I will
be executed quickly. This is what I want.
7. I have, for a long time, given a lot of
thought to whether I wished to continue challenging the
judgment of conviction. Approximately two years ago, I
decided that I would prefer being put to death over
spending the rest of my life in jail or delaying the
time for my execution. In my view, any legal challenge
will ultimately prove to be useless. Continuing the
appeals process only creates more uncertainty for me as
to when exactly I will die. I no longer wish to live
with this uncertainty and I no longer wish to continue
to exist under the hellish conditions I am existing
under in prison.
8. In my view, death is preferable to the day-to-day conditions I have to endure on death row. I have
almost no contact with people. I am confined to a
dirty cell in which there are mice and rats. When I
leave my cell, I am strip searched. The food I am
given to eat is bad and not tolerable. I have not had
visitors from any family members for over 6 years. The
longer I live, the more my family name is damaged by
publicity about my crime.
9. I committed the murder of Irving Flax and I
did this deliberately, knowingly, intentionally and
willfully. The verdict of the jury was correct. I
have no excuse for my crime and I was not adversely
effected by drugs or alcohol at the time I committed
it. I fully understood what I was doing, and I was not
operating under a diminished capacity. I had a clear
mind. I also knew what the potential consequences were
for the murder I committed, and I knew that those
consequences included the death penalty. Although I am
facing execution, I have never been opposed to the
death penalty on moral, religious or other grounds.
10. My decision to die and to have no further
challenges raised to the judgment of conviction is my
own decision and has been made by me after thinking
carefully about life and death, the conditions I am
living under, and the chance I have of ever regaining
my freedom. Though I am currently taking certain
prescribed medications, I do not feel that these
medications have, in any way, effected my ability to
make a clear decision about what I want to do with my
life.
11. In addition to death being preferable to the
conditions I am currently living under, I further
believe that I have a greater chance for religious
absolution if I acknowledge my crime and take no
further legal action to prevent my death. In my view,
the action that the public defender wishes to take on
my behalf will only delay the time for my death, cause
my victim's family more pain, and cause me to endure
for a longer time the intolerable conditions I am
living under in prison.
On February 13 and 14, 1996, a hearing was held to determine
defendant's competence to waive his right to file a petition for
post-conviction relief. The court took testimony from Dr.
Eshkenazi, the court-appointed expert, and Dr. Kenneth Weiss, the
public defender's expert. Defendant also testified.
Dr. Eshkenazi diagnosed defendant as suffering from a "life
circumstance," and concluded that defendant was not suffering
from schizophrenia. Dr. Eshkenazi opined that defendant has the
capacity to make a rational choice with respect to continuing or
abandoning his further appeals.
Dr. Eshkenazi reported that at the time of his evaluation of
defendant, defendant was taking the following minimal doses of
medication: 25 milligrams of Mellaril, an anti-psychotic
tranquilizer, twice a day; 25 milligrams of Thorazine, an anti-psychotic, at bedtime, and 100 milligrams of Sinequan, an anti-depressant, at bedtime. According to Dr. Eshkenazi, those low
doses of Mellaril and Thorazine sedate defendant and help him
sleep better. The doctor indicated that defendant behaved as
though he was not taking any medication. When asked about the
combined effect of the three medications, Dr. Eshkenazi
responded:
I believe that they have really calmed him
down. They enable him to think a little
better maybe and he's -- and they have
enabled him to survive in the jail system.
Dr. Eshkenazi stated that he "did not see any psychiatric
condition or illness that would interfere with [defendant's]
ability to make rational and competent decisions." He further
stated that defendant denied ever having any visual or auditory
hallucinations, and stated that his examination revealed no
mental illness, defect, or psychoses. While observing the
possibility that defendant may suffer from depression, Dr.
Eshkenazi "did not see clinical symptoms of depression."
On cross-examination, the public defender challenged Dr.
