State v. Marshall

CourtUnited States State Supreme Court (New Jersey)
Citation613 A.2d 1059,130 N.J. 109
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Robert O. MARSHALL, Defendant-Appellant.
Decision Date28 July 1992

Dale Jones, Asst. Public Defender, Judith L. Borman, First Asst. Deputy Public Defender, and Bernadette DeCastro, Asst. Deputy Public Defender, for defendant-appellant (Wilfredo Caraballo, Public Defender, attorney).

Boris Moczula and Janet Flanagan, Deputy Attys. Gen., for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen., attorney; Boris Moczula, Janet Flanagan, and Anne C. Paskow, Asst. Atty. Gen., of counsel; Boris Moczula and Janet Flanagan, on the briefs).

Lawrence S. Lustberg, Newark, for amicus curiae Ass'n of Crim. Defense Lawyers of New Jersey (Crummy, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Lawrence S. Lustberg and John V. Jacobi, on the briefs).

David A. Ruhnke, West Orange, for amicus curiae American Civ. Liberties Union of New Jersey (Ruhnke & Barrett,

attorneys; David A. Ruhnke and Jean D. Barrett, on the brief).


In State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991) (Marshall I), this Court affirmed defendant's conviction for the murder of his wife and the resulting sentence of death. This appeal requires us to resolve the "proportionality" issue reserved in that case. Id. at 170, 586 A.2d 85. The Capital Punishment Act provides that on the "request of the defendant, the Supreme Court shall * * * determine whether the [death] sentence [imposed on a defendant convicted of capital murder] is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." N.J.S.A. 2C:11-3e. In the process of making that determination we also discuss the broader issue of the format of proportionality review.

In State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987), we noted that "[t]he proportionality review provision in the Act is an important procedural mechanism to safeguard against the arbitrary and capricious imposition of the death penalty." Id. at 330, 524 A.2d 188. Observing that proportionality review implicated "difficult and sensitive issues," we forecasted that

our efforts to devise a procedure of review that will adequately protect defendants from the arbitrary and capricious imposition of the death penalty prohibited by Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, will be an evolving process. In addition to involving criminal justice experts, these efforts may involve experts from disciplines outside the law. We shall seek the advice of such experts to assist us in this process.

[Id. at 328, 524 A.2d 188.]

Therefore, by Order dated July 29, 1988, this Court appointed Professor David C. Baldus of the University of Iowa Law School as Special Master to assist us in developing a system for proportionality review. We requested that the "Special Master * * * produce for the Court a data base and files sufficient to enable the Supreme Court to conduct proportionality reviews as required by statute." We authorized consideration of "the data In an earlier proceeding, In re Proportionality Review Project, 122 N.J. 345, 585 A.2d 358 (1990), we declined to determine in advance the appropriate "universe" of cases against which to compare challenged death sentences in order to assure proportionality. The Attorney General had contended that the only appropriate universe is one comprised exclusively of cases in which a death sentence has been imposed under our Capital Punishment Act and that establishing such a universe would be consistent with the practice of a majority of other jurisdictions that have developed proportionality-review systems. In addition, we noted that defining the universe of cases available for proportionality review would not automatically determine which cases within the universe will be used in the review of any specific death sentence. We awaited the Master's Final Report, which was received on September 24, 1991.

                base that formed the basis of the report of the New Jersey Public Defender entitled 'the Re-Imposition of Capital Punishment in New Jersey' " and the collection of such "additional data * * * as may be needed."   We directed that nothing in the Order shall "be construed by the Special Master or the parties to represent a position of the Court on any issue, nor shall the recommended findings and conclusions of law of the Special Master include any determination concerning the excessiveness or disproportionality of any death sentence imposed in any case."

Following oral argument, the Legislature amended the Capital Punishment Act to provide that "[p]roportionality review * * * shall be limited to a comparison of similar cases in which a sentence of death has been imposed." L.1992, c. 5 (eff. May 12, 1992). Although that amendment is to "take effect immediately," the Legislature did not state whether it intended the amendment to apply to pending appeals. The Attorney General has filed a letter memorandum suggesting that the 1992 amendment be applied to this appeal. Were the amendment to be applied to pending appeals, we would undoubtedly be required to resolve whether, as applied to offenses committed before its "It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."

effective date, the Act might constitute an ex post facto law. In Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), the United States Supreme Court summarized the meaning of the ex post facto clauses:

[Id. at ----, 110 S.Ct. at 2719, 111 L.Ed.2d at 39 (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216, 217 (1925)).]

