VERSUS MICHELLE PADEN BATTLE, MAE WE PLEASE HAVE AP TEARSES OF SOUND SELL. R.
TAMAR Y. LERER: STAM LER, SKICHT ANT ASSISTANT DEPUTY PUBLIC
DEFENDER ON BEHALF OF MR. MELVIN. MATTHEW E. HANLEY: MATTHEW
HANDLE ON BEE WILL HAVE THE STATE, ESSEX COUNTY. EMILY M. M.
PIRRO: EMILY M PEER ROW ON BEHALF OF STATE ESSEX COUNTY. MOLLY
O'DONNELL MENG: MOLLY ON NEL DON MENG DOES THIS ACCURATELY DEPICT ON BEHALF OF
MICHELLE. SHALL SHAM AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY AS
A FRIEND OF THE COURT IN BOTH MATTERS. JOSEPH A. HAYDEN, JR.: JOEF
HAD DEN HONORABLY OF OF ASSOCIATION OF CRIMINAL DEFENSE LAWYERS OF NEW
JERSEY, APPEARING ON BEHALF OF BOTH MATTERS. PROF. JON
ROMBERG: JOHN VOM BER SO OFFICIAL JUSTICE APPEARING AS AMICUS. HAVE.
SARAH D. BRIGHAM: D A G SAR RAB BRIG ON BEE OF ATTORNEY GENERAL APPEARING
AS A MOOK CAN YOU SAY CURE RAY. CHIEF JUSTICE RABNER: GOOD MORNING
COUNSEL WELCOME THE HEART OF BOTH CASES IS A SINGLE ISSUE SO I WOULD
ASK ALL COUNSEL TO THE EXTENT POSSIBLE TO INCORPORATE ARGUES AND AND AGREE WITH
THOSE WHO PRECEDED YOU WHERE THAT MAKES SENSE RATHER THAN REPEAT THOSE
POSITIONS FOR THE KOVRMENT MS. LERER, PLEASE PROCEED. LER LER KWURNS MAY IT PLEASE
THE COURT I LIKE TO RESERVE 2 MINUTES FOR REBUTTAL IF NECESSARY.
CHIEF JUSTICE RABNER: THAT'S FINE. TAMAR Y. LERER: MR. ML VEN WAS
CHAFRNDZ WITH A DOUBLE HOMICIDE, PRO SEFG HIS NNGS HE PROCEEDED TO TRIAL
NOT ONCE BUT TWICE AND WAS AK KWIPTED OF A HOMICIDES OF ASSAULT AND UNRELATED
CHARGES BEING ON KIKTED OF POE SECHG THE WEAPON WITH AN UNLAWFUL PURPOSE.
IN THIS CASE THE SENTENCING COURT DECIDED THAT HE BELIEVED
MR. MELVIN WAS THE MURDERER, THAT HE WAS ENTITLED TO TAKE THAT BELIEF INTO ACCOUNT
IN SENTENCING MR. ML VIN, AND THAT HE DID IN FACT TAKE THAT BELIEF INTO
ACCOUNT IN SENTENCING MR. ML VIN. WHEN WHAT HAPPENED HERE IS WRONG AND IT'S
SO WRONG IN FACT IT VIOLATES FOUR DIFFERENT LEGAL PRINCIPLES. FIRST,
THE FEDERAL REASON STATE PROTECTIONS OF DUE PROCESS, 2ND THE STATE CONSTITUTIONAL
PROTECTION AGAINST DOUBLE JEOPARDY. 3RD, THE STATE CONSTITUTIONAL
PROTECTION OF FUNDAMENTAL FAIRNESS. AND 4TH, THE STATE PROTECTION OF THE RIGHT
BY TRIAL BY JURY AND 5TH, THE 6TH AMENDMENT RIGHT TO TRIAL BY JURY.
THE FIRST FOUR OF THOSE ISSUES ARE CATEGORICAL, MEANING THE
CONSIDERATION OF ACQUITTED CONDUCT IS UNLAWFUL AND RENDERS A SENTENCE UNLAWFUL
REGARDLESS OF THE MERITS OF THE ACTUAL RESULTING SENTENCE. THE LASTS
HAS APPLIED CHALLENGE, I'M GOING TO GO IN THE ORDER I JUST LISTED THOSE ISSUES AND
AS I DO SO I WANT TO ENCOURAGE THIS COURT TO DECIDE ISSUES UNDER NEW JERSEY
LAUSHGS WHILE I DO BELIEVE THAT MR. MELVIN IS CONNECT UNDER FEDERAL LAW AS WELL,
THE NEW JERSEY CONSTITUTION IS AN INDEPENDENT SOURCE OF LAW AND WHAT
HAPPENED HERE VIOLATES THE VALUES EN SHINED IN THAT CONSTITUTION WHICH GIVES MR.
MELVIN THE PROTECTIONS THAT HE NOW SEEKS. SO BEGIN, WITH FEDERAL
AND STATES DUE PROCESS, THERE'S MULTIPLE COMPONENTS OF DUE PROCESS THAT
WERE HAVE I LATSD HERE AND THE FIRST AND PERHAPS THE CORNERSTONE OF THIS WHOLE
CASE IS THAT ACQUITTALS ARE SPECIAL. THERE'S NOTHING IN A CRIMINAL JUSTICE
SYSTEM AS SIGNIFICANT AS AN ACQUITTAL AND TO QUOTE THE NORTH CAROLINA
SUPREME CHORT WHEN IT DECIDED THAT AK COMMITTED CONDUCT CANNOT BE USED AS
SENTENCING, QUOTE K BLACKS LAW DICTIONARY AND ACQUITTAL IS THE LEGAL AND
FORMAL CERTIFICATION OF INNOCENCE OF A PERSON WHO HAS BEEN CHARGED WITH A CRIME.
SO TO TREAT IT AS SOMEONE JUST NOT GUILTY ENOUGH BUT MIGHT BE
GUILTY ENOUGH FOR SENTENCING PURPOSES, UNDER LINES WHAT'S THOUGH SPECIAL AND
SO SIGNIFICANT OF AN ACQUITTAL AND RENDERS IT DOING VERY LITTLE ACTUAL
CONSTITUTIONAL WORK. THE SECOND AND RELATED AS IT DEMEANS THE
PRESUMPTION OF INNOCENCE WHICH IS ALSO NOT A TECHNICALITY BUT A BEDROCK OF LIBERTY
IN OUR FREE SOCIETY. WHEN COURT DECIDED ISSUE IN OUR FAVOR, THEY EXPLAINED
THAT ACQUITTED CONDUCT SHOWS UP AT SENTENCING IN THE COMPANY OF THE DUE PROCESS
PROTECTION OF THE PRESUMPTION OF INNOCENCE. WHEN SOMEONE IS AK
QUITSED THE PRUL SHUN OF INNOCENCE NOT ONLY RETURNS TO THEM BUT REMAINS WITH THEM
FOREVER. AND TO CONSIDER SOMEONE GUILTY AT CRIMINAL SENTENCING FOR
THE PURPOSES OF SENTENCING, DEMEANS THAT PRESUMPTION OF INNOCENCE.
IT ALSO UNLINK THE PUNISHMENT FROM THE REQUIREMENT OF PROOF BEYOND A REASONABLE
DOUBT KWH IS THE FINAL BEDROCK PORTION DUE PROCESS. PUNISHMENT WITHOUT
CONVICTION IS UNCONSTITUTIONAL. TO SAY THAT THE JURY DID NOT FIND MR. MELVIN
GUILTY BEYOND A REASONABLE DOUBT BUT THAT HE IS GUILTY ENOUGH TO SUFFER
ENHANCED CRIMINAL PUNISHMENT ON THE BASIS OF THE LOWER CIVIL STANDARD UNDERMINES
THIS BEDROCK LEGAL PRINCIPLE. IF FLR NO QUESTIONS ABOUT DUE PROCESS I WILL
MOVE ON TO STATE DOUBLE JEOPARDY. OKAY. SO THIS IS A AKIN DID A
PROSECUTION AFTER AK KWILTS. WE ALL KNOW AFTER MR. MELVIN HAS BEEN AK KWITSD
OF MURDER THE STATE CAN'T PROSECUTE HIM, GET A CONVICTION AND THEN PUN NESH HIM.
WHAT THEY DID IS SKIP TO THE PUNISHMENT WITHOUT THE MIDDLEMAN OF THE
PROSECUTION. AND THIS FLOWS DIRECTLY FROM TILLERY. SO IN TILLERY, THIS COURT
SAID THE TRIAL COURT DID NOT ALLOW TO CONSIDER CONCONDUCT THAT A DEFENDANT MIGHT
STILL FACE PROSECUTION FOR WHEN SENTENCING THEM. AND THE CONCERN
THERE WAS DOUBLE JEOPARDY MUCH THE CONCERN IS TWO FOLD. THE 1ST IS SOMEONE COULDN'T
VIKD OF CRIME A BUT THE KRIEK HANG ON KROIM B AND I FIND YOU COMMITTED
COUNTS A AND B AND I'M ENHANCING YOUR PUNISHMENT ON COUNT A BECAUSE OF THE
CULPABILITY OF CRIME B IF THERE'S ANOTHER RETRIAL AND A PERSON IS CONVICTED
OF CRIME B AND SENTENCED TO CRIMINAL PUNISHMENT ON CRIME B, THAT'S DOUBLE
PUNISHMENT. BUT THE CONCERN THAT INMATE'S DOUBLE JEOPARDY IS NOT ONLY
ABOUT DOUBLE PUNISHMENT. THE STATE VS. TILLERY FOR ACQUITTAL IF HE'S CONVICTED
AND CRIME B AND THE JURY SOCIAL SECURITY HUNGS I'M SENTENCING MORE HASH. BA
I BELIEVE YOU XHITD CRIME B AND THE PERSON IS ATLANTIC CITY QUITSED
OF CRIME B THAT PERSON HAS SIFRD PUNISHMENT FOR SOMETHING THEY WERE NOT GUILTY
OF. SO REALLY IN TILLERY, THIS COURT NOT ONLY LAID OUT THE DOUBLE JE
OPARDY CONCERN HERE BUT IT ALREADY PARTED WAYS FROM FEDERAL DOUBLE JEOPARDY JP.
IN W I T T E VERSUS UNITED STATES, THE SUPREME COURT OF THE UNITED STATES
SAID THAT ENHANCING SOMEONE'S PUNISHMENT ON THE BELIEF THAT THEY XHITD THE CRIME
B FOR CRIME A AND THEN PROSECUTING THEM FOR CRIME B WAS ALLOWED. SO IN
TILLERY THIS ANIMATED CONCERN ACTUALLY PARTS WAYS ALREADY FROM THE FEDERAL DOUBLE
JEOPARDY JURISPRUDENCE. SO THE STATE IS URGING THIS COURT SHOULD NOT
AND FINE THE DOUBLE JEOPARDY ROUNDS NOT ONLY MINIMIZES THE NEW JERSEY CONSTITUTION
BUT FAILS TO RECOGNIZE WE AR HAVE NEW JERSEY DOUBLE JEOPARDY GROUNDS
AND JUSTICE ALBIN RRP TRACED THAT RAILROADS COMPELLING FOR DECADES WE HAVE PROVIDED
ROBUST DOUBLE JEP PARD TEES PROTECTION UNDER OUR OWN CONSTITUTION. AND
I WON'T BEE HAB THE ARGUMENT ABOUT WATTS, MY WHAT'S IS REALLY A SHAKY PRECEDENTS
TO FOLLOW. JUSTICE ALBIN: CAN I RAISE A QUESTION GOU RTS
DOUBLE YEP TARRED APARD DE. SO THE FIFTH AMENDMENT USES THE TERM DOUBLE JEOPARDY.
OUR STATE CONSTITUTION SAYS IN ARTICLE 1, PARAGRAPH 11, NO PERSON SHALL
AFTER ACQUITTAL SIDE-BAR TRIED FOR THE SAME OFFENSE. AND VERY DIFFERENT THAN
THE GENERAL LANGUAGE. WHOEVER DRAFTED HIS WAS FOCUSING ON AK EQUIPMENTS
THEY WEREN'T EVEN TALKING ABOUT CONVICTIONS. ACQUITTAL IS SPECIAL
DESIGNATION. SO WHAT DO WE MAKE OF THAT SPECIAL LANGUAGE IN
OUR STATE CONSTITUTION? TAMAR Y. LERER: I THINK WE WHAT MAKE OF THAT
MY THEME, MY CORE ARGUMENT THAT ACQUITTALS ARE SPECIAL IS SO CORRECT
THAT EVEN IN OUR DOUBLE JEOPARDY CHARGE CONCEIVABLY SOMEWHAT NR LIMITED THAN
THE FEDERAL CLAUSE IN OTHER PLACES, SPECIFICALLY CAPTURES THE HARM IN
THIS CASE. AND WE HAVE BROUGHT IN A PATH LITTLE TERMS OF COURSE AND AS THIS COURT
SAID IN GREG 3 WE SHOULD BE FOE SUFG UN THE UNDERLYING APOLOGY SEE RATHER
THAN TECHS TERP PRETH THE DOUBLE JEOPARDY CLAUSE BUT HERE WE HAVE THE ACTUAL WORDS
IN THE CLAUSE AND FOCUSED ON EXACTLY THE HARL WE HAVE IN THIS CASE SO
THAT CONSTITUTES UNDER DOUBLE JEOPARDY PRUDENCE IN NONACQUITTAL AR REEN NAS,
EEJ YOU'RE RIGHT, JIS TIS ALBIN THE VS HAD A SPECIAL CONCERNS ABOUT ACQUITTALS.
JUSTICE ALBIN: I TAKE THE YOUR ARGUMENT IS IN THE CONSTITUTION
WHERE IT SAYS TRIED FOR THE SAME OFFENSE, YOUR ARGUMENT IS THE FACT FINDING BY
THE TRIAL COURT IS COULDN'T STUTH THE EQUIVALENT OF THE TRIAL FOR THE
SAME OFFENSE? TAMAR Y. LERER: YES, OR IN AT THE ALTERNATIVE
IF THAT, YOU KNOW, IF THAT BY SKIPPING STS PROS SKOUGS AND GETTING READY FOR
PUNISHMENT THAT DOESN'T MAKE SOMETHING MORE CONSTITUTIONAL. THE MIDDLEMAN
HAVING TO CONVINCE THE YOU'RE OF PROOF BEYOND A REASONABLE DOUBT IS REALLY KWIELT
IMPORTANT. SO I RPT THE SENTENCING PROCEDURE IS THE PROSECUTION OR
I THINK EVEN WORSE THERE IS. STPHAO: PROSECUTION, THERE'S SIMPLY
PUNISHMENT. AND BOTH THIS COURT AND THE UNITED STATES SUPREME COURT
HAVE DISCUSSED THAT DOUBLE PUNISHMENT IS AS UNDER DOUBLE JEOPARDY AS DOUBLE
PROSECUTION. I WILL BRIEFLY TOUCH ON FUNDAMENTAL FAIRNESS MUCH
THIS COURT HAS SAID THAT WHERE DUE PROCESS AND DOUBLE JEOPARDY AND EVEN THE RIGHT
TO A JURY TRIAL WHICH I'LL GET TO AT THE END IF, THEY DON'T EXPLICITLY
PROTECT AGAINST SOMETHING THAT T THAT IS WHERE OUR STATE FUNDAMENTAL FAIRNESS
JURISPRUDENCE CAN FILL IN THE GAPS. AND HERE THIS IS EXACTLY WHAT THE DOCTRINE
WAS MEN TO PROTECT. WRIT PROTECTS AGAINST GOVERNMENT OPPRESSION AND
ACTIONS THAT ARE CONTRARY TO COMMON STANZ DARDZ OF DECENCY. IF YOU ASK AN
ORDINARY PERSON ON THE STREET WHO HAPPENS TO BE THE TYPE OF PERSON WHO HAS
BEEN ASKING TO SIT ON A JURY WHAT THEY THINK ABOUT WHAT HAPPENED IN THIS CASE,
THEY WILL TELL YOU THAT THEY DIDN'T KNOW THAT WAS EVEN ALLOWED. AND IN THIS
CASE, NOT ONLY SHACKS AS LAYPERSON AS OTHER JUDGES REASON DI SENT AND
TRIAL CERTIFICATES HAVE RECOGNIZED AGAIN AND AGAIN, BUT IT UNDERMINES THE CONFERENCE
IN THE JUDICIARY AND IN THE CRIMINAL JUSTICE SYSTEM AS A WHOLE.
CHIEF JUSTICE RABNER: BUTSD THE HEART OF THIS DOCTRINE IS THE NOTION
THAT ARBITRARY ACTION, INDIVIDUALS SHOULD BE PROTECTED AGAINST ARBITRARY
ACTIONS BY THE GOVERNMENT. DO YOU KNOW HOW MANY JUDGES IN THE STATE FOLLOW THE
PRACTICE THAT WAS FOLLOWED HERE? TAMAR Y. LERER: MY UNDERSTANDING
IS THAT IT IS ONLY THE ONE WHO SENTENCED IN THIS CASE AND I KNOW MR.
SHALL LOEMG GOES INTO THAT MORE IN DEPTH. I DID AUK TO MY OFFICE AND NO ONE HAS
SEEN THIS IN ANY OTHER CASE AND AS HAR SHALOM POINTS OUT IN THE BRIEF,
ATTORNEY GENERAL A LAP PENNED A LOT OF, IN ALL THOSE CASES THE DEFENDANT SAID
THIS HAPPENED TO ME I WAS STENSDZ ON BASE OF AK QUITSED CONDUCT AND THE
APPELLATE DIVISION SAID THAT IS NOT WHAT THE BASIS OF THE SENTENCING WAS. SO
IF ASSERTED SCYTHE RELATIVELY FREQUENTLY AND THE APPELLATE DIVISION SAYS WELL
NTS NOT WHAT HAPPENED HERE, OF COURSE THAT'S NOT WHAT HAPPENED HERE,
THAT'S NOT HOW WE DO THINGS. SO I THINK THAT REALLY STRING THEY KNOWS THE ARGUMENT
THAT THIS IS ARBITRARY AND CONTRARY TO EXPECTATIONS NOT ONLY DEFENDANTS
AND NOT ONLY THE LAYPEOPLE THAT CONSTITUTE THE JURIES BUT REALLY THE
UNDERSTANDINGS OF THE MOST PEOPLE WHO ARE PART OF THE CRIMINAL JUSTICE SYSTEM.
JUSTICE ALBIN: MS. LERER, DO WE HAVE ANY UNDERSTANDING AT
ALL WHAT THE CUSTOMS WERE AT THE TIME OF THE FOUNDING OF THE REPUBLIC, THE REASON
I BRING THAT UP IS BECAUSE APPRENDI WAS HISTORICALLY BASED. DO WE KNOW
ANYTHING ABOUT THE SENTENCING PRACTICES AROUND THE TIME OF THE DRAFTING OF THE
BILL OF RIGHTS THAT MIGHT PROVIDE SOME EN SIGHT TO THIS ISSUE?