Eshkenazi with defendant's prior prison medical records, in which
Dr. Guy, the prison psychiatrist, had repeatedly notated,
"Schizophrenia, chronic, medication control paranoia and voices.
Medication: Mellaril 50 milligram[s] in the morning, 50
milligram[s] at bedtime and Thorazine, 50 milligram[s at] bedtime
times 60." Dr. Eshkenazi responded that Dr. Guy practiced "poor
psychiatry," because he had spent only a few minutes at a time
with defendant,See footnote 3 recorded no symptoms, and provided no
explanation of the diagnosis of schizophrenia. Dr. Eshkenazi
stated that because Dr. Guy failed to substantiate his opinion,
Dr. Eshkenazi gave that opinion little weight. Further, Dr.
Eshkenazi explained that if defendant was actually schizophrenic,
then the medical doses would not be sufficient to treat the
schizophrenia because of the tolerance for medications that
defendant had built up over many years of taking drugs. Dr.
Eshkenazi added that when Mellaril and Thorazine are used to
treat schizophrenia, they are typically prescribed in doses
ranging from 400 to 600 milligrams per day, and 600 to 4,000
milligrams per day, respectively.
Dr. Weiss described defendant as cooperative, but not
spontaneous or forthcoming in providing information. He stated
that defendant has a "restricted emotional expression," that is
seen frequently among people treated with anti-psychotic
medications like those taken by defendant. Dr. Weiss remarked
that defendant exhibited a slowness of movement sometimes
associated with anti-psychotic medication.
On the subject of defendant's desire to die, Dr. Weiss
indicated in his report that defendant had "ma[de] a case for
being executed," which he explained to mean that defendant "did
everything he could to throw me off the trail of any psychiatric
conditions." The doctor stated:
[I]t's pretty clear to me that Mr.
Martini is depressed, that he has sad
mood[s], that he's lost his will to live
and whatever one might think about
whether that is completely rational or
not rational, it's fairly clear to me
that his mood was low, he was
despondent. The only thing he hoped for
was that he could prevail in this legal
setting so that he would come closer to
his execution date.
On cross-examination, Dr. Weiss conceded that the realities of
prison life and the uncertainty faced by a death row inmate would
tend to make the average person depressed and suicidal.
Dr. Weiss testified that defendant's current drug treatment
is consistent with Dr. Guy's diagnosis of chronic schizophrenia.
He stated, however, that "the symptoms of schizophrenia if
present were not strong enough for me to draw any independent
conclusions about whether [defendant] in fact has
[schizophrenia]." Dr. Weiss concluded that defendant is
suffering from depression and that the medication he is taking is
inadequate to treat it. Dr. Weiss indicated that defendant's
current medication could actually lower his mood and deepen his
depression.
On the ultimate question of defendant's capacity to choose
to forgo further appeals, however, Dr. Weiss was equivocal. He
testified that defendant is well aware of the nature of his
decision and fully understands what is at stake. He indicated,
however, that he felt "troubled" by his observations of
defendant's depression, and had "some doubts in [his] mind about
whether this was the depression talking or whether this was a
completely rational person talking." Dr. Weiss stated: "I would
prefer to demur as far as a -- an ultimate conclusion as to his
capacity because I don't think [Mr. Martini] has been adequately
treated yet for me to know how he is at his best." Ultimately,
Dr. Weiss admitted that he could not say with reasonable medical
certainty that defendant lacks the capacity to waive further
appeals.
Defendant's testimony was presented almost entirely through
leading questions. In response to his attorney, defendant
admitted to intentionally killing the victim, Irving Flax. He
agreed that the jury had properly found him guilty, that he had
no excuse for his crime, and that he is satisfied with the legal
representation he received both at trial and on appeal.
Defendant testified that he understands that he has a right
to an appeal and that his death sentence could be vacated if that
appeal is successful. He responded affirmatively when asked if
he is willing to give up that right. He agreed that his decision
to forgo an appeal was voluntary, that he was not influenced by
other people, and that the drugs he is taking were not affecting
his decision.
