[192 NJSuper Page 143] This is a two-part motion by defense counsel seeking to (1) preclude allegation of aggravating factors by the State under N.J.S.A. 2C:11-3(c)(4) beyond the date of this motion and (2) an order precluding the imposition of the death penalty by the sentencer. The motion was not opposed by the State. The State also conceded that it had not discovered any aggravating factors though its investigation was complete, and that, consequently, while not waiving the death penalty it would not be seeking the death penalty in this case.
The novel issue raised here is whether, under our newly adopted death penalty law, N.J.S.A. 2C:11-3, and court rule pertaining to additional discovery in capital cases, R. 3:13-4, the court may grant such a motion.
In support of the motion, defendant argues that the State's failure to provide an itemization of aggravating factors at arraignment and, further, not seeking an extension of time to do so under R. 3:13-4, must preclude the State from setting forth such factors at this late date. The defendant contends that this failure should also preclude the State from ultimately seeking the death penalty in this case.
R. 3:13-4(a) requires the prosecutor to give defendant, at arraignment, an itemization of aggravating factors which he or she intends to prove at the sentencing hearing. Discovery pertaining to such aggravating factors must also be disclosed at arraignment, unless the time to do so is enlarged for good cause by the court. The purpose for this requirement is revealed in the commentary to the rule, which states, "This practice would serve to avoid needless delays often occasioned by the failure to provide discovery in a timely fashion. Such a practice has the added advantage of allowing increased time to fully investigate and analyze the aggravating and mitigating circumstances said to be present in a given case." Comments R. 3:13-4.
The additional time for investigation provided via the rule is vitally important to the defendant. This is so because, ". . . the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100 year prison term differs from one of only a year to two. Because of that qualitative difference, there is 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 (1976). This distinction cannot be overstated.
As defendant aptly points out, the possibility of the imposition of the death penalty impacts substantially upon various trial considerations and strategy. Because our statute is relatively new, and therefore our experience limited, a partial itemization of the trial considerations set into motion by the possibility that death may be imposed suggests the following:
1. The retention or appointment of counsel. If the defendant is able to retain counsel, the choice of counsel, the amount of money he is prepared to pay -- the lengths to which he is prepared to go to get money -- the interest his family and friends have in raising or donating money, are all influenced by the knowledge that his life, and not merely a prison term, is at stake. If the defendant is represented by the Public Defender then the designation of the case as capital or non-capital will determine the attorney to which it is assigned.
2. Tactical decisions about the handling of the case and pretrial motions. The defense will be handled differently where defendant's life is at stake. The plainest example is in the filing of pretrial motions. In a capital case recently tried in Essex County, defense counsel filed in excess of fifteen pretrial motions, including motions to exclude the news media, various discovery motions involving prior convictions, motions pertaining to the composition of the grand jury and petit jury venires, motions with respect to pretrial publicity and statements made to the press by the Prosecutor, a motion to prohibit the death qualification of prospective jurors, motions to dismiss the indictment because the death penalty is violative of the State and Federal Constitution, motions for attorney conducted voir dire and for a hearing on jury procedures, and a motion to limit the use of preemptory challenges by the State which deny a defendant's right to trial by jury. It is anticipated that most of these motions will be filed in every capital case in the foreseeable future. Many of the motions involve extensive briefing and argument and some involve evidentiary hearings.
3. Preparation for the penalty phase. A finding of guilt under N.J.S.A. 2C:11-3(c) requires a separate sentencing proceeding at which the evidence presented by the State will extend far beyond proof of the act. In order to rebut such claims and meet its own burden of going forward with mitigating evidence, the defense must conduct an extensive and unique investigation into the defendant's background, psychiatric and psychological make-up, prior criminal involvement and family history.
4. Eligibility for bail. All persons charged with crimes punishable by death may be denied bail under certain circumstances. R. 3:26-1. A defendant or his family may have expended a considerable sum of money in order to secure his release pending trial, only to discover that he is no longer eligible for bail, ...