It is indicated that petitioner showed some amnesia of events prior to his hospitalization but was "able to recall the incidents of the crime." He was returned to the Monmouth County Jail on September 19, 1963.
On May 15, 1963, while petitioner was still at the State Hospital, Mr. Cooper, together with Mr. Knapp, visited him. Mr. Cooper says that petitioner appeared calm and less upset. He indicates that at this time he had some discussion with petitioner about the case but the discussion was in general terms because counsel felt that petitioner's ability to comprehend was somewhat impaired.
Petitioner's testimony with respect to the period before his release from the State Hospital on September 19, 1963, is that he has no recollection of speaking with Mr. Cooper prior to the time on May 15, 1963, in the hospital. Petitioner also testified that he has no recollection of the facts surrounding the murder charge. The Hospital Summary, however, indicates that petitioner talked with the doctors about the facts of his case. Petitioner agrees that it is possible that he gave this information to the doctors who interviewed him, but contends that he learned of these facts from Mr. Cooper when he visited him in the hospital. Mr. Cooper's testimony to the effect that they only had a general discussion about the case does not support petitioner's assertion. Mr. Cooper also indicated that petitioner was not unfamiliar with the case when he spoke with him in the hospital.
On September 20, 1963, the day after petitioner's return from the State Hospital, Mr. Cooper visited him in the county jail. On this occasion counsel's testimony is that he again explained to petitioner the nature of the charge, the possible pleas that could be entered, the degrees of punishment including the possibility of the electric chair, and the fact that he had a right to go to trial. Mr. Cooper was aware at this time that the Prosecutor would not contest the acceptance of a non vult plea.
The next meeting between petitioner and Mr. Cooper was on the morning of September 30, 1963, in the county jail. From there they both went to the Prosecutor's office where they again conferred, this time with an interpreter. They then went up to the courtroom to enter a plea of non vult. The judge, however, was not satisfied that petitioner understood the questions and refused to accept the plea. Counsel and petitioner went back to the Prosecutor's office and counsel, through an interpreter, again explained the situation. They went back up to the courtroom and this time the judge was satisfied that petitioner understood what he was doing. Petitioner indicated that he knew the nature of the charge, the effect of the plea, and that it was his voluntary act.
Petitioner now contends that the entering of the non vult plea was not a voluntary act. Although petitioner says that he knew that he was going to court to plead guilty (non vult) to the charge of murder, "the only thing that I understood was that declaring myself guilty I would be saving myself from the electric chair. * * *" Petitioner says that what he wanted to do at that time was to go to trial. His reasons for not informing his counsel or the court of this were that he was very confused and felt uncomfortable. When asked if he was afraid of going to the electric chair if he did not plead guilty, petitioner answered, "And who is not afraid of something like that?"
Turning now to petitioner's application for habeas corpus relief, his first contention is that he did not have the mental capacity to understand what was transpiring at the time that he entered his plea. Although the "Summary of Hospitalization" at the time petitioner was admitted to the State Hospital indicates that he had been functioning on a level varying from Moron to Low-Grade Moron, the same Summary at the time of his release indicates that according to the hospital's own tests it is most likely that he had been functioning at a borderline to dull-normal level. Mr. Cooper's testimony is that he felt that petitioner was capable of understanding the proceedings. Our observation of petitioner during the hearing before us supports this, - he appeared to be functioning at a level well within adequate capability. Moreover, petitioner himself testified that he understood that he was going to court to enter a guilty plea.
