 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Biegenwald3/5/1987
t denied the motion for a mistrial, and defense counsel subsequently excused peremptorily each of these jurors.
Concededly, to the extent the trial court's rulings were discretionary, the defendant must demonstrate that the court was mistaken in the exercise of this discretion. See State v. Smith, 55 N.J. 476 (1970). Here, it is clear that there was an abuse of
discretion. The defendant took the position consistently in pretrial motions and throughout the voir dire that there were many prospective jurors who knew of defendant's link to at least four other murders. With respect to the examination of three jurors, defense counsel was required to express, in their presence, his reasons for believing they could not be impartial even though they obviously believed that they could be. In effect, defense counsel was forced to argue before these jurors that he did not find them credible and that they should not be believed. Moreover, defense counsel was curtailed in stating his objections and compelled to present his position elliptically in order not to offend the jurors and to avoid reinforcing what the jurors already suspected or knew about the murders. Finally, defendant had to be guarded in his remarks in order to minimize the risk that they would be publicized in the press.
It is not illogical or imaginary to conclude that the psychological conditioning resulting from a challenge may act subconsciously to impede a juror's ability to reach a verdict solely upon the evidence before him. See State v. Simon, 79 N.J. 191, 199-202 (1979). Here, the trial court's decision to hear cause challenges in open court in the presence of the challenged juror adds to this negative influence. The evidence of mistake is
confirmed by the fact that the State agreed with defendant that such challenges for cause should be heard out of the presence of jurors and the court eventually relented.
In my view defendant's challenges for cause were erroneously denied; the incremental prejudice attributable to juror challenges for cause in the presence of the challenged juror merely adds to the reasons for reversal attributable to the inadequacy of the voir dire examination.
D.
In sum, it is abundantly clear that there was massive detrimental pretrial and trial publicity that was so prejudicial it created the realistic likelihood that defendant could not obtain a trial by a fair and impartial jury. The violation of defendant's constitutional rights was more egregious because the State, through the prosecutor, intentionally encouraged and added to the pretrial publicity. This not only underscores the violation of the constitutional right, but also influences the nature of the relief to which defendant is entitled. Defendant was entitled under the circumstances to a change of venue.
Since the trial court did not order a change of venue, the violation of defendant's constitutional right to a fair and impartial jury went unrepaired. The procedures leading to the empaneling of the jury were wholly ineffective to overcome the impact of prejudicial publicity or to surmount the realistic likelihood that a jury could not fairly and impartially try the defendant. It further appears that defendant was forced to exercise all peremptory challenges to excuse jurors who should have been removed by the court for cause and that this was a denial of defendant's full opportunity to secure a fair and impartial jury. The risk of jury bias was further increased by instances in which defense counsel was improperly compelled to argue gro
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 New Jersey DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|