When asked why he wants to be put to death, defendant
stated, "Jail is a bad place; the food is bad, extortion,
stabbings, loud, noisy, dirty, rats and mice, absolution." The
defense attorney then asked whether defendant meant religious
absolution, to which defendant responded, "Yes, I do, and that I
should be punished for what I did. . . I want to -- I want to,
you know, repent for what I did. I'm sorry for what I did. I
think that I should be punished." When offered the opportunity
to say something to the judge, defendant said, "Listen to me and
let [me] have the death penalty."
At the conclusion of the proceedings, the trial court
determined that defendant is competent to waive his processing of
a post-conviction relief petition and that the public defenders
may not proceed with the petition for post-conviction relief.
The court further concluded that defendant is not suffering from
any metal illness or impairment. It noted that if defendant is
suffering from schizophrenia, the condition has not affected his
ability to choose to forgo his post-conviction petition, a choice
that the court found rational. Although the court found that
defendant is depressed, the court expressed its opinion that
anyone would be depressed in defendant's situation and concluded
that the condition does not affect defendant's ability to make a
rational choice whether to proceed with his appeal. Considering
Dr. Weiss's opinion that defendant's medication affects his
ability to make a rational decision, the court stated, "I really
don't know what [Dr. Weiss] bases that on, but we see the person,
we hear the person."
I disagree with the majority's view that the issues
presented here are essentially the same as those presented in
Koedatich I and II and in Hightower. Those cases involved
presenting mitigating evidence in the penalty phase, permitting
defendant to request the death penalty during the trial, and
prohibiting a direct appeal of a sentence of death. In all those
cases, the reliability of the conviction and the sentence of
death had not been tested in direct appeals. In the present
case, however, defendant's direct appeals have been exhausted,
and he concedes his guilt and proper imposition of the death
penalty. I agree that the State's interest in the reliability of
the determination of guilt and the sentence of death must be
established at trial and on direct appellate review before an
execution should be permitted. That does not, however, prevent a
competent defendant from waiving his or her personal right to
file for post-conviction relief.
I am also persuaded that the majority's reliance on the two
cases cited by Judge Fletcher in her lecture, ante at ___, (slip
op. at 8), is misplaced. The defendants in those two cases
continued to maintain their innocence even after they were
convicted. In contrast, Martini admits his guilt and asserts
that he is perfectly satisfied with the abled assistance of his
attorneys.
Rule 3:22 controls our post-conviction relief proceedings.
"Any person convicted of a crime may, pursuant to this rule, file
with the county clerk of the county in which the conviction took
place a petition for post-conviction relief. . . ." R. 3:22-1
(emphasis added). Based on the language of that rule, post-conviction relief applications are not only personal to a
defendant, but also discretionary or elective rather than
mandatory. The personal nature of the petition is further
reflected by the requirement that the petition be personally
verified by the defendant. R. 3:22-8. In addition, Rule 3:22-2
designates four alternative grounds for relief: (1) substantial
denial of a federal or state constitutional right in the post
conviction proceedings; (2) lack of jurisdiction of the court to
enter the judgment of conviction; (3) imposition of a sentence
not authorized by law or in violation of established procedures;
and (4) any ground available heretofore as a basis for collateral
attack by habeas corpus, statute or common law. Claims that were
adjudicated on their merits in a direct appeal may not be
relitigated in post-conviction proceedings. R. 3:22-5.
Although certain claims are best pursued in a post-conviction relief proceeding, such as ineffective assistance of
counsel or a claim based on a violation of Brady v. Maryland,
supra,
373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed.2d 215, defendant
has expressly waived his right to pursue such claims. The
Simmons issue, ante at ___ (slip op. at 9-10), was raised and
decided in Martini I. Rule 3:22-5 expressly bars relitigation of
the Simmons issue in a post-conviction relief proceeding.
