State v. Simon

HANDLER, J.,

dissenting.

I dissent for the reasons expressed in the opinions of Justices O’Hern and Stein.¹ Accordingly, I, too, believe that defendant’s death sentence should be vacated. I write separately to address concerns related to the Court’s review of the adequacy of defendant’s plea. The enhanced protections constitutionally required in capital prosecutions demand that the adequacy of guilty pleas to capital murder be reviewed with particular rigor and care, by standards pursuant to which the plea in this case would certainly have been rejected. Such precautions should follow evidently from the importance law and society place upon avoiding wrongful convictions and, especially, executions. The Court’s failure to require a more exacting standard of review coupled with its failure to reject the plea in the present case is, moreover, reflective and indeed an active component of a more invidious and wide-ranging development: Death penalty jurisprudence is weakening the constitutional protections of general criminal law.

I

A.

Defendant’s death sentence must be vacated because the record does not establish that defendant’s plea of guilty to capital murder was voluntary. Ante at 488-94, 737 A.2d at 40-43 (O’Hern, J., dissenting in part and concurring in part). As Justice O’Hem points out, the record contains substantial evidence that defendant pled under duress from coercive external pressures. See id. at 487, 737 A.2d at 39 (O’Hern, J., dissenting in part and concurring in part). The record sufficiently presents the possibility that defendant’s admissions to the factual circumstances of the crime, which were evoked, notably, by the plea court’s leading inquiry, see id. at 491-92, 737 A.2d at 42 (O’Hern, J., dissenting in part and concurring in part) (noting that “it was the court’s suggestions to defendant that furnished the reasons for the plea”), were lies. Consequently, Simon’s plea was unacceptable. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274, 279 (1969) (holding that guilty plea is invalid unless defendant makes affirmative showing on record that plea is knowing and voluntary); State v. Howard, 110 N.J. 113, 122, 539 A.2d 1203 (1988) (same); see also R. 3:9-2 (requiring that court not accept guilty plea without first determining “that there is a factual basis for the plea and that the plea is made voluntarily, not as the result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea”). The plea was, plainly, of the sort that “[n]o court may accept,” in any criminal proceeding. Ante at 494, 737 A.2d at 44 (O’Hern, J., dissenting in part and concurring in part); see State v. Smullen, 118 N.J. 408, 415, 571 A.2d 1305 (1990) (“Even if a defendant wished to plead guilty to a crime he or she did not commit, he or she may not do so.”).

The insufficiency of the plea in this case is particularly egregious because Simon pled guilty to capital murder. It is aphoristic that enhanced constitutional protections are required in capital prosecutions. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). The protections due capital defendants under the New Jersey Constitution may exceed those of the federal Constitution. See Ramseur, supra, 106 N.J. at 190, 524 A.2d 188 (interpreting N.J. Const. art. I, ¶ 12); id. at 369-82, 524 A.2d 188 (Handler, J., dissenting) (interpreting N.J. Const, art. I, ¶¶ 1, 5, and 12). I continue to believe that courts must apply exacting inquiry, and appellate courts scrupulous review, before accepting a plea of guilty to a capital crime. Accord State v. DiFrisco, 118 N.J. 253, 284-89, 571 A.2d 914 (1990) (Handler, J., concurring in part and dissenting in part); State v. Davis, 116 N.J. 341, 383-90, 561 A.2d 1082 (1989) (Handler, J., dissenting in part and concurring in part). The Court has previously recognized that because capital punishment is “unique,” special care must be taken in capital cases to insure that the defendant pleading understands the nature of the charges and consequences of the plea. See State v. Kiett, 121 N.J. 483, 495-96, 499, 582 A.2d 630 (1990) (allowing defendant to withdraw plea where guilty plea was entered in reliance on misinformation that by doing so he would avoid the death penalty, for which he was not in fact eligible); see Davis, supra, 116 N.J. at 374, 561 A.2d 1082 (reversing death sentence and guilty plea to capital murder where defendant was not adequately informed of the then-pertinent Gerald distinction between capital and non-capital murder); accord id. at 383-84, 561 A.2d 1082 (Handler, J., dissenting in part and concurring in part) (explaining how “standards by which a defendant is informed of the nature and consequences of a guilty plea must be more meticulously defined and scrupulously applied”). I would add that special precautions must be applied in assessing the factual basis of pleas to capital murder. Davis, supra, 116 N.J. at 385-87, 561 A.2d 1082 (Handler, J., dissenting in part and concurring in part). Further, before a guilty plea to capital murder can be accepted, “the court should also require the State to demonstrate the evidence available to prove aggravating factors.” Id. at 389, 561 A.2d 1082 (Handler, J., dissenting in part and concurring in part).