TAMAR Y. LERER: MY UNDERSTANDING AFTER MY OWN DEEP DIVE INTO APPRENDI AND POST
AND PAST, IS THAT THE JUDGE ACTUALLY USED TO HAVE MUCH, MUCH, MUCH LESS
DISCRETION IN SENTENCING. SO FOR THE SPECIFIC CONVICTION, THE JURY BROUGHT FORTH
THERE WAS A SPECIFIC SENTENCE THAT THE JUDGE HAD TO IMPOSE MUCH SO THIS
NEVER COULD HAVE HAPPENED. JUSTICE ALBIN: YEAH, SO IT STRIKES ME
BACK THEN RT THERE WAS WHAT WE CALL DETERMINE NINT SENTENCING AND
THEREFORE IT WOULD HAVE BEEN IMPOSSIBLE FOR ANY PARTICULAR CRIME YOU GOT A SPECIFIC
SENTENCE SO YOU WOULDN'T BE ABLE TO BUMP UP A SENTENCE BASED UPON AN
ACQUITTAL, IS THAT. TAMAR Y. LERER: THAT'S MY UNDERSTANDING.
JUSTICE LA VECCHIA: IF I COULD ASK A FOLLOW UP QUESTION THAT WAS RELATE
D TO YOUR FORMER POINT. IN THIS INSTANCE, YOU'RE FOCUSING THE COURT THAT THE
TRIAL COURT WHEN SENTENCING ARE WENT ON HIS BELIEF THAT THE DEFENDANT
XHITD A HOMICIDE IN ASSESSING AGGRAVATING FACTORS. BUT
IS IT YOUR POSITION THAT THE COURT COULD NOT BASE FRPT FINDINGS ON AGGRAVATING FACTORS
ON ANY PIECE OF EVIDENCE THAT IS SUBMITTED TO THE COURT IN CONNECTION
WITH A CHARGED FOR WHICH THE DEFENDANT IS ACQUITTED? STAM TAM Y AND I THINK
THAT THAT ACTUALLY LEADS ME TO MY NEXT. TAMAR Y. LERER: ISSUE
SO MAYBE I WILL BE ABLE TO. JUSTICE LA VECCHIA: GO RIGHT
AHEAD. DON'T LET ME GET AHEAD OF YOU. TAMAR Y. LERER: I THINK
AT CORE ONE OF THE ISSUES IS WHOSE JOB IS WHAT. AND THE JURY'S JOB IS TO
DECIDE WHAT THE DEFENDANT DID AND THE JUDGE'S JOB IS TO DETERMINE HOW HE DID IT,
AND WHO HE IS. AND SO IN THIS CASE IS THE JUDGE TAKEN INTO ACCOUNT THE
CIRCUMSTANCES ON THE POSSESSION OF A WEAPON IT WAS IN A TRAP THAT HE RAN AWAY
WHEN THE OFFICERS CAME, I THINK THOSE ARE FACTS THAT DON'T ESTABLISH CRIMINAL
CULPABILITY FOR AN ENTIRELY SEPARATE OFFENSE THAT'S JURY ACQUITTED HIM
OF, THIS WORKS IN TAM DEN WITH THE SIGNIFICANCE OF THE ACQUITTAL AND THAT THE
JURY CAN DO NOTHING MORE TO HOLD AUTHORIZATION FOR PUNISHMENT THAN TO
ACQUIT. AND EEJ IF YOU LOOK, I LOVE I'M SORRY SO CLOSE TO ARGUMENT, THAT SHOWS
WATCHED IN MICHIGAN SINCE THIS DECISION CALM OUT. SO THAT SAID, NO
SENTENCING AND CASE CALLED ROBTSS BACK TO THE COURT OF APPEALS AND THE COURT OF
APPEALS WAS TRYING TO FIGURE OUT THE CONTOURS OF THAT AND SAID, WELL, THE DEFTD
WAS ACQUITTED OF MURDER AND ACQUIT OF POSSESSING A WEAPON WITHIN TENTS
TO MURDER ANYONE BUT HE WAS IN THE NIGHTCLUB WHERE THE MURDER SO URD OCCURRED
AND PEOPLE DECIDE AND TLVR THIS POSSESSING OF A WEAPON WAS WORSE
AND. JUSTICE PIERRE-LOUIS: HUE I THINK WE LOST THE D A G.
TECH TK SHE WAS HAVING SOME ISSUES, WE'LL GET HER ON BY THE FOEVENLT I APOLOGIZE.
AND WE'RE LEAVE STREAMING. CHIEF JUSTICE RABNER: START
WITH YOUR ARGUMENT AND START BACK ABOUT 30 SECONDS. TAMAR Y.
LERER: I WAS TRYING TO ANSWER JUSTICE LAVECCHIA AND I THINK WHAT'S REEL IMPORTANT
IS THE DISTINCTION BETWEEN WHAT A DEFENDANT DID AND WHO HE IS AND HOW
HE COMMITTED IT, AND THAT THE WHAT TREADS UPON ACQUITTED CONDUCT AS OPPOSED TO
UNCHARGED CONDUCT OR HUNG CONDUCT BECAUSE IT HAS SPECIAL ACQUITTALS,
SO THESE THINGS DO WORK TOESHG THAT'S WHEN THE JUDGE CROSSES THE LINE AND THE
REASON I WAS TALKING ABOUT ROBERT'S AND BECK WAS TO SHOW THAT, YOU KNOW,
OBVIOUSLY THE CONTOURS WILL ARE TAKE SOME FILLING OUT ALL SO IT MIGHT BE A WHILE
BECAUSE OF THE RARITY OF THE CIVIL ACQUITTED CONDUCT. BUT MY POSITION
IS THAT NO AK QUITSED CONDUCT MEANS NO AK QUITSED CONDUCT AND THAT CAN'T BE SKIRTED
BY SAYING THAT THE AXE QUITTED CONDUCT IS SOMEHOW NOT ATTRIBUTE ABLG
EXACTLY TO THE DEFENDANT BUT ATTRIBUTABLE ENOUGH FOR HIM TO REQUIRE FURTHER PUNISHMENT
FOR THAT CRIME. FRPT THE. JUSTICE LA VECCHIA: WOULD IT BE
FAIR TO SAY THAT, IF I'M UNDERSTANDING YOUR POSITION, THAT CONDUCT WHICH
THE JURY JEKTED IN THE ACQUITTAL DECISION IS THE TYPE OF EVIDENCE THAT MAY NOT
BE USED IN THE SENTENCING OF THIS ISSUE? TAMAR Y. LERER:
YES. AND THAT REQUIRES FULL RESPECT FOR THEIR ROLE. SOMETHING THAT SUPREME
COURT OF THE UNITED STATES SAID AND MAYBE THIS HARKENS A LITTLE BIT BACK
TO JUSTICE ALBIN'S QUESTION IN DUB KIN VERSUS LOUISIANA, WHEN THE JURY RETURNS
As VERDICT THAT IS CONTRARY TO THE JUDGE MIGHT HAVE TO RETURN THAT'S
WHEN THEY'RE OPERATING AT THE COULDN'T LCONSTITUTIONALLY MOST IMPORTANT, THEY WERE
SDIENDZ TO THAT AS A TALL WART AGAINST OPPRESSION AND AS A COMMUNITY
CONSCIENCE. VEK RECOLLECTION JUST ONE FURTHER, UNDERSTANDING YOUR RESPONSE TO
MY QUESTION, AS ASSUMING YOU'RE OPERATING ON FINDINGS THAT ARE
WITHIN THE RANGE THAT SUPPORTS THE JURY FINDING OF GUILT, CORRECT, REDEALING WITHIN
THE PERMISSIBLE RANGE. TAMAR Y. LERER: YES.
JUSTICE LA VECCHIA: CONVICTED OFFENSE. TAMAR Y. LERER: YES, AS I
SAID TTD BEGINNING BUT JUST STO MAKE VERY CLEAR, ONLY THE LAST ARGUMENT
THE APPRENDI BASED ARGUE P HAS DO WITH THE ACTUAL REASONABLENESS OF THE SENTENCE
WITHIN THE STATUTORY RANGE. THESE ARGUMENTS ARE BASED ON THE PREMISE THAT
CONSIDERING ACQUITTED CONDUCT IS AN UNLAWFUL FACTOR AND THAT RENDERS A SENTENCE
UNLAWFUL IMPOSED, REGARDLESS RFT MERITS OF THE UNDERLYING SENTENCE.
JUSTICE LA VECCHIA: APPRENDI TALKS ABOUT EXPANDING THE PERMISSIBLE RANGE AND
BOOKER, YOU KNOW, CLARIFIED THAT WITHIN THE PERMISSIBLE RANGE THAT FINDING
MAY K ACCEPTABLE. TAMAR Y. LERER: YES. VEK VK OKAY. THANK
YOU. EXCEPT MY LAST POINT, I THINK JUSTICE PATTERSON DO YOU HAVE A QUESTION
BEFORE I MOVE ON TO THE APPRENDI ISSUE? PATS PAT YEAH, IT SEEMS TO KNEE
ACQUITTAL HAS TO BE THE LINCHPIN OF YOUR ARC MENT (THIS IS PATERSON) YOU TALKED
ABOUT A DPU MOMENTS AGO THE JUDGE ASCERTAINING HIS OR HER VIEW OF WHAT
ACTUALLY CURD WITH THE EVIDENCE. THAT WAS PERMITTED IN TILLERY FOR THOSE
COUNTS AND THE WEAPONS OFFENSES AS TO WHICH THERE WAS A HUNG JURY IN THAT CASE.
AND THEN YOU, BUT YOU COMBINED THAT WITH KWOR ACQUITTAL ARGUMENT. SEEMS
TO ME THAT YOUR ARGUMENT IS IN ESSENCE BASED ON ACQUITTAL AS OPPOSED TO THE JUDGE
LOOKING AT THE EVIDENCE AND MAKING SOME KIND OF DETERMINATION AS TO
WHAT MAY HAVE OCCURRED. TAMAR Y. LERER: YES, AND THESE OPERATE, YOU
KNOW, TOGETHER, REEL HARD TO SEPARATE THEM, BUT YOU'RE WRITE JUSTICE
PATTERSON BECAUSE THE JURY ACQUITTED AND IT'S SERVING IN HTSZ ROLE WHEN IT A
CQUITTED IN IT'S HIGHEST CAPACITY, FINDSING FACTS THAT ATTRIBUTES
CULPABILITY TO THE DEFENDANT FOR THAT ACQUITTED CONDUCT HAVE I LACE DUE PROCESS,
SFUND MENTAL PROCESS, DOUBLE JEOPARDY BUT ALSO THE ROLE OF THE JURY AND I
THINK THE IMPORTANT THING FOR THE WHAT HE DID VERSUS HOW HE DID IT DISTINCTION
IS WHEN WE'RE LOOKING ATS ACQUITTED CONDUCT IN THE NEXT CASE AND SAY, WELL, WAS
ACQUITTED CONDUCT REALLY KSHGSD I THINK THAT DISTINCTION WOULD BE
CLARIFYING. WE DON'T HAVE TO DO THAT HERE BECAUSE IT'S VERY CLEAR THAT ACQUITTED
CONDUCT WAS CONSIDERED. I'LL BRIEFLY TOUCH ON THE APPRENDI
ISSUE. I'M GOING TO JUST FIRST LAY OUT WHY I THINK THERE COULD STILL
BE AN APPRENDI ISSUE IN THE STATUTORY RANGE. THEORETICALLY AND THEN TRY TO APPLY
THAT TO THIS CASE. SO IT'S LAID OUT AND I ADMIT IT'S NOT
CURRENTLY THE MRIT FEE LAW CONCURRENCY READER AND DESENING JONES, ANY
FACT NECESSARY TO PREVENT A SENTENCE FROM BEING SUBSTANCELY UNREASON AB, THERE
BY EXPOSING THE DEFENDANT TO THE LONGER SENTENCE IS AN ELEMENT THAT
MUST BE EITHER ADMITTED BY THE DEFENDANT OR FOUND BY THE JURY. SO
THE POINT IS IF SENTENCE IS EXCESSIVE BUT FOR A JUDGE FOUND FACT, THAT'S A 6TH
AMENDMENT VIOLATION. I THINK THERE'S VERY GOOD REASON TO BELIEVE THAT
WHEN THIS GOES TO THE SUPREME COURT THE DOCTRINE WILL BE ADOPTED BECAUSE IT FLOWS
FROM THE APPRENDI AND AULG THE CASES SINCE, AND FJT COURT IS INTEREST
ED IN DISCUSSING THE AMICI HAS BEEN COUNTING UP THE JUSTICES AND THE CONCURRENCES
AND THE DI SENT I DON'T WANT TO BELABOR THAT UNLESS THIS COURT WOULD LIKE
TO DISCUSS IT. JUSTICE ALBIN: COUNSEL, SO LET'S TAKE THE MAJORITY
OPINION BLAKELY WRITTEN BY JUDGE TIS ASK A LEAH. IN THIS PIN HE GIEF AN EXAMPLE
THAT SEEMS TRIEKINGLY SIMILAR TO THE SITUATION HERE. IT WASN'T IN THE
CONTEXT OF AN ACQUITTAL I'LL QUOTE A LITTLE PIECE AND THEN YOU CAN COMMENT ON
IT. AND THAT A JUDGE CAN SENTENCE A MAN FOR COMMITTING MURDER EVEN IF THE
JURY CONVICTED HIM ONLY A ILLEGALLY POSSESSING THE FIREARM USED TO COMMIT IT;
-- HE SAID EVEN THE CRITICS IN APPRENDI WOULD CONSIDER THAT ABSURD. AND THAT
COMES STRIKELY SIMILAR TO THE FACTS WE HAVE HERE. SO WHY
DON'T YOU COMMENT ON THAT. TAMAR Y. LERER: ABSOLUTELY T I THINK THE
TH UNCAN KNEE SIMILARITY BETWEEN THAT BLAKELY HYPOTHETICAL AND WHAT
HAPPENS HERE SUGGESTS THAT NO ONE WOULD BE OKAY WITH WHAT EXACTLY HAPPENED HERE.
BUT IT ALSO ACKNOWLEDGE THAT APPRENDI ON DOWN THERE'S BEEN A LOT OF
DISCUSSION OF THE TACHT TOWER RANGE. BLAKELY EXPLAINED IT, IT'S NOT JUST THE
STATUTORY RANGE, IT WAS THE GUIDELINES RANGE SO TAKING THAT CONCERN
AND KEEPING GOING WITH THE LOGICAL FLOW OF IT, IT'S BEYOND WHAT THE JURY AUTHORIZED.
JUSTICE ALBIN: I KNOW BUT WHAT JUS SIS WAS TALKING ABOUT
IN BLAKELY WAS A CONCERN THAT A LEGISLATURE COULD MAKE THE INDETERMINE NINT
RANGE FROM LIKE ZERO TO 50 FOR A GUN OFFENSE AND THEN SWEEP IN, WELL,
YOU COMMITTED A MURDER, YOU COMMITTED THIS, AND THEREFORE ABUSE THE ING DETERMINANT.
THAT WAS ONE OF HIS CONCERNS THAT I WAS RAISING, AM I WRONG ABOUT THAT?
TAMAR Y. LERER: ABSOLUTELY, AND IN THIS CASE MR. MELVIN
OBVIOUSLY RECEIVED A LOWER SENTENCE THAN THAT OF MURDER BUT WHEN YOU LOOK AT PAT
COUNSEL A LITTLE BIT OR YOU WLOOK AT TINDELL IT'S GOING TO HAPPEN THAT
CONSENT CAN BE STACKED OR RANGES OVERLAP WHICH IS WHAT HAPPENED IN PAT BATTLE
AND YOU CAN SENTENCED FOR THE ONE YOU WERE ACQUITTED OF WITH ONLY A
COULDN'T VIC FOR A MUCH LESSER OFFENSE. VEK VK THE FAR REACHING EFFECT OF THIS
ARGUMENT. JUSTICE LA VECCHIA: ISN'T A DIRECTION THAT IS A
BIT DIFFERENT FROM ITS ORIGINAL INITIAL THRUST. WHY DO WE HAVE TO REACH THAT
RATIONALE IF WE ACCEPT YOUR POSITION ON THE USE OF ACQUITTALS?
TAMAR Y. LERER: YOU DO NOT. JUSTICE LA VECCHIA: OKAY.
TAMAR Y. LERER: SO I'M HAPPEN TO, YOU KNOW, LEAVE THIS AS AN ACADEMIC EXERCISE
AND MOVE ON. IF THIS COURT SFR NOT -- CHIEF JUSTICE RABNER:
PLEASE DO S. TAMAR Y. LERER: I'M JUST GOING TO WRAP UP BY
TOUCHING VERY BRIEFLY ON WHAT SHOULD HAPPEN NEXT, IF MR. MELVIN'S CONVICTION IS
REVERSED, I WILL NOT BELABOR WRIT I'M JUST GOING TO REITERATE THE REQUESTS
MADE IN OUR BRIEF, THE FIRST IS THAT THIS COURT USES ITS ORIGINAL JURISDICTION
AND SENTENCE HIM YOURSELVES. I KNOW THIS IS VERY UNUSUAL BUT HE HAS BEEN PAROLED
ALREADY, HE HAS SERVED OVER EIGHT YEARS, HE'S BEEN SENTENCED TO TWICE,
AND BECAUSE OF THE WINDING AND TORE KERD AND UNYUSHL PROCEDURAL HISTORY WE THINK
THAT THE INTEREST OF JUSTICE WOULD REQUIRE THIS TO BE ENDED NOW. BUT
IF NOT, WE WOULD ALSO REITERATE OUR REQUEST TO SEND IT BACK TO A DIFFERENT JUDGE
UNDER THE CIRCUMSTANCES VERY SIMILAR TO MILK FAR LANDS WHTS COURT SAID
THAT WHEN A JUDGE IS MADE THE CLEAR WHAT HE THINKS AN APPROPRIATE SENTENCE IS,
THAT IT'S BEST FOR THE APPEARANCE OF PROPRIETY FOR IT TO BE SENT TO
ANOTHER JUDGE. JUSTICE PATTERSON: WE CONSTANTLY SEND CASES
BACK TO THE SAME JUDGE EVEN AFTER THEY MADE CLEAR WHAT THEY THOUGHT AN APPROPRIATE
SENTENCE WAS. SO WHAT IS THE PRINCIPLE DISTINCTION BETWEEN THIS CASE AND THOSE
LEGIONS OF CASE WHERE WE SENT, WE SEN IT BACK TO, WITHOUT ANY RESTRICTION
ON WHAT JUDGE WILL HEAR IT? TAMAR Y. LERER: I THINK THERE'S A FEW
THINGS, JUST LIKE MILK FAR LANE AND LESS LIKE YOUR AVERAGE SENTENCING,
THE FIRST IS THAT THIS JUDGE HAS FIRST ALREADY SENTENCED HIM TWICE AND HAS BEEN
COMMITTED TO HIS VIEW OF MR. MELVIN'S MUCH ENHANCED CULPABILITY
THROUGHOUT. THE SESHGSD AS I MENTIONED IN HIGH BRIEF IS IS HUNDRED USUAL STEPS
OF BECOME SOMEWHAT INVOLVE IN THE APPELLATE DIVISION APPEAL IN THIS
CASE. WHETHER OR NOT IT GOES BACK TO THIS VICH HULL JUF IS NOT MR. MELVIN'S
MAIN CONCERN, HIS MAIN CONCERN IS THAT THE SENTENCE DOES NOT STAND SO WILL
NOT BELABOR THE POINT I JUST WANTED TO MAKE HIS WISHES CLEAR TO THIS COURT.
