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State v. Biegenwald3/5/1987
ial and trial publicity, which was materially aggravated by the prosecutor's needless and unjustifiable publicizing of the case prior to trial. Defendant contends that it was error to deny his motion to change venue in the face of such prejudicial publicity. He further contends that this prejudice was not otherwise overcome, particularly in that the trial court failed to conduct an adequate voir dire examination of jurors. Moreover, the court's refusal in the voir dire to excuse several jurors for cause or to allow the attorneys to question prospective jurors or to permit defense counsel to challenge jurors for cause at side bar compounded the inadequacies of the voir dire.
These errors, defendant contends, violated his right to a fair trial under the due process guarantee of the fifth and fourteenth amendments and the sixth amendment right to an impartial jury under the federal Constitution, as well as Article I, paragraphs 1 and 12 of the State Constitution. A proper understanding of these issues and their resolution entails first a detailed exposition of the facts relating to the publicity surrounding the investigation and prosecution of the crime and its impact on prospective and selected jurors when the trial commenced.
A.
Media coverage of defendant's crime was extensive, graphic, and sensational. During a three to four month period in the spring and early summer of 1983, there was widespread publicity about the defendant in newspapers distributed throughout Monmouth County, the vicinage in which the prosecution was brought. Newspaper articles linked the defendant to as many
as seven murders in the area; they also disclosed the fact that defendant had a prior murder conviction. Front-page articles in the widely read Asbury Park Press during this period contained pictures of police efforts to find and recover buried bodies and maps to grave sites where bodies were found, as well as pictures of the shackled defendant; they also related interviews of persons who knew defendant and interviews of families of the victims. There were also news stories that focused on how forensic medical personnel identified unknown bodies through dental charts.
The sensationalism of this publicity was fed by the prosecutor himself. The prosecutor established a telephone "hot-line" number to receive calls from anyone with information about the murders or defendant and gave this significant publicity. Moreover, the press was specifically invited by the prosecutor to witness and report on investigations involving defendant. By the prosecutor's own admission, some 200 reporters went to defendant's mother's house on Staten Island to observe and report on digging operations for bodies at that site. The prosecutor also held several press conferences. During one press conference a victim's clothes, jewelry and dental charts were brought and were photographed and reported by the media. In another press conference the prosecutor clearly indicated that he believed that defendant was guilty. He also made numerous publicized comments concerning defendant's motive for the murders and the events leading to the murders, giving the impression that these matters were factually true. One article, headlined "[Prosecutor] hoping stab victim adds to Biegenwald profile," quoted the prosecutor as saying that investigators were concentrating on identifying a body "believed to be the fifth of [the defendant's] victims." (See Asbury Park Press, April 24, 1983 at 1, col. 1.) Among the prosecutor's oft-repeated statements to the press were that defendant murdered his victim "for the sheer pleasure of seeing her die" (Asbury Park Press, May 5, 1983 at 1, co
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