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State v. Biegenwald3/5/1987
t upon the public highly sensational. The actions of the prosecutor were intentional, not inadvertent, and surpassed any professional needs arising from the investigation and prosecution of the case itself. Indeed, this conduct violated the New Jersey Rules of Professional Conduct, 3.6. In Matter of Rachmiel, 90 N.J. 646 (1982), this Court construed the predecessor of this professional rule, Disciplinary Rule 7-107(B)(6), and concluded that it "prohibits an attorney involved in an ongoing criminal trial from making extra-judicial comments concerning the guilt or innocence of a criminal defendant or the quality of the evidence or merits of the case when such remarks are reasonably likely to interfere with a fair trial." Id. at 657. In my view, the comments about defendant's implication in other murders and his lack of motive for the murders and the prosecutor's production of physical evidence at the press conference cannot be condoned in light of this ethics stricture. See In re Hinds, 90 N.J. 604, 622-23 (1982).
Although this case is not an ethics proceeding, it is nonetheless clear that the prosecutor's conduct was not professionally justifiable or defensible; it was undoubtedly an added factor that contributed to the violation of defendant's constitutional rights. This form of prosecutorial misconduct must be weighed
heavily against the State in assessing defendant's claim to a denial of constitutional rights and, more important, in determining what relief defendant is entitled to receive in order to repair the constitutional damage. See State v. Sugar, 84 N.J. 1 (1980).
The trial court did take some precautionary or curative measures, such as its imposition of a "gag order" and a short continuance of the trial. That the effect of the publicity was not overcome by these steps is evidenced by the news articles appearing the day before trial, repeating damaging and inadmissible information, including the prosecutor's inflammatory comments. In addition, as evidenced by the voir dire examination, see supra at 75-81, the publicity had a tangible impact on prospective and selected jurors.
The extent and nature of the publicity, as measured by the relevant factors, created the realistic likelihood that a fair and impartial jury could not be obtained. Absent effective corrective measures, defendant should have obtained a change of venue. The question, therefore, is whether the trial court's voir dire examination served to neutralize the effects of the prejudicial publicity and secure an impartial jury.
C.
Courts have considerable flexibility in coping with the prejudicial effects of adverse publicity. The trial court may order an adjournment of the trial, a change of venue, or the empaneling of a foreign jury; they may also engage in a particularly thorough voir dire examination of prospective jurors. See State v. Williams, supra, 93 N.J. 39; State v. Allen, 73 N.J. 132, 161 (1977) (Pashman, J., concurring); State v. Trantino, 45 N.J. 37, 39-40 (1965). In State v. Williams, supra, 93 N.J. at 60-63, 67-68 n. 13, the premise of the discussion regarding juror taint and change of venue motions was that in cases preceded by extensive publicity, an "exhaustive and searching voir dire " is the linchpin necessary to empaneling impartial
jurors, particularly where pretrial motions to change venue and sequester the jury have been denied. Id. at 68-69, 71 n. 18. In this case, the trial court refused to seque
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