CHIEF JUSTICE RABNER: MR. HANLEY SEWPOINTS IN SUPPORT OF THE STATE'S
ARGUMENT IN THIS CASE. THE FIRST POINT IS THAT NEW JERSEY SENTENCING JURISDICTION HAS
ALWAYS RELIED ON THE WHOLE PERSON THEORY AT SENTENCING. COURTS IN THIS COUNTRY HAVE
ALWAYS PRACTICED A POLICY UNDER WHICH A SENTENCING JUDGE CAN EXERCISE WIDE DISCRETION IN
THE SOURCES AND TYPE OF EVIDENCE USED TO DETERMINE THE KIND AND EXTENT OF PUNISHMENT
TO BE IMPOSED AT SENTENCING. JUDGES MAY CONSIDER EVIDENCE IN INCLUDING ARRESTS,
CONVICTIONS, JUVENILE ADJUDICATIONS, HEARSAY AND EVEN EVIDENCE THAT WAS SUPPRESSED AT
TRIAL AS LONG AS THERE'S COMPETENT CREDIBLE EVIDENCE IN THE RECORD THE JUDGE MAY RELY
ON WIDE ARRAY OF EVIDENCE TO FIND THE AGGRAVATING AND MITIGATING FACTORS. THE ACQUITTED
CHARGES CONSIDERED AT SENTENCING IN THIS CASE PROVIDED THE NECESSARY CONTEXT TO CONSIDER
THE WHOLE PERSON AT SENTENCING. THIS IS THE FEDERAL RULE AS WAS SET FORTH EXPLICITLY
IN WATTS THAT CONDUCT THAT WAS -- SERVED AS THE BASIS OF ACQUITTED CHARGES MAY STILL BE
CONSIDERED. THAT'S POINTS ONE. .2 IS THAT THE RULE PROPOSED BY THE APPELLANT
IS COMPLETELY UNWORKABLE. DURING A TRIAL EVIDENCE IS SUBMITTED THAT SUPPORTS A NUMBER
OF DIFFERENT CHARGES. MOST OF THE EVIDENCE IS RELEVANT TO MULTIPLE DIFFERENT CHARGES.
YOU CANNOT REQUIRE A SENTENCING JUDGE TO PARSE OUT WHICH INFORMATION OR WHICH EVIDENCE
IS RELEVANT ONLY TO ONE CHARGE OR WHICH CHARGES THAT WERE ACQUITTED AND WHICH CHARGES
RESULTED IN A CONVICTION. CASES WITH INCONSISTENT VERDICTS WOULD BE IMPOSSIBLE
TO SENTENCE UNDER THIS RULE. I WOULD ALSO LIKE TO POINT OUT THAT THE DEFENSE
-- I'M SORRY, THE APPELLANT ARGUED THAT THERE WAS ACQUITTED CONDUCT AND THEY USED THAT
TERM FREQUENTLY THROUGHOUT THEIR BRIEFS AND IN PRIOR ARGUMENTS. THERE IS NO SUCH THING
AS ACQUITTED CONDUCT. THERE IS EVIDENCE THAT SUPPORTS CHARGES. THERE ARE CHARGES THAT
RESULTED IN ACQUITTALS AND CHARGES THAT RESULTED FROM CONVICTIONS BUT THERE IS NO SUCH
THING AS ACQUITTED CONDUCT. THAT CONCLUDES THE STATE'S OPENING REMARKS. THE
COURT: HOW WOULD YOU EXPLAIN TO A LAYPERSON WHY IT'S FAIR FOR A DEFENDANT WHO IS FOUND
ING IN OF MURDER TO THEN BE SENTENCED BASED ON CONDUCT THE YEAH WAS ASKED TO CONVICT OF
BUT DECLINED TO DO SO. USE LAYMEN'S TERMS AND EXPLAIN WHY THAT'S FAIR.
MATTHEW E. HANLEY: FIRSTLY I -- NO ONE CAN POSSIBLY UNDERSTAND. BUT ASIDE FROM THAT THE
TRUTH IS THAT THE DEFENDANT IN THIS CASE OR IN ANY CASE IS NOT BEING SENTENCED FOR MURDER.
THEY'RE BEING SENTENCED FOR THE ONE CRIME UPON WHICH THE JURY FOUND HIM GUILTY.
SO THERE IS A DISTINCTION THERE. A JUDGE MAY CONSIDER EVIDENCE OF OTHER CHARGES AND TO
EXPLAIN IT TO A LAYPERSON IT'S SIMPLE TO SAY WE HAVE TO CONSIDER THE CONTEXT OF THE CHARGE
FOR WHICH THE DEFENDANT IS FOUND GUILTY. IT'S NOT THAT THE DEFENDANT IS BEING SENTENCED
FOR MURDER. YOU HAVE TO CONSIDER ALL OF THE RELEVANT CIRCUMSTANCES AND THE SURROUNDING
ACTIVITIES. JUSTICE ALBIN: IS THAT CUTTING TOO FINE A POINT BECAUSE TO
THE TRIAL JUDGE'S CREDIT HE WAS MAKING EXPLICIT PRECISELY WHAT HE WAS DOING. HE SAID
I KNOW YOU WERE JUST CONVICTED OF A GUN OFFENSE BUT I HAVE NOW DETERMINED ON MY OWN THAT
YOU KILLED TWO PEOPLE WITH A GUN. AND HE MADE VERY CLEAR IN HIS SENTENCING REMARKS AND
I'M SENTENCING YOU FOR IT, NOT ONLY THAT, I AM IMPOSING AN EXTENDED TERM CONSIDERING THE
FACT THAT YOU KILLED TWO PEOPLE EVEN THOUGH YOU WERE ACQUITTED. SO I'M TRYING TO UNDERSTAND
YOUR ARGUMENT THAT THE JUDGE WAS NOT SENTENCING HIM ON THE MATTERS FOR WHICH HE WAS
ACQUITTED. MATTHEW E. HANLEY: CERTAINLY JUSTICE ALBIN. THE DEFENDANT WAS
ONLY SENTENCED BASED ON THE ONE CHARGE FOR WHICH HE WAS FOUND GUILTY. THE JUDGE DID CONSIDER
OTHER EVIDENCE INCLUDING THE EVIDENCE UNDERLYING THE MURDER CHARGES BUT THE DEFENDANT
WOULD HAVE BEEN ELIGIBLE AS A PERSISTENT OFFENDER REGARDLESS OF WHETHER OR NOT THE JUDGE
HAD CONSIDERED THAT. JUSTICE ALBIN: I THINK THAT'S CLEAR HE WOULD HAVE BEEN.
BUT THE JUDGE MADE CLEAR HE WAS SAYING, YEAH, YOU'RE EXTENDED TERM ELIGIBLE BUT I'M GIVING
YOU THIS EXTENDED TERM BECAUSE I FOUND YOU KILLED TWO PEOPLE EVEN THOUGH THE JURY ACQUITTED.
AM I MISTAKEN ABOUT THE WAY I'VE READ THIS TRANSCRIPT? BECAUSE I HAVE IT IN FRONT OF
ME. MATTHEW E. HANLEY: JUSTICE ALBIN HE CONSIDERED A NUMBER OF FACTORS.
HE DIDN'T SAY HE WAS BASING THE EXTENDED TERM SPECIFICALLY ON THE FACT HE FOUND THE
DEFENDANT COMMITTED THE MURDERS. HE SAID HE CONSIDERED THAT AS PART OF THE EVIDENCE IN
DETERMINING THE SENTENCE AND IN DETERMINING WHETHER THE DEFENDANT SHOULD BE A PERSISTENT
OFFENDER. CHIEF JUSTICE RABNER: WAS IT APPROPRIATE FOR HIM TO CONSIDER THAT
AT ALL. MATTHEW E. HANLEY: ABSOLUTELY. I THINK THIS GOES BACK CHIEF
JUSTICE TO YOUR QUESTION TO MS. LERER WHICH WAS HOW MANY JUDGES ACTUALLY USED THIS EVIDENCE
AND MS. LERER SAID ONLY THE ONE IN THE WHOLE STATE. BUT I DISAGREE. I THINK THAT MOST
IF NOT ALL JUDGES CONSIDERED THE CONTEXT. I THINK THIS IS THE FIRST JUDGE THAT MADE IT
EXPLICIT AND PUT DOWN THE LEGAL RATIONALE WHICH IS APPROPRIATE. BUT I THINK ALL JUDGES
USED THE CONTEXT OF ALL THE CHARGES. THE COURT: THE IRONY HERE IS THAT
IN ALL FAIRNESS WE WANT TO AVOID ARBITRARY ACTIONS SO THE LOGICAL REMEDY WOULD BE THAT
ALL JUDGES WOULD HAVE TO BE SENTENCING INDIVIDUALS BASED ON CHARGES THAT MIGHT HAVE
RESULTED IN ACQUITTAL. DOES THAT MAKE ANY SENSE? MATTHEW E. HANLEY: A LOGICAL
-- NO, I DON'T THINK IT DOES. I THINK BECAUSE THE SENTENCING JUDGE HAS TO CONSIDER THE
WHOLE PERSON AND THE WHOLE CONTEXT IT'S APPROPRIATE FOR ALL JUDGES TO CONSIDER ALL OF
THE FACTS SUBMITTED AT TRIAL THAT WAS SUPPORTED BY THE PREPONDERANCE OF THE EVIDENCE.
THE COURT: SO IN A CASE LIKE THIS SHOULD THIS COURT DIRECT ALL JUDGES TO
CONSIDER ISSUES RELATING TO A MURDER FOR WHICH A DEFENDANT WAS ACQUITTED?
MATTHEW E. HANLEY: WELL, THE AG SETS FORTH A RULE IN HER BRIEF WHICH IS FANTASTIC BUT
I THINK THAT THE JUDGES SENTENCING ANY DEFENDANT SHOULD BE ABLE TO CONSIDER IN THEIR
DISCRETION EVIDENCE THAT'S SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE. WE'RE NOT
JUST SAYING JUDGES SHOULD CONSIDER ANY FACTS IN A POLICE REPORT. WE'RE SAYING IF THERE WAS
E ENOUGH EVIDENCE IN THE TRIAL THEN IT'S APPROPRIATE FOR THE JUDGE TO RELY ON.
JUSTICE ALBIN: I WANT TO BE CLEAR ABOUT THE RECORD. SO I'M LOOKING AT PAGE 65 AND
YOU CAN COMMENT ON IT. THIS IS WHAT THE JUDGE SAYS. DEFENDANT WAS THE SHOOTER OF THE
TWO INDIVIDUALS WHO EXPIRED (INAUDIBLE) AND WHEN THE FEMALE BASICALLY RAN THE RESTAURANT.
SIGNIFICANTLY THIS COURT IS CONSIDERING THAT EVIDENCE TO DETERMINE THAT AGGRAVATING AND
MITIGATING FACTORS FOR SENTENCING WHETHER TO APPLY AN EXTENDED TERM OF IMPRISONMENT AND
WHERE WITHIN THE EXTENDED TERM SHOULD DEFENDANT BE SENTENCED. THAT MAKES PRETTY
CLEAR THAT THE COURT IS DIRECTLY USING THE KILLINGS AS THE CENTRAL THEME FOR THE HIRE
SENTENCE. AM I WRONG ABOUT THAT? MATTHEW E. HANLEY: I DISAGREE IT'S THE
CENTRAL THEME. IN DETERMINING THE APPROPRIATE SENTENCE FOR THAT THE DEFENDANT.
JUSTICE ALBIN: YOU THINK THAT THE POSSESSION OF A GUN IS MORE WORTHY OF PUNISHMENT THAN
THE KILLING OF TWO PEOPLE? MATTHEW E. HANLEY: NO -- WELL, IN THIS CASE,
HE'S ONLY BEING SENTENCED FOR THE POSSESSION OF A GUN. JUSTICE ALBIN: BUT
THE JUDGE IS FINDING ON HIS OWN THAT HE KILLED TWO PEOPLE AND -- I MEAN IT WOULD SEE LOGICAL
THAT IF YOU'RE PERMITTING THAT EVIDENCE TO BE CONSIDERED THAT THE KILLING OF TWO PEOPLE
ISN'T GOING TO WEIGH MORE HEAVILY ON THE SCALE THAN REALLY THE POSSESSION OF A GUN, NO,
AM I MISTAKEN ABOUT THAT? MATTHEW E. HANLEY: I THINK IT WEIGHS HEAVILY
ON THE SCALE BUT I THINK THAT GIVES IT THE APPROPRIATE CONTEXT. YOU DON'T WANT TO
SENTENCE THIS DEFENDANT WHO USED THIS GUN TO SHOOT THREE PEOPLE IN THE SAME WAY YOU WOULD
SENTENCE A DEFENDANT WHO WAS MERING WALKING DOWN. JUSTICE LA VECCHIA: ON
PAGE 70 THE JUDGE USES HIS FINDING THAT MR. MELVIN UTILIZED THE GUN TO SHOOT OTHER
INDIVIDUALS FOR AGGRAVATING FACTOR SIX. HE SAYS I'M LOOKING AT THE EVIDENCE ACCORDING
TO THE CONCLUSION HE NOT ONLY POSSESSED THE WEAPON BUT ALSO UTILIZED IT TO SHOOT OTHER
INDIVIDUALS. THAT WAS DIRECTLY PULLING IN THE OTHER CRIME FOR THE SENTENCING OF THE
POSSESSION CRIME THAT HAS NO VICTIM. MATTHEW E. HANLEY: YES BUT HE'S CONSIDERING
WHAT HE DID WITH THE GUN AS CONTEXT FOR THE PROPER SENTENCE FOR THE GUN WHICH IS
COMPLETELY APPROPRIATE. IN OTHER WORDS, IN ORDER TO CONSIDER THE ENTIRE CIRCUMSTANCES
OF THE CRIME, POSSESSION OF A GUN, YOU HAVE TO CONSIDER WHAT HE DID WITH THE GUN.
JUSTICE FABIANA PIERRE-LOUIS: WHAT HE DID WITH THE GUN WAS THE CONDUCT THAT HE WAS
ACQUITTED OF. MATTHEW E. HANLEY: YES. JUSTICE FABIANA
PIERRE-LOUIS: GOING BACK TO THE CHIEF'S INITIAL QUESTION ON HOW YOU EXPLAIN THE FAIRNESS
OF THAT TO A LAYPERSON, I MEAN HOW IS THAT FAIR, THEN IT'S PRETTY CLEAR IN THE TRANSCRIPT
THAT THE JUDGE IS REALLY FOCUSING PRETTY CLEARLY ON A SHOOTING VIA ACQUITTED IN REACHING
HIS SENTENCING DETERMINATION. MATTHEW E. HANLEY: I AGREE THAT'S HIS ONLY
FOCUS. HE DOES MENTION OTHER THINGS TO BE CONSIDERED BUT IN EXPLAINING IT TO A
LAYPERSON AGAIN I THINK YOU HAVE TO EMPHASIZE THAT THIS DEFENDANT WAS ONLY FOUND GUILTY
OF ONE CRIME. HE WAS ONLY SENTENCED WITHIN THE RANGE OF THAT CRIME, THE ARRANGE WAS NOT
EXTENDED BASED ON ANY OF THESE FINDINGS AND IF I WERE TO EXPLAIN THIS TO A LAYPERSON I WOULD
EXPLAIN THAT YOU PLEAD TO TO CONSIDER THE CONTEXT OF ALL CRIMES. YOU CAN'T SIMPLY JUST
IGNORE ALL THE FACTS SUBMITTED AT THE TRIAL. JUSTICE LA VECCHIA: DID THE
JUDGE DEAL WITH AGGRAVATING FACTOR SIX EXACTLY WHAT HE WAS NOT SUPPOSED TO DO WITH RESPECT
TO AGGRAVATING FACTOR TWO AND HE KAOUS TO THE APPELLATE DIVISION DIRECTION ON THAT ONE
BUT THEN INSERTS THE SAME CONCEPT INTO AGGRAVATING FACTOR SIX. MATTHEW
E. HANLEY: NO. JUST GIVEN THE DIFFERENT NATURE OF 6 AND 2 BECAUSE I MEAN I UNDERSTAND
WHY THE APPELLATE DIVISION SAID HE COULDN'T FIND THE FACTOR TWO BASED ON THE LACK OF VICTIM
FOR THE CRIME THAT WAS THE UNLAWFUL POSSESSION OF A WEAPON CRIME, BUT FACTOR SIX DOESN'T
CONTEMPLATE THE SAME VICTIM. SO IT'S TOTALLY APPROPRIATE TO FIND THE FACTORS 36 AND
9 BASED ON THIS EVIDENCE AND ALL THE EVIDENCE AT TRIAL. MATTHEW E. HANLEY:
I'M SORRY, I DIDN'T HEAR. JUSTICE LA VECCHIA: IT WASN'T JUST A BACK DOOR
TO AGGRAVATING FACTOR TWO THAT YOU'RE. MATTHEW E. HANLEY: NO. ABSOLUTELY
NOT. IT'S COMPLETELY APPROPRIATE TO CONSIDER THAT EVIDENCE. CHIEF JUSTICE
RABNER: SUPPOSE THE LAYPERSON YOU WERE TALKING TO SAID, BUT, JUDGE, AREN'T YOU IGNORING
THE ACQUITTAL, WHAT WOULD YOU SAY? MATTHEW E. HANLEY: OF COURSE NOT. AN
ACQUITTAL ENTITLES THE DEFENDANT NOT TO BE FOUND GUILTY ON THE GUILTY CHARGES. THE DEFENDANT
WOULD FACE A VERY DIFFERENT SENTENCE. THE DEFENDANT IN THIS CASE HAS ALREADY OUT
CHANNELED. SO WHILE WE CONSIDER THE CONTEXT, WE ARE CONSIDER THERE ARE DIFFERENT LEVELS
OF PROOF. IT'S AKIN TO EXPLAINING TO A LAYPERSON WHY I HAVE AN EASIER TRIAL WINNING PATENT
TRIALS THAN I DO WINNING CRIMINAL TRIALS. JUSTICE ALBIN: FOLLOWING UP ON
THE CHIEF JUSTICE'S QUESTION IMAGINE THE LAYPERSON IS IN THE COURTROOM. THE JURY
RETURNS THE ING IN VERDICT ON THE MURDERS AND THE SENTENCING IS THE NEXT DAY. AND NOW
THE LAYPERSON IS THERE AND THE JUDGE SAYS TO THE DEFENDANT IT'S VERY NICE YOU WERE ONLY
CONVICTED OF THE POSSESSION OF A HANDGUN BUT I HAVE NOW CONCLUDED DESPITE WHATEVER THE
JURY SAID THAT YOU ACTUALLY COMMITTED THOSE TWO MURDERS AND NOW I'M ABOUT TO SENTENCE
YOU ON THOSE TWO MURDERS IN ADDITION TO THE GUN. I'M USING THAT. WHAT DO YOU THINK THAT
THE LAYPERSON WOULD BE THINKING? MATTHEW E. HANLEY: WELL, I THE LAYPERSON
WOULD BE HAPPY THAT THE DEFENDANT DEPENDING ON WHOSE SIDE THE LAYPERSON WAS ON IF IT WAS
THE DEFENDANT'S FAMILY, FOR EXAMPLE, THEY WOULD BE HAPPY THAT THE DEFENDANT IS NOT BEING
SENTENCED 30 TO LIFE. ONLY 5 TO 20. I THINK THE LAYPERSON WOULD UNDERSTAND THE DIFFERENT
RANGES BEING SENTENCED FOR THE DIFFERENT CRIMES. WHILE WE CONSIDER THE UNDERLYING FACTS
THAT WERE SUBMITTED AT TRIAL. JUSTICE ALBIN: I DON'T THINK THAT THE
LAYPERSON WOULD THINK THAT THE JURY DETERMINATION IS PREEMPT TPHEPBT WITHIN YOUR CRIMINAL
JUSTICE SYSTEM UNDER THOSE CIRCUMSTANCES, NO THAT ITS ACQUITTAL WOULD BE IGNORED AND THE
VERY UNDERLYING CONDUCT WOULD BE USED TO THERE FOR SENTENCE THE DEFENDANT.
