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State v. Marshall

Decided: July 28, 1992.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT O. MARSHALL, DEFENDANT-APPELLANT.



On proportionality review of a death sentence imposed in the Superior Court, Law Division, Atlantic County.

Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern, and Stein join in this opinion. Justice Garibaldi has filed a separate opinion Concurring in part and Dissenting in part. Justice Handler has filed a separate Dissenting opinion.

Per Curiam

IN THE MATTER OF THE PROPORTIONALITY REVIEW PROJECT

Per Curiam

In State v. Marshall, 123 N.J. 1 (1991) (Marshall I), this Court affirmed defendant's conviction for the murder of his wife and the resulting sentence of death. This appeal requires us to resolve the "proportionality" issue reserved in that case. Id. at 170. The Capital Punishment Act provides that on the "request of the defendant, the Supreme Court shall * * * determine whether the [death] sentence [imposed on a defendant convicted of capital murder] is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." N.J.S.A. 2C:11-3e. In the process of making that determination we also discuss the broader issue of the format of proportionality review.

In State v. Ramseur, 106 N.J. 123 (1987), we noted that "the proportionality review provision in the Act is an important procedural mechanism to safeguard against the arbitrary and capricious imposition of the death penalty." Id. at 330. Observing that proportionality review implicated "difficult and sensitive issues," we forecasted that

our efforts to devise a procedure of review that will adequately protect defendants from the arbitrary and capricious imposition of the death penalty prohibited by Furman v. Georgia, supra, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, will be an evolving process. In addition to involving criminal Justice experts, these efforts may involve experts from disciplines outside the law. We shall seek the advice of such experts to assist us in this process.

[Id. at 328.]

Therefore, by Order dated July 29, 1988, this Court appointed Professor David C. Baldus of the University of Iowa Law School as Special Master to assist us in developing a system for proportionality review. We requested that the "Special Master * * * produce for the Court a data base and files sufficient to enable the Supreme Court to conduct proportionality reviews as required by statute." We authorized consideration of "the data base that formed the basis of the report of the New Jersey Public Defender entitled 'the Re-Imposition of Capital Punishment in New Jersey'" and the collection of such "additional data * * * as may be needed." We directed that nothing in the Order shall "be construed by the Special Master or the parties to represent a position of the Court on any issue, nor shall the recommended findings and Conclusions of law of the Special Master include any determination concerning the excessiveness or disproportionality of any death sentence imposed in any case."

In an earlier proceeding, In re Proportionality Review Project, 122 N.J. 345 (1990), we declined to determine in advance the appropriate "universe" of cases against which to compare challenged death sentences in order to assure proportionality. The Attorney General had contended that the only appropriate universe is one comprised exclusively of cases in which a death sentence has been imposed under our Capital Punishment Act and that establishing such a universe would be consistent with the practice of a majority of other jurisdictions that have developed proportionality-review systems. In addition, we noted that defining the universe of cases available for proportionality review would not automatically determine which cases within the universe will be used in the review of any specific death sentence. We awaited the Master's Final Report, which was received on September 24, 1991.

Following oral argument, the Legislature amended the Capital Punishment Act to provide that "proportionality review * * * shall be limited to a comparison of similar cases in which a sentence of death has been imposed." L. 1992, c. 5 (eff. May 12, 1992). Although that amendment is to "take effect immediately," the Legislature did not state whether it intended the amendment to apply to pending appeals. The Attorney General has filed a letter memorandum suggesting that the 1992 amendment be applied to this appeal. Were the amendment to be applied to pending appeals, we would undoubtedly be required to resolve whether, as applied to offenses committed before its effective date, the Act might constitute an ex post facto law. In Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990), the United States Supreme Court summarized the meaning of the ex post facto clauses:

"It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."

[ Id. at ..., 110 S. Ct. at 2719, 111 L. Ed. 2d at 39 (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68, 70 L. Ed. 216, 217 (1925)).]

The Attorney General argues that L. 1992, c. 5 "clarifies" the prior law and thus does not transgress those bounds. Because of the long pendency of this appeal, we decide this appeal under prior law. Furthermore, given our rejection of the disproportionality challenge, the new law, clearly strengthening such rejection, could not affect the outcome. We therefore have no occasion to consider either its applicability or validity. Hence, our references to a "universe" of cases required for statutory proportionality review are to be understood to refer to the statutory provisions in effect at the time of this offense. Because there are several capital appeals pending under the prior law, we address the issues in sufficient detail to deal with those appeals as well as this, depending on the ultimate effect of L. 1992, c. 5.

Much of the Discussion is designed to explain the process of record-gathering and the methods of analyses, both of science and law, that can be used to conduct proportionality review and to assess the relevance of the data to system-wide claims of unconstitutional infliction of the death penalty. Because we address both the individual death sentence and the format for proportionality review under our capital-sentencing scheme, we refer either to defendant, Robert O. Marshall, or the Public Defender where appropriate to the context.

Although we recognize that proportionality is not a scientific determination, we have attempted to make our determinations as precise in terms of their bases and reasoning and as objective as possible. We have used scientific and statistical measures, when helpful, although we recognize that a value judgment is built into practically every measurement. A life is at stake, and although some degree of subjective value judgment may be required, we have attempted to make those judgments explicit so that they can be analyzed and tested against whatever objective measurements are applicable.

Parts of this opinion, then, that deal with the computer-based process of record-gathering are technical in nature; the remainder is more traditional legal analysis. For convenience, we outline the different aspects of the appeal.

TABLE OF CONTENTS

Introduction ............ 117

I. Facts ............ 121

II. Proportionality Review Defined ............ 124

III. The "Universe" from which "Similar Cases" are drawn ............ 131

IV. Identifying the Comparison Group of "Similar Cases" in the Universe ............ 141

A. The Catalog of the Cases ............ 141

B. The Methods of Selecting a Comparison Group of Similar Cases from the Catalog ............ 143

1. By Salient Factors ............ 146

2. By Aggravating/Mitigating Factors ............ 146

3. By Common Characteristics Relating to all Life/Death Outcomes ............ 147

C. The Criteria for Comparing the Cases for Disproportionality ............ 148

1. Frequency Analysis - Will Statistics Demonstrate that s Sentence is Disproportionate? ............ 152

2. Precedent-Seeking Analysis - What Specifics of Comparison Cases will Demonstrate that a Sentence is Disproportionate?

D. Should we Consider an Alternative Method of Analysis by Categories of Culpability Derived Solely form the Statutory Aggravating Factors? ............ 159

V. Application of the Methods of Proportionality Review to Robert O. Marshall ............ 166

A. Frequency Analysis-- Suggests a Relatively High Degree of Blameworthiness in Contract-Killing Cases ............ 166

B. Precedent-Seeking Comparison with Specific Cases does not Demonstrate Disproportionate Exercise of Sentencing Power ............ 174

VI. That Juries in New Jersey do not "Generally" Return Death Verdicts does not Undermine the Deterrent Value of the Death Penalty to Such an Extent as to Render it a "Cruel and Unusual Punishment." ............ 188

VII. Geographic Patterns of Charging and Prosecuting Capital Cases do not Demonstrate an Arbitrary Exercise of the Prosecutorial Function ............ 195

VIII. Neither the Race of the Victim Nor the Race of the Defendant Has Been Shown to be an Impermissible Invidious Factor in the Imposition of the Death Penalty ............ 207

IX. Revisions That Can be Made Now and in the Future to Simplify the Data-Gathering Process ............ 216

X. Conclusion ............ 218

I

Facts

The facts of the Marshall I case are more fully stated in the Court's earlier opinion. 123 N.J. at 28-62. We repeat only a general outline of the facts that the jury could have found as drawn from the State's brief.

Defendant, a Toms River insurance agent, began an extramarital affair with Sarann Kraushaar, a married woman, in June 1983. As early as December 1983, defendant mentioned to Kraushaar the idea of killing his wife, Maria. In May 1984, defendant met Robert Cumber of Louisiana and questioned him about hiring an "investigator." Defendant later telephoned Cumber, who referred defendant to Billy Wayne McKinnon, a former sheriff's officer from Louisiana. Defendant agreed to pay McKinnon $5,000 to meet him in Atlantic City, New Jersey.

Defendant met McKinnon at Harrah's Casino in Atlantic City on June 18, 1984, and offered to pay him $65,000 to kill his wife. In addition to the $5,000 that McKinnon had already received, defendant agreed to pay him $10,000 up front and $50,000 from the expected insurance proceeds on his wife's life. At that meeting defendant paid McKinnon $7,000 and gave him a picture of his wife. Defendant told McKinnon to kill her that evening, when defendant would be present. In preparation for the killing, defendant and McKinnon discussed various ways to kill Maria. Defendant believed that he would not be considered a suspect because he was considered an outstanding citizen with influence in the community.

McKinnon did not carry out the murder at that time, but instead returned to Louisiana. Defendant communicated with him on numerous occasions and sent him additional money. Under pressure from defendant to complete the job, McKinnon returned to Atlantic City on July 19, 1984, and met with defendant, who proposed a second plan for the killing to take place that evening. Defendant told McKinnon that he would leave his wife in their car to be executed while defendant went into a restaurant under the pretense of using the bathroom facilities. However, McKinnon did not commit the murder at that time either.

Defendant, persistent in his efforts to have his wife killed, offered McKinnon an "extra fifteen" ($15,000) if he would return to New Jersey a third time to do the "job" before Labor Day. McKinnon agreed, and, on September 6, 1984, he and defendant met at a service area parking lot located south of Toms River. Together they selected a spot on the Garden State Parkway to carry out Maria's murder and made final plans for the slaying, which was to occur that evening. The plan was to make the murder look like a robbery.

Defendant took his wife to Harrah's Casino in Atlantic City on the night of September 6, 1984, under the pretext of an evening of dining and gambling. He met McKinnon outside Harrah's at approximately 9:30 p.m. and told him that he and Maria would be leaving the casino at about midnight. Defendant also asked McKinnon for the return of the photographs of Maria and of their home that he had given him in June.

As previously arranged with McKinnon, defendant pulled into the Oyster Creek picnic area at milepost seventy-one on the Garden State Parkway at about 12:30 a.m. on September 7. While his wife lay sleeping on the front seat, defendant got out of the car under the ruse of needing to repair a flat tire. Defendant squatted down to prepare himself for being hit on the head as part of the simulated robbery. Maria Marshall was shot in the back twice. She died immediately.

When the police arrived on the scene, defendant continued to make the murder look like a robbery. The State argues that defendant showed no remorse after the crime, but pretended to join his three sons in grieving over the loss of their mother. The State argued at the trial level that he even staged a suicide attempt. Defendant protested his innocence then and continues to do so now in explanation of his conduct.

Defendant's claims of innocence soon unraveled. Telephone records traced him to McKinnon, who turned State's evidence. In exchange for a plea to conspiracy to commit murder, McKinnon implicated Marshall and identified a Louisiana man, Larry Thompson, as the triggerman.

Investigation disclosed that during his planning, defendant had been increasing the insurance policies on his wife's life. At the time of her death, Maria Marshall's life was insured for about $1,400,000. Defendant had been paying his wife's premiums while neglecting his own. Defendant hastened to complete an application for a policy for a home mortgage before the murder. On the last day of her life, Maria underwent a physical examination for that policy. The State offered proof that defendant could have been motivated to kill by rising debts incurred in his business, including a $128,000 home-equity loan and a short-term bank debt in excess of $40,000. While amassing those large insurance policies, defendant also continued his relationship with Sarann Kraushaar, with whom he had intended to live after the murder.

A jury acquitted Thompson of the murder but accepted McKinnon's version of defendant's role and found him guilty of conspiracy to commit his wife's murder and of murder-by-hire. The only aggravating factor submitted to and found by the jury was that defendant had hired another to commit murder. N.J.S.A. 2C:11-3c(4)e.*fn1 The two mitigating factors submitted to and found by the jury were that defendant had no history of criminal activity, c(5)f, and the catch-all mitigating factor, c(5)h. At the time of the offense defendant was forty-four years of age, and had been involved in charitable and community activities. The jury unanimously found beyond a reasonable doubt that the aggravating factor outweighed the mitigating factors. The trial court sentenced defendant to death.

II

Proportionality Review Defined

A.