Defendant has been made aware that his decision to forego a post-conviction relief proceeding will bar him from seeking federal
habeas corpus based on Picard v. Connor,
404 U.S. 270, 275,
92 S.
Ct. 509, 512-13,
30 L. Ed.2d 438, 443 (1971).
I agree with the majority that the death penalty should not
be carried out until defendant's guilt and the lack of
disproportionality have been reliably established. I part
company with the majority's conclusion that post-conviction
relief proceedings are required before reliability can be
sufficiently established. Both Martini I and Martini II required
exhaustive reviews of both the record and the controlling legal
principles before the Court concluded that defendant's guilt and
the lack of disproportionality were reliably established.
Moreover, Martini admits his guilt, agrees that the aggravating
factor applied, and professes his satisfaction with his legal
counsel throughout.
It is my belief that once guilt, the application of at least
one aggravating factor, and the lack of disproportionality are
reliably established, a competent defendant has the right to
decide not to prosecute a post-conviction relief application even
if it means hastening his or her own death. While a capital
defendant has no right to compel the State to execute him or her,
he or she has the right not to institute legal proceedings that
would delay execution. Martini's decision not to seek post-conviction relief was no doubt influenced by the fact that he has
two life terms for murder awaiting him in Arizona. As Justice
Broussard of the California Supreme Court so aptly stated, "A man
facing the awful alternatives of execution or life imprisonment
without possibility of parole could rationally prefer execution,
or at least feel that the comparative advantage of life
imprisonment was not worth the humiliation and loss of dignity he
believes entailed in the presentation of mitigation evidence."
People v. Deere,
41 Cal.3d 353, 369,
710 P.2d 925, 935,
222 Cal.
Rptr. 13, 23-24 (Cal. 1985) (Broussard, J., concurring). The
same is true with respect to presenting a post-conviction relief
application.
Whether Martini can waive his right to pursue post-conviction relief should not be influenced by the pendency of proportionality review in the case involving defendant Joseph Harris. Even if the data submitted in that case persuade this Court to vacate Harris's sentence of death, this Court may not necessarily declare our Death Penalty Act unconstitutional. Martini is aware of the pendency of the Harris case and that it could result in declaring the Act unconstitutional.
Notwithstanding that information, he has knowingly and
intelligently elected to waive his right to prosecute a post-conviction application. Nonetheless, I would not oppose staying
Martini's execution until the Harris proportionality review is
conducted by this Court in September 1996. Because his waiver
decision is revocable, Martini may change his mind after the
arguments in the Harris case have been presented.
If Martini is executed and the Death Penalty Act is
eventually declared unconstitutional, Martini's execution will
have been based on his waiver decision. That position would be
analogous to that of death-row inmates executed under our
previous Death Penalty statute, N.J.S.A. 2A:113-4, that was
declared unconstitutional in State v. Funicello,
60 N.J. 60, 65-66, certif. denied,
408 U.S. 942,
92 S. Ct. 2849,
33 L. Ed.2d 766 (1972). Unlike Martini, most of those were executed while
still protesting their innocence. As was recognized in State v.
Marshall, supra, 130 N.J. at 219, one or more death-row inmates
will die before all legal issues surrounding our present Death
Penalty Act have been resolved. A court can only see that
justice is rendered at a given time.
Finally, I agree that many of the rules that control post-conviction relief applications should be relaxed for a death-row
inmate who has filed his or her own first petition for post
conviction relief.
I would affirm the judgment of the Law Division.
Justice Garibaldi joins in this opinion.
NO. A-164 SEPTEMBER TERM 1995
ON APPEAL FROM Law Division, Superior Court, Bergen County
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN MARTINI, SR.,
Defendant-Respondent.
(Office of the Public Defender -- Appellant)
DECIDED June 28, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Coleman
Footnote: 1When we reviewed the Hightower case on direct appeal, we approved the procedures set forth in the Appella