MATTHEW E. HANLEY: NOT IGNORING THE ACQUITTAL OBVIOUSLY. WE'RE NOT SENTENCING THE
DEFENDANT TO -- JUSTICE FERNANDEZ-VINA: DOES IT MATTER WHAT A
LAYPERSON THINKS OR NOT IT'S A QUESTION OF FUNDAMENTAL FAIRNESS FOR THIS COURT TO
DECIDE? DO WE CARE WHETHER SOME LAYPERSON UNDERSTANDS IT OR NOT. ISN'T THIS ABOUT
FUNDAMENTAL FAIRNESS. ISN'T IT TRUE THAT THE JUDGE SENTENCED HIM FER A COUNTED THAT HE WAS
COMMITTED OF? MATTHEW E. HANLEY: OF COURSE. AND WE DO A LOT.
JUSTICE FERNANDEZ-VINA: ISN'T THAT THE ISSUE EVER FAIRNESS WE'RE TALKING ABOUT? IT'S
NOT A HUNG JURY. THIS IS AN ACQUITTAL HAEPBZ RIGHT I COMPLETELY AGREE. THIS IS --
(INAUDIBLE). IT'S NOT A QUESTION OF I THINK FUNDAMENTALLY FAIR THAT THE DEFENDANT WAS
SENTENCED. HIS SENTENCE WAS COMPLETELY FAIR CONSIDERING HIS CRIMINAL BACKGROUND.
JUSTICE FERNANDEZ-VINA: I GUESS FAIRNESS IS IN THE EYE OF THE BEHOLD DETER BUT THAT'S
FOR THIS COURT TO DECIDE WHAT'S FAIR OR NOT, NOT WHAT SOME LAYPERSON THINKS.
MATTHEW E. HANLEY: SKATS EXACT RIGHT. WE DON'T MAKE OUR RULES ON WHAT LAY PEOPLE THINK
OR WONDER. CHIEF JUSTICE RABNER: ANYTHING YOU'D LIKE TO ADD, MR. HANLEY.
MATTHEW E. HANLEY: NO. I THANK YOU FOR YOUR TIME. EMILY M.M.
PIRRO: GOOD MORNING YOUR HONORS I'D LIKE TO RESERVE THREE MINUTES FOR REBUTTAL.
ACCORDING TO THE DEFENSE THERE ARE TWO CLASSES OF DEFENDANTS IN THIS STATE. THOSE WHO
ARE WORTHY OF INDIVIDUAL LIFE SENTENCES AND THOSE WHO ARE NOT AND RESPECTFULLY THIS COURT
SHOULD DECLINE TO CLASSIFY SOME DEFENDANTS AS SPECIAL AND OTHERS AS MUNDANE. IN SUPPORT
OF THIS I HAVE THREE MAIN POINTS. FIRST THE BODY OF NEW JERSEY'S JURISDICTION
AS FAR AS BACK AS MAR SAL AND AS RECENTLY AS TILLERY SUPPORT THIS VIEW IN FAVOR OF THE
INCLUSION OF ALL RELEVANT FACTS IN IMPOSING AN INDIVIDUALIZED SENTENCE. MOST NOTABLY
FACTS AND CIRCUMSTANCES OUTSIDE THE TKPWPD AND MOST RECENTLY FACTS UNDERLYING DEADLOCKED
IN DISMISSED CHARGES LGS THAT SAME LOGIC SHOULD MATTER. MUST ALSO APPLY TO FACTS THAT
OVERLAP WITH ACQUITTED CHARGES. DEFENDANTS WHO ARE NOT CONVICTED OF CERTAIN CHARGES THROUGH
DEADLOCKED OR PLEA BARGAIN THAN THOSE WHO ARE NOT CONVICTED VIA ACQUITTAL. CLASSIFYING
THESE DEFENDANTS AS SPECIAL WOULD MEAN THEY HAVE CERTAIN FACTS AND CIRCUMSTANCES REDACTED
THEM AS CRUCIAL TO A JUST SENTENCE. INSTEAD OF DEFENDANT'S REAL CONDUCT IN CREDIBLE EVIDENCE
JUDGES HAVE TO TREAT SPECIAL PARTIALLY ACQUITTED DEFENDANTS WITH SENSE SHORE SHIP AND
TURN A BLIND EYE TO WHAT MAKES THEM AND THEIR SITUATION UNIQUE. NEW JERSEY HAS DISAGREED
WITH THIS RATIONALE AS WELL AS SEEN IN JM IS NOT A DECISION AS TO ANY ULTIMATE FACT
REITERATING THE HOLDING OF KELLY WHICH SITES WATTS. NICE MEANS EXPRESSLY THAT
IT IS IMPOSSIBLE TO KNOW WHAT THE JURY DID OR DID NOT CREDIT OR DISCREDIT OR EVEN IF WHAT
THEY DID MAKES ANY SENSE AT ALL. IN THE PRESENT CASE OF A DANGER OF THIS AREA IS HIGHLIGHTED.
SPECULATING AS TO WHAT AN ACQUITTAL MEANS AS THE APPELLATE DIVISION DID HERE UNDERMINES
THE JURY'S RENDERED VERDICT IN FAVOR OF THE JUDGE'S PERSONAL VIEW INSTEAD OF CREDIBLE
FACTS IN THE RECORD. SECONDLY NO STATE OR FEDERAL MANDATE IS VIOLATE WOULD BY ALLOW LG
TRIAL JUDGES TO CONSIDER FACTS YOU A TKAOUFRD AT TRIAL AS RECENTLY AS IT WAS 14 THE SUPREME
COURT HAS REITERATED THAT WATTS {CASE CITED} WHICH HELD THAT FOR SIXTH AMENDMENT PURPOSES
THE RELEVANT SENTENCING ESTABLISHED BY THE JURY'S FINDING EVER GUILT IS A STATUTORY MAXIMUM
AND OUR PRECEDENT IS EQUALLY CAT THINK GORE REALLY CALENDAR. BASED ON A PLEA OR VERDICT
ALONE. TILLERY ALSO HELD THAT NO SIXTH AMENDMENT CLAIM BARS THE USE OF FACTS UNDERLYING
DEADLOCKED AND DISMISSED CHARGES. THOSE OUR COURTS CONTINUE TO ALIGN AS THEY ALWAYS HAVE
WITH THE FEDERAL PRECEDENT REGARDING DOUBLE JEOPARDY WHICH IS CODIFIED AND THE SIXTH
AMENDMENT WHICH IS DIRECTLY AT ISSUE HERE. THIS IS WHY DEFENDANTS AND YOU A AMICUS AND
HAVE INCLUDING TO THE MINORITY HOLDING SO DESPERATELY. WHILE I OUTLINED THIS IN MY
BRIEF TWO ADDITIONAL POINTS MUST BE MADE REGARDING BECK. FIRST IT IS TRUE THAT {RULE CITED}
DOES NOT APPEAR IN NEW JERSEY'S CODE. BUT THIS IS NOT DAMNING. MANY SANING MAXIMS AND
RULES DO NOT APPEAR IN THE CODE SUCH AS THE YARBOUGH FACTORS AND IMPERMISSIBLE DOUBLE
COUNTING. CASE LAW IS JUST AS BINDING AND INFORMATIVE TO SENTENCING JUDGES. TO BOOKER
TO PRESERVE OUR JUDGE'S ABILITY TO LOOK AT TRADITIONAL SENTENCING GUIDELINES. NO LIMIT
LANGUAGE OF THE FEDERAL STATUTE WAS QUOTED FAVORABLY. ADDITIONALLY LATER CASES IN
MICHIGAN HIGHLIGHT A PROBLEM WITH IMPLEMENTING SUCH A VAGUE RULE. IT IS IMPOSSIBLE TO
PRABLLY EXECUTE. PEOPLE VERSUS ROBERTS ON PAGES 6 TO 7 OUTLINE THE INHERENT PROBLEMS
OF TRYING TO DEVINE E '59 FROM THE E THEM WHAT ACQUITTED CONDUCT IS. WITHOUT PROBING
INTO A JURY'S DELIBERATIONS AND RATIONALE WHICH IS WHOLLY INDEPENDENT APPRECIATE IT IS
IMPOSSIBLE TO NOTE WHAT CONDUCT A JURY USED FOR ACQUITTAL OR IF CONDUCT WAS EVEN USED
ALL VERSUS RENTS MAYA ISSUES. FOLLOWING SUCH FLAWED VAGUE MINORITY FOOTSTEPS WOULD CREATE
SERIOUS PROBLEMS WITH A NOTICE IN SENTENCING UNIFORMITY IN THE CLAIM TO SO TRERBD. AS
BOOKER HELD APPRENDI NOTWITHSTANDING THERE SHOULD BE A STRONG CONNECTION BETWEEN THE SENTENCE
IMPOSED AND THE OFFENDER ALSO REAL CONDUCT. THIRD AND IF ANYONELY, FUNDAMENTAL FAIRNESS
DEMANDS THAT TRIAL JUDGES CONSIDER ALL EVIDENCE IN THE RECORD AND CONSIDER A DEFENDANT'S
WHOLE PERSON. IT WOULD CERTAINLY BE TO MICHELLE MADDEN BAT TILT TO SAY THAT ALL FELONY
MURDERS ARE THE SAME WHAT WOULD GIVE HER THE MOST LEE YEN SEE IS NOT THE GOAL. LESS CULPABLE
DEFENDANTS LESS SPECIAL THAN SHE IS. IT PUNISHES DEFENDANT TO ENGAGE IN PHRARBGS WHEN
A JURY IS DEADLOCKED. THEIR FACTS AND CIRCUMSTANCES MATTER FOR BETTER OR WORSE
WHILE DEFENDANT PAD DEN BATTLE IS SHIELDED FROM THE FACTS NO REASON REASON. THAT'S WHAT'S
ARC TRAER IN THIS CASE TO ANSWER YOUR PREVIOUS QUESTIONS. ACKNOWLEDGING THE DEFENDANT
COMMITTED HER CRIME IN A WAY THAT WAS PARTICULARLY COLD, CALCULATING AND CRUEL IS
NOT UNFAIR OR WRONG. IT MEANS EACH PERSON WILL BE EVALUATED FOR WHO THEY ARE AS PEOPLE
FOR WHAT THEY'VE DONE AND HOW THEY'VE DID UNIT. THIS COURT SHOULD NOT CREATE A CLASS
OF DEFENDANTS WHO ARE DIFFERENT AND I'LL ANSWER ANY QUESTIONS AS TO THOSE POINTS OR ANY
OTHERS. CHIEF JUSTICE RABNER: COUNSEL, WHAT'S THE SIGNIFICANCE OF A FELONY
MURDER CONVICTION IN THIS CASE? YOU HAVE THE ACQUITTAL ON MURDER AND THE CONVICTION ON
FELONY MURDER AND THREATEN A JUDGE AT SENTENCING AT LEAST SAYING THAT THE DEFENDANT OR
CHESTRATED AN EXECUTION. DID THE JURY FIND THAT THROUGH ITS FELONY MURDER CONVICTION?
EMILY M.M. PIRRO: I THINK THE FELONY MURDER CONVICTION IN THIS CASE REALLY
HIGHLIGHTS WHY THE QUESTION IF BOTH OF THESE CASES IS SO IMPORTANT AND SO IMPOSSIBLE TO
REALLY IMPLEMENT IN A WAY THAT WORKS UNIFORMLY ACROSS THE BOARD. IT DOESN'T MEAN EVERYBODY
SHOULD GET THE SAME SENTENCE. UNIFORM ME COMES FROM JUDGES HAVING CLEAR RULES THAT ARE
EQUALLY APPLICABLE CROSS THE BOARD. AS I HIGHLIGHTED IN MY BRIEF FOR THE SPECIFIC CASE
ONE OF THE ELEMENTS THE JURY HAD TO FIND WAS THAT SHE WAS RESPONSIBLE FOR THE MURDER,
RIGHT? SO BUT SHE WAS ALSO ACQUITTED OF KNOWING PURPOSEFUL MURDER SO THE JUDGE HERE FOUND
THAT SHE WAS THE MOVING FORCE BEHIND ALL OF THIS. THIS VICTIM WOULD BE ALIVE TODAY IF
IT WEREN'T FOR HER ACTIONS. CHIEF JUSTICE RABNER: WHAT THE LEVEL OF INTENT
THE JURY WAS REQUIRED TO FIND WERE TO CONVICT ON FELONY MURDER WITH RESPECT TO THE DEATH?
EMILY M.M. PIRRO: THE LEVEL -- SO FOR KNOWING PURPOSEFUL OBVIOUSLY IT'S
KNOWING AND PURPOSEFUL. THAT'S MENS REA THERE. FOR FELONY MURDER IT HAD TO BE NOT TOO
REMOTE OR NOT TOO SURPRISING. CHIEF JUSTICE RABNER: LET ME READ FOR YOU
A PORTION OF THE JURY CHARGE AND ASK YOU TO COMMENT. WHERE DOES IT GENERALLY
MATTER THAT THE ACT WHICH CAUSED DEATH WAS COMMITTED RECKLESSLY OR INTENTIONALLY.
THAT'S WHAT THE JURY HEARD IN THIS CASE. COMPARE THAT TO THE JUDGE'S CONCLUSION THAT THE
DEFENDANT ORCHESTRATED AN ACCUSATION. DID THE JUDGE GO BEYOND THE ELEMENTS THAT THE JURY
WAS GIVEN THAT IT NEEDED TO FIND FOR FELONY MURDER. EMILY M.M. PIRRO: I
THINK THAT'S ACTUALLY AN IMPORTANT POINT, YOUR HONOR. I WOULD LIKE TO ADDRESS THE IDEA
OF ELEMENTS BEING THE QUESTION HERE. CHIEF JUSTICE RABNER: CAN YOU ANSWER
MY QUESTION, DID THE JUDGE GO BEYOND RECKLESS UNINTENTIONAL OR ACCIDENTAL IN THE JUDGE'S
FINDINGS? PAOERBZ THE JUDGE DID, YES, FIND THAT SHE DID IT PURPOSELY THAT SHE MOVED THIS
SERIES OF EVENTS WITH THE KIDNAPPING AND THEN EXECUTING HER. HE DID SAY THAT, YES. I
DON'T THINK THAT OVER STEPS IN ANY WAY, HOWEVER. CHIEF JUSTICE RABNER: BUT
FROM THAT INSERT THAT IT SEEMS CLEAR THAT THE JUDGE RELIED ON THE ACQUITTED CONDUCT, NO?
EMILY M.M. PIRRO: I HAVE TO RESPECTFULLY DISAGREE. I DON'T THINK THERE
IS ANY ACQUITTED CONDUCT. WE DON'T KNOW THAT THAT'S THE CONDUCT THE JURY ACQUITTED ON.
THE COURT: LET ME REPHRASE. THE JUDGE RELIED UPON EVIDENCE, CONDUCT THAT
THE JURY WAS ASKED TO CONCLUDE THERE WAS PURPOSEFUL MURDER, THAT THERE WAS AN OR CHESS
TRADE DELIBERATE EXECUTION WHICH FELONY MURDER DOES NOT CALL FOR, CORRECT?
EMILY M.M. PIRRO: CORRECT. AGAIN, I HAVE TO REALLY EMPHASIZE THAT THE FACT THAT HE MADE
THAT FINDING BASED ON CREDIBLE EVIDENCE IN THE RECORD DOESN'T USURP THE JURY'S ROLE IN
THE WAY THAT ANYONE IS WORRIED ABOUT HERE. AND INTENT -- ESPECIALLY IF YOU
LOOK AT THE ACTUAL JURY FINDINGS WERE HERE, THE -- IT COULD BE POTENTIALLY AN EXAMPLE
OF AN INCONSISTENT VERDICT WHERE WE DON'T KNOW WHY THE JURY FOUND WHAT IT FOUND, DEPENDING
ON YOUR VIEW OF THE FACTS BUT I THINK THAT'S KIND OF WHERE WE RUN INTO TROUBLE. IT'S
NOT OUR VIEW OF THE FACTS AND WHAT THE JURY PROBABLY REJECTED THAT CONTROLS. I DON'T
THINK THAT FINDING THAT SHE DID THIS PURPOSELY WHEN THE ELEMENTS OF FELONY MURDER DON'T
CALL FOR PURPOSEFULNESS IS SOMEHOW OVER STEPPING THE BOUNDS OF WHAT HE'S ALLOWED TO FIND.
THESE ARE FACTS IN THE RECORD. IT GOES TO THE WAY SHE COMMITTED OTHER CONVICTED CRIMES
AND I THINK REALLY LOOKING AT THE EVIDENCE IN THE CASE AND WE ARE VERY -- THERE WAS A
LOT OF QUESTIONS BEFORE ABOUT WHAT A LAYPERSON WOULD THINK AND THERE WAS EVEN, YOU KNOW,
I THINK JUSTICE ALBIN MENTIONED WHAT IF A LAYPERSON WAS IN THE COURTROOM SEEING THIS
HAPPEN. I THINK THAT'S A REALLY IMPORTANT QUESTION AND A GOOD POINT F A LAYPERSON WAS
IN THE COURTROOM WHILE THIS TRIAL WAS GOING ON AND THEY HAD TO SIT THROUGH THE ENTIRE
THING, SEE THE VIDEO EVIDENCE THAT THE JUDGE SAW, THAT THE JURY SAW, HEARD THE VERDICTS
AS THEY WERE RENDERED AND THEN AT SENTENCING THEY FOUND OUT THAT THE JUDGE WASN'T ALLOWED
TO EVEN MENTION THE MANNER IN WHICH SHE COMMITTED THESE CRIMES OR THE CIRCUMSTANCES SURROUNDING
THIS WOMAN TERRIBLE AND UNTIMELY DEATH FOR DEFENDANT'S OBVIOUS COLDNESS AS WAS THREE
CLUE THE VIDEO. THE FACT THAT THE JUDGE ISN'T ALLOWED TO REFERENCE THAT OR LOOK AT IT,
I THINK THAT WOULD SHOCK A LAYPERSON. JUSTICE ALBIN: WELL, COUNSEL WOULD YOU
CONCEDE IN OUR CONSTITUTIONAL JURY SYSTEM THAT THE JURY IS THE ULTIMATE FACT FINDER, THE
PREEMPT TPHEPBT FACT FINDER. WOULD YOU COULD ON SEED THAT? EMILY M.M. PIRRO:
OF COURSE. THAT'S WHY THEY SET THE RANGE OF WHAT THE JUDGE CAN SENTENCE IN. THAT IS
THEIR POWER. JUSTICE ALBIN: I AGREE WITH YOU WHEN YOU SAY WE CAN NEVER
KNOW WHY THE JURY DECIDED AS IT DID. BUT THAT DOESN'T SEEMED IN ANY WAY TO LESSEN OR
DIMINISH THE SPECIAL WEIGHT ACCORDED TO AN ACQUITTAL. I'M NOT SAYING THEY'RE
DETERMINATIVE OF THE ISSUE BEFORE US. BUT IN U.S. VS. DEFRANCISCO THE COURT SAID AN ACQUITTAL
IS ACCORDED SPECIAL WEIGHT. IN KWRAEUG GESTURE VS. UNITED STATES, COLLECTIVE JUDGMENT
REGARDING ALL THE EVIDENCE AND ARGUMENTS PRESENTED TO IT ITS FIDELITY NATURAL TEA IS
UNASSAILABLE. I KNOW THOSE ARE GENERAL PRINCIPLES BUT DOESN'T THE JUDGE TAKING
A POSITION THAT MAY DIRECTLY CONFLICT WITH THE JURY'S FACT FINDING UNDERCUT THAT SPECIAL
WEIGHT AND THE SPECIAL PRINCIPLE THAT WE ACCORD TO THE RIGHT TO TRIAL BY JURY?