The best way to understand the concept of proportionality review is to understand its origin. In Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the Supreme Court invalidated Georgia's death-penalty statute as violating the Eighth Amendment's prohibition against cruel and unusual punishment. The teaching of Furman was that a state may not leave the decision of whether a defendant lives or dies to the unfettered discretion of the jury because such a scheme inevitably results in death sentences that are "wantonly and * * * freakishly imposed" and "are cruel and unusual in the same way that being struck by lightning is cruel and unusual." Id. at 309-10, 92 S. Ct. at 2762-63, 33 L. Ed. 2d at 390 (Stewart, J., Concurring). Prior to that decision, the capital-sentencing procedures in most states delegated to Judges and juries plenary authority to decide when a death sentence should be imposed. The sentencer was given "practically untrammeled discretion to let an accused live or insist that he die." Id. at 248, 92 S. Ct. at 2731, 33 L. Ed. 2d at 355 (Douglas, J., Concurring).

Following the Furman decision, many states revised their capital punishment acts. In a series of cases decided four years after Furman, the Court upheld the capital-sentencing statutes of Texas, Florida, and Georgia, concluding that those statutes contained safeguards that promised to eliminate the constitutional defects noted in Furman. See Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Proffit v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). The Supreme Court based its Conclusion on the premise that those statutes insured that sentencers would be "given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision." Gregg, supra, 428 U.S. at 192, 96 S. Ct. at 2934, 49 L. Ed. 2d at 885 (plurality opinion of Stewart, Powell, and Stevens, JJ.).

Justice Stewart's plurality opinion in Gregg cited two features of Georgia's scheme that would guide and channel the exercise of sentencing discretion. Georgia's statute had a bifurcated procedure for deciding a defendant's guilt first and sentence later, and also provided for "the further safeguard of meaningful appellate review" of every death sentence. Id. at 195, 96 S. Ct. at 2935, 49 L. Ed. 2d at 887.

When New Jersey reintroduced its Capital Punishment Act, it modeled its statute on Georgia's statute, which had generally followed the Model Penal Code's provisions with respect to the enumeration of aggravating and mitigating factors and the provision of the bifurcated procedure. Ramseur, supra, 106 N.J. at 183, 202-09. Hence, as enacted, the New Jersey Capital Punishment Act required that the Supreme Court conduct proportionality review to determine whether the death sentence imposed on a defendant is "disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." L. 1982, c. 111.

Following the Supreme Court's decision in Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984), that proportionality review was not an essential constitutional requirement of a state capital-sentencing scheme, our Legislature amended the statute to make proportionality review an option for defendants. L. 1985, c. 478. We assumed that most defendants who receive a death sentence would request proportionality review. Ramseur, supra, 106 N.J. at 327. As noted, the Legislature has since limited statutory proportionality review to a comparison of death-sentenced cases.

B.

What did our Legislature intend when it provided for proportionality review in the context of Gregg v. Georgia? To answer that question we must digress to distinguish between two aspects of proportionality review. The first has been referred to as "substantive" proportionality review, the second as "procedural" proportionality review. See Lisa G. Bradley, Proportionality in Capital and Non-Capital Sentencing: An Eighth Amendment Enigma, 23 Idaho L. Rev. 195, 206-08, 211-15 (1986-87). We may think of those two aspects of proportionality review as offense-oriented and offender-oriented. Simply stated, the substantive or offense-oriented proportionality review looks to whether the punishment of death is excessive for a particular offense, while procedural or offender-oriented review examines whether, when compared to factually similar cases involving the same offense, a defendant's death sentence is excessive. See David C. Baldus, Charles A. Pulaski & George Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. & Criminology 661, 665-66 (1983) (hereinafter Baldus and Pulaski I).

Gregg is particularly instructive because it illustrates the two differing aspects of proportionality review and gives insight into the most probable meaning of our statutory provision. The Gregg Court spoke of the useful function of proportionality review and characterized it as assuring that "'no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally * * *.'" Gregg, supra, 428 U.S. at 205, 96 S. Ct. at 2939, 49 L. Ed. 2d at 892 (quoting Moore v. State, 213 S.E. 2d 829, 832 (Ga. 1975)); see also Jarrell v. State, 216 S.E. 2d 258, 270 (Ga. 1975) (asking whether "juries generally throughout the state have imposed the death penalty"), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1218 (1976).

The kind of proportionality review that asks whether the death penalty is "generally" imposed is an Eighth Amendment inquiry into substantive proportionality -- does the punishment fit the crime? (That analysis has also been used to analyze Eighth Amendment disproportionality for certain classes of offenders, e.g., minors, Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989), or mildly retarded, Penny v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989).)

That type of substantive review is best perceived in the context of cases such as Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), and Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). In Coker, for example, the Court held that the imposition of the death penalty for rape violated the Eighth Amendment's prohibition against cruel and unusual punishment because it was "grossly disproportionate and excessive punishment" for the commission of that crime. 433 U.S. at 592, 97 S. Ct. at 2866, 53 L. Ed. 2d at 989. In reaching that Conclusion, the Court paid particular attention to such factors as "public attitudes concerning a particular sentence -- history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions." Ibid.

Similarly, in Enmund, the Court found that the imposition of the death penalty is disproportionate for one who "aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." 458 U.S. at 797, 102 S. Ct. at 3376, 73 L. Ed. 2d at 1151. Tracking the analysis followed in Gregg and Coker, the Enmund Court held that when "the evidence is overwhelming that American juries have repudiated imposition of the death penalty for [particular] crimes [such as rape or accomplice-murder]," id. at 794, 102 S. Ct. at 3374, 73 L. Ed. 2d at 1150, death is an unconstitutional penalty absent a showing that the actor killed, attempted to kill, or intended to participate in or facilitate a murder. Id. at 798, 102 S. Ct. at 3377, 73 L. Ed. 2d at 1152. The Court observed that "if prosecutors rarely sought the death penalty for accomplice felony murder * * * it would tend to indicate that prosecutors, who represent society's interest in punishing crime, consider the death penalty excessive for accomplice felony murder." Id. at 796, 102 S. Ct. at 3376, 73 L. Ed. 2d at 1151. When "legislatures and juries [have] firmly rejected the penalty of death," id. at 814, 102 S. Ct. at 3385, 73 L. Ed. 2d at 1162 (O'Connor, J., Dissenting), for a particular offense, then the imposition of the death penalty for that crime is a substantially disproportionate and excessive punishment.

In later applications of that doctrine, as in Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987) (imposition of death penalty for reckless indifference murder not overwhelmingly repudiated), the Court has adhered to that basic premise of substantive or Eighth Amendment disproportionality. Only in that context must the type of near-unanimous generality be found, and it is not a case-by-case generality but rather a jurisdiction-by-jurisdiction generality of rejection.

When the Gregg court spoke favorably of the Georgia Supreme Court's requirement that the offense be one in which the death penalty has been imposed generally, it was actually referring to the Eighth Amendment, substantive analysis, because Gregg involved two sentences of death: one for armed robbery and one for murder. (At that time armed robbery standing alone was a statutory basis for capital punishment in Georgia.) The Georgia court vacated the death sentence for armed robbery but affirmed the sentence of death for murder. Gregg v. State, 210 S.E. 2d 659, 667 (1974). In the case of robbery, it simply noted that the imposition of death sentences for that crime were "unusual in that they are rarely imposed for [armed robbery]." Id. at 667. Recognizing that the magnitude of the punishment imposed must be related to the degree of harm inflicted on the victim, absent the victim's murder, juries generally would not impose the sentence of death for armed robbery.

But that offense-oriented analysis is not the review that we exercise here. Rather, we ask whether the "punishment fits the criminal." The procedural, offender-oriented proportionality review undertaken by the Georgia Supreme Court with respect to the murder count consisted simply of a recital of a series of cases considered by that court in making its proportionality analysis and a statement that "after considering both the crimes and the defendant and after comparing the evidence and the sentences in this case with those of previous murder cases, we are * * * of the opinion that these two sentences of death are not excessive or disproportionate to the penalties imposed in similar cases." Ibid. That court did not suggest or require that the sentence of death be "generally imposed" in the sense of near unanimity in the comparison cases.

C.

When the Supreme Court later held in Pulley v. Harris that proportionality review was not constitutionally required, it made clear that it was not discarding the Eighth Amendment proportionality analysis. The Pulley Court emphasized:

At the outset, we should more clearly identify the issue before us. Traditionally, "proportionality" has been used with reference to an abstract evaluation of the appropriateness of a sentence for a particular crime. Looking to the gravity of the offense and the severity of the penalty, to sentences imposed for other crimes, and to sentencing practices in other jurisdictions, this Court has occasionally struck down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime.

The proportionality review sought by Harris * * * and provided for in numerous state statutes [referring specifically to Georgia's] is of a different sort. This sort of proportionality review presumes that the death sentence is not disproportionate to the crime in the traditional sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime.

[465 U.S. at 42-43, 104 S. Ct. at 875-76, 79 L. Ed. 2d at 35-36 (footnotes omitted).]

The Dissenting members in Pulley suggested not that in any sense there be a requirement of generality or nearly unanimous death verdicts for those convicted of the same crime, but rather suggested only "'that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action'," id. at 63, 104 S. Ct. at 886, 79 L. Ed. 2d at 49 (Brennan, J.) (quoting Gregg, supra, 428 U.S. at 189, 96 S. Ct. at 2932, 49 L. Ed. 2d at 883), and have "'insisted that capital punishment be imposed fairly, and with reasonable consistency, or not at all.'" Ibid. (quoting Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S. Ct. 869, 875, 71 L. Ed. 2d 1, 9 (1982)). In their view, proportionality review, "although clearly no panacea, * * * often serves to identify the most extreme examples of disproportionality among similarly situated defendants." Id. at 71, 104 S. Ct. at 890, 79 L. Ed. 2d at 53.

That, we believe, is an acceptable understanding of the intentions of the framers of our Act -- that statutory proportionality review should seek to ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly and with reasonable consistency. That review serves as "a means through which to monitor the imposition of death sentences and thereby to prevent any impermissible discrimination in imposing the death penalty." Ramseur, supra, 106 N.J. at 327.

In conducting such proportionality review, then, one need not search for the nearly unanimous degree of generality that attends the Eighth Amendment rejection of the death penalty for particular crimes or categories of crimes as being disproportionate punishment. The quest in some ways is for the antithesis of that argument. Maryland has expressed its search for proportionality thus: "[A] death sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses in the same jurisdiction." Tichnell v. State, 468 A.2d 1, 17 n.18 (Md. 1983) (citing David C. Baldus, Charles A. Pulaski, George Woodworth & Frederick A. Kyle, Identifying Comparatively Excessive Sentences of Death: A Quantitative Approach, 33 Stan. L. Rev. 1 (1980) (hereinafter Baldus and Pulaski II)).

III

The "Universe" from which "Similar Cases" are Drawn

The first step in any proportionality review undertaking is to establish the "universe" of cases that the Court will consider.

In our earlier decision, In re Proportionality Review Project, supra, 122 N.J. 345, we declined to make a preliminary determination of the relevant universe of cases. The Attorney General had contended that the only appropriate universe is one comprised exclusively of those cases in which a death sentence has been imposed. The Legislature has since adopted the Attorney General's view. L. 1992, c. 5.

In the Final Report, the Master expressed the view that "penalty-trial cases are the narrowest universe that could support a coherent proportionality review system," noting that at least nine other state courts conduct proportionality review on the basis of penalty-trial cases. David C. Baldus, Death Penalty Proportionality Review Project: Final Report to the New Jersey Supreme Court, 1, 45 (Sept. 24, 1991) (hereinafter Final Report). Nevertheless, the Master recommended that the universe also include clearly death-eligible homicide cases that did not advance to a penalty-phase hearing because of prosecutorial decisions not to seek the death penalty.

Although the universe issue has been vigorously contested, we consider the controversy to be significantly overstated. How detailed a compilation of homicide cases is required to facilitate an adequate proportionality review of a given death sentence depends on the purposes to be served by that review. We assume that the basic difference in the respective positions of the parties about the breadth of the field of homicide cases to serve as a source for proportionality review stems from disagreement about the objectives to be achieved by proportionality review. By identifying those objectives we shall also determine the appropriate universe of cases.

A.

