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Neither double jeopardy nor fundamental fairness prohibits retrial of a defendant after a mistrial caused by juror deadlock on the charge of purposeful or knowing murder, the New Jersey Supreme Court ruled April 9. The justices declined to interpret the jury’s lack of unanimity on the murder charge as a determination that he did not commit murder “by his own conduct” — the test for whether a defendant should face a death penalty trial. Prosecutors are barred from seeking the death penalty a second time if a jury deadlocks on the “own conduct” question, but since nine jurors held out for acquittal, that question was never reached, the court held in State v. Cruz, A-22-01. “Although the hung jury’s apparent numerical preference for acquittal on the murder charge arguably might suggest that a capital murder reprosecution is unwise and unlikely to succeed, nothing in our double jeopardy or fundamental fairness jurisprudence prohibits the prosecutor from proceeding in that fashion,” Justice Gary Stein wrote for the unanimous court. The Cruz case was being closely watched because of its impact on another high-profile capital prosecution — that of former Rabbi Fred Neulander, who is facing a retrial on charges he hired two hit men to kill his wife, Carol. A Camden County, N.J., jury last year was unable to reach a verdict in the guilt phase of his trial. Had the court ruled in Cruz’s favor, prosecutors may have been prohibited from seeking the death penalty a second time in the Neulander case. Luis Cruz Jr., 26, is charged with the 1996 murder and robbery of a 74-year-old grocer in the Gloucester County community of Woolwich, N.J. During oral arguments in January, Assistant Deputy Public Defender Fred Last told the court it was logical to assume that if the jury was unable to reach a verdict on the question of guilt, it also would be unable to decide whether the defendant committed the murder by his own conduct. Allowing a retrial unfairly gives prosecutors “a second bite at the apple,” Last added. Gloucester County Assistant Prosecutor Keith Warburton said such a per se rule would go too far. “This does not equate to an acquittal,” he said, adding that it has yet to be determined whether Cruz was guilty of murder. Warburton says the prosecutor’s office will seek to have Cruz tried a second time on capital murder charges. Last was away from his office last week and could not be reached for comment. Stein said the defense arguments are based on misperception of the Court’s prior death penalty rulings. In State v. Gerald, 113 N.J. 1 (1998), and State v. Feaster, 156 N.J. 1 (1998), the court made it “crystal clear” that a jury in the guilt phase of a capital murder trial cannot address the “own conduct” question until after it concludes that the defendant is guilty of murder, Stein wrote. “That sequential principle reflects our analytical recognition that although those issues are related they are not necessarily interdependent,” Stein wrote. “Put differently, a jury that is deadlocked 10-2 for conviction on a murder charge because of an issue of identification might, on retrial, return a unanimous guilty verdict and find no difficulty in concluding that defendant committed the murder by his own conduct. “The point is that the concerns that lead to jury deadlock on a murder charge may or may not generate jury indecision on whether a defendant convicted unanimously of murder committed the homicide by his or her own conduct. “Other than the deadlocked jury’s apparent inclination of acquittal on the murder charge, nothing presented to the court demonstrates that retrial is highly unlikely to result in a conviction,” he said.

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