EMILY M.M. PIRRO: WELL, LET ME ADDRESS THAT IN A WAY THAT I HOPE SATISFIES YOU. I
UNDERSTAND THAT THESE CASES SAY THAT, YOU KNOW, ACQUITTALS ARE SPECIAL AND THAT'S WHAT
THE DEFENDANTS ARE SAYING HERE AND I, AGAIN, LIKE I MENTIONED IN MY OPENING I THINK THAT
THAT IS FUNDAMENTALLY UNFAIR TO CLASSIFY THESE DEFENDANTS AS SPECIAL. SO, NO, I DON'T THINK
THAT THESE DEFENDANTS ARE SPECIAL FOR THEIR ACQUITTALS. I DON'T THINK THEY'RE MORE
SPECIAL THAN THOSE WHO ENTERED INTO PLEA BARGAINS. I DON'T THINK THEY'RE MORE SPECIAL.
JUSTICE ALBIN: THE DEFENDANTS AREN'T SPECIAL, IT'S THE ACQUITTAL THAT IS
GIVEN SPECIAL WEIGHT EVEN IN OUR DOUBLE JEOPARDY CLAUSE NO PERSON AFTER ACQUITTAL WILL BE
TRIED FOR THE SAME OFFENSE. FOR WHATEVER REASON THE JURY MADE ITS DECISION. YOU MAY
NOT LIKE IT. WHO KNOWS WHY, COMPROMISE, WHATEVER YOU COULD TRY A PERSON A SECOND TIME.
ISN'T THAT WHAT IS OCCURRING WHEN THE JUDGE IS MAKING HIS OWN FACT FINDINGS AND THEN
DECIDING TO SENTENCE ON THE FACT FINDINGS THAT WERE APPARENTLY -- EMILY M.M.
PIRRO: I'M SORRY YOU WERE CUT OFF AT THE LAST FEW WORDS. JUSTICE ALBIN:
ISN'T THAT IN CONFLICT WITH THE FACT THAT THE JURY REJECTED FOR WHATEVER REASON THE VERY
SAME FACT FINDINGS ON WHICH THE JUDGE IS NOW IMPOSING A SENTENCE? EMILY M.M.
PIRRO: THERE ARE TWO PARTS TO THAT QUESTION. WARS FORGIVE, YOU DON'T -- NOBODY KNOWS
WHAT FACTS THE JURY REJECTED, NUMBER ONE. NUMBER TWO, YOU KNOW, WE HAVE TODAY'S PROCEEDING
FOR A REASON. SENTENCING IS NOT A RETRYING OF A CHARGE. HE ACQUITTED OF AND THAT'S THE
END. THE SPECIAL SIGNIFICANCE OF AN ACQUITTAL IF YOU WANT TO CALL IT THAT, I THINK IT
BEGINS AND ENDS WITH WHAT HE CAN BE SENTENCED -- WHAT RANGE HE CAN BE SENTENCED AT, THAT'S
HIS CRIME. THAT SENTENCE ARRANGE IS WHAT HE'S CONVICTED OF AND THAT'S WHERE HE CAN BE
SENTENCED. THAT'S WHERE THE SPECIALNESS IF YOU WANT TO CALL IT THAT WOULD COME INTO PLAY.
YOU HAVE TO THINK ABOUT THE PRACTICAL EFFECT OF CLASSIFYING ACQUITTALS AS
SPECIAL. YOU ARE MAKING SPECIAL DEFENDANTS PRACTICALLY IN ENACTING THIS. YOU KNOW, I
REPRESENT THE STATE AND THAT'S NOT JUST THESE TWO DEFENDANTS. THAT'S EVERYBODY IN THE
STATEWIDE WHO COULD BE A DEFENDANT IN THE FUTURE. AND I THINK SAYING TO DEFENDANTS
WHO OPT TO PLEA BARGAIN AND SAYING TO DEFENDANTS WHO HAPPEN TO HAVE JURY WHO'S DEADLOCKED
INSTEAD OF ACQUIT ALL OF THE TERRIBLE FACTS ARE ON THE TABLE AS LONG AS IT'S CREDIBLE
AND ON THE RECORD MATTERS FOR THEM BUT IF YOU GET ACQUITTED YOU GET TO HAVE ALL OF THAT
OFF THE TABLE. THAT'S A PROBLEM AND I THINK THAT'S WHAT IS FUNDAMENTALLY UNFAIR. IT'S
ARBITRARY. IT CREATES A DIFFERENT CLASS OF DEFENDANTS. THAT'S WHAT WE HAVE TO FOCUS
ON HERE. SAYING THAT ACQUITTAL ELSE ARE SPECIAL, THAT'S GREAT. BUT IT DOESN'T CREATE
A PRACTICAL REALITY THAT'S HANDED CROSS THE BOARD TO ALL DEFENDANTS IN THIS STATE. WE SHOULD
NOT CREATE SPECIAL DEFENDANTS BASED ON SOME LOFTY IDEA THAT DISADVANTAGES MANY OTHER
DEFENDANTS. CHIEF JUSTICE RABNER: I DON'T UNDERSTAND WHERE YOUR ARGUMENT
TAKES US. EMILY M.M. PIRRO: SO AS FAR AS WHAT THE END GOAL IS, GOING FORWARD.
CHIEF JUSTICE RABNER: WHAT SHOULD JUDGES CONSIDER TO AVOID THE PROBLEMS
YOU'VE SUGGESTED EXIST. EMILY M.M. PIRRO: I DON'T THINK THEY EXIST. I
THINK IF WE ENACT A RULE IF A CONDUCT, SOME CONDUCT THAT, YOU KNOW, WE'RE KIND OF
DIVINING THAT WE'RE GUESSING AT IS ACQUITTED AND LEASE NOT ALLOWED TO USE IT AT SENTENCING.
I THINK IF WE CREATE A RULE THAT SAYS THAT WE WILL CREATE THAT PROBLEM. THAT PROBLEM
DOESN'T CURRENTLY EXIST BECAUSE RIGHT NOW THE RULE IS IF THERE'S CREDIBLE EVIDENCE IN
THE RECORD THE JUDGE CAN LOOK AT IT IN IMPOSING AGGRAVATING AND MITIGATING FACTORS WITHIN
THE RANGE. I THINK OBVIOUSLY THE ATTORNEY GENERAL'S RULE INCORPORATES THAT AND I I
THINK THAT'S WHAT WE SHOULD BE DOING HIRE. CHIEF JUSTICE RABNER: ASIDE FROM
THE RANGE YOURSELF IS THERE A DIFFERENCE IN YOUR MIND BETWEEN A DEFENDANT WHO IS CONVICTED
OF BOTH SAY FELONY MURDER AND MEN THURSDAY AND THEN WHO IS CONVICTED OF FELONY MURDER
BUT NOT MURDER? EMILY M.M. PIRRO: THE ONLY DIFFERENCE IN MY MIND AS TO
THOSE TWO PEOPLE IS THAT THEIR CONVICTIONS ARE DIFFERENT. THEY ARE STILL DEFENDANTS.
I MEAN ONE DEFENDANT IS CONSIDERED ING IN OF KNOWING PURPOSEFUL MURDER AND THEIR
SENTENCING RANGE BEEN HAS TO BE CONSTRAINED BY WHAT THEIR CONVICTIONS YOU ARE AND THE
OTHER PERSON -- I THINK I REALLY WOULD DIRECT THE COURT IN ANSWERING THAT QUESTION TO PEOPLE
VS. PROBLEMS CONCURRENCE. THE CONCURRENCE TALKS SPECIFICALLY ABOUT CHARGES THAT HAVE
OVERLAPPING ELEMENTS AND WHAT THAT MEANS WHEN YOU TELL A JUDGE YOU'RE NOT ALLOWED TO LOOK
AT ACQUITTED CONDUCT. IF THE THE ELEMENTS OVER SIGNIFICANTLY WHAT DOES THAT MEAN FOR
WHAT THEY'RE ALLOWED TO LOOK AT. JUSTICE LA VECCHIA: COUNSEL, ARE YOU ASKING
THE COURT TO FOCUS IN THAT RESPONSE ON ON FACTS THAT -- NOT FACTS THAT THE JURY REJECTED,
YOU TALK ABOUT OVERLAPPING FACTS SOME OF WHICH MAY BE USED AND SOME WHICH MAY NOT, THE
ONES THAT MAY NOT ARE THE ONES THAT CAN SOMEHOW BE CLASSIFIED AS HAVING BEEN REJECTED
IN THE ACQUITTAL? EMILY M.M. PIRRO: AGAIN, PUBGT -- UNLESS WE GO INTO A
JURY ROOM AND ASK THEM WHAT FACTS THEY REJECTED WE DON'T KNOW. JUSTICE LA
VECCHIA: THAT'S TOTALLY INCONSISTENT WITH OUR JURISDICTION ON INCONSISTENT VERDICTS.
STATE VS. GRAY, STATE VS. BANK GO SAYS WE DON'T DO THAT. WE DON'T TRY TO GET INTO THE
JUROR'S MIND. EMILY M.M. PIRRO: CORRECT. HRAZ BUT IF THERE WAS A CHARGE
HAVING ELEMENTS WITH SPECIFICALLY PLED PARTS TO THEM THAT WERE REJECTED BECAUSE DEFENDANT
WAS ACQUITTED, IS THAT WHAT YOU'RE ASKING US TO PARSE IN YOUR POSITION? EMILY
M.M. PIRRO: I THINK -- THIS KIND OF FALLS BACK INTO THE IDEA THAT THIS IS THE CONTEXT.
I KNOW THAT YOU KNOW AN ACQUITTAL SPECIFICALLY FOR MR. MELVIN'S CASE IT CAN BE CLEARER
WHAT THE ACQUITTAL WAS AND, YOU KNOW, WHAT CONDUCT UNDERLIES THOSE ACQUITTALS. BUT
CRIMES ARE NOT LIKE SPECIFICALLY NEEDED -- I THINK MY COLLEAGUES MENTIONED THIS BEFORE
WE DON'T HAVE FACTS EARMARKED FOR CERTAIN CHARGES. JUSTICE LA VECCHIA:
LET'S GO BACK TO THE CHIEF JUSTICE'S QUESTION. THIS DEFENDANT WAS ACQUITTED OF PURPOSEFUL
AND KNOWING MURDER. THAT MENS REA WAS REJECTED BY THE JURY. SO HOW CAN IT FIND ITS WAY
BACK INTO THE JUDGE'S SENTENCING DECISION AS PART OF THE CREDIBLE FACTS THAT EXIST IN THIS
RECORD? EMILY M.M. PIRRO: I THINK THE CREDIBLE EVIDENCE IS WHERE IT FINDS
ITS WAY BACK IN IN A PRACTICAL ZONES. JUSTICE LA VECCHIA: WHAT IS THAT CREDIBLE
EVIDENCE. EMILY M.M. PIRRO: THAT INDIVIDUAL, THE TESTIMONY FROM HER
CODEFENDANTS -- NOT CODEFENDANTS BUT FROM HER COHORT WHO WERE INVOLVED IN THIS KIDNAPPING
AND MURDER, FROM THE -- ESSENTIALLY ALL OF THE EVIDENCE ADDUCED AT TRIAL. THE SAME EVIDENCE
THAT THE JURY LOOKED AT IS THE SAME EVIDENCE THAT THE JUDGE LOOKED AT AND HE MENTIONED
THAT ON THE RECORD. HE SAID I'VE HAD THE PRIVILEGE OF SITTING THROUGH THIS TRIAL AND
HEARING ALL THE EVIDENCE AND I FIND THESE FACTS BY A PREPONDERANCE OF THE EVIDENCE AND
THAT'S WHERE PRACTICALLY SPEAKING HE GETS THAT. BUT I DO WANT TO POINT OUT, JUSTICE
LAVECCHIA, THAT WE CAN SAY AS A THOUGHT EXPERIMENT THAT THE JURY REJECTED THE MENS REA
ELEMENT. WE STILL DON'T KNOW THAT. AND LIKE YOU, THAT'S SOMETHING WE FIND IT APPROPRIATE
TO DO. CHIEF JUSTICE RABNER: LET'S TURN IT AROUND BECAUSE TO THE JUDGE'S
CREDIT AS IN THE PRIOR CASE HE WAS NOT HIDING WHAT HE DID. THAT A JUDGE SAID I FIND
SHE OR CHESS TRADE THE EXECUTION OF THE VICTIM. WE KNOW THE JURY DID NOT FIND THAT, WOULD YOU
AGREE? EMILY M.M. PIRRO: YEAH, WE DO KNOW THAT SHE WAS ACQUITTED OF CONSPIRACY
TO MURDER AND MURDER, YES. CHIEF JUSTICE RABNER: IF ANYTHING THAT MEANS
AT THE VERY LEAST THE JURY DID NOT FIND PURPOSEFUL MURDER IN THAT CASE, CORRECT?
EMILY M.M. PIRRO: THEY DIDN'T FIND THE CHARGE, GENTLEMEN. CHIEF
JUSTICE RABNER: SO THE JUDGE WENT BEYOND AND YOUR POSITION IS THAT THAT IS ENTIRELY
PERMISSIBLE, NOTWITHSTANDING THE ACQUITTAL? EMILY M.M. PIRRO: I DO, YES,
AGAIN, I MEAN I -- PERHAPS THE ISSUE IS THAT, YOU KNOW, THE SAME EXPOSURE AND THAT'S SOMETHING
THAT TROUBLES SOME PEOPLE HERE, BUT I DO THINK THAT TAKING THE CONTEXT OF THE CRIME BASED
ON CREDIBLE EVIDENCE, NOT SOME ARBITRARY NOTION THAT WAS KIND OF PULLED OUT OF THE AIR
MATTERS. JUSTICE ALBIN: LET'S TAKE THAT. SO WE'RE JUST CLEAR ABOUT WHAT
MAY HAVE HAPPENED HERE. SO WE HAVE AN ACQUITTAL FOR PURPOSEFUL KNOWING MURDER.
WE SAID HAVE A CONVICTION FOR FELONY MURDER. WE HAVE A 60-YEAR SENTENCE. WHAT YOU ARE
SAYING IS -- AND TELL ME IF I'M MISTAKEN, ALTHOUGH THE JUDGE COULD HAVE SENTENCED THE
DEFENDANT TO 30 YEARS ON FELONY MURDER, THE JUDGE WAS WITHIN HIS RIGHTS TO FIND ON HIS
OWN THAT SHE, IN FACT, COMMITTED PURPOSEFUL AND KNOWING MURDER AND BASED UPON THAT FINDING
HE WAS JUST RIGHT IN GIVING HER ANOTHER 30 YEARS, THE 60 YEARS. AM I MISREPRESENTING
YOUR POSITION? EMILY M.M. PIRRO: ONLY SLIGHTLY. I DON'T KNOW THAT THE
ONLY REASON THAT HE GAVE HER THE SENTENCE HE DID WAS BECAUSE OF ADDITIONAL FINDING OF
PURPOSEFULNESS. JUSTICE ALBIN: YOU SEEM TO BE SAYING IT'S PERFECTLY OKAY.
ASSUME THE JUDGE CAME STRAIGHT OUT AND SAID, YOU KNOW, I KNOW THE JURY FOUND YOU GUILTY
OF FELONY MURDER BUT BASED UPON THE RELIABLE EVIDENCE THAT I HAVE ASSESSED IN THE RECORD
I'M FINDING THAT YOU COMMITTED PURPOSEFUL KNOWING MURDER AND I'M GIVING YOU 60 YEARS.
WOULD THAT BE PERMISSIBLE? EMILY M.M. PIRRO: I THINK YES IT IS. I THINK
IT HAS TO BE. I THINK THAT THE IDEA THAT, YOU KNOW, YOU HAVE TO IGNORE THAT CREDIBLE
EVIDENCE IN THE RECORD JUST FOR THIS DEFENDANT, BECAUSE SHE WAS ACQUITTED IS PROBLEMATIC
IN A WAY THAT WE SHOULDN'T ALLOW. YES, I DO BELIEVE THAT'S PERMISSIBLE. THE ENTIRE
CONTEXT OF A CRIME MAY BE VERY DETRIMENTAL TO A GIVEN DEFENDANT. IT MAY BE VERY HEINOUS,
CRUEL BUT THAT SHOULD BE ALLOWED IT TAKEN INTO ACCOUNT. JUSTICE SOLOMON:
I JUST HAVE A COUPLE OF QUICK QUESTIONS TO CLARIFY YOUR POSITION. I TAKE IT
YOU'RE RELYING ON THE CASES IN NEW JERSEY AND THE U.S. SUPREME COURT THAT SUGGEST THAT
AN ACQUITTAL IS NOT A FINDING OF INNOCENCE BUT SIMPLY A FINDING THAT THE STATE DID NOT
PROVE AN ELEMENT OR ELEMENTS BEYOND ALL REASONABLE DOUBT, CORRECT?
EMILY M.M. PIRRO: CORRECT, EXACTLY. JUSTICE SOLOMON: IN DETERMINING SENTENCING
THE STANDARD IS NOT PROOF BEYOND A REASONABLE DOUBT, BUT COMPETENT CREDIBLE EVIDENCE IN
THE RECORD. SO EVEN THOUGH IT'S AN ACQUITTED CHARGE, IF THERE'S COMPETENT CREDIBLE
EVIDENCE IN THE RECORD, THE JUDGE CAN CONSIDER IN SENTENCING, CORRECT? EMILY M.M.
PIRRO: YES. ABSOLUTELY. THE STANDARD IS DIFFERENT -- YES. JUSTICE
SOLOMON: AND THE LIMITING PRINCIPLE IS NOT WHAT WE'VE BEEN ARGUING ABOUT FOR THE LAST
I DON'T KNOW HOW LONG, IT'S A PARAMETER. IF YOU SENTENCE IN THE RANGE AND THERE'S EVIDENCE
WHETHER ACQUITTED OR HUNG THAT'S NOT A FINDING EVER INNOCENCE IT'S EVIDENCE THAT A JUDGE
CAN CONSIDER WHAT WE SHOULD FOCUSING ON IS WHETHER THIS THERE'S COME COMPETENT CREDIBLE
EVIDENCE WHETHER APPRENDI HAS BEEN VIOLATED OR THE OUTCOME IS FUNDAMENTALLY FAIR, CORRECT?
EMILY M.M. PIRRO: EXACTLY. SOLD I WANT TO BE CLEAR I'VE HEARD A LOT OF
STUFF BEING SAID. PAOERBZ THANK YOU, I APPRECIATE THAT, JUSTICE SOLOMON. THAT IS
EXACTLY MY POINT. PARAMETER P. CHIEF JUSTICE RABNER: ANYTHING YOU'D LIKE
TO ADDS, MS. PIRRO. EMILY M.M. PIRRO: NO, THANK YOU, YOUR HONOR. I WILL
SEE YOU IN REBUTTAL. MENG R GOOD MORNING BRIEFLY A VAD HE IS CASE DON SPON TO
THE STATE. MESS PAY DEFRN BATTLE HE NFRNS AND SHE TOOK HER CASE TO TRIAL R NOIG
THAT THE ET REST OF RER HEAVY LIFE WERE YOU OTS THE LIENT PEOPLE THAT THE
STATE TOLD US WHAT THEY THINK THE JURY HEARD WEEKS OF EVIDENCE AND ACQUITTED HER
PURPOSEFUL AND NOIG MURDER AND THE WEAPONS OFFENSES. EM STREEKS EMENT THE PORN
AS IT IS REFLECTS THE COMMUNITY COLLECTIVE JUDGMENT ABOUT THE
STATE'S EVIDENCE. ACQUITTAL IS OF TRIALS ARE RARE AND A FORTDED SPECIAL WEIGHT.