We offer this preliminary observation. The Attorney General, in briefs and at oral argument, objects to the inclusion of non-penalty-phase homicide cases in the universe, contending that consideration of such cases questions the correctness of the prosecutor's discretion to seek or not to seek a death penalty in a specific case. In our view, that objection misconceives the issue. Courts that conduct proportionality review by considering both death-sentenced cases and life-sentenced penalty-phase cases focus not on whether the jury decision was correct, but rather on whether the differences in the Dispositions of comparable homicide cases are relevant to whether the death sentence under review may be disproportionate. Similarly, a universe that includes death-eligible homicides that prosecutors elect not to prosecute as capital cases may also be relevant to proportionality review for purposes of comparison with a specific death sentence, irrespective of the merits of the prosecutor's discretionary decision not to treat the homicide as a capital murder case.

In Ramseur, we specifically acknowledged that the basic purpose of the proportionality review afforded by our Capital Punishment Act is to determine whether the death penalty in a specific case is "'disproportionate to the punishment imposed on others convicted of the same crime.'" 106 N.J. at 326 (quoting Pulley v. Harris, supra, 465 U.S. at 43, 104 S. Ct. at 875, 79 L. Ed. 2d at 36).

Were the Court to limit the focus of proportionality review to that inquiry -- whether a specific death sentence is disproportionate to the punishment imposed on others convicted of the same crime -- comparison with only cases in which a death sentence was imposed would be inadequate. A simple example illustrates the point. On the assumption that 100 robbery-felony-murder cases are prosecuted as capital crimes, all defendants are convicted and one defendant is sentenced to death, a comparison of the death-sentenced defendant's punishment with the punishment imposed only on other death-sentenced defendants would exclude from the proportionality-review process the ninety-nine robbery-felony-murder defendants that juries did not sentence to death. Indisputably, the determination whether that single death sentence is disproportionate can be made only by comparing it with the life sentences imposed on the ninety-nine defendants convicted of the same crime. We therefore consider it self-evident that the universe for proportionality review must, at a minimum, include all penalty-trial cases.

Comparison of a specific death sentence with the punishments imposed on other defendants convicted of capital murder and sentenced either to death or life imprisonment addresses the possibility that a jury may impose a disproportionate death sentence on a specific defendant. A closely-related issue is raised by the argument that a death sentence may be disproportionate, at least in part, because prosecutors frequently exercise their discretion not to seek the death penalty for a specific type of homicide. We first adverted to that expanded function of proportionality review in Ramseur, where we raised the question whether

to expand the potential cases for comparison to include all those in which the death penalty could have been requested by the State. Here we may anticipate considering whether to address concerns about possible misuse of prosecutorial discretion * * * including in the review all cases in which a prosecutor had the discretion to seek the death penalty.

[106 N.J. at 329 (citation omitted).]

We reiterated that concern in State v. Koedatich, 112 N.J. 225 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989), noting that the development of prosecutorial guidelines for the selection of capital cases would "promote uniformity in the administration of the death penalty, which will be an additional safeguard against arbitrariness and an assistance to this Court in its developing proportionality review." Id. at 258. More recently, in State v. Kiett, 121 N.J. 483 (1990), we again acknowledged that disproportionality can originate in both prosecutorial and jury decisions. Id. at 498.

The point may best be illustrated by the prior example of 100 robbery-felony-murder defendants, only one of whom is sentenced to death. Were we to assume that the remaining ninety-nine defendants were prosecuted and convicted of non-capital murder because of prosecutorial decisions not to seek the death penalty, the disproportionality of the single defendant's death sentence would arise not because of a disproportionate jury determination but because the prosecutorial decision to seek the death penalty was unique. That type of disproportionate death sentence could not be identified by a proportionality-review process that was limited to capital cases tried to a penalty phase; it could be identified, however, by a universe that included clearly death-eligible homicides that were not prosecuted as capital cases.

The Master's report emphasizes that prosecutorial decisions not to seek the death penalty for certain death-eligible homicides are influenced by the prosecutors' predictions of deathworthiness, i.e., the likelihood that a jury would impose the death penalty after a penalty-phase trial. Accordingly, one of the purposes served by a universe expanded to include such death-eligible homicides not prosecuted as capital crimes is that the proportionality-review process can then consider both jury and prosecutorial decisions about deathworthiness in determining whether a specific death sentence is disproportionate.

We identified yet a third potential purpose for proportionality review in Ramseur -- the prevention of "any impermissible discrimination in imposing the death penalty." 106 N.J. at 327. We stated that "discrimination on the basis of race, sex, or other suspect characteristic cannot be tolerated," ibid., and noted that "factors such as race, sex, and socioeconomic status might also be appropriate considerations for reviewing proportionality." Id. at 330. In that connection, we considered preliminarily in Koedatich, supra, 112 N.J. at 255-58, the contention that county-by-county as well as race-of-victim related disparities had already been detected in the prosecution of death-penalty cases. Elsewhere in this opinion we address those portions of the Master's report that consider the geographic distribution of capital-charging and sentencing decisions within the state, infra at (slip op. at 110-26), as well as the report's suggestion of a possible discrepancy in capital-sentencing rates that may be correlated with the race of the victim or the race of the defendant. Infra at (slip op. at 126-38). We note that our history and traditions "would never countenance racial disparity in capital sentencing," infra at (slip op. at 127). We consider and evaluate the statistical data in the Master's report suggesting the possibility that a black defendant has a substantially greater risk of being sentenced to death than do other defendants, infra at (slip op. at 128-37), as well as data suggesting that certain white-victim homicides are substantially more likely to advance to penalty trial than homicide cases involving non-white victims. Infra at (slip op. at 132).

Although our evaluation of those data persuades us that the observed deviations do not "compel a Conclusion of substantial discriminatory effect" in the administration of our death-penalty law, infra at (slip op. at 134), we note that the Master's statistical data concerning race-of-defendant and race-of-victim disparity necessarily include death-eligible homicides that did not advance to a penalty trial. Similarly, the report's data concerning the geographic distribution of capital-charging and capital-sentencing decisions also rely on death-eligible homicides that were not charged as capital murder. The Conclusion is inescapable that a universe restricted to penalty-phase cases would be inadequate to enable us to verify that our capital-sentencing procedure does not tolerate "discrimination on an impermissible basis, including, but not limited to, race and sex." Ramseur, supra, 106 N.J. at 330.

We note that courts in a few other jurisdictions have acknowledged the appropriateness for proportionality-review purposes of considering death-eligible homicides that did not advance to a penalty-phase hearing. See Tichnell v. State, supra, 468 A.2d at 18 (concluding proportionality-review process may take into account non-capital murder cases); State v. Moore, 316 N.W. 2d 33, 44 (Neb.) (conducting proportionality review by comparison with all other first-degree-murder convictions), cert. denied, 456 U.S. 984, 102 S. Ct. 2260, 72 L. Ed. 2d 864 (1982); State v. Williams, 287 N.W. 2d 18, 28-29 (Neb. 1979) (same), cert. denied, 449 U.S. 891, 101 S. Ct. 254, 66 L. Ed. 2d 120 (1980); Commonwealth v. Pursell, 495 A.2d 183, 198 (Pa. 1985) (conducting proportionality review by comparison with other first-degree-murder cases in which evidence could support an aggravating circumstance); State v. Rupe, 743 P. 2d 210, 229 (Wash. 1987) (concluding that for purposes of proportionality review, similar cases include cases in which defendant convicted of first-degree murder regardless of whether death penalty was sought), cert. denied, 486 U.S. 1061, 108 S. Ct. 2834, 100 L. Ed. 2d 934 (1988); State v. Harris, 725 P. 2d 975, 982-83 (Wash. 1986) (conducting proportionality review of death sentence for contract killing court considered contract-murder cases in which death penalty was not sought by prosecutor), cert. denied, 480 U.S. 940, 107 S. Ct. 1592, 94 L. Ed. 2d 781 (1987).

Accordingly, we hold that the purposes to be achieved by proportionality review require that the universe include clearly death eligible homicides in which the prosecutor elected not to seek the death penalty. We are also satisfied with the process by which the Master identified those death eligible cases that did not proceed to a penalty trial. A short summary of that process will be sufficient to explain the methodology used.

B.

By a review of statistics compiled by the New Jersey State Police, the Master reviewed the 3200 homicides committed in New Jersey since August 6, 1982. He eliminated homicides that were clearly not death eligible, such as cases involving juveniles, death-by-auto, or acquittal in a murder trial. He did the same with other non-penalty trial homicide cases that involved indictments for less than murder. The only cases to survive the preliminary screen were (a) pleas to murder, felony murder, and aggravated manslaughter when the original charge was a form of murder, and (b) jury convictions for any form of murder. Approximately 1500 cases remained.

The second stage involved the evaluation of the death eligibility of the remaining cases in terms of the defendant's conduct, the mental state involved, and the presence of statutory aggravating circumstances. The Master and staff provided through the Administrative Office of the Courts (AOC) consulted presentence reports and court records, trial counsel, and/or appellate records. Based on information gained from those sources, the cases were provisionally coded as (1) clearly death eligible, (2) questionable concerning death eligibility, or (3) clearly not death eligible. As the cases were screened, progress reports were sent to the offices of the Attorney General, the County Prosecutor's Association, and the Public Advocate. Although meetings were held, neither the Attorney General's Office nor the County Prosecutor's Association responded to requests for information on specific cases.

All penalty-trial cases were listed initially as "clearly death-eligible." Some were later reclassified because of changes in the law or because no aggravating factors were found at the penalty trial. Non-penalty-trial cases were classified as death eligible if the prosecutor had declined to prosecute the case capitally but there was evidence to support Conclusions (a) that the defendant had intended to kill the victim, (b) that the defendant had killed the victim by his own conduct or paid another to kill the victim, and (c) that at least one statutory aggravating factor had been present.

Those cases were further classified as clearly death eligible, questionable, and clearly not death eligible. On the basis of evidentiary standards, the case would remain in the clearly death-eligible category only if its evidentiary strength was strong or overwhelming.

The study started with 3,200 homicides. After the threshold screen that excluded cases involving death-by-auto, juvenile defendants, and acquittals, 1496 cases remained. Following the factual-case screen, the evidentiary-strength screen, and the screen of the penalty-trial cases, the Master identified 246 clearly death-eligible cases. Of the clearly death-eligible cases, 132 had resulted in capital-murder convictions and had advanced to a penalty trial and 114 were cases in which the prosecutor had not sought the death penalty. Two hundred and fifty questionable cases were excluded from the universe.

We realize that other courts throughout the country have used different measures of comparison. For example, the Georgia Supreme Court uses all capital-felony cases that have been appealed for comparison purposes. Ross v. State, 211 S.E. 2d 356 (1974), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1217 (1976). That court found that preventing the imposition of an arbitrary sentence "is ably served by reference to appealed cases which represent a sufficient cross section of similar cases upon which an adequate comparative review can be made." Id. at 359. Maryland's universe of cases is comprised solely of "those first degree murder cases in which the State sought the death penalty * * * whether it was imposed or not." Tichnell, supra, 468 A.2d at 17. Similarly, Delaware's universe consists of a comparison between the subject case and "the penalties in all first degree murder cases which have gone to trial and a penalty hearing." Dawson v. State, 581 A.2d 1078, 1108 (1990) (citations omitted), judgment vacated, 503 U.S. ..., 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992). The Pennsylvania Supreme Court uses a universe that requires "an independent evaluation of all cases of murder of the first degree convictions which were prosecuted or could have been prosecuted [as capital cases]." Commonwealth v. Frey, 475 A.2d 700, 707, cert. denied, 469 U.S. 963, 105 S. Ct. 360, 83 L. Ed. 2d 296 (1984).

We do not doubt that a pool of all cases that go to a penalty trial would form a reasonably-reliable data base or that a pool of cases in which aggravating factors have been served would also be a reliable pool. The State's expert, Dr. Herbert I. Weisberg, suggests the use of a penalty-trial pool in which at least one aggravating factor has been found. We discuss Dr. Weisberg's report further in Part IV, section D, infra at (slip op. at 61-70). That too is obviously a reasonably-reliable pool of cases.

Had it appeared to be an insurmountable task to examine all "clearly death eligible cases," we might have made a mid-course correction. In re Proportionality Review, supra, 122 N.J. 345. During the proceedings involved in that appeal we learned that approximately ten to fifteen additional cases per year might have to be added to the pool of death-noticed cases to establish a pool of clearly death-eligible cases. Id. at 347.