The circumstantial evidence of coercion in this case, see ante at 488-94, 737 A.2d at 40-43 (O’Hern, J., dissenting in part and concurring in part), when viewed in a light consistent with the Court’s conception of enhanced constitutional protections for capital defendants, resolves the issue unquestionably in defendant’s favor. The Court, however, makes no special mention of the fact that Simon pled guilty to capital murder; it assesses the validity of defendant’s guilty plea according to the standards applicable to criminal offenses generally. See ante at 444-45, 737 A.2d at 15-16. Consequently, the Court’s conclusion that “defendant’s plea was made voluntarily,” id. at 446, 737 A.2d at 16, is all the more unsound and untenable. The plea record reflects the distinct and realistic possibility that Simon’s plea was made subject to coercive influence from a source and circumstances external to the adjudicative forum. If that form of involuntariness were to appear in an ordinary criminal case, it should give a court long pause before accepting such a plea. In a capital case, the acceptance of a plea that is the result of external coercion is manifestly unsatisfactory.

B.

The potential injustice in this case is compounded by the fact that the lack of voluntariness of defendant’s plea affected the factual basis established for the plea. The evidence in the record was equivocal with regard to who shot the victim. See id. at 434-35, 737 A.2d at 10 (“Because the State did not know whether defendant or Staples was the trigger-person who killed Sergeant Gonzalez, it decided to charge both of them with purposeful and knowing murder by his own conduct and require the jury to determine which one actually was the killer.”). Because it was not clear that Simon desired to plead guilty independently of reasons externally imposed, we must entertain the possibility that defendant was innocent of capital murder. See ante at 494, 737 A.2d at 44 (O’Hern, J., dissenting in part and concurring in part) (suggesting that Simon’s plea was, in effect, “I want to plead guilty to the crime ... but I did not do it”).

Wrongful convictions are recognized to be more likely in cases settled by guilty pleas than in cases adjudicated by trial. See, e.g., William S. Laufer, The Rhetoric of Innocence, 70 Wash. L.Rev. 329, 359 (1995) (“Plea bargain contracts increase the likelihood of convicting innocents as compared with fully adjudicated cases that are decided after testimony of witnesses to the particular event has been heard and all of the truth-checking devices of a vigorous adversary procedure have been used.”) (footnote omitted); Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979 (1992) (“[P]lea bargaining seriously impairs the public interest in effective punishment of crime and in accurate separation of the guilty from the innocent.”). It is also recognized that wrongful convictions are prevalent in capital prosecutions, sometimes as the result of guilty pleas. See, e.g., Michael Radelet et al., In Spite of Innocence (1992) (listing cases of innocent defendants who were wrongfully convicted).

In a capital case, wrongful conviction is not the only risk associated with a defendant’s coerced plea — so is the execution of an innocent person. The execution of innocent people is a prospect that even the strongest proponents of capital punishment cannot abide. See Samuel R. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 Buff. L.Rev. 469, 471-72 (1996). The execution of defendants guilty of murder, but not capital murder and not eligible for capital punishment, is equally intolerable; insofar as society accepts the death penalty, it is reserved as punishment only for a few, especially egregious crimes. As Justice O’Hern points out, the possibility of executing an innocent person is attendant to coerced pleas, and we have been fortunate thus far, perhaps due to our recognition of the heightened safeguards needed in capital cases, to have avoided such a disaster. See ante at 493-94, 737 A.2d at 43-44 (O’Hern, J., dissenting in part and concurring in part). The fact that this case presents that very possibility provides all the more reason why defendant’s questionable plea should have been rejected.

II

Failing to find what would plainly be involuntariness in any case and ignoring the risk that the defendant to be executed has not committed capital murder, the Court has, rather than vigilantly protecting the rights of this capital defendant, diluted his constitutional protections. The damage done by the Court’s opinion, however, goes beyond manifest injustice to Simon. The Court’s decision adds another incremental layer to a body of death penalty precedent that reflects not the evolutionary enhancement but the gradual diminishment of protections for capital defendants. More alarmingly, the Court’s opinion has the prepotency to soften the general standards that provide a protective bulwark for all citizens charged under our criminal law. Because this is a capital case, the Court’s opinion becomes tempting precedent; it can easily be marshalled as authority in an ordinary criminal case to justify the conviction of a non-capital defendant. The Court’s decision then not only weakens the standards needed to protect defendants in capital cases, it erodes the fundamental protections long accepted as a basic part of our criminal law.

The problem begins when the Court, as here, subscribes to a single standard generally applicable in all criminal cases, that it aims to apply more scrupulously in capital cases, but then gives at most token deference to enhanced protection for capital defendants. Even in certain other capital prosecution contexts, where the Court adopts a different and stricter legal standard, it may apply the standard in a lax manner. Quite often, it seems, we state the principles of enhanced protection in capital eases and then operate inversely; that is, actually to provide capital defendants with less protection. Indeed, we may be prone to this course, even though we are consciously opposed to it. See, e.g., id. at 488, 737 A.2d at 40 (O’Hern, J., dissenting in part and concurring in part) (“On its face, Simon’s plea did not comply with Rule 3:9-2. The ‘unique’ procedures applicable to death penalty cases do not allow for an exception.”) (footnote omitted).

