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The New Jersey Supreme Court on Sept. 17 denied stays in two test cases for a moratorium in death penalty litigation that had the support of the state attorney general. In a pair of terse orders, the court without explanation refused motions for a stay and leave to appeal in State v. Figueroa and State v. Koskovich, both of which are about to be tried. It also denied a request in Figueroa for direct certification. The stated reason for delaying the two trials was to allow the state court to gauge the import of recent U.S. Supreme Court rulings that have put sentencing rubrics under new scrutiny. The same rationale would apply in 24 other pending capital trials in New Jersey. The New Jersey attorney general’s office, in a Sept. 10 letter from Criminal Justice Director Peter Harvey filed with the court, said the issues raised are of such import that all pending capital trials should be stayed until the justices address them. He said a statewide halt was needed to avoid potential waste of judicial and prosecutorial resources. The challenges to the indictments and the death penalty law were prompted by Ring v. Arizona, 122 S. Ct. 2428, a June 24 ruling that struck down capital sentencing schemes in Arizona, Idaho, Montana, Colorado and Nebraska because judges, rather than juries, there determine the existence of aggravating factors necessary for a death sentence. Ring also left in question the constitutionality of laws in four other states — Alabama, Delaware, Florida and Indiana — where the jury can recommend death but the judge makes the final decision. Though in New Jersey juries decide on death by finding the presence of aggravating factors, prosecutors decide to seek the death penalty by presenting a Notice of Aggravating Factors at arraignment. Ring rejected Arizona’s argument that aggravating factors are mere sentencing enhancers and instead found them “the functional equivalent of an element of a greater offense that must be presented to a jury.” As Harvey’s letter pointed out, Ring flies in the face of State v. Martini, 131 N.J. 176 (1993), which held that aggravating factors need not be presented to the grand jury as part of the indictment process because the factors are not elements of capital murder under the New Jersey statute. Starting in July, New Jersey defense lawyers began filing motions attacking the indictments and the statute because the law gives the grand jury no role in charging aggravating factors. The motions rely also on State v. Apprendi, 530 U.S. 466 (2000), which struck down New Jersey’s hate-crime law because it allowed increased punishment for a crime based on a finding by a judge, rather than a jury, that the crime was motivated by bias or hate. The Figueroa application was filed with the state’s top court by Assistant Deputy Public Defender Joseph Krakora on Sept. 10, after an appeals court affirmed Camden County, N.J., Judge Irvin Snyder’s denial of relief. The Koskovich application was filed six days later by Pamela Brause and Lucas Phillips Jr., who represent Thomas Koskovich. They had obtained a stay on Sept. 13 from Appellate Division Judges Edwin Stern and Donald Collester Jr., who reversed Morris County, N.J., Assignment Judge Reginald Stanton. The Harvey letter submitted to the New Jersey Supreme Court in Figueroa was originally filed with the Koskovich appeals court. Knowing that the state high court was about to take up the Figueroa requests, Brause says she hastened to file her own brief in Koskovich asking the court to declare the death penalty statute unconstitutional. FIRST DROPS OF A DELUGE Figueroa and Koskovich are but the first in a flood of similar applications headed toward the New Jersey Supreme Court, with Ring motions pending or anticipated in the other 24 pending capital cases. The same day the Appellate Division granted a stay in Koskovich, Atlantic County, N.J., Judge Rosalie Cooper denied motions challenging the indictment and the statute in another Brause case, State v. Wakefield. Motions are pending before at least two other trial courts — Brause’s motion in State v. Gillespie before Judge James Citta in Ocean County, N.J., and Krakora’s motion in State v. Jimenez before Morris County Presiding Criminal Judge B. Theodore Bozonelis. Assistant Public Defender Dale Jones says he has asked defense counsel to file similar challenges in every pending capital case. Harvey cites the prospect of having to respond to such repeated motions as a basis for his request. Despite the unlikelihood of obtaining a stay in the face of the court’s rulings in Figueroa and Koskovich, defense lawyers are likely to feel compelled to try, rather than wait to raise the issue in the normal course of appeal from a conviction. The Ring argument is tougher to make once a petit jury has found the existence of aggravating factors beyond a reasonable doubt. On appeal, “grand jury issues are viewed differently,” says Brause, a partner with Metuchen, N.J.’s Brause, Brause & Ventrice. “You may lose the right if you don’t do it up front.” The argument that Ring extends also to grand juries is being made in the federal courts and in other states, like Tennessee, that, like New Jersey, require indictment by grand jury. Three federal courts that have ruled thus far have rejected Ring-based challenges. One is U.S. v. Church, 2002 U.S. Dist. LEXIS 16696 (Sept. 5, 2002 W.D. Va.). The second is U.S. v. Lentz, 2002 U.S. Dist. LEXIS 16336 (Aug. 22, 2002, E.D. Va.). “Nothing in … Ring suggests that the United States Supreme Court … overturned the act or the overall structure of capital sentencing,” wrote U.S. District Judge Gerald Bruce Lee in Lentz. And in an unpublished ruling on Aug. 22, Judge Malcolm Muir of the Middle District of Pennsylvania also denied a Ring motion filed in U.S. v. O’Driscoll by David Ruhnke, a partner with Ruhnke & Barrett in Montclair, N.J. In the absence of a stay, jury selection in Figueroa, which began Sept. 12, continues. The trial is scheduled to begin on Oct. 22. Jury selection on the penalty retrial in Koskovich was slated to start Monday, but a second emergent appeal in the case threatens the Oct. 28 trial date. On Friday, Brause went to the New Jersey Supreme Court for a second time with a new motion based on the Ring decision. She wants the court to bar the prosecution from presenting on retrial one of the two aggravating factors raised the first time because the first jury was not unanimous in finding the existence of that factor, depravity of mind. The 1990 ruling in State v. Koedatich, 118 N.J. 513, allows prosecutors to charge an aggravating factor at a second penalty proceeding even if the factor was found by a less than unanimous vote, based on the reasoning that a jury decision not to impose a particular sentence through a nonunanimous verdict is not equivalent to acquittal. Now Ring has thrown Koedatich into question by holding that aggravating factors are not mere sentence enhancers but essentially elements of a more serious crime. Brause argues that Koskovich was effectively acquitted of the depravity-of-mind factor and that to raise it again at retrial would violate the double jeopardy clause. She urges that only a single, aggravating factor can be presented this time, felony murder. The Appellate Division disagreed on Thursday, leading to the new high state court filing. Unlike the grand jury issue, the Koedatich argument is not likely to apply to many cases, notes Brause’s partner, Peter Ventrice. There must have been a prior penalty trial, involving multiple aggravating factors and a less-than-unanimous verdict, he said.

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