We routinely gather information concerning all aspects of the criminal-Justice system. The Task Force on Minority Concerns has evaluated, on a system-wide basis, the effect of race in the criminal-Justice system. See Interim Report of the New Jersey Supreme Court Task Force on Minority Concerns (Aug. 1989) (hereinafter Interim Report). The New Jersey Code of Criminal Justice requires that the Criminal Disposition Commission review "all aspects of the criminal Justice system relating to the Disposition of criminal offenders," and submit an annual report detailing its findings and recommendations concerning the Disposition of criminal offenders. See N.J.S.A. 2C:48-1 to -4. The New Jersey Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -91, has likewise created a Juvenile Delinquency Commission, N.J.S.A. 2A:4A-49(b), "to study and review the provisions of the [Code of Juvenile Justice] and all aspects of the juvenile Justice system with particular reference to delinquency trends and Dispositions."

Because of the use that we intend to make of the data, as we shall explain them throughout the course of this opinion, we see no need to address in detail the claimed deficiencies in the data-gathering process undertaken by the Master. Suffice it to observe that while the litigation was pending, his efforts were hampered by the adversarial interests of the parties for which no blame is to be assessed. We shall, in Part IX of this opinion, infra at (slip op. at 139) suggest a means to address those claimed deficiencies.

IV

Identifying the Comparison Group of "Similar Cases" in the Universe

A.

The Catalog of the Cases

Once the universe of cases has been identified for comparison, there are two further steps to the process of proportionality review. The first is the development of the set of characteristics that will identify a comparison group of similar cases and similar defendants; the second is the development of methods of analysis that will enable the Court to identify disproportionality.

The first step requires the creation of what is today called a data base. Another generation of lawyers and Judges would have thought of that process in terms of a series of index cards with the details of cases on them. One wishing to sort the cases into groups of "similar cases" would read the cards for distinguishing characteristics, such as a rape-murder, and place them within one pile. Within that group of rape-murders, one might sort the cases further by noting the cards that showed torture or mutilation of the victim or a prior murder as aggravating factors or, in contrast, the cards that revealed recognized mitigating factors, such as remorse or cooperation with the authorities.

That type of sorting process is described as an a priori or clinical approach to case comparisons. Here, the lawyer's basic skills developed from the case-method analysis taught in law school are used. The reviewing court uses intuition or experience to select features that it determines probably influenced the life/death decision.

If there is a sufficient number of cards with a definable pattern of similar characteristics, a court can evaluate whether a particular death sentence fits the pattern established by the case characteristics. A good illustration of that process is found in the Dissenting opinion of Judge Davidson of the Maryland Court of Appeals in which he considered a series of cases involving the shooting deaths of public officials or other victims in the course of a robbery and the various aggravating and mitigating factors in those cases. Tichnell, supra, 468 A.2d at 27. The National Center for State Courts recommends that a court begin its process of review similarly by examining cases on "all fours" with the subject case. David C. Baldus, Charles A. Pulaski, Jr. & George Woodworth, Arbitrariness and Discrimination in the Administration of the Death Penalty: A Challenge to State Supreme Courts, 15 Stetson L. Rev. 133, 176 & n.89 (1986) (hereinafter Baldus and Pulaski III).

If there is an insufficient number of cases fitting that pattern, a court might wish to consider developing a pattern of similar characteristics by matching features in other classes of cases. That matching process would require some form of cross-index from different piles of cards and would produce yet another set of cases with a broader cross-section of converging characteristics -- for example, all felony-factor cases, whether rape, robbery, or kidnapping, that displayed similar characteristics such as no prior record or the influence of extreme mental or emotional disturbance.

A second type of sorting might start with no preconceived notions of what might bring about either a life verdict or a death verdict. Then one would look at all the cards and attempt to choose from them the features that are common to life outcomes and those that are common to death outcomes. That method of case comparison is described as an actuarial or empirical analysis of the cases. That method recalls that of the epidemiologist. For instance, if a heavy smoking habit is found in 90 out of 100 cases of lung cancer, smoking may be thought to be a cause of the cancer.

The empirical approach to classifying capital cases as similar or dissimilar seeks to employ "those characteristics of the cases that best explain the sentences actually imposed." Baldus and Pulaski III, supra, 15 Stetson L. Rev. at 181. Not all jurisdictions have or maintain the data necessary to use the empirical approach. In combining aspects of the two approaches, for example, the case method with the statistical method, the Master has taken advantage of the available data to sort out the cases on the basis of the characteristics that both prosecutors in the charging process and juries in the deliberative process deem most relevant.

Without minimizing the effort required to collate the data in that way, we may describe the process engaged in by the Master as a form of electronic-index-card sorting. Under the Master's direction, our AOC took the information on the index cards and fed it into a computer using a series of codes that will allow the information to be retrieved from the computer.

B.

The Methods of Selecting a Comparison Group of Similar Cases from the Catalog

The next step in the process is to develop the methods of analysis, that is, the manner in which the Court must look at the electronic-index cards to find the similarities. The mathematical and statistical concepts that underlie the process are set forth in the Final Report and the Weisberg Report submitted by the Attorney General. Further background may be found in the Report of the National Center for State Courts or the works of Professor Baldus and his colleagues. See Baldus and Pulaski II, supra, 33 Stan. L. Rev. 1.

We need give only a broad outline of the concepts and have enough familiarity with them ourselves so that the product of the analysis will enable us to accomplish our function of reviewing similarities to determine whether there has been a meaningful distinction in the imposition of the death penalty.

As noted, there are two ways of approaching the data. Under the first method, using the index-card illustration (for example, the robbery-murders of police officers), the reviewing court will establish a priori (that is, before the fact) what it believes are the similar characteristics that influence the life/death decision. Under the second method, the reviewer assembles all the life/death verdicts and attempts to extract from those the distinguishing characteristics that appear to present a pattern of life/death decisions. One familiar with the scientific method of analysis will recognize that a pattern of decision will develop. The Court will not rely on either method exclusively. Rather, we will use each as a check on the other in reviewing the proportionality of Robert Marshall's sentence. As we have explained in Part II, supra at (slip op. at 12), we believe, as does the United States Supreme Court (albeit in the more limited context of Eighth Amendment proportionality, see Coker, supra, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982), that the charging decisions of prosecutors, as well as the sentencing decisions of juries, both representing society's interest in punishing crime, will demonstrate when a death sentence is excessive and thus should be factored into any analysis of relative disproportionality.

Recognizing, for example, that rarely, if ever, will comparison crimes of offenders be on "all fours" (e.g., no two convenience-store-holdup murders are exactly the same), a broader search for similarity is required. One method of evaluating substantive disproportionality, which allows the Court to broaden its base of similar cases, is that of "blameworthiness," mentioned by Justice O'Connor in her Dissenting opinion in Enmund. 458 U.S. at 823-25, 102 S. Ct. at 3390-91, 73 L. Ed. 2d at 1168-70. The concept of "blameworthiness" can serve in procedural disproportionality review as well. Building on that concept, the Master has sorted the index cards to measure similar cases in terms of objectively-verified measures of blameworthiness derived from comparing assumed and empiric characteristics with actual results in the implementation of New Jersey's death penalty. A thumbnail sketch of that process is:

[]

1. The Salient-Factors Measure

That measure defines "similar cases in terms of factual comparability." Final Report, supra, at 80. It is based on both a priori or assumed considerations (e.g., that a murder by a defendant with a prior murder conviction will be more blameworthy than not), and by empirical considerations (e.g., the data collected showed that factor is statistically and practically important in explaining the decisions of prosecutors and juries). Take, for example, the convenience-store-robbery murder by a previously-convicted murderer. Although in each case the crime is the same, experience in the form of actions of prosecutors and juries confirms the intuitive judgment that the first-time offender is less blameworthy. By sorting out those factual patterns (typologies) of cases in terms of statutory aggravating and mitigating factors, see N.J.S.A. 2C:11-3c(4) & (5), as well as other non-statutory aggravating and mitigating circumstances that are "important conceptually or statistically," Final Report, supra, at 84, the data cards are catalogued to rank cases in order of the predicted probability of receiving a death sentence. Those electronic-index cards arranged by weighted sorting yield a sample of "similar cases" in terms of factually-related blameworthiness.

2. Numerical Preponderance of Aggravating and Mitigating Factors

Aside from the type of case, e.g., a rape-murder or robbery-murder, intuitively we are convinced that a case with more aggravating factors and fewer mitigating factors would be more likely to result in the imposition of a death sentence. A convenience-store robbery murder committed by a repeat killer to escape detection is more likely to produce a death sentence. Hence, these raw numbers may be used as a measure of blameworthiness. The Final Report has confirmed that intuition. For instance, the results of the Master's analysis reveal that "in cases with a single aggravating factor, the death-sentencing rate declines sharply in the presence of one or more mitigating factors (the average rate among those cases is .10 (5/50))." Final Report, supra, at 90. Thus, the index of cards will yield samples of similar cases in terms of the numbers of factors. That is one method used by Pennsylvania. See Commonwealth v. Pirela, 507 A.2d 23, 32 (1986).

The problem with that analysis is that it assumes that prosecutors and juries weigh aggravating and mitigating factors equally. For example, the "grave risk of death to another" factor, c(4)b, carries much less weight than the "cop-killer" factor, c(4)h. Hence, the Master weighted the statutory factors to reflect what the data showed. Finally, he added non-statutory aggravating and mitigating factors, for example, victimization that falls short of the torture/depravity factor, c(4)c, but which is characteristically found to influence prosecutors and juries. That produces the final method of sorting cases to determine the class of similar cases.

3. Index-of-Outcomes Test

The Master refers to that as a "logistic multiple-regression" analysis. Final Report, supra, at 92. The index produced "reflects the differential weights placed by jurors on the different statutory and nonstatutory aggravating and mitigating circumstances." Id. at 92-93. It adds to our a priori assumptions what experience has taught us -- for example, that

there is a penalty-trial death-sentencing rate of only .12 in the grave risk [to others] (4b) cases versus a rate of .67 in the pecuniary gain killer (4d) and police-victim (4h) cases. The impacts of the individual mitigating factors also vary. The defendant's age (5c) has the greatest mitigating effect, while in contrast, the (5b) factor, victim contribution to the homicide, may have an aggravating effect.

[Id. at 92.]

Testing the weighted statutory and non-statutory aggravating and mitigating factors present in both penalty-trial cases and in all clearly death-eligible cases yielded a scale of overall defendant culpability "as measured by the presence or absence in the cases of factors that appear to influence prosecutorial and jury decision-making." Id. at 93. The cluster of cases ranked near the subject case on the index yields a sample of cases that are similar in culpability. The end-product of the electronic sorting is a series of cases not unlike the series of index cards that we started with in our analogy.

C.

The Criteria for Comparing the Cases for Disproportionality

The data having been assembled and the means having been established to sort them to identify the comparison group of "similar cases," the final step in the process is to develop criteria for evaluating when a particular sentence is disproportionate in relation to the other "similar cases" identified.

Jurisdictions that conduct proportionality review use varied criteria to evaluate when a death sentence is disproportionate. Missouri classifies similar cases as those "in which both death and life imprisonment were submitted to the jury, and which have had been affirmed on appeal." State v. Mercer, 618 S.W. 2d 1, 11, cert. denied, 454 U.S. 933, 102 S. Ct. 432, 70 L. Ed. 2d 240 (1981). Without elaboration, the Mercer court concluded that those cases supported affirmance of the death penalty in the subject case, stating "defendant's sentence to death for the murder * * * is not excessive or disproportionate to the penalty imposed in similar cases considering the crime and the defendant." Id. at 11.