The Attorney General argues that L.1992, c. 5 "clarifies" the prior law and thus does not transgress those bounds. Because of the long pendency of this appeal, we decide this appeal under prior law. Furthermore, given our rejection of the disproportionality challenge, the new law, clearly strengthening such rejection, could not affect the outcome. We therefore have no occasion to consider either its applicability or validity. Hence, our references to a "universe" of cases required for statutory proportionality review are to be understood to refer to the statutory provisions in effect at the time of this offense. Because there are several capital appeals pending under the prior law, we address the issues in sufficient detail to deal with those appeals as well as this, depending on the ultimate effect of L.1992, c. 5.

Much of the discussion is designed to explain the process of record-gathering and the methods of analyses, both of science and law, that can be used to conduct proportionality review and to assess the relevance of the data to system-wide claims of unconstitutional infliction of the death penalty. Because we address both the individual death sentence and the format for proportionality review under our capital-sentencing scheme, we refer either to defendant, Robert O. Marshall, or the Public Defender where appropriate to the context.

Although we recognize that proportionality is not a scientific determination, we have attempted to make our determinations as precise in terms of their bases and reasoning and as objective as possible. We have used scientific and statistical measures, when helpful, although we recognize that a value judgment is built into practically every measurement. A life is at stake, and although some degree of subjective value judgment may be required, we have attempted to make those judgments explicit so that they can be analyzed and tested against whatever objective measurements are applicable.

Parts of this opinion, then, that deal with the computer-based process of record-gathering are technical in nature; the remainder is more traditional legal analysis. For convenience, we outline the different aspects of the appeal.

                                               TABLE OF CONTENTS
                       Introduction ...................................................... 1062
                   I.  Facts ............................................................. 1065
                  II.  Proportionality Review Defined .................................... 1066
                 III.  The "Universe" from which "Similar Cases" are Drawn ............... 1070
                  IV.  Identifying the Comparison Group of "Similar Cases" in the
                         Universe ........................................................ 1074
                       A.           The Catalog of the Cases ............................. 1074
                       B.           The Methods of Selecting a Comparison Group of
                                      Similar Cases from the Catalog ..................... 1076
                                    1.                    By Salient Factors ............. 1077
                                    2.                    By Aggravating/Mitigating
                                                            Factors ...................... 1078
                                    3.                    By Common Characteristics
                                                            Relating to all Life/Death
                                                            Outcomes ..................... 1078
                       C.           The Criteria for Comparing the Cases for
                                      Disproportionality ................................. 1078
                                    1.                    Frequency Analysis--Will
                                                            Statistics Demonstrate that a
                                                            Sentence is Disproportionate?  1081
                                    2.                    Precedent"Seeking
                                                            Analysis--What Specifics of
                                                            Comparison Cases will

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  • In re Ross
    • United States
    • Supreme Court of Connecticut
    • January 27, 2005
    ...the death penalty based solely on statistical proof. See State v. Loftin, 157 N.J. 253, 298, 724 A.2d 129 (1999); State v. Marshall, 130 N.J. 109, 207, 613 A.2d 1059 (1992), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 694 I am well aware that statutes are subject to a heavy pres......
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    ...the death penalty based solely on statistical proof. See State v. Loftin, 157 N.J. 253, 298, 724 A.2d 129 (1999); State v. Marshall, 130 N.J. 109, 207, 613 A.2d 1059 (1992), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 I am well aware that statutes are subject to a heavy p......
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    • United States State Supreme Court (New Jersey)
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5 books & journal articles
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    • June 22, 2001
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    • Journal of Criminal Law and Criminology Vol. 100 No. 4, September 2010
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    ...that a particular death sentence met the stringent requirements of judicially-mandated proportionality review. See State v. Marshall, 613 A.2d 1059 (N.J. 1992). See generally infra Part (4) See Leigh B. Bienen et al., The Reimposition of Capital Punishment in New Jersey: The Role of Prosecu......
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