IN THIS CASE THE APPELLATE DIVISION NOTED NIS PATD DEN SDRS BATTLE
SENTENCING BUT POE FOCUS ON THE SENTENCING SHOULD HAVE BEEN ONTS CRIME PS PADEN
BATTLE WAS CONVICTED OF, FELONY MURDER A KIDNAPPING THAT RESULTED IN DEATH.
HOWEVER, THE KIDNAPPING WAS BARELY MENGDZ AT SENTENCING, IT WAS CLOER
THAT THE TRIAL JUDGE BELIEVED THAT PADEN BATTLE WAS GUILTY OF BURP FULL KNOWING
MURDER, CONTRARY TO THE JURY'S VERDICT AND SENTENCED HER IN ACCORDANCE
WITH THOSE VIEWS. IS THE TRIAL JUDGE SFOUPDS IN PADEN BATTLE WAS THE MASTER
MIND BEHIND THE KILLING AND "THE MOVING CORE BEHIND THE SNS LESS AKTS
OF BREW FACILITY THEY SHORED THE KILLING AND PLACED SOUP ZIEFR REROLE, THE STATE
ESSENTIALLY ARGUES THAT FELONY MURDER AND PURPOSEFUL NOIG MURT ARE CLOSE
ENOUGH. MS. PAT DEN BATTLE WAS FOUND RESPONSIBLE FOR A FORM OF HOM SOID SO THE
TRIAL JUF SHOULD HAVE BEEN ABLE TO CONSIDER EVIDENCE THAT SHE WAS RESPONSIBLE
FOR PURPOSEFUL AND KNOWING MURDER DESPITE THE ACQUITTAL. IF THAT'S
TRUE, THERE'S NO POISON IN HAVING A JURY TRIAL. THE TRIAL JUDGE SUBSTITUTED
HIS VIEW OF THE EVIDENCE FOR THAT OF THE JURY, WHICH GUTSED THE VERTD AND
UNDERMINED THE ROLE OF THE JOUSHGS UNLESS YOUR HONOR HAS FURTHER QUESTION I WLIE
TO RELAY ON MS. ARGUE THE AND ACCIDENTS COURT AVENUE FIRST OF ALL THE
DECISION BELOW AND BRING THE STESING BEFORE A DIFFERENT JUDGE THE
COURT: QUESTIONS ANYONE? THANK YOU, MS. MENG. MENG MNG THANK YOU. MR. SHALOM.
ALEXANDER SHALOM: GOOD MORNING S MAY IT PLEASE THE COURT,
MY FULL AMONG OF AMICI AND THE ARGUMENTS THAT, IMPORTANT ARGUMENTS YOU'VE ALREADY
HEARD I'LL TRY TO CONSTRAIN MYSELF TO THE QUESTION THAT CHIEF JUSTICE
ASKED ABOUT A UNIFORMITY, IT GOES WITHOUT SAYING THAT UNDER OUR CODE UNIFORMITY
IS ISN'T SOME ANCILLARY PRINCIPLE THE PARAMOUNT GOAL OF OUR CODE OF
CRIMINAL JUSTICE. IN SENTENCING WE SWEEK UNIFORMITY. AND SO EVERYONE HAS ALREADY
ALLUDED TO THE FAK THAT THE ATTORNEY GENERAL APPENDED 11 OR 12 CASES TO
THEIR BRIEF AND SUGGESTED THAT THESE CASES SHOWED THAT THE PRACTICE IS WIDESPREAD
IN MY BRIEF IN, PADEN BATTLE I EXPLAINED WHY THOSE CASES, CASES WHERE THE
DEFENDANT SAID I WAS SENTENCED BASED ON ACQUITTED CONDUCT AND OF COURSE REJECTED
IT. THEY SAID, NO, YOU WEREN'T, YOU WERE SENTENCED BASED ON CONVICTED CONDUCT
AND THAT'S HARD OF PROOL THAT THE PRACTICE IS WIDESPREAD.
SO I THINK THE UNIVERSE WE HAVE IS ACTUALLY SIX CASES, PADEN BATTLE AND
MELVIN, TILLERY OFF TO THE SIDE, THOSE ARE ALL OF ONE JUDGE AND THEN THERE'S
TINDELL WHERE THE COURT REVERSED, THERE IS ALLEN WHERE THE COURT REVERSED
AND THERE'S VAN HIGHS SER AND HE'S WHERE THE CONVICTION AND THE SENTENCE WERE
AFFIRMED. SIX AND LET'S BE, YOU KNOW, UNDER THE FRAMEWORK WE'RE TALKING
K ABOUT, WATTS WHERE THE FEDERAL COURT ENDORSED THIS PRACTICE WAS ALMOST A QUARTER
CENTURY, IT WAS 23 YEARS AGO. AND SO WHETHER YOU'RE TALKING ABOUT FIVE
OR 6 CASES OR 16 OR 17 CASES, YOU'RE TALKING ABOUT FEWER THAN ONE PER YEAR AND
SO JUST CONTEXT LIES THAT AND I'LL SIT DOWN, WHEN THE U.S. SUPREME COURT
STRUG DO YOU THINK THE DEATH PENALTY IN FER MAN JERSZ GEORGIA BECAUSE IT WAS
ARBITRARY AND CAPRICIOUS, APARTMENT THERE WERE ABOUT 52 DEATH SENTENCE
A YER SO THEY TALKED ABOUT THAT AS ONE DEATH SENTENCE A WEEK BUT IN FACT WHAT
THAT IS ARE YOU OF 1 DEATH SENTENCE PER STATE PER YEAR, THAT WAS ENOUGH FOR
JUSTICE STUART TO SAY THAT THE LIKELIHOOD OF BEING SENTENCED TO DEATH
WAS SIMILAR TO BEING STRUCK BY LANDING AND THAT WAS THE BASIS TO STRIKE DOWN
THE PUNISHMENT THAT HAD BEEN LONG ACCEPTED IN THIS COUNTRY THAT, ALONE
WAS ENOUGH AND HERE WHAT WE HAVE IS ONE JUDGE THROUGHOUT THE STATE MOO BELIEVES
THAT OUR CODE OF CRIMINAL JUSTICE ENDORSES THIS PRACTICE AND SO THE
LUCK OF THE DRAW IS ARE YOU GOING TO TRIAL IN FRONT OF THAT JUDGE OR ANY OTHER
JUDGE AND THAT'S NOT THE SORT OF UNPREDICTABILITY THAT WE SHOULD BE
TOLERATING. JUSTICE ALBIN: BASICALLY OUR CONSTITUTIONAL
APPROACH ARITHMETIC CONSTITUTIONAL APPROACH, IF EFRGS WAS REVERSED AND ALL THE
JUDGES EXCEPT ONE WERE USING ACQUITTED CONDUCT, WOULD YOU BE MAKING THE SAME
ARGUMENT? ALEXANDER SHALOM: SO JUSTICE ALBIN, THE CHIEF
ASKED A DERIVATIVE OF THAT WHICH IS TO SAY ONE WAY TO KIND OF CURE THE LACK OF
UNIFORMITY IS TO MANDATE CONSIDERATION OF ACQUITTED CONDUCT. BUT I THINK
THAT CREATES A DIFFERENT SORT OF UNPREDICTABILITY BECAUSE OF COURSE YOU CAN
ONLY BE SENTENCED BAFR ON ACQUITTED CONDUCT IF THE JUDGE MAKES THE
PREDICATE FINDING THAT YOU'VE, THAT KIND OF WAS PROVEN BY A PREPONDERANCE BUT
NOT BEYOND A REASONABLE DOUBT. IT SEEMS UNLIKELY OF THAT ALL THE CASES THAT
FALL IN THAT INTERSTITIAL SPACE BETWEEN PREPONDERANCE AND BEYOND A
REASONABLE DOUBT, AUFLG THEM BE BEING ADJUDICATED IN ONE COUNTY IN ESSEX COUNTY.
SO I THINK IT DOESN'T FL SO THE PROBLEM TO SIMPLY SAY EVERYONE SHOULD
DO THIS. IT'S NOT ARITHMETIC, TO BE CLEAR THE REASON THIS PRACTICE SHOULD BE
STRUCK DOWN ARE THE 5 HNS MS. LERER SET FORTH IN HER PRESENTATION BUT IF THE
COURT NEEDS A 6TH, THE LACK OF UNIFORMITY IS AN IMPORTANT ONE AND
GOES TO THE PORN QUESTION OF WHAT WOULD, IF THE COURT MAKES A RULE THAT SAYS YOU
CANNOT CONSIDER CONDUCT FOR WHICH A DEFENDANT HAS BEEN ACQUITTED WHEN
SENTENCING HIM, WHAT MANY PACT WOULD THAT HAVE ON THE ADMINISTRATION OF CRIMINAL
JUSTICE IN OUR STATE? AND THE ANSWER IS FOR EVERY JUDGE EXCEPT ONE,
ALMOST NONE. OEFRND, WERE YOU TO SIT AUTHORIZE THE PRACTICE, YOU WOULD SEE IT
HAPPENING MORE OFTEN, KREE YATH A LOT OF UNCERTAINTY AND I'M SURE THAT MY
FRIENDS MR. HAYDEN IS GOING TO BE TALKING ABOUT THE UNCERTAINTY THAT WOULD PLAGUE
CRIMINAL DEFENSE ATTORNEYS. AND I THINK FOR THOSE REASONS
WE ASK THE COURT TO REVERSE BOTH SENTENCES AND RE-ENTER FOR
SENTENCING. CHIEF JUSTICE RABNER: MR. HOET, MR. HAYDEN.
JOSEPH A. HAYDEN, JR.: MAY IT PLEASE THE COURT, ON BEHALF OF THE
ASSOCIATION FOR CRIMINAL DEFENSE LAWYERS. TO ARGUE AGAINST THE PRACTICE OF
SENTENCING WHICH IS DIRECT VIOLATION OF 6TH AMENDMENT AND SDOO PROCESS AND THEED
0 ARGUMENT WAS MADE BY PRIOR COUNSEL. ALSO TO POINT OUT HOW
IN THIS PRACTICE WERE EVER APPROVED AN IMPLEMENTED, IT WOULD ROCK THE
CONFIDENCE OF THE PUBLIC IN OUR CRIMINAL JUSTICE SYSTEM. NOW IT'S ONLY ONE JUDGE,
IT'S AN OPINION APPROVING IT, IT COULD BE UTILIZED ASH ROUND THE STATE IN
ALL OF OUR COUNTIES. DOO PROCESS OF LAW AND THE RIGHT TO TRIAL BY
JURY IS THE FOUNDATION OF OUR CRIMINAL JUSTICE SYSTEM. IT'S WHY PEOPLE
THINK OUR SYSTEM IS FAIR. IT'S A KNOWN SYSTEM, WHEN THE VERDICT COMES IN, WHETHER
YOU LIKE IT OR DON'T LIKE IT, THE JURY VERDICT IS THE JURY VERDICT.
SO HE'S PRESUMED INNOCENT. NOW, IF WE HAVE A SITUATION WHERE THERE'S
ONLY THE STARTING POINT, WE'RE NOT GOING TO HAVE CONFIDENCE. CERTAINLY
IF WE HAVE A SITUATION WHERE ULTIMATELY AFTER A JURY VERDICT, AND WITH AN
ACQUITTAL, THERE IS NO ABILITY TO JUDGE TO GET A NEW TRIAL, THERE IS NO ABILITY
OF A PROSECUTOR TO APPEAL IT. THERE IS NO ABILITY OF A PROSECUTOR TO GET A NEW
TRIAL FROM ACQUITTAL. THE ACQUITTAL AS HAS BEEN SAID, IS SACRED, IT'S
SEK CROW SET. BUT THE PROCESS WHICH HAPPENED HERE REALLY GIVES THE STATE A SECOND
BITE AT THE APPLE, BECAUSE WHAT THEY'RE ABLE TO GO IN UNDER THE GOOIS
OF SENTENCING ON THE MINOR CHARGE FOR WHICH THERE'S BEEN A CONVICTION IS RELITIGATING
THE HEAVIER CHARGES WHICH WERE ACQUITTED. AND THEY'RE RELITIGATING
THE HEAVIER CHARGES AT A LOWER STANDARD OF PROOF. SO WE'VE GONE FROM THE JURY
BEYOND A REASONABLE DOUBT TO THEN WHETHER OR NOT THERE'S A
PREPONDERANCE OF EVIDENCE, WHEN YOU'RE REEL THINKING ABOUT WHAT HAPPENED, THIS
IS DRAMATIC IN TERMS OF HOUR OU SYSTEM WORKS. AND WHAT IT
ALSO DOES, IT RENDERS THE JURY VERDICT ADVISORY AS TO THE COUNTS OF ACQUITTAL
BECAUSE IF YOU LOOK AND SEE WHAT HAPPENED IN BOTH SENSES, ALL THAT
VERDICT WAS WAS ADVISORY, AND THE SENTENCING JUDGE DID NOT GO ALONG WITH THE JURY'S
ADVICE. I SUBMIT, THERE'S BEEN SOME QUESTIONS ASKED OF WHAT
WOULD THE MAN ON THE STREET THING, BEYOND THE MAN ON THE STREET, LET'S LOOK AT
WHAT A PRACTICAL IMPLICATION COULD BE FOR OUR SYSTEM AS WE KNOW IT.
FIRST OF ALL, LET'S TAKE THE JURY. NOW, WE'RE NOW IN AN ERA WHERE IT'S HARDER
AND HARDER TO GET JURORS. COVID, POST COVID. SO WE ASK THE JURY TO COME
IN, THEY TAKE ABOUT A WEEK FOR JURY SELECTION, IN AND OUT, THEY GOT TO TRAVEL
BACK AND FORTH TO TRIAL, YOU HAVE TRIALS HEESHGS ONE WAS EIGHT DAYS, ONE LOOKS
LIKE IT WAS THREE WEEKS, WAITING. THE TENSION WITH ALL OF THAT. THERE'S
A VERDICT OF MAYBE TWO OR 3 DAYS DELIBERATION, COMPLEX CHARGE, EVERYBODY IS
TRYING TO PIERCE IT TOGETHER. SOME OF US HAVE SEEN JURY VERDICTS WHERE
THE JURY IS CRYING WHEN THEY COME OUT WITH A SPLIT VERDICT. YOU REMEMBER BOTH
OF THESE CASES ARE SPLIT VERDICT CASES. AND ULTIMATELY THEY DELIVERED
THEIR VERDICT, THEY THINK THEY DID THE BEST THEY COULD AND THEN TWO OR THREE
MONTHS LATER, A JUROR READS OR AR JUROR HEARS FL A FELLOW JUROR THAT THEIR
VERDICT HAS BEEN DISREGARDED AND THE JUDGE ACTED LIKE THEIR VERDICT OF ACQUITTALS
WERE A NULLITY AND DIDN'T MATTER, WHEN HE OR SHE I AM POEF THE SENTENCE. WHAT
WILL THAT DO FOR THE WILLINGNESS OF PEOPLE TO SERVE? WHAT WILL THAT
DO FOR PEOPLE'S DESIRE TO BE ON THE JURY? LET'S CONTINUE WITH THIS THING.
LET'S ASSUME WE HAVE A HIGH PROFILE CASE AND THE HIGH PROFILE
CASE HAS RACIAL ELEMENT, HAS A POLITICAL ELEMENT, IT'S GETTING A LOT OF ATTENTION,
THERE'S TWO SETS OF CHARGES. THE MAJOR SET OF CHARGES THERE'S BEEN
AN ACQUITTAL. THE LESSER CHARGES, THERE'S BEEN A CONVICTION. WHEN WE GO TO
SENTENCE, THE JUDGE TAKES THE APPROACH THAT WAS TAKEN HERE, THAT THE
VERDICT WAS REALLY ADVISORY AND, THEREFORE, SENTENCES HIMSELF AS IF IT WAS A
COULDN'T VIC. WHAT WILL THAT DO TO THE CONFIDENCE OF THE PUBLIC AND THE
INTEGRITY OF OUR CRIMINAL JUSTICE SYSTEM? NOW, LET'S LOOK FROM THE
POINT OF VIEW FROM A LAWYER. I'M A DEFENSE LAWYER, I TAKE A LOT OF TIME
WHEN I WORK WITH A CLIEN AS TO WHETHER OR NOT TO PLEAD GUILTY OR GO TO TRIAL.
I TRY TO USE THE RISK BENEFIT ANALYSIS. THIS IS THE BHEN FIT OF THE KNOWN PLEA, YOU
GO TO TRIAL, IT'S HIGH RISK OR HIGH REWARD. IF THIS SENTENCES ARE
UPHELD, I'M GOING TO HAVE TO TELL MY CLIENT, BUT YOU CAN GO TO TRIAL AND BE
ACQUITTED OF SOME BUT THE JUDGE COULD ACT LIKE YOU'RE CONVICTED OF THOSE
COUNTS YOU'RE ACQUITTED IF YOU'RE SENTENCE DZ ON LESSER CHARGES WHICH GO FORWARD.
I HEY HAVE TO TELL THE CLIENT THAT YOU BETTER BE PREPARED
TO RUN THE TABLE AND BE ACQUITTED OF EVERY CHARGE THAT GOES TO THAT JURY. WHAT
THAT WILL DO, THOUGH, WILL PUT TREMENDOUS AMOUNT OF COERCIVE
PRESSURE INTO WAITING THE RIGHT TO TRIAL TO AND PLEADING GUILTY. I DON'T THINK
THERE'S ANY LAWYER WOULDN'T HAVE TO, IF THESE SENTENCES ARE UPHELD WOULDN'T
HAVE TO TELL THE CLIENT OF WHAT THE NUANCES OF THE RISKS ARE, AND IN THE FUTURE
IF A LAWYER DID NOT TELL THE CLIENT WHAT THE NUANCES ARE, AND THERE WAS
A SPLIT VERDICT, AND THERE WAS A SENTENCE LIKE WE HAVE, BE PREPARED FOR INEFFECTIVE
ASSISTANCE OF COUNSEL MOTIONS IN KEKSZ CONNECTION WITH A LAWYER WHO DID
NOT GO THROUGH ALL OF THE NUANCES. SO WHAT'S THE REMEDY? THE FEDERAL
SLAW IN FLUX, THE NEW JERSEY LAW HAS BEEN VERY STRONG ABOUT THE RIGHT
OF US TO EXPAND OUR CONSTITUTION IN ORDER TO PROTECT CRIMINAL K THE RIGHTS OF
DEFENDANTS, RIGHTS OF CITIZENS AND I POINT THE COURT TO STATE VS. GILMORE.