Following prompting by Justice Exum in his Dissenting opinion in State v. Pinch, 292 S.E. 2d 203, 230, cert. denied, 459 U.S. 1056, 103 S. Ct. 474, 74 L. Ed. 2d 622 (1982), the North Carolina Supreme Court articulated its method for comparing similar cases. That court uses all cases arising since the effective date of its capital punishment statute that have been "tried as capital cases and reviewed on direct appeal by this Court and in which the jury recommended death or life imprisonment or in which the trial court imposed life imprisonment after a jury's failure to agree upon a sentencing recommendation within a reasonable period of time" as a pool for comparison purposes. State v. Williams, 301 S.E. 2d 335, 355, cert. denied, 464 U.S. 865, 104 S. Ct. 203, 78 L. Ed. 2d 177 (1983). North Carolina does not "propose to attempt to employ mathematical or statistical models involving multiple regression analysis or other scientific techniques, currently in vogue among social scientists, which have been described as having 'the seductive appeal of science and mathematics.'" Ibid. (quoting Blake v. Zant, 513 F. Supp. 772, 827 (S.D. Ga. 1981)). It believes that a reviewing court might tend to "disregard the experienced judgments of its own members in favor of the 'scientific' evidence resulting from quantitative analysis." Id. at 356. Thus, the court concluded that it would rely on its own case reports in the "similar cases" forming the pool that would be used for comparison purposes. Ibid.

The methodology of comparison used in Williams consisted of an identification of those cases (without description), a recital of the facts of the case being reviewed (a bestial torture-rape of an one-hundred-year-old woman), and a Conclusion that the murder was "so brutal and so utterly senseless as to lead us to conclude that the sentence of death imposed in this case is not disproportionate or excessive considering both the crime and the defendant." Id. at 357.

As stated previously, Georgia's universe of cases includes all capital- felony cases that are appealed. In order to determine proportionality, the Georgia court selects for comparison cases those that are factually similar to the subject case. See Godfrey v. State, 284 S.E. 2d 422, 430 (1981). It lists those cases in an appendix to its proportionality review. Without reviewing the facts of the cases in its opinion, it noted that juries had returned seven death verdicts in "domestic murder" cases. In "multiple murder" cases (Godfrey killed his wife and mother-in-law) seven death verdicts were returned. In three of those seven cases, juries returned death sentences despite the fact that the defendants had good records and a history of psychiatric disorders. Ibid.

Maryland establishes a pool of similar cases for comparison purposes by examining those with similar facts. As a second factor, Maryland considers the aggravating and mitigating circumstances. Tichnell, supra, 468 A.2d at 20-22. It recites the facts of the comparison cases in its opinion. For instance, in Tichnell it reviewed five killings committed during a robbery that involved either a police-officer or non-police-officer victim. Although four life sentences had been imposed, the court found sufficient differences in the mitigating circumstances or the actors' role in the crime to sustain Tichnell's sentence despite the pattern of life sentences found in similar cases. Ibid.

In Delaware, the court looks to those cases in which a capital-sentencing proceeding has been conducted to select its pool of similar cases, Flamer, supra, 490 A.2d at 139. From that group, the court draws cases with similar objective factors to determine the proportionality of the death sentence in the subject case. Dawson, supra, 581 A.2d at 1108. Delaware is quite explicit in its analyses. Although it recognizes that "definitive comparison of cases is almost impossible and necessarily touches upon the realm of speculation," Flamer, supra, 490 A.2d at 144, it does search for "a pattern of death sentences," e.g., multiple murders of helpless elderly, ibid., and other objective distinctions, e.g., perpetrators were surprised during burglary, or were juvenile "show-offs." Ibid.

Finally, as noted, Pennsylvania uses the measure of aggravating factors in a case. See Pirela, supra, 507 A.2d at 32; Commonwealth v. Maxwell, 477 A.2d 1309, 1318, cert. denied, 469 U.S. 971, 105 S. Ct. 370, 83 L. Ed. 2d 306 (1984). Pennsylvania also looks to the salient factors that may bear on a defendant's character. Commonwealth v. Travaglia, 467 A.2d 288, 304 (1983), cert. denied, 467 U.S. 1256, 104 S. Ct. 3547, 82 L. Ed. 2d 850 (1984).

Justice Utter, in his separate Dissent in State v. Jeffries, 717 P. 2d 722 (Wash.), cert. denied, 479 U.S. 922, 107 S. Ct. 328, 93 L. Ed. 2d 301 (1986), suggested the use of a "balancing approach superimposed upon a 'salient factors' approach" to identify the pool of similar cases.*fn2 Id. at 744. That approach involves two steps. The first step requires a court to select similar cases from the statutorily-defined pool by choosing "three or four of the most important factors of the subject case." Ibid. The second step would "compute the frequency of death sentences within the pool of similar cases." Ibid. That would assure that "no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not 'wantonly and freakishly imposed.'" Id. at 743 (citing Moore v. State, 213 S.E. 2d 829, 832 (1975), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1218 (1976) (quoting Furman v. Georgia, supra, 408 U.S. at 310, 92 S. Ct. at 2763, 33 L. Ed. 2d at 390 (Stewart, J., Concurring))).

The National Center summarizes the various approaches as follows:

The first is to rely on "generalized notions of reasonableness," based on the court's "own values, experience, and general familiarity with prior cases." * * * The second is the "precedent-seeking approach." Using this approach, the court: (a) identifies the relevant aggravating and mitigating factors; (b) makes a judgment regarding the proportionality or excessiveness of the sentence based upon those factors; and (c) identifies one or more comparable cases that support its decision. The third is the "frequency approach." This method involves: (a) specifying which features of the review case should be used to find comparable cases; (b) identifying the other cases that share the selected characteristics; (c) determining the percentage of defendants in the similar cases who were sentenced to die; and (d) deciding whether death sentences were imposed with sufficient frequency within this "class of similar cases [so] as to * * * serve as an effective deterrent * * * or to constitute a justifiable form of retribution in light of contemporary community standards."

[National Center for State Courts, Proportionality Review Project 2-3 (1984) (footnotes omitted) (quoting Baldus and Pulaski I, supra, 74 J. Crim. L. & Criminology at 668-69).]

We discuss the frequency method first.

1. Frequency Approach

As noted, Justice Utter believed that the frequency analysis is the most acceptable approach to proportionality review. Use of the word "generally" suggested to him that the threshold frequency at which a death sentence becomes appropriate is "significantly greater than 50 percent." Jeffries, supra, 717 P. 2d at 744. He viewed that approach as simple, maintaining a reasonable amount of objectivity "by defining a genuine 'threshold frequency,'" and identifying the "specific factors by which to select 'similar cases.'" Ibid. Nonetheless, he had to concede that to employ that test "in some cases where a limited selection of salient factors will make the case unique" is not feasible. Ibid. In such situations, the court, in his view, probably would have "to turn to a more subjective comparison of the 'severity' of dissimilar cases." Id. at 745.

The Public Defender, we believe misperceiving the Gregg reference to whether death sentences have been imposed "generally in similar cases," has suggested that we are bound to disapprove a sentence of death whenever there is a predictable frequency rate of less than eighty percent. As we noted in Part II, these concepts of "generally imposed" are not transferrable from the Eighth Amendment context. In Ramseur, supra, we predicted the difficulty of reconciling the concepts of predictability of sentencing with individualized sentencing. 106 N.J. at 330-31. We believe that in the individualized-sentencing process mandated by Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), and by our own Capital Punishment Act, that death be neither normal nor general in capital sentencing is inevitable.

If we are correct that death need not be normal or general to be a licit sentence, the frequency approach will not provide a sole-source, fail-safe method of proportionality review. For even were we to establish a threshold level of acceptability (let us say the fifty percent suggested by Justice Utter), to ignore striking disproportion between death-sentenced cases and those in the life-sentenced pool could be unfair to those in the death-sentenced pool. Given the inevitable role of mercy in the death-sentencing process, there will be those whose life sentences will not yield to statistical analysis.

Although the Master endorses the frequency approach, he has not suggested that we substitute a numerical process for a reasoned process of decision.

[The Master's] endorsement of the frequency approach does not carry with it, however, a recommendation that the Court quantify mathematically its judgments of the death-sentencing frequency among similar cases. Several courts have expressed concern that the application of a strictly quantitative approach to the subject could lead to arbitrary line drawing and limit the legitimate exercise of judicial discretion. More importantly, such an approach may inappropriately suggest that the complex judgments involved in proportionality determinations can be expressed with mathematical precision.

[Final Report, supra, at 42-43.]

Rather than employ the frequency method as a cutoff, we believe that it will serve as a coefficient of consistency. The higher the frequency of a death sentence among the comparison group of "similar cases," the more certain the determination that the sentence is proportionate. The lower the frequency, the more strictly the Court must scrutinize the case for the possible influence of impermissible factors.

We believe that the frequency approach will help us to review cases in terms of the substantive principle that we believe should be controlling in these cases, namely, "[a] death sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses in the same jurisdiction." Tichnell, supra, 468 A.2d at 17 n.18. We need not go so far as to suggest that the ratios tip very strongly in the opposite direction to justify the invalidation of a sentence on the basis of the frequency approach. Within its limits, the scientific method is an aid to the Court.

A frequency approach with a broad universe can cull a group of comparable cases from a larger group of death-eligible cases. In this way, the proportion of life and death sentences within this similar group can be estimated and an empirical assessment of comparative excessiveness can be made.

[Raymond Paternoster & AnnMarie Kazyaka, An Examination of Comparatively Excessive Death Sentences in South Carolina 1979-1987, 17 N.Y.U. Rev. L. & Soc. Change 475, 486 (1989-1990).]

The greater the statistical frequency of life sentencing in the comparison group of similar cases, the greater will be the need for the Court to focus on the "real people" involved in the defendant's and other similar cases. We have a data base system that can define similar cases in three ways: salient factors, the numerical preponderance of aggravating and mitigating factors, and the index of outcomes. Examining each of those pools in terms of relative frequency will help us to identify comparable cases and to determine whether offenders like Marshall have received, or usually will receive, a life sentence. If so, then those comparable pools will allow us to consider what characteristics in Marshall's case might sustain the imposition of a death sentence.

2.

The Precedent-Seeking Approach of Comparative Proportionality Review

The final step, then, is the familiar judicial process of case-by-case comparison of life-sentenced and death-sentenced similar cases. (Life-sentenced cases include, under some systems of analyses, plea bargains and other non-capital Dispositions.) This is the second of the methods outlined in the National Center for State Courts' Report. As noted, we see it operating in functional relationship to the frequency approach.

To return to our analogy, having taken the cards containing "similar cases" from the file, we must determine what information on the cards we should consider in evaluating whether the sentence is disproportionate. The Master suggests a comparison of similar cases according to the defendant's criminal culpability. His model uses non-statutory case characteristics defined in terms of three basic elements: (1) a defendant's moral blameworthiness, (2) the degree of victimization, and (3) the character of the defendant. A sketch of the Master's precedent-seeking model is:

[]

The Public Defender believes that the Court should not undertake a "subjective moralistic judgment[] based on non-statutory factors." Rather, he argues in favor of what he describes as an "objective analysis focusing on the facts underlying the statutory aggravating and mitigating factors." Recall that in sorting out the cases, the Master had taken note of and recorded on the index cards fed into the computer both statutory and non-statutory factors that appeared to reflect the deathworthiness judgments of juries.

We agree that courts are ill-fitted to make moralistic judgments about who should live or who should die under a capital-sentencing scheme. We have no intention of translating concepts that fall outside the Code of Criminal Justice into the capital-sentencing structure. However, we believe that we can examine the data on the cards to see whether there is evidence of objective factors (beyond the listed c(4) statutory aggravating factors) that will assist us in determining why a jury has regarded one defendant as more deathworthy than another.

We understand the basic premise of the counter-argument. The Legislature has given us a list of factors (the statutory aggravating factors that made the murder death eligible, for example, c(4)a (a prior murder) or c(4)c (aggravated assault/torture)) that it deems relevant to the death-sentencing process. See Trimble v. State, 478 A.2d 1143, 1167 (Md. 1984) ("We see no bright line by which this Court can say when death shall be imposed. Moreover, we believe the guidelines established by the legislature represent the clearest course of action in attempting to resolve this problem."), cert. denied, 469 U.S. 1230, 105 S. Ct. 1231, 84 L. Ed. 2d 368 (1985). If factors beyond the statutory factors are given weight, the Capital Punishment Act will lose all structure and revert to the wholly-random pre-Gregg process under which sentences were imposed randomly and freakishly.

We think that argument misperceives the function of statutory aggravating factors. Those factors perform the function of "categorical narrowing," Zant v. Stephens, 462 U.S. 862, 879, 103 S. Ct. 2733, 2744, 77 L. Ed. 2d 235, 251 (1983), to channel the discretion of juries. Once channeled, deathworthiness requires that an "individualized assessment of the defendant" be undertaken. Ramseur, supra, 106 N.J. at 331 (citing Lockett v. Ohio, supra, 438 U.S. at 605, 98 S. Ct. at 2965, 57 L. Ed. 2d at 990).