One of the dangers of begrudging application of constitutional safeguards in capital cases is the creation of precedent that by example becomes the measure of protection for the Court in its review of future capital cases. For example, in State v. Koedatich, 112 N.J. 225, 325, 548 A.2d 939 (1988), the Court upheld the’ defendant’s conviction, despite flagrant prosecutorial misconduct. I dissented, pointing out that the Court failed to apply the particularly rigorous review of prosecutorial misconduct we recognize to be necessary in capital eases. Id. at 368, 548 A.2d 939 (Handler, J., dissenting) (citing Ramseur, supra, 106 N.J. at 324, 524 A.2d 188); accord id. at 341-42, 548 A.2d 939 (Clifford, J., dissenting). The misconduct alleged in Koedatich, supra, now pales in comparison to that upheld in the Court’s recent decision in State v. Timmendequas, 161 N.J. 515, 570-93, 737 A.2d 55, 84-97 (1999), in which the Court implicitly approves of the Koedatich holding, see id. at 571, 737 A.2d at 84 (citing Koedatich, supra, 112 N.J. at 320-25, 548 A.2d 939, for proposition that prosecutorial misconduct is not reversible error unless it deprived defendant of fair guilt-phase trial).

This Court’s treatment of pretrial publicity beginning with State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987), follows a similar pattern. Earlier, in State v. Williams, 93 N.J. 39, 63, 459 A.2d 641 (1983), the Court enunciated a heightened standard to protect a defendant’s right to an impartial jury in the face of pretrial publicity by allowing a change of venue where there was a ‘realistic likelihood’ of prejudice. The Court directed that in capital cases, such as Williams’s, “trial courts must exercise special caution.” Id. at 65, 459 A.2d 641. In Biegenwald, supra, the Court professed to prescribe rigorous standards for dealing with the inflammatory publicity that preceded the defendant’s capital trial; yet, despite prejudicial pretrial publicity, it affirmed the denial of the defendant’s motion for a change of venue, finding that the court’s voir dire preserved defendant’s right to an impartial jury. 106 N.J. at 37, 524 A.2d 130. I protested the dilution of the heightened standard enunciated in Williams, supra. See Biegenwald, supra, 106 N.J. at 88, 524 A.2d 130 (Handler, J., dissenting). In Koedatich, supra, 112 N.J. at 282, 548 A.2d 939, the Court echoed its holding in Biegenwald, under extreme circumstances. I observed that “[t]o the extent that the Court’s review is influenced by the fact that this is a capital case, that influence seems to have lessened the scrutiny of the record below.” Id. at 363, 548 A.2d 939 (Handler, J., dissenting). Since then, in even more outrageous conditions, the Court has further enfeebled the standard. See State v. Harris, 156 N.J. 122, 141-57, 716 A.2d 458 (1998); see also id. at 212-31, 716 A.2d 458 (Handler, J., dissenting) (examining extent and effect of pretrial publicity). Timmendequas, supra, in which the Court allowed the empanelment of a jury on which a preponderance of the jurors knew of the accused sex offender’s inadmissible prior sex conviction, exemplifies the Court’s substantial retreat from the Court’s prior attempts to protect capital defendants from the prejudicial effects of pretrial publicity. See 161 N.J. at 722, 737 A.2d at 172 (Handler, J., dissenting).

If token deference to enhanced protections for capital defendants has such a weakening effect on this Court’s capital jurisprudence, one must be concerned with the effect those decisions may have upon general criminal legal standards in our justice system. Death penalty cases, because they are assumed to be exemplars of fair prosecutions, are frequently cited as authority to sustain criminal convictions; as such, they filter back into and influence the general criminal law. In an ordinary criminal case, in which a non-capital defendant alleges like circumstances as the basis for protectable rights, the court may look to the similar capital precedent as an example of the appropriate, presumably heightened, standard to be followed. The court, assuming the standard for its non-capital case to be less rigorous than the capital precedent, could understandably feel no compunction in following that precedent, even if by application in the capital ease the standard was weakened. It is not easy to identify and gauge this effect. When the prevalence of cases cited for a proposition are capital, however, and those cases are most often cited as authority for affirming convictions, that suggests capital jurisprudence is coloring the discretion being exercised by criminal trial courts. In sum, by failing to apply enhanced standards of protection for capital defendants while professing to do so, the Court creates a climate in which trial courts are more likely to apply reduced standards of protection in all criminal cases.

Such is the stature of the Court’s application of the standard requiring knowing and voluntary guilty pleas to Simon’s case. The Court’s indolent application of the standard for voluntary and knowing pleas in this capital case begets a legacy that will be inherited by other criminal defendants.

I, therefore, dissent.

1 I concur in the opinion of Justice Stein, notwithstanding my position that the non vult plea at issue in State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), did not satisfy the prior murder conviction aggravating factor under N.J.S.A. 2C:11-3c(4)(a). See Ramseur, supra, 106 N.J. at 436-43, 524 A.2d 188 (Handler, J, dissenting). Accordingly, rather than distinguish the non vult plea in Ramseur as a clear-cut conviction for first-degree murder, see ante at 507-09, 737 A.2d at 51-52 (Stein, J., dissenting), I would argue that the ambiguity underlying Simon’s Pennsylvania murder conviction is synonymous with the uncertainty that was attendant to Ramseur’s non vult plea under the repealed New Jersey murder statute.