BECAUSE IN STATE VS. GILMORE, THE NEW JERSEY SUPREME COURT ENDED UP
REJECTING SWAG VERSUS ALABAMA AND RULED THAT RACIAL DISCRIMINATION COULD NOT BE
USED IN JURY SELECTION LONG BEFORE BATS SON, AND IN THE RIGHT TO A JURY
TRIAL UNDER THE NEW JERSEY CONSTITUTION AND I RESPECTFULLY SUBMIT IF WE CAN INVOKE
THE RIGHT TO A JURY TRIAL FOR JURY SELECTION TO PRO TECH THE INTEGRITY
OF THE JURY SELECTION, WE CAN INVOKE THE SAME PROVISION IN ORDER TO PROTECT THE
INTEGRITY OF THE JURY'S FACT FINDING AFTER A PROTRACTED TRIAL. I THANK
YOU FOR AL LOO LOUG ME T SPEAK. CHIEF JUSTICE RABNER: R PROF
PROFESSOR JON ROMBERG: FOUR QUICK POINTS RESPONSIVE TO YOUR HONORS QUESTIONS AND
CONCERNS. FIRST, CAN YOU KNOW WHAT THE JURY DID IN ACQUITTING OF PURPOSEFUL
OR KNOWING MURDER AND WHAT DO WE KNOW? THE ANSWER IS WE CAN KNOW. THE U.S.
SUPREME COURT IN KWRAEUG GESTURE DISTINGUISHED CAREFULLY BETWEEN
HUNG CHARGES AS OPPOSED TO ACQUITTALS AND SAYS HUNG CHARGES ARE BLACK
BOX. WE DON'T KNOW WHAT HAPPENED BUT ACQUITTALS WE DO KNOW. WE CAN
TAKE A LOOK AND SEE WHAT THE JURY DID. AND HERE THE JURY ACQUITTING
OF PURPOSEFUL OR KNOWING MURDER THE ELEMENTS ARE THE ACTOR PURPOSELY OR KNOWINGLY CAUSES
DEATH OR SERIOUS BODILY INJURY RESULTING IN DEATH. THERE'S NO DISPUTE ABOUT THE DEATH
HERE. THE ONLY QUESTION IS WHETHER IS -- IS THE MENS REA. WHETHER MS. PADEN-BATTLE PURPOSELY
OR KNOWINGLY CAUSED DEATH. THE JURY SAID NO. THE JUDGE SAID YES. THE JUDGE DIDN'T RESPECT
THE JURY'S VERDICT AND SENTENCED HER FOR HAVING ENGAGED IN PURPOSEFUL OR KNOWING MURDER
THAT SHE DID NOT. THIS COURT SAID THE FELONY IS NOT THE MORAL EQUIVALENT,
NO, SIR A UNIFIED CRIME OF MURDER. THEY'RE DIFFERENT CRIMES. SHE WAS SENTENCED FOR A
CRIME SHE DID NOT COMMIT AND INDEED A CRIME THE JURY ACQUITTED HER OF WHAT THE SIXTH
AMENDMENT AND FUNDAMENTAL FAIRNESS FORBID IS FOR THE? YOU WERE TO SENTENCE THE DEFENDANT
FOR A CRIME OF WHICH THE JURY DID NOT CONVICT HER. THAT'S WHAT THIS COURT SAID IN SAEUPBS
IS THAT WHAT'S ESSENTIALLY IS THAT THE DEFENDANT ONLY BE SENTENCED FOR A CRIME OF WHICH
SHE WAS CONVICTED. THE CONTEXT HERE, THE JUDGE CAN TAKE CONTEXT INTO ACCOUNT.
THE FACT THAT THE DEFENDANT COMMITTED A CRIME DIFFERENT FROM WHAT THE JURY CONVICTED HER
OF, AND EVEN MORE SO, THAT SHE COMMITTED A CRIME ON WHICH THE JURY CONVICTED HER IS NOT
CONTEXT. OTHERWISE, THE SUPREME COURT IN BLAKELY WHEN IT SAID YOU CAN'T SENTENCE SOMEONE
FOR MURDER IF THEY WERE FOUND GUILTY OF POSSESSING A FIREARM AND THE JUDGE BELIEVED
THE FIREARM WAS USED TO COMMIT MURDER OTHERWISE MURDER WOULD BE CONTEXT FOR POSSESSING
A FIREARM. JUSTICE ALBIN: PROFESSOR, I WANT TO GO BACK TO SOMETHING I
THINK YOU SAID. YOU SAID WE KNOW WHAT THE JURY DID WHEN THEY ACQUITTED BUT YOU'RE ALSO
SAYING -- ARE YOU SAYING THAT WE CAN KNOW WHY THEY DID IT. PROFESSOR JON
ROMBERG: NO, WE DON'T KNOW EXACTLY WHAT WAS IN THEIR HEADS. WE DO KNOW SHE WAS NOT GUILTY
OF PURPOSEFUL OR KNOWING MURDER. JUSTICE ALBIN: AND THAT'S ALWAYS WE KNOW.
WE CAN'T KNOW HOW THEY CAME TO THAT DECISION YOU WOULD CONCEDE. PROFESSOR JON
ROMBERG: CERTAINLY WE DON'T KNOW HOW OR WHY. BUT WE DO KNOW WHAT. WHAT THEY DID IS
ACQUITTED HER OF PURPOSEFUL OR KNOWING MURDER. THE JUDGE SENTENCED HER FOR HAVING ENGAGED
IN KNOWING OR PURPOSEFUL MURDER. WHAT WE KNOW IS THE JURY ACQUITTED HER OF CONSPIRACY
TO MURDER. THE JUDGE SENTENCED HER FOR NOT ONLY CONSPIRING BUT ORCHESTRATING OR MASTER
MINDING MURDER. NOT RESPECTING THE JURY'S VERDICT AND CENTRAL TO APPRENDI AND BOOKER
AND BLAKELY, THAT LINE OF CASES IS NOT ONLY THE QUESTION OF THE SENTENCING MINIMUM AND
MAXIMUM BUT THE FUNDAMENTAL PRECEPT THAT THE JUDGE IS ENTITLED TO SENTENCE FOR A CRIME
THAT IS NOT THE CRIME OF CONVICTION AND THAT'S SIMPLY WHAT HAPPENED IN THIS CASE.
PURPOSEFUL OR KNOWING MURDER IS NOT CONTEXT FOR FELONY MURDER. IT IS INCONSISTENT WITH
THE JURY'S VERDICT. AND INDEED, THIS COURT IN FARRELL ALREADY HELD IT WAS DISCUSSED AND
ACQUITTED CHARGES AND SPECIFICALLY HELD IN DISCUSSING CRIMES FOR WHICH DEFENDANT HAD
BEEN TRIED AND ACQUITTED. THIS COURT HELD, QUOTE, IT MUST BE BE REMEMBERED THAT UNPROVED
ALLEGATIONS OF CRIMINAL CONDUCT SHOULD NOT BE CONSIDERED BY A SENTENCING JUDGE. THE
APPELLATE DIVISION IN 2019 IN TRAVELERS PUBLISHED DECISION RELIED ON THAT CASE TO SAY WHEN
THE JURY ACQUITTED THE DEFENDANT OF CERTAIN CONDUCT HE WAS CHARGED TO HAVE CONDUCT
AGAINST VARIOUS PEOPLE THE JURY ACQUITTED HIM OF CONDUCT INVOLVING ONE PARTICULAR VICTIM
AND THE JUDGE SENTENCED TAKING INTO ACCOUNT CONDUCT DIRECTED AT THAT VICTIM AND THE
APPELLATE DIVISION SAID LOOKING AT FARRELL YOU CAN'T DO THAT. THAT IS UNLAWFUL. THE JURY
HAS ACQUITTED OF THAT CONDUCT. YOU CAN'T TAKE THAT INTO ACCOUNT AS CONTEXT.
FINALLY THE STATE ARGUES THAT WATTS BARS THIS COURT FROM SO HOLDING IN THIS CASE.
THAT'S NOT TRUE. OBVIOUSLY WATTS DOES NOT CONTROL THE NEW JERSEY
CONSTITUTION OR FUNDAMENTAL FAIRNESS WHICH IS CERTAINLY AN ARENA IN WHICH
BOTH THE LUCK OF THE JUDICIAL JAW IS PARAMOUNT AS IS THE PUBLIC'S
PERCEPTION OF THE LEGITIMACY OF THE CRIMINAL JUSTICE SYSTEM.
BUT THE STATE SAYS THAT BOOKER COULDN'T POSSIBLY OVERRULE WATTS BECAUSE
BOOKER SAYS THAT WATTS ADDRESSED A DIFFERENT ISSUE. BUT WHAT THAT ACTUALLY SHOWS IS
BOOKER SAYS WATTS WAS ONLY ADDRESSING DOUBLE JEOPARDY. WATTS DID NOT CONSIDER THE SIXTH
AMENDMENT. WATTS DID NOT CONSIDER THE ISSUES THE COURT HAS BEFORE IT. SO BOOKER IS SAYING
WE DON'T NEED TO OVERRULE WATTS. WATTS ONLY ADDRESSED THE DOUBLE JEOPARDY. SO THE
APPRENDI, BLAKELY, BOOKER LINE OF CASES IS SIMPLY NOT SUBJECT TO WATTS WHICH ONLY ADDRESSED
DOUBLE JEOPARDY. IT ONLY IN THE CONTEXT OF THE FEDERAL SENTENCING GUIDELINES. THE FEDERAL
SENTENCING GUIDELINES IN WATTS TURN IN SIGNIFICANT PART ON SECTION 3661 WHICH SAYS
THE JUDGE CAN CONSIDER ANYTHING IN SENTENCING. THIS COURT IN RANDOLPH RECOGNIZED 3661
IS NOT PART OF THE STATE'S CODE. OUR SENTENCING IS EVEN MORE CONSTRAINED. THE FUNDAMENTAL
POINT BOTH FEDERALLY AND EVEN MORE PLAINLY UNDER NEW JERSEY LAW IS THAT THE SENTENCING
JUDGE CANNOT TAKE CONDUCT, THE JURY FOUND WAS NOT CRIMINAL CONDUCT AND SENTENCE FOR A
CRIME THE JURY REJECTED. CHIEF JUSTICE RABNER: THANK YOU, PROFESSOR.
MS. PIRRO I SEE YOU'RE STILL WITH US. ANY PROBLEMS HERE? TECHNICAL
DIFFICULTIES SARAH D. BRIGHAM: JUST AS TRIAL EVIDENCE UNDERLYING THE CHARGES
MAY CONSTITUTE COMPETENT CREDIBLE EVIDENCE ONLY THE SENTENCING JUDGE MAY RELY, THOSE TOO,
MAY TRIAL EVIDENCE TPHAOEURG THE ACQUITTED CHARGE, THE ATTORNEY HAS, THEREFORE, PROPOSED
THE FOLLOWING RULE. WHEN EVALUATING THE FULL CONTEXT OF A DEFENDANT'S CONVICTED CRIME,
THE SENTENCING JUDGE MAY CONSIDER CONDUCT UNDERLYING ACQUITTED CHARGES ARISING FROM THE
SAME CASE SO LONG AS THE JUDGE FINDS THE CONDUCT BY A PREPONDERANCE OF COMPETENT CREDIBLE
EVIDENCE IN THE RECORD, DEFENDANT IS NOT SENTENCED AS THOUGH ACQUITTED CHARGE, THE
EVIDENCE IS RELEVANT AND TRUSTWORTHY AND THE SENTENCE MUST NOT EXCEED THE STATUTE MAXIMUM
OR INCREASE THE MANDATORY MINIMUM FOR THE CONVICTED TRIAL. IS CONSISTENT WITH THE
STATE'S LANGUAGE STANDING SENTENCING JURISDICTION THE JUDGE EXERCISING FAR ARRANGING DISCRETION
AS TO THE EVIDENCE HE OR SHE MAY CONSIDER IN WEIGHING THE SENTENCING FACTORS FOR A
DEFENDANT'S CONVICTED OFFENSE AND NOT ONLY THE ATTORNEY PROPOSED RULE, NO CONSTITUTIONAL
ISSUE ARISES FROM THE CONSIDERATION OF THE EVIDENCE. EVERY FEDERAL CIRCUIT ALLOWS AND
SO DOES THE MAJORITY OF THE STATE. THE CONTRARY PRACTICE FOLLOWED BY MICHIGAN HAS PROVED
TO BE UNWORKABLE. AS EXPLAINED BY JUDGE PORTION OF CONCURRENCE IN THE POSITION ROBERTS
IN SITE 1617, MICHIGAN COURTS HAVE HAD DIFFICULTY IN APPOINT POINTING WHAT CONDUCT HAS
BEEN SPECIFICALLY ADJUDICATED NOT GUILTY BY A JURY. AS THE SUPREME COURT RECOGNIZED IN
WATTS WITHOUT SPECIFIC JURY FINDINGS NO ONE CAN LOGICALLY OR REALISTICALLY FROM VERDICT
OF ACQUITTAL. THIS DIFFICULTY WAS FOR SHADOWED IN THE SENTENCE AND 668 TO 69 AND THEN
HAS PROVEN TRUE. WHAT'S MORE OF A (INAUDIBLE) OVERLAPPING WITH ACQUITTED CHARGES WHEN
TAKING INTO ACCOUNT THE FULL CONTENT WERE LEAD TO AN ABOUT SURT TEA IN OUR STATE SENTENCING
SYSTEM. IF DEFENDANTS HAVE PLEADED GUILTY HERE AND THERE ARE OTHER CHARGES THAT HAVE BEEN
DISMISSED UNDER A PLEA BARGAIN EVIDENCE UNDERLYING THE DISMISSED CHARGES COULD HAVE
BEEN USED IN WEIGHING THE SENTENCING FACTORS FOR THEIR CONVICTED CRIMES UNDER MAR BORROW
AND APPRENDI. BEFORE SENTENCING, THE STATE COULD EITHER DISMISS THE DEADLOCKED CHARGES
OR INDICATED THAT IT WOULD NOT BE TRYING THE SENTENCE FOR THE COUNTS. THE TRIAL EVIDENCE
UNDERLYING THE DEADLOCKED CHARGES ALSO COULD HAVE BEEN CONSIDERED IN WEIGHING THE SENTENCING
FACTORS UNDER TILLERY. THE STATE SHOULD BE TRUTH FOR ACQUITTED WHICH RESULTS IN JURORS
COULD HAVE REACHED RELYING ON DIFFERENT EVIDENCE. THE JUDGE HERE SAYS TO PROPERLY CASE
HOMICIDE AND WEIGHING THE SENTENCING FACTORS FOR PADEN-BATTLE CONVICTED OF FELONY MURDER
AND THE CREDIBLY SUPPORTED FACT THAT (INAUDIBLE) LEGALLY POSSESSING WHICH IS NOT THE SAME
AS FINDING THAT HE COMMITTED A HOMICIDE. NOTHING WAS NOT EVEN SENTENCE AS IF HE WAS A
CONVICTED OF THE CRIME OF MURDERED WHICH CARRIES A MINIMUM TERM OF 30 YEARS IN PRISON
WITHOUT PAROLE. AND AT THIS MOMENT I WOULD LIKE FOR ADDRESS JUSTICE ALBIN'S QUESTIONS
THAT TAME UNDER DURING THE STATE'S PRESENTATION WHEN HE WAS REFERRING TO THE SENTENCING
TRANSCRIPT AND I JUST WANT TO POINT OUT PAGES 70S TO 72 OF THAT SAME TRANSCRIPT IT SHOWS
THAT THE JUDGE USED THE FACT OF PRIOR CONVICTIONS IN THAT FINDING THAT MELVIN WAS EXTENDED TERM
ELIGIBLE WHICH ALSO CONCEDED WHICH AS SHOWN AT PAGES 33, 34, 40 -- 44 AND 46 OF THE
SENTENCING TRANSCRIPT. AND NOT ONLY THAT IN PADEN-BATTLE AND MELVIN, THE AGGRAVATING
FACTORS IN THOSE CASES WERE EACH SEPARATELY SUPPORTED IN THE RECORD AS EXPLAINED IN THE
ATTORNEY'S BRIEF. AND FOR THOSE REASONS THIS COURT SHOULD UPHOLD BOTH DEFENDANT'S
SENTENCES AND THAT CONCLUDES THE ATTORNEY'S OPENING ARGUMENT WHERE I WOULD BE HAPPY TO
ANSWER THE COURT'S QUESTIONS. CHIEF JUSTICE RABNER: MS. BRIGHAM, YOU'VE
SUGGESTED THAT IF WE DON'T ACCEPT YOUR ARGUMENT THERE WOULD BE A DIFFERENCE BETWEEN HOW
CASES ARE HANDLED TO PLEAS AND A CASE LIKE THIS WHERE THERE WAS AN ACQUITTAL AT TRIAL.
TELL US YOUR UNDERSTANDING SUPPOSE THIS CASE, THE PADEN-BATTLE HAD BEEN A PLEA, THE DEFENDANT
PLED TO A FELONY MURDER AND THE OTHER CHARGES WERE DROPPED, COULD THE STATE THEN HAVE
COME IN AT SENTENCING AND SAID, JUDGE, WE WOULD LIKE A PROFFER OF EVIDENCE THAT SHOWS
THIS WAS PURPOSEFUL, INTENTIONAL CONDUCT, PURPOSEFUL KNOWING MURDER OR JUDGE WE'D LIKE
TO PUT ON WITNESSES TO ESTABLISH THAT SO YOU CAN GIVE A SENTENCE HIGHER THAN WHAT YOU,
JUDGE, HAVE IN MIND SIMPLY FOR FELONY MURDER. IS THAT SOMETHING THE LAW TODAY WOULD
PREVENT? SARAH D. BRIGHAM: I WOULD LIKE TO TWEAK THAT A LITTLE BIT, YOUR HONOR.
SO (INAUDIBLE) HERE TO FELONY MURDER AND THE OTHER CHARGES WERE DISMISSED THE CONDUCT
UNDERLYING THE CHARGES ABSOLUTELY COULD HAVE BEEN CONSIDERED. THAT'S WHAT FUENTES HOLD
AND INSTEAD OF THE STATE'S PROFFER AND TESTIMONY FROM WITNESSES AND TURNING THAT INTO
A MINI-TRIAL AT SENTENCING, THE JUDGE COULD HAVE SIMPLY RELIED ON THE PRESENTENCE REPORT
HERE WHICH SHOWED THAT PAGE 5 OF THAT PRESENTENCE REPORT SUMMARIZES THAT PADEN-BATTLE
HERE ORCHESTRATED THE KIDNAPPING AND MURDER. CHIEF JUSTICE RABNER: MS.