If we did not consider the circumstances of the case beyond the c(4) aggravating factors in a search for disproportionality, we would be ignoring the reality of the situation and perhaps disadvantaging defendants. For example, if we had a defendant with a previously-blameless life who had impulsively killed a police officer with a single shot, we would be unable to say that his crime was less deathworthy than that of one with a similar past life who had premeditated a taunting, execution-style revenge killing of the officer. None of those is a statutory aggravating factor, yet it seems that they inevitably reflect on deathworthiness.

Other examples of factors that would not make a murderer death eligible but that help to explain the jury judgments are the type of victimization that might not constitute a statutory aggravating factor -- for example, the particularly vulnerable victims found in State v. Gerald, 113 N.J. 40 (1988), and State v. Zola, 112 N.J. 384 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). In noting that such factors bear on relative deathworthiness, we impart no Judge-made concepts of ethics or morality. We often have to give definition to the Capital Punishment Act. See Ramseur, supra, 106 N.J. at 210 (defining the c(4)c depravity factor by the absence of recognized human emotions).

Another example is the extent of mutilation. That can fall outside of the c(4)c factor because to prove that a defendant had an intent to inflict any more pain than that necessary to kill may be difficult. See State v. Harvey, 121 N.J. 407, 413-14 (1990), cert. denied, U.S. , 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991). Those are not subjective moralistic considerations. Many of the so-called "non-statutory" aggravating factors in the "card index" in fact appear to be recognized sentencing factors. For example, N.J.S.A. 2C:44-1a(2), which prescribes the authority of a court in sentencing, specifically requires courts to consider the

gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance.

[Ibid. ]

Surely, the other so-called non-statutory aggravating factors present in the data-collection system -- such as the scene of the crime, that is, whether the crime involved an intrusion in the victim's home or a kidnapping, or whether the killing was with an axe, was a particularly brutal stomping or beating, or was a planned homicide -- do not appear to us to present a subjective, value-laden approach. Yet, although we agree that one who protests one's innocence should not be faulted for a lack of remorse, the factor need not be discarded because its presence may be appropriate to consider in certain cases. Hence, we think that a proportionality comparison that limits itself to the presence of statutory aggravating and mitigating factors fails fully to explain the sense of proportion in the jury verdicts. The statutory aggravating factors do not encompass all of the characteristics that affect the blameworthiness or deathworthiness of persons who commit murders.

At least the Public Defender appears to recognize the use of the factors mentioned by Justice Utter in his Dissenting opinion in Jeffries, supra, namely, "(1) the number of victims; (2) the conscious amount of suffering imposed on the victim; (3) the degree of premeditation; (4) the aggravating circumstances found; and (5) the personal background of the accused." 717 P. 2d at 745. Although those criteria are helpful in any attempt to explain a jury's verdict, they do not exhaust the logical objective criteria by which the deathworthiness of cases may be compared.

Hence, in conducting a precedent-seeking comparative-culpability review we shall identify the relevant aggravating and mitigating factors in the comparison cases (including the so-called non-statutory factors). Examples of such an exercise in precedent-seeking are found in the Dissenting opinions of Judge Davidson in Tichnell, supra, 468 A.2d at 27, and Justice Utter in Jeffries, supra, 717 P. 2d at 742. We shall attempt to confine ourselves to objective criteria rooted in traditional sentencing guidelines. See N.J.S.A. 2C:44-1. By reference to those specifics in the comparison cases, we shall suggest which factors might reasonably explain the difference between a death-sentenced and a life-sentenced case and why the cases may be "similar." As noted, supra at (slip op. at 53), the higher the frequency of life sentences in the pool of similar cases, the more searching will be the inquiry to test whether comparison with the life-sentenced cases (or more culpable death-sentenced cases) suggests that Marshall's sentence was disproportionate in the sense of his having been singled out unfairly for capital punishment.

D.

Should we Consider an Alternative Method of Analysis by Categories of Culpability Derived Solely from the Statutory Aggravating Factors?

Before applying the system we must evaluate the alternatives that have been suggested to us. The State advocates matching cases by selecting those with the same configurations of statutory aggravating factors. The State points out that the advantage of such an approach is that it is objective and simpler. Relying solely on aggravating factors would, in the State's expert's view, give the Court a consistent definition of similar cases.

In support of that position, the State relies on a report, prepared and submitted by its consultant, Herbert I. Weisberg, Ph.D., entitled Proportionality Review of Death Sentences in New Jersey: An Independent Analysis of Data on Capital Charging and Sentencing (Nov. 26, 1991) (the Weisberg Report). At the request of the New Jersey Attorney General's Office, Dr. Weisberg conducted an independent analysis of available data on the administration of the death penalty. Although he pointed out a list of apparent errors discovered by staff of the Attorney General, his report relied primarily on the AOC data base, supplemented by limited information provided by the Attorney General.

1.

Dr. Weisberg began his analysis by questioning what he regarded as an inconsistent use of data by the Master, derived from cases decided under legal interpretations that were later held to be incorrect. In some instances, he asserts, the Master found such sentences to be a "valuable source" of information; in others (including the geographic analysis) the Master excluded cases that are not death eligible under current law. Weisberg Report, supra, at 9-10. In addition, Dr. Weisberg questioned the Master's method of determining death eligibility by a set of aggravating and mitigating factors that are objectively present in a case, while limiting his evaluation in penalty trials to factors actually found by the penalty-phase decisionmaker.

Dr. Weisberg questioned further the Master's treatment of the jury decision as a simple dichotomy -- death versus life. He believed that the analysis failed to distinguish between a unanimous life-sentence verdict and a hung jury. In Dr. Weisberg's view, a deadlock falls somewhere between a unanimous life sentence and a unanimous death sentence as an indicator of culpability. He attempted, then, to analyze jury deadlocks on the weighing of aggravating and mitigating factors. Id. at 11.

Hence, he attempted to "separate cleanly" the prosecutorial component from the jury component and to identify the relevant data and cases for each. For prosecutorial-charging decisions, he would examine only whether a notice of factors had been served, regardless of any subsequent guilt-trial decision. Finally, he challenged what he called the "highly elaborate statistical manipulations involved in the 'logistic regression' models." Id. at 13. In his view, the models included "far too many potentially predictive independent variables" that might distort the association, and errors associated with predictions would thus increase. Ibid.

In Dr. Weisberg's view, to accept and work within what he calls "existing realities" is preferable. He does not regard the goal of estimating future death-sentencing frequencies as feasible. He envisions a more modest role for quantitative analysis of past decisions. In his view, "statistical analysis is potentially capable of providing the Court with valuable insight into the main factors that influence prosecutors and juries. Such general information can serve as a useful backdrop against which particular circumstances of a case can be arrayed and evaluated." Id. at 15.

2.

We shall try to illustrate Dr. Weisberg's method in terms of our concept of the electronic-index cards. As we understand it, Dr. Weisberg recommends the use of a "universe" of penalty trials in which at least one aggravating factor was found. He examined the outcomes for each possible combination of aggravating factors found and also for every combination of factors served by the prosecutor. He focused primarily on the aggravating factors found at the penalty trial. Ibid.

In other words, Dr. Weisberg sorted the electronic-index cards on the basis of the aggravating factors actually found at penalty trials. He found twenty-one distinct combinations of factors appearing among the 108 cases in which at least one factor was found. Ibid. He attempted to group cases on the basis of the proportion of death sentences and deadlocks. Dr. Weisberg reported that cases involving factors c(4)a (prior murder), c(4)d (hired gun), and c(4)h (cop-killer) always resulted in at least a deadlock, as did cases involving a combination of c(4)c (torture/depravity), c(4)f (escaping detection), and c(4)g (in commission of felony). Ibid.

Conversely, cases involving only one or more factors, c(4)b (grave risk to another), c(4)f (escaping detection), and c(4)g (in commission of felony) received mostly life-sentence verdicts, with the exception of those involving both factors c(4)f and c(4)g. He reported further that there was only one death sentence among those cases. Ibid. His index-card sorting indicated to him that cases fall into a rough hierarchy in terms of deathworthiness. Here we use his style of referring to the factors in capital letters.

Category I: Any of factors A,D,E,H or CFG combination

Category II: None of above, but CF or CG combinations

Category III: None of above, but C or FG

Category IV: None of above, but (B,F,G,BF, or BG)

Dr. Weisberg declined to incorporate analysis of mitigating factors because of the multiplicity of combinations and the uncertainty of the relationship with outcomes. He concluded that further sorting was made complex by the fact that mitigating factors need not be found unanimously, and especially without data on the number of jurors who actually voted for the factor. Id. at 16.

Dr. Weisberg thus sorted the cases into four culpability categories. Category I, the highest culpability category, included those cases "always resulting in at least a deadlock." He placed every configuration of aggravating factors*fn3 with a deadlock or death-sentencing frequency of 1.0 in Category I (i.e., any of the factors A, D, E, H, and CFG combinations). Id. at 15-16. Weisberg made two exceptions. Finding that the three E cases (contract killer) were "similar" to D cases already in Category I, Weisberg added those cases to Category I. Id. at 15. Weisberg also placed the CF combination in Category II.

Weisberg next sorted the cases into Category IV, the lowest culpability category. Category IV cases included those aggravating-factor combinations with a zero death-sentencing frequency. Weisberg found that cases involving only one or more of factors B, F, and G received mostly life sentences, with the exception of FG combinations. Id. at 15-16.

Weisberg sorted the remaining cases at the fifty-percent mark. That is, when the majority of cases with certain combinations of aggravating factors resulted in death, Dr. Weisberg classified them as Category II cases. If the majority of cases received life sentences, Weisberg placed them in Category III. Id. at 15.

The results of that three-outcome, four-level approach are presented in Table 9 of the Weisberg Report, reprinted below.

Death Life Deadlock

I: A, D, E, H or CFG comb. 0.72 (18/25) 0.08 (2/25) 0.20 (5/25)

II: CF or CG comb. 0.56 (10/18) 0.28 (5/18) 0.17 (3/18)

III: C or FG comb. 0.21 (6/29) 0.48 (14/29) 0.31 (9/29)

IV: B, F, G, BF or 0.03 (1/36) 0.72 (26/36) 0.25 (9/36)

BG comb.

If the Court were to adopt a system of case categorization similar to that developed in Dr. Weisberg's research, then all penalty-trial cases in the same category would form a class of roughly "similar" cases.

The proportion of cases in this category that resulted in a death sentence would provide useful insight, as would also the proportion of hung juries. However, this quantitative data would represent only a starting point. Detailed qualitative comparisons among the cases within the category would be necessary to refine the Court's culpability assessment.

The Special Master's vision of a more mechanized approach to proportionality review is seductive. However, the attempt to push statistical analysis beyond a more limited role may simply open the door to methodological controversy that will ultimately frustrate and confuse the Court.

[Weisberg Report, supra, at 38-39.]

The defense characterizes Weisberg's approach as inconsistent and incomplete. In general, the defense notes that because the model is based solely on aggravating factors, the character of the defendant is ignored. In addition, Weisberg's approach does not remedy the alleged flaws in Baldus's study, specifically, the small sample size, which reduces the confidence one has in the Conclusions and the factual dissimilarity between the cases in the culpability categories.

The Public Defender makes several specific challenges to Weisberg's approach. He charges that Weisberg does not treat deadlock cases consistently. In creating Category I, Weisberg equates a deadlock with a death sentence; however, he equates the deadlock with life sentences in forming the other culpability categories. Defendant claims that treating deadlock cases the same as a death sentence is insupportable. Important to proportionality review is the outcome of the jury's decision. Deadlocked cases cannot be properly characterized as reflecting deathworthiness judgments.

The Public Defender raises a variety of other concerns related to the model's statistical consistency. Most importantly, that after establishing numerical rules for Category I, which place factor c(4)d (killed for money) cases in Category I, Weisberg deems factor c(4)e (hired a killer) cases similar, because both involve contract killings. The Public Defender claims that that manipulation was designed to place Marshall, the sole E case to receive a death sentence, in the highest culpability category. In fact, the three E cases have a frequency rating of .33, which would place Marshall in culpability Category III, not I. Dr. Weisberg was candid to recognize that he felt "least certain" about the assignment of Marshall's E case to Category I because of the "paucity of available data." Weisberg Report, supra, at 15.

