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State v. Biegenwald3/5/1987
dire convinced the trial court -- and apparently the defense, for she was not challenged for cause and no objection is now made to her serving -- that she could disregard what she heard and serve impartially. Except for her, none of the jurors whose voir dire is excerpted in the dissent's Appendix actually served on the jury.
We do not dispute defendant's contention that this case was the subject of widespread and inflammatory publicity throughout the region during the spring of 1983. However, our independent review of the record of the jury voir dire impels us to conclude that a significant portion of the jury array was relatively unexposed to pretrial publicity and that the jurors impaneled constituted a fair and impartial trial jury.
C. Prosecutorial Misconduct
Defendant claims that he was denied an impartial jury as a result of the massive pretrial publicity which included and was encouraged by inflammatory statements made by the Monmouth County Prosecutor. The prosecutor arranged several press briefings in April, May and June 1983, during which he discussed the murders for which he was seeking to indict Biegenwald. The prosecutor gave the names, ages and addresses of the victims. He assumed defendant's guilt, and commented on his motive, events surrounding the crimes, and portions of the State's evidence. Among the prosecutor's statements were that defendant committed the murders "because he wanted to see someone die" on those nights; that defendant shot Ms. Olesiewicz "for the sheer pleasure of seeing her die"; and that Biegenwald was a "perverted, sick individual." On July 29, 1983, the trial court denied defendant's motion to dismiss the indictment on the basis of prosecutorial misconduct.
Disciplinary Rule 7-107(A), (B) of the Code of Professional Responsibility states, in pertinent part:
(A) A lawyer participating in or associated with the investigation of a criminal matter shall not make or participate in making an extrajudicial statement that he expects to be disseminated by means of public communication and that does more than state without elaboration:
(1) Information contained in a public record relating to the matter.
(2) That the investigation is in progress.
(3) The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim.
(4) A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto.
(5) A warning to the public of any dangers.
(B) A lawyer or law firm associated with the prosecution or defense of a criminal matter shall not . . . make or participate in making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication and that relates to:
(1) The character, reputation, or prior criminal record (including arrests, indictments, or other charges of crime) of the accused. . . .
(6) Any opinion as to the guilt or innocence of the accused, the evidence, or the merits of the case.
This Court has held that Disciplinary Rule 7-107(B)(6) "prohibits an attorney involved in an ongoing criminal trial from making extrajudicial comments concerning the guilt or innocence of a criminal defendant or the quality of the evidence or the merits of the case when such remarks are . . . reasonably likely to interfere with a fair trial." In re Rachmiel, 90 N.J. 646, 657 (1982) (emphasis added). The disciplinary rule creates a "rebut
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