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State v. Biegenwald3/5/1987
table presumption that statements on these topics are reasonably likely to affect the proceedings." Id. (citing Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 251 (7th Cir.1975), cert. den. sub nom. Cunningham v. Chicago Council of Lawyers, 427 U.S. 912, 96 S. Ct. 3201, 49 L. Ed. 2d 1204 (1976)).
The State argues that the prosecutor's comments were permissible because they disclosed only the results of an ongoing investigation. For support, it relies on Disciplinary Rule 7-107(A)(3), which authorizes unelaborated statements by a prosecutor as to " he general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim." We find this argument to be specious in the context of the inflammatory pretrial comments by the prosecutor in this case. The prosecutor's public statements that defendant murdered Olesiewicz "for the sheer pleasure of seeing her die" or "because he wanted to see someone die that night" can hardly be justified as disclosures warranted by the "general scope of the investigation including a description of the offense. . . ." DR 7-107(A)(3). Rather, such statements are clearly expressions of opinion on "the evidence, or the merits of the case," unquestionably proscribed by Disciplinary Rule 7-107(B)(6). Particularly in a case like this one, characterized by feverish media interest and broad publicity throughout the state, such comments by the prosecutor are highly inappropriate and inconsistent with his duty to insure that justice is done. See State v. Johnson, 65 N.J. 388, 392 (1974); State v. Farrell, 61 N.J. 99, 104 (1972).
We here reiterate our firm position as stated in State v. Ramseur, supra, 106 N.J. 123, that prosecutors in capital cases have a special obligation to seek justice and to not simply convict, and that we will scrupulously review conduct that falls short of this high standard:
Prosecutors in capital cases are hereby on notice that in the future, this Court will not hesitate to refer on its own motion possible violations of the special ethical rules governing prosecutors to the appropriate district ethics committee for disciplinary action. We are well aware that within the legal profession the prosecutor's double calling -- to represent vigorously the state's interest in law enforcement and at the same time help assure that the accused is treated fairly and that justice is done -- is uniquely challenging. That challenge is what makes the prosecutor's mission such a difficult one and such an honorable one. A prosecutor willing to engage in proscribed conduct to obtain a conviction in a capital case betrays his oath in both its respects. Not only does he scoff at rather than seek justice, he also represents the state poorly. Because death is a uniquely harsh sanction, this Court of necessity will more readily find prejudice resulting from prosecutorial misconduct in a capital case than in other criminal matters; prosecutors who fail to take seriously their particularly stringent ethical obligations in capital cases thus strongly risk postponing, and even jeopardizing, the enforcement of the law. We are confident that our prosecutors will be equal to this ethical challenge, but we also stand ready to take whatever action is required to remedy any abuses.
[ Id. at 323-324.]
However, " rosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." Id. at 322. Despite our strong disapproval of the prosecutor's statements, we are persuaded that these statements, occurrin
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