Obviously, any analytical method can be found to be subject to improvements. The exclusion of mitigating factors from the State's approach is especially problematic for us. Merely using the statutory aggravating factors skews the process because New Jersey's aggravating factors focus primarily on the crime. Only the c(4)a factor (prior murder conviction) relates to characteristics of the defendant. N.J.S.A. 2C:11-3e instructs the Court to assess similarity in terms of "the crime and the defendant." Accordingly, the mitigating factors must be used because they focus on the defendant's characteristics. Ramseur, supra, 106 N.J. at 330 (emphasizing that both components are important in identifying similar cases).

The issue of treatment of mitigating factors arose during the preparation of the Final Report. Mitigating factors need not be found unanimously. State v. Bey, 112 N.J. 123, 159-61 (1988) (Bey II). If a mitigating factor received one or more votes, the Master coded the factor as being present in that case. Final Report, supra, at 13 n.10. The State argues that statutory mitigating factors should be considered, but the actual vote should be recorded. The State's position reflects the concern that a case in which only two jurors found the c(5)a factor (emotional or mental disturbance) should be weighted differently from a case receiving ten votes on that factor. Because the number of jurors voting for each mitigating factor is not always available, Baldus's statistics indicate the average effect of the particular mitigating factor having been found or not found in the case. Ibid.

Although the lack of complete information on mitigating factors is a concern, the State's approach creates a greater concern because it does not use any mitigating factors in defining a comparison group of cases. The greater overall measure of completeness in the Master's data base better serves the Court's need to assess disproportionality in terms of "the crime and the defendant."

V

Application of the Methods of Proportionality Review to Robert O. Marshall

Having developed both the means and methodology for analyzing whether a subject case is disproportionate to the sentences imposed in "similar cases," we undertake now the proportionality review of Robert O. Marshall's sentence. We have not included the names of all cases used in the analysis. Those cases have been included in the Master's reports. The cases that we have selected under the "Precedent-Seeking" approach will all be identified in this opinion.

A.

The Frequency Analysis

At the most transparent level, there appears to be an appalling disproportionality in sentencing Robert O. Marshall to death. Alone among the 246 death-eligible cases, his conviction of capital murder stands affirmed.*fn4 Sooner or later, however, that day had to come. But simply because Marshall may be the first does not mean that his death will be disproportionate under our statute. There may be more paradox than disproportion in his sentence. For no matter how upstanding or prominent his former life may have been, the data show that among those for whom death is a fitting punishment, contract killers, whether principal or agent, are among the more frequent recipients of the death sentence.

As noted, we do not believe that an eighty-percent predictability rate is a prerequisite to a sentence of death. Nor do we believe that a fifty-fifty chance of life or death (as exemplified in this case by the stark contrast between Robert Marshall's death sentence and William Engel's life sentence, which is discussed infra at (slip op. at 88)), is a necessary prerequisite. We do find, however, evidence of the reliability of Robert Marshall's sentence in the frequency analyses performed under the three evaluative methods for assessing criminal culpability: the salient factors, the numerical preponderance of aggravating and mitigating factors, and the index of outcomes.

Although acknowledging "the difficulty of estimating reliable death-sentencing frequencies on the basis of a small sample of a similar cases," David C. Baldus, State v. Robert Marshall, Death Penalty Proportionality Review Project: A Report to the New Jersey Supreme Court 1, 10 (Sept. 24, 1991) (hereinafter Marshall Report), the Master nevertheless concluded that the frequency data are relevant and can be validated "through close comparisons of the cases involved." Id. at 16. That procedure will "provide a valuable supplement to the court's prior experience and knowledge." Id. at 16-17.

There is a preliminary issue of whether Marshall's case should be considered in the count of death cases among similar cases for frequency-analysis purposes. Because the purpose of frequency calculations is to estimate death-sentencing rates among cases that are similar to the defendant's, it would seem that the subject case should not be included. On the other hand, because the case before the Court is a partial reflection of community values, even if aberrational, it should be considered. Because we do not attach a conclusive life/death determinant to a statistical analysis, we shall consider the frequency data under both theories. Finally, although we have chosen all death-eligible cases as our universe, we furnish the penalty-trial statistics for informational purposes.

1. The Salient-Factors Measure

Because this "facts-of-the-case" type analysis has a presumptive objectivity (the criteria for inclusion are almost intuitive), it seems most persuasive here. The "typologies" of the data-gathering process were not an ad hoc construct for the Marshall case. These were, and are, the a priori, that is, not after-the-fact assumptions as to which cases are similar. Contract killings are the type of killings that prosecutors and juries have regarded as highly blameworthy. Thirty percent of contract murderers (principals and hitmen) have initially received a death sentence. That figure is significant considering only thirty-two cases of all death-eligible cases have received the death penalty.

Contract-Murder Principals

The most factually-comparable cases to advance to a penalty trial, the c(4)e contract-murder principals (W. Engel, H. Engel, and Brand) all received life sentences. Tabulations are as follows:

Penalty-Trial Universe Eligible Universe

Including Marshall .33 (1/3) .25 (1/4)

Excluding Marshall .00 (0/2) .00 (0/3)

Contract-Murder Hitmen

N.J.S.A. 2C:11-3c(4)d makes one who "commits the murder as consideration for the receipt, or in expectation of the receipt of anything of pecuniary value" death eligible. In State v. DiFrisco, 118 N.J. 253 (1990), we explored the question of whether society regards as more reprehensible the principal or the agent in a contract killing. Because of the close relationship between c(4)d and c(4)e, one who procures the commission of the offense "by payment or promise of payment of anything of pecuniary value," the Master includes hitman cases as factually comparable, and we agree.

This contract-murder hitmen pool includes six cases.*fn5 The death-sentencing rate among the penalty-trial cases is .50 (2/4) and .33 (2/6) for all death-eligible hitman cases.

Thus, the figures for the entire contract-murder pool are as follows:

Penalty-Trial Universe Eligible Universe

Including Marshall .43 (3/7) .30 (3/10)

Excluding Marshall .33 (2/6) .22 (2/9)

Among the five triggerman c(4)d cases in the proposed universe, four advanced to a penalty trial with the c(4)d factor charged: Melendez, Michael Rose, Clausell (death sentenced), and DiFrisco. Among those four cases the jury found the c(4)d factor present in three cases and imposed a death sentence in two. The Court vacated Clausell's death sentence on appeal and he was later sentenced on the non-capital murder charge. Clausell, supra, 121 N.J. at 307. We vacated DiFrisco's sentence and he is awaiting Disposition on the remand. DiFrisco, supra, 118 N.J. at 283. The Marshall Report concludes that "this very high death-sentencing rate, albeit in a small sample of cases, produced in our principal penalty-trial analysis a large and statistically significant multiple regression coefficient for the 4d [hired killer] factor." Marshall Report, supra, at 23.

Spousal Murders Involving High Levels of Blameworthiness and a Defenseless Victim.

The Master has also analyzed the frequency of spousal murders that involved a high level of blameworthiness and a defenseless victim. The Marshall Report compares Marshall with three cases involving highly-premeditated, cold-blooded murders of a defenseless wife. Those comparison cases are Collins, Dreher, and Williams. Only Collins and Williams advanced to a penalty trial at which both defendants received a life sentence. Thus, all three defendants received life sentences. The figures are as follows:

Penalty-Trial Universe Eligible Universe

Including Marshall .33 (1/3) .25 (1/4)

Excluding Marshall .00 (0/2) .00 (0/3)

Premeditated Robbery/Kidnap Murder Cases Involving Extensive Premeditation, a Pecuniary Motive, Deception/Entrapment of the Victim, and a Defenseless Victim

The Master also compared this fourth group of cases with Marshall. Of the five cases considered, three advanced to a penalty trial and one, Martini, resulted in a death sentence. In terms of criminal culpability, the Master ranked Martini higher than Marshall, finding that Martini's case involved two aggravating circumstances, extreme blameworthiness, substantial victimization, and a defendant with a poor character.

A review of all of the categories of factually comparable cases shows a death-sentencing frequency of .22 (4/18) when Marshall is included. Excluding Marshall, the death-sentencing rate is .18 (3/17).

2. The Numerical Preponderance of Aggravating and Mitigating Factors.

This test is more problematic than either the salient-factors or the index-of-outcomes analyses. Abstractly, we sense that a quantitative rather than a qualitative analysis will be rather unproductive. No matter how many aggravating factors and how few mitigating factors are presented, the jury's decision is intensely qualitative. We realize that the Master's data do not reflect a numerical analysis but rather reflect the weight that prosecutors and juries give to a specific factor; for example, a rape-murder will be viewed as more blameworthy than a robbery-murder. Still, a degree of abstraction exists that may not be present in the other frequency-analysis measures. We have repeatedly emphasized that juries are to make a qualitative, and not a quantitative, analysis of aggravating and mitigating factors.

Hence, when we measure Robert Marshall's case against other cases with one aggravating factor and two mitigating factors, we are concerned about the infrequency.

Cases with One Aggravating Factor and Two Mitigating Factors

Penalty-Trial Universe Eligible Universe

Including Marshall .20 (3/15) .07 (3/44)

Excluding Marshall .14 (2/14) .05 (2/43)

Cases With One Aggravating Factor

Penalty-Trial Universe Eligible Universe

Including Marshall .10 (5/50) .04 (5/123)

Excluding Marshall .08 (4/49) .03 (4/122)

As shown by the data, the overall death-sentencing frequency among capital cases involving a single aggravating factor is .08 (4/49). Among penalty-trial cases that, like Marshall, include one aggravating factor and two mitigating factors, the rate is .14 (2/14). However, death-sentencing frequencies among cases involving the c(4)a (prior murder) factor, c(4)d (hired gun) factor, c(4)e (payment for murder) factor, and c(4)h (cop-killer) factor have "above-average death-sentencing rates." Marshall Report, supra, at 31 and Appendix H, Table 9 to the Final Report.

3. Index-of-Outcomes Test

This method of analysis also indicates no significant disproportionality in Robert Marshall's sentence.

Recall that this measure looks not only at the "salient factors," or the "number of factors," but at all of the facts and all of the cases to determine a pattern of capital sentencing. In this process we have spread all of the index cards on the table and have sought to identify the characteristics common to the cases in terms of their degree of blameworthiness as perceived by prosecutors and juries. These cases may be as factually dissimilar as a killing by a child molester or killing by a bank robber. All that they have in common is a roughly-equivalent measure of blameworthiness in the eyes of prosecutors and juries.

Even under this largely empirical standard (i.e., derived from the actual experience within the system), the measure of Robert Marshall's blameworthiness is significant. His support of family, community involvement, and prior good record do not counterbalance the other measures of blameworthiness found in similarly-blameworthy case records involving premeditation of the act, helplessness of the victim, and baseness of the motive.

Under the index-of-outcomes analysis, using the expanded indices that include non-statutory factors, the predicted probability of a death sentence in Robert Marshall's case is .50 among all penalty-trial cases. The Master cautions, however, that that estimate is quite unstable because of the small number of c(4)e penalty-trial cases. The predicted probability of death for Marshall's case among all death-eligible cases is .17. Here again, the Master cautions that that estimate is uncertain because of the small sample number.

After reranking the cases to reach a qualitative culpability level, based on blameworthiness, victimization, and character of the defendant,*fn6 the overall death-sentencing rate for the ten cases most comparable to Marshall's in the penalty-trial model is .60 (6/10). Including Marshall, the rate is .64 (7/11). Among all death-eligible cases the overall death-sentencing rate among the ten cases nearest Marshall's is .20 (2/10), excluding Marshall. With Marshall, the death-sentencing rate is .27 (3/11).

When the indices are limited to statutory aggravating and mitigating circumstances, the predicted likelihood of a death sentence in the penalty-trial model for Marshall is .52 and among all death-eligible cases the probability of death is .27. Reranking the cases as above, among the cases nearest Marshall's in the penalty-trial model the death-sentencing rate is .69 (11/16), excluding Marshall. With Marshall, the rate is .71 (12/17). Among all death-eligible cases the death-sentencing rate among the ten cases nearest Marshall's is .50 (11/22), excluding Marshall. With Marshall, the rate is .52 (12/23).

