NJ Death Penalty Repeal Leads to Split on Sentencing Remedy for Pending Case

On May 12, 2009, the NJ Supreme Court decided State v. Fortin. The decision may be found here. In 1985, Fortin was charged with capital murder. In August 2000, six months before the penalty phase of his trial, the Legislature adopted a law to "take effect immediately," which permitted imposition of life without parole in certain capital cases. This was more severe than the prior sentencing scheme, which permitted a 30-year parole disqualifier. In 2001, defendant was convicted and found by a jury deserving of the death penalty. The Supreme Court then reversed and remanded the case for a new trial. Incidentally, the Court then noted that the use of the new sentencing scheme would have had ex post facto constitutional problems.

After the new trial, in 2007, Fortin was once again convicted. But before the sentencing phase, the Legislature amended the statute and replaced the death penalty with a mandatory life imprisonment without parole penalty. Previously, Fortin could have been sentenced to life in prison with a 30-year parole disqualifier, a lesser sentence.

The State requested that Fortin be sentenced automatically to life without parole under the new statute. The Trial Court refused, citing the constitutional prohibition on ex post facto laws (those imposing greater penalties than existed at the time of the crime). The Appellate Division agreed. The Supreme Court affirmed in part and reversed in part.

The answer to the question of how to handle this situation was not addressed by the revised statute. In other words, how do we treat defendants whose sentences were not yet rendered at the time of the statute's enactment? The Court majority adopted a "hybrid" approach, which is not set forth in the statute. The Court reasoned that, because defendant had knowledge of the possible death penalty at the time of the crime, then it is not fair to continue with the death penalty sentencing procedure (as previously in place but now repealed) before the jury. If the jury chose death, then it would not be unfair -- or violative of ex post facto -- to sentence defendant to life imprisonment as under the new statute. If, however, the jury rejected a death sentence, then defendant would be sentenced under the prior statutory scheme to life with a 30-year parole disqualifier.

In dissent, Justices Albin and Long argued that the majority's analysis was wrong and ignored the ex post facto problem previously recognized in its earlier Fortin decision. The Court was permitting imposition of a greater penalty than that permitted when Fortin committed the crime. Accordingly, the life-without-parole option is constitutionally infirm. The majority's hybrid analysis cannot be squared with the Court's earlier Fortin decision on this basis.

Bail Source Hearings in New Jersey

New Jersey seomwhat recently passed new ""Bail Source" statutes, N.J.S.A. 2A:162-13 et seq., which provide prosecutors with tools to mandate judicial inquiry into the source of bail for defendants in a wide range of circumstances. The statute is silent on a number of procedural questions, including burdens of proof and persuasion when source hearings are ordered. Last week, a Trial Court Judge's opinion on these issues was approved for publication. The opinion may be found here.

The Court essentially concluded that: the State bears the burden of persuasion that the bail does not satisfy the
requirements of the statute, N.J.S.A. 2A:162-13(b). However, upon prima facie proof by the State that the bail is unreliable, insufficient, or tainted, then the burden of production shifts to the defendant.

Hearsay Admitted Under "Tender Years" Exception Found Not to Violate Confrontation Clause

The New Jersey Supreme Court recently decided State v. Coder, a matter exploring whether a young child victim's statement, found admissible under the "tender years" exception to the hearsay rule was nonetheless barred under the Confrontation Clause. The decision may be found at http://www.judiciary.state.nj.us/opinions/supreme/A-28-08%20State%20v%20Terry%20Coder.pdf
In this case, the victim told her mother, moments after the event, that the landlord had touched her in her private areas. The child later could not even remember the event, which occurred when she was three years old. The Supreme Court ultimately concluded that there was no Confrontation Clause problem because the child's statement was not "testimonial," that is, the statement was not made within the law enforcement investigative process. Rather it was made outside of this process and before even an investigation began.

Forfeiture by Wrongdoing in N.J. Criminal Courts

On April 2, 2009, the N.J. Supreme Court moved toward adoption of a "forfeiture by wrongdoing" exception to the hearsay rule.  In State v. Byrd, the Court indicated that the time had come for N.J. to adopt the rule that a defendant forfeits the right to confront a witness's out-of-court statement implicating him when he causes that witness's "unavailability" at trial.  In other words:  if you scare a witness into not testifying, then the earlier statement can be used against you anyway.  The Court sent a proposed rule to the legislature for its adoption.  Because there is no such rule now, Byrd was entitled to a new trial.  What will be interesting is not whether such a rule will be adopted, but rather how such a rule will be implemented.  Left unsaid is how trial courts will determine whether there has been such coercion or intimidation, or whether such misconduct has been proven to arise from the defendant's actions.   Even assuming such a hurdle is met, is the very evidence of coercion admissible as well?  There are significant reasons why the right of confrontation is fundamental to our criminal justice system.  Only time will tell whether "forfeiture by wrongdoing" is a workable doctrine in New Jersey.