On appeal from New Jersey Violent Crimes Compensation Board.
Fritz, Botter and Ard. The opinion of the court was delivered by Fritz, P.J.A.D.
[160 NJSuper Page 394] This is an appeal by the claimant from the denial of a claim by the Violent Crimes Compensation Board (Board). While the problem is said by the Board in its majority opinion to be the "first instance in which the Board has been faced with this question," whereby we consider it novel and important, we make note at the outset of the narrowness of the issue before us. In the words of the Board, that issue is "whether the Board as an administrative agency may or should make an independent finding by a preponderance of the evidence that a crime was in fact committed." In this connection we are also advised by that opinion that the Board has "heretofore relied on the determination by the police enforcement agency as to whether criminal conduct occurred." In the matter before us, by a majority opinion to which there was a forceful dissent, the Board "reaffirms its policy of relying on police determination
as to the presence of criminal conduct." The determination by the Board to make conclusive upon it the classification by police authorities as to the nature of the event (i.e. , criminal or noncriminal) is the gist of this appeal.
The issue involved was brought into focus by the bizarre nature of the event involved. Mrs. Francine Saferstein and her 3 I/2-year-old son Michael, wife and son respectively of the claimant, were burned, grotesquely dismembered and fatally injured by a violent "high order explosion" at about 11 A.M. in front of a corner of the garage attached to their home. The tremendous force of the explosion was apparent not only from the horrible nature of the injuries but from the fact that debris was spread over a radius of about 400 feet. This was confirmed by the description in the police report of the damage:
The claimant is Chief Forensic Chemist for the State Police. His testimony indicated that there were some chemicals in the attic of his home used in an experiment in a course in forensic science he taught at Trenton State College. He vigorously denied that these chemicals could have formed
an explosive mixture. He was equally vigorous in his denial that there were "any chemicals, anywhere in [his] house or in [his] garage or any other out buildings" which alone or in combination were explosive. He did concede the presence, in a white metal cabinet in the garage, of some chemicals in "micro-quantity" prepared in the study for his doctorate. In the course of the investigation Saferstein underwent a polygraph examination "to ascertain if he deliberately placed an explosive device at his home on May 30, 1973." The result was reported thusly: "The physiological reactions of the subject did not indicate any significant emotional disturbances indicative of deception when answering relevant questions pertaining to the object of the examination."
That which followed the explosion, not at all surprisingly, is described in the report of the Board's special investigator: "An intensive investigation was conducted by the Willingboro Twp. Police Dept. They were aided by the Burlington Co. Prosecutor's Office, N.J. State Police, the AT & F Division of the Treasury Department and the Dept. of the Army's Picatinny Arsenal." The intensity and thoroughness of the investigation, technical and otherwise, cannot be exaggerated.
The essence of the results of this thorough and professional investigation was uncertainty with respect to the precise nature of the explosive and only a little more than speculation as to precisely what happened, derived from such facts as particles of a fragmented milk carton found embedded in certain of the bones of Mrs. Saferstein. This uncertainty carried over to the expression of an opinion by the State Police with respect to the criminality vel non of the act producing the event.
Lieutenant John J. Toth, who commanded the Field Services Bureau of the State Police and testified at the hearing before the Board, frankly characterized the matter as "one of the most difficult cases we have ever come across." The substance of the opinion of the State Police with respect to the criminality aspect clearly appears in a question posed
by the chairman of the Board and answered by Lieutenant Toth 2 I/2 ...