Summarizing all of the data, the Master concludes:

Because of the small number of 4e cases, and no 4e cases that match Marshall on both the blameworthiness and victimization dimensions, we have a much less solid basis for saying that cases like his either will or will not be associated with frequent death sentencing over the long run. Because of this small sample problem, there is no way to resolve with confidence the uncertainty associated with predicting the future for defendants like Marshall.

[Marshall Report, supra, at 41.]

On balance, by using the composite of these measures of frequency we conclude that capital death sentencing for contract murderers is not random or aberrational. See Tyler v. State, 274 S.E. 2d 549, 555 (Ga. 1981) (reasoning that "although lesser sentences than death are frequently imposed in domestic murder cases, it does not follow that the death penalty would not be authorized for the murder of one spouse by another under any circumstances").

B.

Precedent-Seeking Approach

We turn now to the precedent-seeking comparison of defendant's death sentence with those imposed "in similar cases, considering both the crime and the defendant." N.J.S.A. 2C:11-3e.

In his well-reasoned brief, the Public Defender has challenged the Master's Conclusion that "in terms of moral blameworthiness Marshall exceeds that found in the three other 4e cases, and as far as we can determine, all other cases in our universe of New Jersey cases." Marshall Report, supra, at 12. In particular, the Public Defender questions the Master's reliance on what he perceives to be a subjective evaluation that because adultery is so morally blameworthy, Marshall's crime is viewed as more reprehensible than, for example, the killing of a wife and a child solely for insurance proceeds when another woman is not involved. He challenges, as well, the Master's reliance on Robert Marshall's double life -- "plotting [his wife's] death and sleeping with his paramour while living and sleeping with his wife and pretending that all was well" as giving "an additional aggravating edge to the case." Id. at 13-14 & n.13. In addition, he questions the reliance on a "total lack of remorse for his crime," id. at 14, as inconsistent with defendant's right to assert his innocence.

We share some of the Public Defender's concerns. In this section we evaluate Marshall's case on the basis of objective characteristics by comparing cases that appear to be found within familiar sentencing patterns. For purposes of analysis, we proceed along the lines set forth in the Public Defender's brief and identify the cases and characteristics that bear on Marshall's relative blameworthiness. We use primarily the Public Defender's factual description of the cases; some of those are more fully set forth in the appendices to the Final Report. At least one of the cases is on appeal before us so we give no stamp of approval to those factual versions but give to defendant the benefit of his view of the facts.

1. First-time murderers of spouses.

The Public Defender asserts that among comparable first-time offenders who murdered their wives and who cannot plead excuse for lack of education and intelligence, only Robert Marshall received a death sentence. We consider each of those cases.

Walter Williams

Williams, a twenty-seven-year-old police officer, murdered his wife by poisoning her with potassium cyanide. Williams allegedly had a two-fold motive for killing his wife: to hide his bigamous marriage to another woman and to obtain the proceeds of his wife's estate.

Williams's web of deceit began when he met his second wife, then a high-school junior, while on duty at a high-school function in 1979. Their relationship intensified and, in November 1984, Williams and she married. Williams deceived both his second wife and the minister who performed the ceremony by providing a falsified judgment of divorce, complaint of divorce, and a birth certificate.

He lied to his wife to whom he was legally married by telling her that he had to be treated for Agent Orange in the evenings at the Veterans' Hospital. During that time Williams had been living with his "new wife" in her parents' home. Williams's wife became suspicious of his bigamous relationship and confronted him on different occasions. Williams obtained potassium cyanide and hydrochloric acid in July 1984, using his official position as a police officer to assist him in purchasing the chemicals.

Williams's wife died of cyanide poisoning six months later, on January 31, 1985, after again having confronted Williams earlier that day. The State served notice of aggravating factors c(4)d, pecuniary motive, and c(4)f, killing to escape detection. The defense offered mitigating factors c(5)c, age (thirty-four years of age at time of the offense); c(5)f, no significant criminal history (no prior convictions, no alcohol or drug abuse); and c(5)h, any other factor (served in the military during the Vietnam war, trustee at church).

The jury found aggravating factor c(4)f and mitigating factors c(5)f and c(5)h, but found the aggravating factor in equal balance with the two mitigating factors. (Had the jury imposed a death sentence on the basis of the c(4)f (killing to escape detection) factor in that case, we might not have sustained the imposition of the death sentence. See State v. Hightower, 120 N.J. 378, 420-21 (1990) (defining the c(4)f factor).) Williams received a life sentence with thirty-years parole ineligibility for the crime of purposeful and knowing murder.

John Dreher

Because the Appellate Division has reversed John Dreher's conviction and remanded his case for retrial, State v. Dreher, 251 N.J. Super. 300 (1991), we repeat again our caveat that the facts below are as alleged by the State and here by Marshall. We evaluate the Dreher case on those assumptions.

Dreher brutally murdered his wife in the basement of their home. His was an aggravated, cold-blooded murder. He contemplated the crime for months, attempting to obtain a gun two to three months before the murder. Like Marshall, he too had been having an extra-marital affair for two years before his wife's murder and had asked his paramour what she would think of him if he killed his wife.

On the day of the murder, Dreher had asked his paramour to meet him at the family home at 7:30 a.m. for a "confrontation" with his wife. After his sons left for school, Dreher dragged his wife unwillingly into the basement, as she begged him not to hurt her. The murder was brutal. He tied her hands behind her back and tied a rope around her neck, which was then tied to a column in the basement. Dreher then ordered his paramour to bring him something sharp; she complied. As Dreher tightened the rope around his wife's neck with one hand, he stabbed her in the neck with the other. His paramour struck her on the head several times with a heavy tool and stabbed her in the back.

The medical examiner determined that Dreher's wife had died of strangulation, and found that she had been stabbed eight times in the back and once in the throat. In his opinion, the back wounds were inflicted while she lay dying. Following the murder, Dreher tried to make the murder appear as if it had occurred during a robbery. He callously disposed of his wife's jewelry, and lacked remorse.

In the prosecutor's view, however, despite all of its horror, the case lacked the c(4)c statutory aggravating factor that the defendant had intended to inflict torture on his wife beyond the pain of killing. The prosecutor thus declined to prosecute the case capitally. A jury found Dreher guilty of murder and the Judge sentenced him to life imprisonment with a minimum parole-ineligibility term of thirty years. Significantly, a principal ground of defense both at trial and on appeal was that the perpetrator of this offense was not Dreher but the paramour. See State v. Dreher, supra, 251 N.J. Super. 300.

Darrell Collins

Collins plotted the murders of his wife and eighteen-month-old son to obtain insurance proceeds on their lives. This, too, was a brutal murder. Collins, a martial-arts enthusiast, slashed his wife in the throat, face, and breasts with a sharp weapon, and then beat and suffocated his eighteen-month-old son as he lay in his crib.

Collins was twenty-six years of age and worked as a chef at the time of the murders. he had no prior criminal record and had completed one year of college. The Public Defender argues that although the case is not technically in the Master's universe, it should be considered because Collins murdered a defenseless family member for pecuniary gain.

The jury found Collins guilty of the non-capital murder of his wife and of the capital murder of his son. The jury, however, did not find either the c(4)d aggravating factor of killing for pecuniary gain or the c(4)f factor of killing to escape detection. The trial court sentenced him to life with a thirty-year period of parole ineligibility for the murder of his wife, and to thirty years with a thirty-year period of parole ineligibility for the murder of his son, consecutive to the first term.

Thomas Johnston

Although it was not included in the Master's universe, we have considered Johnston's case because it involved the planned murder of a defenseless victim, his wife. The Master found insufficient evidence to substantiate either the c(4)c (torture/assault) or c(4)d (pecuniary motive) aggravating factors, but the Public Defender strongly suggests that both factors were present.

Johnston killed his wife by hitting her in the head with a hammer over twenty-five times. The severity of the beating was evidenced by the injuries she sustained -- a fractured jaw, a depressed skull, five skull fractures, and lacerations to her left cheek. After the murder, Johnston attempted to cover up his crime. Johnston dragged her body into the woods near their home, leaving one shoe and her purse beside her car to make it appear as if she had been abducted. He arranged her clothes to give the appearance that she had been sexually assaulted, and then covered her body with a rototiller cover.

The murder was apparently precipitated by one of many arguments that the couple had had over financial matters during what for many years had been a stormy, abusive relationship. In 1980 Johnston had become financially dependent on his wife, and five years later she filed for divorce on the grounds of extreme cruelty. The State argued that the impending divorce had provided Johnston with a pecuniary motive for killing his wife. The defense asserted that Johnston had suffered from severe mental problems and that on the night of his wife's murder, he had consumed a large amount of alcohol.

William and Herbert Engel

The murder committed by William and Herbert Engel is, for us, the most difficult because that case bears striking similarities to the subject case. William and Herbert Engel are brothers who were tried capitally for the murder of William's ex-wife. The facts and background of this case are familiar to the Court because it participated in earlier bail-release applications, see State v. Engel, 99 N.J. 453 (1985), and has reviewed defendants' petitions for certification from the convictions of non-capital murder. N.J. (1991).

William procured his ex-wife's murder with the assistance of his brother, Herbert, apparently because of jealousy and an obsession with his ex-wife. William delegated to Herbert the task of hiring a contract killer, much like McKinnon in Marshall's case, one month before the murder, and had told a private investigator the year before that he wanted to get rid of his ex-wife. Herbert pressured an employee, McFadden, into agreeing to commit the murder-for-hire of his ex-sister-in-law by plying him with liquor and promising him money.

The murder was committed in a warehouse owned by William Engel. Engel lured his ex-wife to the warehouse on the false pretext that they were going shopping for birthday and Christmas gifts for their five-year-old daughter. Once inside, Engel pretended that the warehouse lights were not working when he escorted her past the bathroom door where McFadden waited, ready to strangle her.

William stood over his ex-wife and watched, smoking a cigarette, while McFadden strangled her to death. At one point during the four-minute ordeal, William called her a "bitch." The two men then loaded her body into a waiting car, and, as planned, McFadden and a cohort, Pee Wee Wright, transported it to South Carolina where it was burned beyond recognition. (Herbert later ordered McFadden to execute the person who had helped dispose of the body because he feared that the executioner would tell the police of the murder.)

William Engel's deception continued after the murder, when he twice telephoned his ex-wife's house and reported first to her grandfather and then to her daughter that the victim had not arrived to meet him as planned. He told her mother that she had never arrived at their first meeting.

Like Marshall, William Engel was a well-educated, successful businessman, who had a good reputation in the community, was involved in charitable work, and had no prior criminal record. Unlike Marshall, however, William Engel's murder of his ex-wife lacked a pecuniary motive: he killed solely out of a jealous anger towards his ex-wife. The jury spared the brothers' lives, finding the presence of mitigating factors c(5)a (mental/emotional disturbance) and c(5)e (duress), in addition to c(5)f (no prior criminal record) and c(5)h (any other factor). The jury found that those mitigating factors outweighed the sole aggravating factor, c(4)e (hired a killer). The trial court sentenced the brothers to life imprisonment with a thirty-year period of parole ineligibility.

The Public Defender suggests that one factor that may have saved the two brothers was the testimony of their elderly father, who told the jury of his own experiences in Austria during World War I and how his own father had been killed in a concentration camp. Defense counsel managed to suggest to the jury that Herbert felt beholden to William for his job. Overall, the criminal culpability of William Engel seems no different from that of Robert Marshall. The two husbands came from the same economic stratum. The victims were not strikingly dissimilar. The shattering impact on the families was the same.

The ultimate question concerns whether the fact that a jury spared the Engel brothers requires the invalidation of Robert Marshall's death sentence. We do not believe that statutory disproportionality ever contemplated that two New Jersey juries must reach identical verdicts even in closely-similar circumstances. Our search should be for some impermissible or invidious factor or pattern that has been broken. That the Engel brothers were spared their lives does not establish a pattern of life-sentencing for such killings. We do not sense that some invidious factor tainted Marshall's sentencing process.

The remaining spousal murders are distinguishable. Both Walter Williams and Darrell Collins escaped death when a jury found that they had not killed for pecuniary gain. John Dreher was thought by the prosecutor not ...


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