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Newark, N.J.�Prosecution of capital cases in New Jersey has been thrown into turmoil as lawyers and judges grapple with the fallout from a state Supreme Court ruling that prosecutors seeking the death penalty must present to the grand jury the aggravating factors needed to impose a capital sentence. Indictments were halted, defendants moved to dismiss capital charges, one prosecutor dropped them and on Feb. 6, the court issued an order clarifying the opinion in response to a request from the New Jersey attorney general. The ruling, in State v. Fortin, No. A-31-2001, overturned the court’s holding, in State v. Martini, 131 N.J. 176 (1993), that a capital aggravating factor does not constitute an essential element of capital murder. Justice Barry Albin, writing for the 4-2 majority that reversed the death sentence, said the Martini rule no longer has validity. He referred to Ring v. Arizona, 536 U.S. 584 (2002), which held that the Fifth Amendment requires juries in capital cases to find aggravating factors because they are “the functional equivalent of an element of a greater offense,” and Apprendi v. New Jersey, 530 U.S. 466 (2000), which struck down New Jersey’s hate crime statute because it allowed judges rather than juries to decide sentence-enhancing factors. Ring was based on Apprendi. The recent ruling goes beyond Ring, which did not address indictments. In the aftermath of Ring, however, prosecutors in federal capital cases have been going back to grand juries to secure superseding indictments with aggravating factors. The Fortin majority saw that as evidence that federal prosecutors assumed Ring required them to do that and showed that the requirement did not impair efforts to prosecute capital cases. That was not enough for dissenting Justice Peter Verniero, who found no reason to disturb Martini or existing practice, which he termed “straightforward” and “fair.” The reaction of federal prosecutors to Ring was mere “abundance of caution,” in his view. As noted in the dissent, joined by Justice Jaynee LaVecchia, other states that addressed the issue-Alabama, Florida, Georgia, Missouri, North Carolina, Oregon and Tennessee-declined to hold that Ring applies to indictments. State constitutional right Most states no longer require indictments, but in New Jersey the right to a grand jury is embodied in the state constitution, Art. 1, Sec. 8, and the state Supreme Court has held that every element of the offense be presented to the grand jury and included in the indictment. Albin found “continuing vitality” in the “fundamental right” to a grand jury indictment, which he described as “a constitutional bulwark against hasty and ill-founded prosecutions, which continues to lend legitimacy to our system of justice.” “In a criminal justice system in which all of the elements of a crime must be submitted to the grand jury, it would be odd to make capital murder the one exception,” he wrote. Ultimately, Albin predicated the ruling not on federal law but on “logic, fairness and the historical importance we attach to our grand jury system.” The state constitutional underpinning insulates the viability of Fortin in the event the U.S. Supreme Court does not extend Ring to indictments. The court tried to provide some guidance on how to apply the new rule. For one thing, it is prospective only because prosecutors have relied on Martini and because safeguards built into the old process had protected the truth-finding function, wrote Albin. Specifically, Fortin applies only to cases that have not reached the penalty phase. In cases yet to be tried, prosecutors must present the aggravating factors to a grand jury and obtain “a supplemental indictment” specifying the factors. They can still get a criminal homicide indictment and decide later to seek a supplemental capital indictment, but they should not wait too long “so as not to cause prejudicial delay,” the court cautioned. To avoid “tainting the guilt-phase trial,” trial judges should not read those jurors the aggravating-factors part of the indictment, wrote Albin. His efforts to shed light fell short, leading the attorney general, swamped with frantic calls from prosecutors, to ask the court for clarification. A key question was whether prosecutors in pending cases must go back to the grand jury with just the aggravating factors-a supplemental indictment-or must re-present the entire case-a superseding indictment. “Supplemental” was the court’s answer and prosecutors can wait until obtaining a guilty verdict to decide. The court also explained that where separate petit juries decide guilt and penalty, aggravating factors should not be read to the guilt-phase jury, but where there is only one jury, the court must advise prospective jurors of the aggravating factors “without reference to the indictment.” The court’s follow-up order also indicated that Fortin requires a supplemental indictment in the post-appeal case of Leslie Nelson, where a new penalty trial had previously been ordered.

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