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State v. Biegenwald3/5/1987
g). We ourselves would not countenance a retrial in such circumstances. State v. Tropea, supra; State v. Lynch, supra.
Under these circumstances, principles of double jeopardy and fundamental fairness prohibit the State from trying defendant again to attempt to establish that the murder is a c(4)(c) capital offense. For reasons similar to those I expressed in State v.
Ramseur, I would bar a retrial seeking the death sentence and enter a judgment of life imprisonment.
III.
I have already expressed at length my reasons for concluding that the capital murder-death penalty statute is unconstitutional. See State v. Ramseur, supra, 106 N.J. at 345-408 (Handler, J., dissenting). These reasons, in my estimation, fully apply to this prosecution and would warrant a reversal of the conviction and death sentence.
In this case additional compelling reasons call for such reversal. The massive highly prejudicial pretrial and trial publicity, unjustifiably aggravated by the prosecutor's misconduct in publicizing the case, rendered impossible a trial by a fair and impartial jury in the vicinage. The court failed to take any effective measures to cure the prejudice occasioned by the publicity. Further, because of the errors involved in the presentation of evidence and jury instructions in the sentencing phase of the trial, defendant, on grounds of double jeopardy and fundamental fairness, should not again be retried for purposes of imposing the death penalty.
The significance of this case impels me to make an added observation. Murderers like Richard Biegenwald pose the greatest challenge to the fairness, impartiality and integrity of our judicial system. The terrifying personalities of such murderers, their inscrutable compulsions, their seemingly irrational, random actions take more than their victims; they exact a debilitating toll on all of society, reducing to nothing the most cherished right of life itself. A public perception that our legal system leaves society unprotected against such people, or fails to register society's outrage at their actions, undermines both
respect for the Constitution and, ultimately, belief in the values embodied in the Constitution.
[EDIT ]
This kind of case puts the judiciary to supreme tests. It exposes judicial attitudes as well as judicial principles. It shows that noble principles are not enough. Principles can be betrayed by a want of conviction. Principles of law serve us only in their application; wrong applications are no better than unjust principles. Here the principles that we summon are those that recognize the importance of individual life and the need for scrupulous protections before a life -- any life, including that of an unrepentant murderer -- can be taken by the State. One such protection has to do with a fair and impartial jury. The assurance of a fair and impartial jury is not easy to achieve. Vigilance requires that community outrage over a defendant's crimes not be allowed to infect the jury that will deliberate the defendant's fate, particularly where life is at stake. We are guided by that principle here. We falter in its application, however, when we allow a defendant to be tried before a jury in which the risk of prejudice is so real. Justice is disserved as much by a failure to follow right principles as by a failure to recognize them.
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