BRIGHAM, COME BACK TO THE QUESTION THAT I'M POSING TO YOU. YOU DON'T HAVE THE EVIDENCE
THAT WAS PRESENTED AT THE TRIAL, IT'S A STRAIGHT APPELLATE CAN THE STATE CONFER AND SAY
JUDGE WAED LIKE TO CALL THE WITNESSES WE OTHERWISE WOULD HAVE CALLED TO TRIAL TO PROVE
THIS IS PURPOSEFUL AND KNOWING MURDER AND YOUR SANE IN THE RANGE FOR FELONY MURDER SHOULD BE
HIGHER AS A RESULT. SARAH D. BRIGHAM: THEORETICAL ANY SUPPOSE THE STATE
WOULD CALL WITNESSES BUT AT THE SAME TIME THE SAME FACTS COULD BE SUMMARIZED IN THE
PERCENTAGE WHERE THE JUDGE COULD TAKE THAT FROM THERE AND WEIGHING THE SENTENCING FACTORS
WITHIN THE STATUTORY RANGE FOR THE CRIME OF FELONY MURDER. JUSTICE ALBIN:
SO, COUNSEL, I THINK WHAT YOU'RE SAYING IS INCONSISTENT WITH BLAKELY AND WITH OUR
DECISION IN NATALE WHICH STATED THAT IN A CASE OF PLEA, THE SENTENCE THAT IS AUTHORIZED
IS BASED ON THE ADMISSIONS MADE BY THE DEFENDANT AT THE PLEA HEARING. SO I DON'T -- AND
IF THAT IS THE RULED OF LAW AND I UNDERSTAND THAT TO BE THE RULE OF LAW, I DON'T UNDERSTAND
HOW AFTER THE DEFENDANT PLACES HIS ADMISSIONS ON THE RECORD THE JUDGE CAN HAVE AN EXTENDED
HEARING FINDING FACTS THAT WILL EXPOSE THE DEFENDANT TO A GREATER SENTENCE THAN WHAT HE
OR SHE HAS ADMITTED ON THE RECORD. AM I WRONG ABOUT THAT? SARAH D. BRIGHAM:
WELL, YOUR HONOR, WE ALSO HAVE THE SUPREME COURT CASE HERE WHICH ALSO STATES THAT WHEN
A TRIAL COURT IMPOSES A SENTENCE BASED ON DEFENDANT'S GUILTY PLEA, AND THIS IS FROM THE
THE SITE 293 THE DEFENDANT'S SUBMISSIONS OR FACTS MAY NOT BE THE FULL SOURCE OF INFORMATION
FOR THE COURT'S SENTENCING DECISION. THE COURT MAY OTHER EVIDENCE IN THE RECORD WHETHER
MAKING SUCH DETERMINATION THAT THE IT COULD CONSIDER THE WHOLE PERSON AND ALL THE
CIRCUMSTANCES SURROUNDING THE INDICATION OF THE CRIME AND I SUBMIT TO YOU THAT IN BOOKER
THAT THAT HOLDING IS CONSISTENT. BECAUSE WE ALSO HAVE JUSTICE BRIAR'S MAJORITY OPINION.
SHE SITES TO HAVE YOU KNOWN WHERE IT STATES THAT THE SUPREME COURT ENVISIONED THAT (INAUDIBLE)
UNDER ONE LINE OF CONVICTION WOULD CONTINUE WHICH IS WHY THE COURT, FOR EXAMPLE, HELD
IN (INAUDIBLE) THAT A SENTENCING JUDGE COULD REALLY FOR SENTENCING PURPOSES ON THE FACT
THAT THE JURY HAS FOUND ON APPROVE BEYOND A REASONABLE DOUBT. WE ALSO HAVE HIM SITE 2
33 FROM PARKER AND JUSTICE STEPHENS WHICH HE HELD THAT WHEN A TRIAL JUDGE EXERCISES HIS
DISCRETION WITHIN A DEFINED ARRANGE, THE DEFENDANT HAS NO RIGHT TO THE JURY
DETERMINATION OF THE FACTS THAT THE JUDGE DEEMED RELEVANT. AND HERE -- JUSTICE
ALBIN: I'M GOING BACK TO THE PLEA QUESTION THE CHIEF ASKED YOU. ARE YOU -- I WANT TO
UNDERSTAND PRECISELY WHAT YOU'RE SAYING. ARE YOU SAYING THAT IF AT THE TIME OF THE PLEA
THE COLLOQUY IS THAT THE DEFENDANT WAS SAY IN THE COURSE OF A ROBBERY ACCIDENTALLY OKAY
SHOT SOMEONE, THAT'S THE ADMISSION AT THE TIME OF THE PLEA, THE JUDGE CAN MAKE A SEPARATE
FINDING THAT I KNOW THAT'S YOUR STORY, BUT AFTER YOU'VE FLED I AM NOW FINDING THAT YOU
PURPOSELY DID IT AND I AM GOING TO GIVE YOU THE TOP OF THE RANGE. ARE YOU
SAYING THAT IS PERMISSIBLE UNDER NATALE AND UNDER BLAKELY? BECAUSE I DON'T THINK IT IS.
BUT GO AHEAD. SARAH D. BRIGHAM: YES, YOUR HONOR, IT IS. SO LONG AS THE
JUDGE IS MAKING THAT FINDING BASED ON COMPETENT CREDIBLE EVIDENCE IN THE RECORD AND WE
HAVE -- AND NORMALLY WHAT'S DONE IN A GUILTY PLEA CASE IS IN CONSIDERING THE FULL CONTEXT
OF A DEFENDANT'S CRIME THAT HE PLEADS GUILTY TO THE JUDGE IS LOOKING AT THE FACTUAL SUMMARY
IN THE PRESENTENCE REPORT TO INFORM HIS OPINION, WHICH (INAUDIBLE) IN A PROPER THING IN
THE RECORD FOR THE JUDGE TO CONSIDER. JUSTICE ALBIN: I DON'T WANT TO BELABOR
THIS BUT I'M LOOKING AT NATALE. A JUDGE IS AUTHORIZED TO IMPOSE SENTENCE WITHIN THE
RANGE ALLOWED BY THE JURY VERDICT OR BY THE DEFENDANT'S ADMISSIONS AT A GUILTY PLEA.
OKAY AUTHORIZED TO IMPOSE A SENTENCE, OKAY, WITHIN THE RANGE BASED UPON THE DEFENDANT'S
ADMISSIONS AT THE GUILTY PLEA. SO I DON'T SEE ON THE BASIS OF THAT STATEMENT
OF LAW HOW THE JUDGE COULD MAKE FINDINGS OF FACT THAT GO BEYOND THE DEFENDANT'S ADMISSIONS.
SARAH D. BRIGHAM: BUT THE KEY PART OF WHAT YOU JUST QUOTED TO ME, YOUR HONOR,
IS WITHIN THE RANGE OF THE CRIME OF CONVICTION. SO LONG AS IT'S WITHIN THE RANGE OF THE
CRIME OF CONVICTION THE JUDGE CAN PROPERLY MAKE FACT FINDING AS TO THOSE SENTENCING FACTORS
WEIGHING THEM WITHIN THE RANGE. IF THE JUDGE -- YES. CHIEF JUSTICE RABNER:
I THINK WE HAVE YOUR POSITION ON THIS POINT. I DIDN'T MEAN TO CUT YOU OFF. YOU'RE WELCOME
TO FINISH THE SENTENCE AND I THEN I SUBJECT YOU FIND SOME OTHER POINT. SARAH D.
BRIGHAM: SO ANOTHER THING I WANTED TO ADDRESS IS -- I THINK IT WAS CHIEF JUSTICE YOU AND
JUSTICE LAVECCHIA, BROUGHT UP ABOUT AN ELEMENT THE STATE APPROACHED. AND I WANTED THE
COURT TO (INAUDIBLE) APPELLATE DIVISION. BECAUSE HE ACTUALLY CRITICIZES THAT APPROACH.
AND I WANT TO EXPLAIN TO YOU WHY. AND IT HAS TO DO WITH THE -- WHAT A VERDICT OF ACQUITTAL
ACTUALLY MEANS. YOU CAN'T REALISTICALLY MAKE ANY FACTUAL EVIDENCE FROM
A VERDICT OF ACQUITTAL. BECAUSE JURORS IN REACHING THAT DETERMINATION COULD RELY ON
EVIDENCE SO LONG AS THEY AGREE ON THE BOTTOM LINE AND THE SAME IS TRUE FOR A VERDICT OF
GUILTY. IN REACHING A VERDICT OF GUILTY JURORS COULD RELY ON DIFFERENT PIECES OF EVIDENCE
TO FIND THAT THE ELEMENTS HAVE BEEN MET AND THAT'S SHOWN NOT ONLY BY THE JURY CHARGE ON
MURDER THAT IN ORDER TO FIND PURPOSEFUL OR KNOWING MURDER IS ALSO SHOWN BY THE MODEL
JURY CHARGE FOR AGGRAVATED ASSAULT THAT IN CAUSING SERIOUS BODILY INJURY THE MENS REA SO
LONG AS THE JURORS AGREE ONE IS FOUND CAN BE BE PURPOSEFUL KNOWING OR RECKLESS.
AND FOR THAT REASON -- AND I ALSO WANT TO POINT TO A QUOTE IN (INAUDIBLE) CASES. THAT
IN TILLERY, THAT REQUIRING THE FINDING OF AGGRAVATING FACTORS JUST BY A SENTENCE WITHIN
THE FIRST RANGE IS NOT TRANSFERRING THE FACTORS INTO THE SUBSTANTIAL QUOTE EQUIVALENT
OF ELEMENT OF OFFENSE TO BE DECIDED BY A JURY. AND THAT'S WHY I WANTED TO SUBMIT TO YOU
THAT THE JURY'S VERDICT HERE WAS APPROPRIATE APPROXIMATELY GIVEN DEFERENCE TO BECAUSE
THE JURY DID FIND PADEN-BATTLE GUILTY OF A CRIME, THE CRIME OF FELONY MURDER. THE JURY
DID FIND MELVIN GUILTY OF A CRIME, THE CRIME OF UNLAWFUL POSSESSION OF A WEAPON AND IN
DECIDING THE FULL MANNER IN WHICH THE DEFENDANTS COMMITTED THOSE CRIMES, THE JUDGE COULD,
IN WEIGHING THE SENTENCING FACTORS, CONSIDER THE DEFENDANT'S CONDUCT IN SETTING THE SENTENCE
WITHIN THE STATUTORY RANGE. ANOTHER POINT THAT WAS BROUGHT UP THROUGH THE
ARGUMENTS THAT RELIED ON YEAGER AND I WANT TO EMPHASIZE THIS TO THE COURT WHY YEAGER IS
NOT DISPOSITIVE ON THE DUBBED ISSUE. SO IN YEAGER THE U.S. SUPREME COURT
(INAUDIBLE) SO NOT IN THE SENTENCING CONTEXT. AND IN REACHING A ITS CONCLUSION WHAT THE
SUPREME COURT NOTED IS THAT THE VERDICT OF ACQUITTAL (INAUDIBLE) AND, THEREFORE,
CONJECTURE THAT CAUSED THE REASONS FOR THE JURY'S VERDICT TO REACH ITS DECISION TO PLAY
NO POINT IN ASSESSING THE CONSEQUENCES (INAUDIBLE) BECAUSE OF CONTRARY TRAOUGS THAT
WOULD REQUIRE SPECULATION INTO WHAT TRANSPIRED IN THE JURY ROOM BUT LEER WE ARE DEALING
WITH (INAUDIBLE) EXPLAINED THAT REALISTICALLY AGAIN NO FACTUAL FINDING INFERENCES CAN
BE DRAWN FROM THE VERDICT OF ACQUITTAL. AND THIS IS NOT RESPECTFULLY WHAT TRANSPIRED
IN THE JURY ROOM. THIS CAN BE SHOWN BY THE SUPREME COURT'S DECISION IN KELLY THAT IT'S
JUST AS LIKELY OF WHAT A JURY IS REACHING AN INCONSISTENT VERDICT THAT WAS BASED ON THE
MISTAKES COMPROMISED FOR LENITY AND IN THE SPECIFIC CONTEXT OF PADEN-BATTLE I SUBMIT TO
THIS COURT THAT HER VERDICT COULD VERY WELL BE INCONSISTENT. AND THE REASON FOR THAT IS
THAT IN THE JURY ROOM THIS CAN BE SHOWN BY THE JURY CHARGE THE STATE WAS RELYING ON COMPLEX
THEORIES OF VICARIOUS HRAOEUPBLT FOR PURPOSE OF KNOWING MURDER AND FOR THE WEAPONS CHARGES
THAT WERE FROM THE FELONY MURDER CHARGE. AND EVEN DEFENSE COUNSEL'S KNOWLEDGE AT THE
JURY CHARGE CONFERENCE TRADITION THE CHARGE WHICH WOULD EITHER TOOK TWO HOURS TO READ
TO THE JURY WAS VERY COMPLICATED. SO COMBINED WITH THE FACT THAT THE JURY CONVICTION
OF PADEN-BATTLE AND THAT (INAUDIBLE) IN ADDITION TO THE (INAUDIBLE) FELONY MURDER AND
THE WEAPONS OFFENSES THE JURY'S VERDICT INDEED LY REFLECTS COMPROMISED AND EVEN IN THIS
APPLICATION OF LAW CONSIDERED A REJECTION OF ANY OF THE TRIAL EVIDENCE IN ORGANIZING WELL
IN HER CRIME. AND I KNOW NORMALLY JURORS DON'T KNOW THE SPECIFIC SENTENCES
A DEFENDANT MIGHT BE RECEIVING OR THE PREPONDERANCE THAT DEFENDANT IS CHARGED WITH
BUT IN PADEN-BATTLE IN SPECIFIC CONTEXT THEY DID. AND I HAVE -- I THINK THE COURT SITES
NOW THAT THE SITES ARE ALSO IN THE ATTORNEY'S BRIEF. SO I HAVE -- I HAVE
THREE REMAINING POINTS. CHIEF JUSTICE RABNER: I'D ASK THAT YOU TRY TO GO
THROUGH THEM QUICKLY. WE'RE APPROACHING THE 20-MINUTE MARK. WE'RE A LITTLE BEYOND.
SARAH D. BRIGHAM: OKAY. THEN I'LL TRUNK TO TWO POINTS. THE
FIRST ONE IS I WANTED TO DISTINGUISH THE UNPUBLISHED CASE OF TRAVERS AND THE REASON
WHY THAT CASE IS DISTINGUISHABLE IS IT MISUNDERSTOOD THE MEANING OF THE VERDICT OF
ACQUITTAL. IT IGNORED THE COMPETENCY OF TRIAL THAT THE DAUGHTER WITNESSED THE ATTEMPTED
MURDER. CHIEF JUSTICE RABNER: MS. BRIGHAM, YOU IMMEDIATE NOT WORRY ABOUT
AN UNPUBLISHED OPINION THE COURT WOULD NOT SITE TO ANY OF THAT IN OUR COURT RULES. PLEASE
GO AHEAD. SARAH D. BRIGHAM: VERY WELL. IN THAT CASE, FARRELL, THE REASON
WHY THIS COURT SHOULDN'T CONSIDER THE CASES, GREEN, FARRELL OR RILEY IN SEVEN REDUCING
ITS DECISION IS BECAUSE SPECIFICALLY WITH FARRELL AND RELYING ON ITS 1931 ILL NOISE CASE
RILEY THAT'S BASED ON UNRELATED CHARGE THAT IS RESULTS IN CONVICTION. I CITE TO TWO
ILLINOIS CASES THAT'S ACTUALLY ROBINSON AND (INAUDIBLE) THAT ACTUALLY ALLOW THE PRACTICE
OF CONSIDERING EVIDENCE UNDERLYING (INAUDIBLE). I THINK IT'S PROPER TO ADDRESS
SO '93 (INAUDIBLE) THEY POINTED OUT THAT OUR STATE DOESN'T HAVE A SPECIFIC STATUTE
ATTORNEY PROVISION LIKE 18 U.S.C. SECTION 4661 AND FOR THAT REASON THE COURT HAS A CLEAN
APPELLATE TO RULE AS AS IT WILL, THAT'S NOT EXACTLY TRUE. SO ALTHOUGH NEW JERSEY DOESN'T
HAVE A STATUTORY PROVISION IT JUST HAS CASE LAW THAT SENTENCING JUDGES EXERCISE FAR RANGING
DISCRETION AS TO THE COURSE AND TYPE OF EVIDENCE THAT MAY BE CONSIDERED AT SENTENCING.
THIS COURT HAS (INAUDIBLE) AND ITS HOLDING IN TERRY AND THAT DAVIS WHICH CITES TO
(INAUDIBLE) WHICH WAS THE BASIS FOR THE FORMER PROVISION 18 U.S.C. SECTION 3577 THERE WAS RE
DESIGNATED AS 18 U.S. C-SECTION 3661 ON THE SENTENCING REFORM ACT OF 1984 WAS END ACTED.
AND THAT CAN BE SHOWN IN THE MODE OF SECTION 3661 AND THE NOTES ON HISTORY ON SECTION
13577 AS WELL AS THE CASE UNITED STATES V HAAGEN (INAUDIBLE). SO IF YOUR HONORS
HAVE NO REMAINING QUESTIONS I CAN CONCLUDE. CHIEF JUSTICE RABNER: PLEASE.
SARAH D. BRIGHAM: SO IN CONCLUSION IN WEIGHING THE SENTENCING FACTORS FOR
DEFENDANT'S CONVICTED CRIMES EVEN THOUGH THAT EVIDENCE ALSO UNDERLINED THE ACQUITTED
CHARGES, THE PROPER CHARGE OF THE JUDGE'S DISCRETION. THE ATTORNEY ASKS THAT THE
SENTENCES BE UPHELD AND WOULD RELY ON ITS BRIEF FOR ANY REMAINING POINTS. CHIEF
JUSTICE RABNER: THANK YOU. TAMAR Y. LERER: I'LL WAIVE, YOUR HONOR.
CHIEF JUSTICE RABNER: MS. PIRRO SEVERAL MINUTES.
EMILY M. M. PIRRO: I JUST WANT VERY BRIEF THING I WANT THE TO MENTION BEFORE
I END. THERE WAS A LOT OF TALK ABOUT UNIFORMITY AND I JUST WANT TO
REITERATE THE INUNIFORMITY DOES NOT MEAN TREATING UNEQUAL DEFENDANTS EQUALLY OR
UNYOU EQUAL DEFENDANTS RFSHTH TIFF RULE OF A P EVIDENCE RULE WOULD KREE
DEFENDANT RE SWESHTHED ARBITRARY INTERPRETATION OF WHAT ACQUITTAL IS BASED UPON
NOTHING IN THE RECORD AT ALL, AND JUST WANT ONE OF THE KEY AREAS RORS THE
APPELLATE DIVISION MADE AND SHIS THIS COURT THO ACQUITTAL REASONABLE DOUBT AS
AN ELEMENT OF A OFFENSE AND NOT A FACTUAL FIENGD OF NRNGS FINDING AS TO THE
SERJ STRENGTH FRTS STATE'S CASE OR NOTHING AT ALL. I ALSO
WANTS TO REYIT WRAT I THINK MR. HANLEY MENTIONED THIS, I THINK HE WAS CORRECT,
WHICH WHEN HE STATED THAT I THINK JUDGES DO ENGAGE IN THIS ACTION THAT
WE'RE KIND OF ASSESSING RIGHT NOW, BUT THIS JUDGE IS THE FIRST 1 TO EXPLICIT
STATE HIS LEGAL REASONING FOR DOING SO, ONLY ONE JUDGE DOES THIS AND TAKES INTO
ACCOUNT THE ENTIRE CONTEXT ON SPLIT VERDICTS LIEB THIS, I THINK THAT'S
INCORRECT AND I THINK PRACTICALLY SPEAKING THAT THIS DOES HAPPEN A LOT MORE
OFTEN AND I THINK THAT, YOU KNOW, THE FACT THAT DEFENDANTS DO BRING THIS
UP AS MUCH AS THE ATTORNEY GENERAL MENTIONS IS WORTH, YOU KNOW, WORTH ACKNOWLEDGING,
THAT THE FACTS OF THE A CASE SLIDE AROUND BETWEEN CHARGES AND, YOU
KNOW, THE FACT THE DEFENDANT BRINGING THIS UP AS MANY TIMES AS THE ATTORNEY GENERAL
MENGS MATTER, THIS NOT ARBITRARY THE WAY THE CORE MENGS BEFORE BUT WOULD BE
ARBITRARY INTERPRETING ACQUITTALS BASED ON NOTHING IN THE RECORD.
SO I THINK THAT AT THAT POINT I'LL CONCLUDE AND THANK YOU, THANK THE CORE
FOR ITS TIME S. CHIEF JUSTICE RABNER: THANK YOU FOR ALL VERY FINE
ARGUE MANY THIS MORNING, WE APPRECIATE IT. TOM, WE'LL TAKE THE MATTER UNDER
ADVISEMENT.