As to petitioner's second contention, - that his mind was overborne by psychological coercion and fear of the electric chair, - we find that this claim is also without merit. The only factual basis that we have found in the record for this claim is that petitioner was afraid that if he did not plead guilty he would be sent to the electric chair. The record reveals that petitioner was greatly upset by the possibility of receiving the death penalty. This was apparently heightened by the fact that he had difficulty understanding how he could be held for murder when he did not participate in the actual shooting. All of this finally led to a temporary mental breakdown. Petitioner was hospitalized for a period of some eight months during which time he received treatment and gradually recovered. After his return to Monmouth County, Mr. Cooper again explained to him the various choices. Petitioner understood that if the court accepted his plea of non vult, the death penalty could not be imposed. N.J.Stat.Ann. § 2A:113-3. While we realize that petitioner was faced with a difficult choice we do not feel that this vitiated the voluntariness of his non vult plea. Plea bargaining such as this has been expressly approved by the courts and has been held not to render the plea involuntary. See Gilmore v. People of State of California, 364 F.2d 916 (9th Cir. 1966); Cooper v. Holman, 356 F.2d 82 (5th Cir. 1966); Busby v. Holman, 356 F.2d 75 (5th Cir. 1966); United States ex rel. Robinson v. Fay, 348 F.2d 705 (2d Cir. 1965); Martin v. United States, 256 F.2d 345 (5th Cir. 1958); Godlock v. Ross, 259 F. Supp. 659 (E.D.N.C.1966); see generally Cortez v. United States, 337 F.2d 699 (9th Cir. 1964); Lattin v. Cox, 355 F.2d 397 (10th Cir. 1966). Petitioner's choice was not "a choice between the rock and the whirlpool." Garrity v. State of New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967). We feel confident that petitioner understood the alternatives which were open to him and that the plea of non vult
was the result of a voluntary and considered choice on his part.
Although not argued in petitioner's application, this case presents another question which we feel should be ruled upon. In the recent case of United States v. Jackson, 262 F. Supp. 716 (D.Conn.1967), appeal docketed, No. 1236, 35 U.S.L. WEEK 3367 (U.S., April 7, 1967), it was held that the Federal Kidnapping Act, 18 U.S.C. § 1201(a), was unconstitutional. Under the terms of the Act the death penalty can be imposed only if the jury recommends it. It provides:
"Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully siezed, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed."
Thus, under the statute, by asserting his right to a jury trial a defendant has to expose himself to the risk of the death penalty, whereas if he waives a jury or enters a plea of guilty, the risk of death is substantially reduced. Jackson holds that the choice required by the Act violates a defendant's sixth amendment right to a jury trial. The question was presented on defendants' motion to dismiss their indictments which were granted as to the kidnapping count.
The situation under the New Jersey law with respect to the entering of a non vult plea is analogous to the Federal Kidnaping Act. A person against whom a murder indictment is returned has only two choices: (1) he can enter a plea of non vult, which, if accepted,
will subject him to a penalty of at most a term of life imprisonment, or (2) he can enter a plea of not guilty which will result in a jury trial and, if convicted, the possibility of the death sentence. Under New Jersey rules a defendant may not be tried without a jury in a murder case. See N.J.R.R. 3:7-1(a).
If the sixth amendment right to a jury trial in a criminal case applies to the states by virtue of the fourteenth amendment,
it can be argued that the reasoning in the Jackson case would result in a finding that the New Jersey procedure is unconstitutional since under New Jersey law only the jury may impose the death penalty.
Concededly, the fact that only a jury may impose the death penalty is a factor which weighs against entering a plea of not guilty and undergoing trial by a jury. However, we disagree with the conclusion that the Jackson case draws from this. It does not necessarily follow that this "obstacle" to a jury trial is tantamount to a denial of the right to a jury trial. To determine when such an "obstacle" becomes so great as to be considered a denial of the right to a jury trial, it is necessary to compare the degree of the "obstacle" against the value of the policy which it implements.
The New Jersey procedure involved in the instant case enunciates a legislative policy which deems it unwise to allow a judge acting alone to impose the death penalty. In this state the death penalty may be imposed only when a jury of twelve of the defendant's peers decides that it is appropriate. Presumably, the legislative branch has determined that the imposition of the death penalty is such a serious decision that it is unfair to the defendant (and possibly to the judge) to have it rest on the shoulders of one man; that such a decision can only be entrusted to twelve fair and openminded citizens whose values approximate those of the community from which they are chosen.
This is a valid legislative policy which operates primarily for the class of defendants of which petitioner is a member. The fact that the procedure which implements this policy may in some cases influence a defendant, who has evaluated the alternatives open to him, to forego a trial by jury does not, in our opinion, invalidate the statutory scheme. The benefit which results from the procedure is sufficiently great that we are not compelled to strike it down in the name of providing an unobstructed choice of a trial by jury.
Now, therefore, it is on this 14th day of March, 1967, ordered that the relief requested by petitioner be denied and that his petition for a writ of habeas corpus be and hereby is dismissed.