Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein join in this Order. Justice Handler Dissents from the denial of leave to appeal (m-1280) for reasons set forth in an opinion to be filed at a later date.
This matter having been presented to the Court on the applications of defendant for leave to appeal the May 8, 1992, order of the Law Division denying defendant's motion for non-capital sentencing and defendant's alternative motion for an evidentiary hearing (M-1280) and for a stay of trial (M-1281);
And the record having failed to set forth clearly the basis for the charging decision of the Prosecutor in the matter;
And good cause appearing;
It is ORDERED that the motion for leave to appeal (M-1280) is denied; and it is further
Ordered that the motion for a stay of trial (M-1281) is granted; and it is further
Ordered that the matter is summarily remanded to the Law Division with direction to the Prosecutor to determine forthwith the charging decision independently, de novo, and in accordance with the Guidelines for the Designation of Homicide Cases for Capital Prosecutions, approved by the Attorney General and the County Prosecutors Association; and it is further
Ordered that the stay shall dissolve, without further Order of the Court, on the Prosecutor's notification to defendant and the trial court of the Prosecutor's charging decision; and it is further
Ordered that the notice of the charging decision, whether it be to continue to proceed with a capital prosecution or otherwise, shall be in writing and shall set forth the reasons therefor.
Jurisdiction is not retained.
WITNESS, the Honorable Robert N. Wilentz, Chief Justice, at Trenton, this 29th day of May, 1992.
Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein join in this Order. Justice Handler Dissents from the denial of leave to appeal (M-1280) for reasons set forth in an opinion to be filed at a later date.
This is the second time that the Court has considered the status of Kevin Jackson's capital prosecution. The case comes before the Court on defendant's motion for leave to appeal from an order of the trial court that the case be prosecuted for capital murder. That order was based on the prosecutor's determination that defendant should not be permitted to plead guilty to non-capital murder.
Defendant was indicted for purposeful or knowing murder, aggravated sexual assault, and third degree theft. On September 19, 1986, defendant pleaded guilty to the murder and theft charges. In the ensuing penalty trial for capital murder, the State relied on aggravating factors c(4)(c) (wantonly vile murder) and c(4)(g) (felony murder). The jury sentenced defendant to death. On appeal, the Court held that the factual basis for the entry of the plea did not establish the requisite intent to kill for capital murder. State v. Jackson, 118 N.J. 484, 490 (1990).
Thereafter, defendant's original guilty plea was set aside. The State then entered into new plea negotiations. It indicated to defendant and the trial court that it would accept a plea to non-capital murder. That decision was revoked one day later. The State refused to accept a guilty plea to non-capital murder, and determined to prosecute the matter as a capital-murder case and seek the death penalty. As a result, defendant moved to proceed directly with sentencing based on his proffered guilty plea to non-capital murder or to have an evidentiary hearing regarding the State's change of position. The trial court denied that motion, as well as a motion for a stay of the trial. The Appellate Division denied leave to appeal and a stay.
Defendant sought leave to appeal to this Court. He contends that the prosecutor's reversal of the decision not to proceed with a capital trial was arbitrary and capricious, thereby resulting in cruel and unusual punishment. In the alternative, defendant argues that he presented a prima facie case of arbitrariness by the prosecutor, and requests an evidentiary hearing in which the prosecutor would be required to state his reasons for reversing his initial decision.
The Court now denies defendant's motion for leave to appeal but stays the trial pending a de novo determination by the prosecutor on whether to seek the death penalty against defendant. That determination is to be consistent with the prosecutor's guidelines for capital cases. The Court also orders the prosecutor to place the reasons for that decision on the record.
This case exemplifies and documents the fact that prosecutorial discretion in determining death eligibility under our current capital-murder regime is unprincipled and unguided. Prosecutorial charging practices are so inconsistent and disparate that the end results have become irretrievably arbitrary and capricious. The Court, in my opinion, should grant leave to appeal. It should set clear and objective standards governing the prosecutorial charging responsibility and prescribe firm procedures, including judicial review, to assure that the prosecutorial role in determining death eligibility is soundly, fairly, and consistently exercised.
The facts that constitute the basis and the record for defendant's motion for leave to appeal are very disturbing and cannot be glossed over. They appear from the transcript of statements and representations made by counsel and the trial court in the course of the pretrial applications and motions. Some of the statements refer to proceedings held in chambers dealing with the attempts of the State and defendant to reach a plea agreement.
In our earlier decision, we held that defendant's plea failed to establish whether he was guilty of capital or non-capital murder. Jackson, supra, 118 N.J. at 491. Accordingly, the Court concluded:
We vacate the sentence of death and remand the matter to the Law Division for further proceedings in accordance with this opinion. A retrial of the guilt phase will be required if the defendant does not plead to capital murder.
On July 3, 1991, the presiding criminal assignment Judge of the vicinage, who had handled the case originally, wrote a letter to counsel. In that letter he purported to set aside the September 19, 1986, guilty plea based on his interpretation of the Jackson ...