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State v. Bass

Decided: March 22, 1983.

STATE OF NEW JERSEY, PLAINTIFF,
v.
ALAN BASS AND RENEE NICELY, DEFENDANTS



Stern, J.s.c.

Stern

Defendants assert a federal constitutional challenge, basically under the Sixth Amendment, seeking to prohibit "death qualification" of jurors in this capital cause. Alternatively, they claim that any "death qualification" must follow the guilt phase. In furtherance of their position defendants ask this court to consider testimony and proofs presented in other jurisdictions which they believe show that a "death qualified" jury is more likely to convict and impose the death penalty than a jury not so "qualified." In light of my ruling denying defendants' motion, I need not address any issues projected by the procedural aspects of the application.

In Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), the United States Supreme Court held that "a

State may not constitutionally execute a death sentence imposed by a jury culled of all those who revealed during voir dire examination that they had conscientious scruples against or were otherwise opposed to capital punishment." Adams v. Texas, 448 U.S. 38, 43, 100 S. Ct. 2521, 2525, 65 L. Ed. 2d 581, 588 (1980). However, in Witherspoon the court also made clear that:

While Witherspoon announced a "limitation on the State's power to exclude," as opposed to "a ground for challenging any prospective juror," see Adams v. Texas, supra, 448 U.S. at 47-48, 100 S. Ct. at 2527-2528, Witherspoon does recognize the right of a State to insist upon interrogation of prospective jurors in order to assure that they "will consider and decide the facts impartially and conscientiously apply the law as charged by the court." Adams v. Texas, supra, 448 U.S. at 45, 100 S. Ct. at 2526. See also Lockett v. Ohio, 438 U.S. 586, 595-597, 98 S. Ct. 2954, 2959-2961, 57 L. Ed. 2d 973 (1978); Maxwell v. Bishop, 398 U.S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221 (1970); Boulden v. Holman, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433 (1969). The doctrine, premised on the fundamental need of our jury system for a jury to conscientiously apply the law as charged, has been recognized and applied in New Jersey. See, e.g., State v. Holland, 59 N.J. 451, 460-463 (1971); State v. Mathis, 52 N.J. 238 (1968), rev'd 403 U.S. 946, 91 S. Ct. 2277, 29 L. Ed. 2d 855 (1971).

As noted above, defendants seek to prohibit "death qualification" of jurors in this capital case. Moreover, as previously indicated, they seek to have this court review proceedings in other courts and conduct an evidentiary hearing on their claim that a jury "death qualified" consistent with Witherspoon is more likely than a "non-qualified" jury to convict a defendant

and sentence him to death. Defendants claim that Witherspoon was decided on then "presently available information," 391 U.S. at 517-518, 88 S. Ct. at 1774-1775, and cite Witherspoon as the basis for entitlement to an evidentiary hearing. Id. at 520, n. 18, 88 S. Ct. at 1776, n. 18.*fn1 In light of footnote 18 in Witherspoon, and the proofs they seek to introduce, defendants alternatively argue that "death qualification", if it is to be permitted, must follow the guilt phase.

In Adams v. Texas, the Supreme Court addressed Witherspoon and its progeny in the context of a bifurcated proceeding:

This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors will consider and decide the facts impartially and conscientiously apply the law as charged by the court.

We have little difficulty in concluding that this rule applies to the bifurcated procedure employed . . . in capital cases. [448 U.S. at 45, 100 S. Ct. at 2526; emphasis supplied].

Even though N.J.S.A. 2C:11-3(c)(1) provides for bifurcated proceedings before the same jury (absent "good cause" to empanel another jury), thus evidencing a desire for "death qualification" before the guilt phase, defendants insist that Adams is not dispositive. They claim that Adams merely ...


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