N.J. Justices Rule Death Penalty Barred if Single Juror Finds Defendant

Mary Pat Gallagher
New Jersey Law Journal
06-19-2007

A defendant can escape the death penalty if he convinces a single juror that he is mentally retarded, a divided New Jersey Supreme Court ruled on Monday.

The majority, in State v. Jimenez, A-75-2006, rejected prosecutors' arguments that the jury must be unanimous. The court held per curiam that mental retardation is analogous to a mitigating factor, which the U.S. and New Jersey supreme courts have held does not need to be decided unanimously.

"Because the finding of mental retardation is like a dispositive mitigating factor, we hold that if a single juror finds defendant has met his burden of proving mental retardation by a preponderance of the evidence, defendant is not eligible to receive a penalty of death,"wrote the majority, comprised of Chief Justice James Zazzali and Justices Jaynee LaVecchia, John Wallace and Roberto Rivera-Soto. Justice Helen Hoens did not participate.

The defense had asked the court to clarify its Oct. 24, 2006, ruling that a convicted defendant bears the burden of proving mental retardation to a jury by a preponderance of the evidence at a hearing held before the penalty phase. The earlier decision did not address the unanimity issue.

On Monday, in light of its finding that no unanimity is required, the majority altered its earlier view that retardation should be addressed in a separate proceeding, between the guilt and penalty phases. Instead, it should be decided during the penalty phase, the court said.

That would allow a defendant as many as three chances to present mental retardation issues: during the pretrial stage before a judge who can decide against a capital trial; during the guilt phase, to negate an element of the crime, such as intent; and during the penalty phase.

The court did not discuss whether the jury should be instructed on the impact of a non-unanimous verdict, as the prosecution requested.

It also did not address the position of the amicus curiae attorney general that unanimity should be required and if it is not achieved, a new trial should be held.

Two justices, Barry Albin and Virginia Long, dissented. They also dissented in October, saying the burden should be on the prosecutor, beyond a reasonable doubt.

On Monday, Albin, joined by Long, agreed with the majority on unanimity but reiterated that placing the burden of proof on the defendant contravened the U.S. Supreme Court precedents, Atkins v. Virginia, 536 U.S. 304 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).

Atkins held that, "in light of evolving standards of decency," the Eighth Amendment bars execution of the mentally retarded, while Apprendi said that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be decided by a jury beyond a reasonable doubt.

"It follows logically that only the fact of the absence of mental retardation permits the elevation of a sentence of life imprisonment to a death sentence," wrote Albin. "For that reason, I maintained that it was impermissible ... to shift the burden of proof to the defendant, as the majority has done."

Atkins left it up to the states to define who is mentally retarded and to devise procedures to prevent them from being executed.

In New Jersey, the Jimenez case has been the battlefield on which the issues have played out.

The first judge to grapple with applying Atkins was Salem Ahto of Morris County Superior Court in a March 2005 ruling in Jimenez.

Ahto favored a pretrial procedure that would have allowed a judge to decide against a capital trial if the defendant showed clear and convincing evidence of retardation. If there was a mere preponderance, the issue would go to the jury at the start of the penalty phase. If the judge found the defendant not retarded, the defendant would still be able argue the issue to the jury but solely as a mitigating factor to be weighed against aggravating factors.

An appeals court rejected Ahto's procedure in August 2005, saying it worked only where retardation was clear one way or the other, but not in close cases, where a defendant is at most mildly retarded, like Jimenez, whose IQ tests at 68 or 69, just below the cutoff of 70.

The Morris County prosecutor's office appealed, leading to last October's ruling by the court.

Assistant Deputy Public Defender Stephen Kirsch, who requested the clarification, says the latest ruling "puts us in a much better posture for litigating the issue than the original opinion did."

He is grateful the court did not agree with the attorney general that there should be a new trial if the jury cannot agree on retardation.

The new trial approach has "huge constitutional problems" because it weeds out pro-defense jurors, says Kirsch.

Assistant Morris County Prosecutor John McNamara Jr. was out of the office and could not be reached for comment.

David Wald, a spokesman for the attorney general, says "any party in a criminal action who bears the burden of proof has always had to prove the issue to the satisfaction of a unanimous jury."

"We don't think that's a burden at all," says Wald, of allowing a defendant to avoid the death penalty by convincing only one juror.

Jimenez is charged with the murder and sexual assault of 10-year-old Walter Contreras in 2001.

Though Jimenez has not yet been tried, this is the court's third opinion in the matter.

In 2003, the court refused to disqualify one of Jimenez's lawyers, Deputy Public Defender Dolores Mann. Prosecutors argued Mann had a conflict of interest because of her one-day representation in an unrelated matter of a man questioned as a potential suspect in the Contreras killing.

The decisions issued last October and Monday would be mooted if capital punishment were abolished, as recommended by a legislative commission in January.

Several pending bills would repeal the death penalty. The one that seems to have momentum is S-171, which was voted out of the Senate Judiciary Committee on May 10. It would substitute life without parole for the most egregious murders.


Stephanie K. McCoy
Paralegal


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