(APPEARANCES TENDERED.) CHIEF JUSTICE RABNER: GOOD MORNING,
COUNSEL, AND WELCOME. MS. PICKERING, PLEASE. WE'RE FWOEG TO GO
FOR EVERYONE'S IN INFORM TO ROUGHLY 12:30, MAYBE A LITTLE LATER TER AN THEN WILL PICK
UP WITH THE REST OF THE DISCUSSION. I AM NOT TRYING TO RUSH YOU, MS. PICKERING.
GRETCHEN A. PICKERING: I UNDERSTAND, YOUR HONOR. MR. CHIEF
JUSTICE AN HONORABLE JUSTICES OF THE SUPREME COURT I WOULD LIKE TO RESERVE TWO MINUTES
FOR REBUTTAL AT THE END OF THE ARGUMENT TODAY SFLFRMTHS THAT'S FINE. GRETCHEN
A. PICKERING: NEW YERS COURTS HAVE NEVER RECOGNIZED AN ELEMENTAL RIGHT TO AVOID
CRIMINAL PROSECUTION DUE SOLELY TO THE PASSAGE OF TIME, THE STATUTE OF LIMITATIONS REFLECTS
A BALANCE BETWEEN PUNISHING THE GUILTY AN PROTECTING A SUSPECT FROM BEING PUT TO HIS
DPEVENTS AFTER EVIDENCE HAS BEEN LOST. THE STATUTE OF LIMITATIONS IS A LEGISLATIVE
CREATURE, FOR THESE REASONS THE LEGISLATURE HAS SEEN FIT TO AMEND THE STATUTE OF LIMITATIONS
TO REFLECT SOCIETAL NORMS AN MORES, THE RELIABILITY AN ACCURACY OF DNA EVIDENCE IS
SIGNIFICANTLY TEN U AIDED THE SECOND FOOTHOLD SUPPORTING THE STATUTE OF LIMITATIONS, THE
2002 DNA EXCEPTION AS ISSUED HERE WAS PASSED PRECISELY BECAUSE THE ACCURACY IN IDENTIFYING
SUSPECT MANY YEARS AFTER THE CASE SHOULD BE ALLOWED TO APPLY TO THE FACTS. ON
MAY 27TH, 1990 S M, BIOLOGICAL EVIDENCE TAKEN FROM FENG NAIL DESCRIPTION AN A VAGINAL
SMEAR WITH ANALYZED AND FOUND TO CONTAIN AN UNKNOWN DNA PROFILE, TOXICOLOGY AT THE TIME,
SHOW THAT THE VICTIM WAS HIGHLY IN TOK INDICATED. IN SPITE OF THESE INVESTIGATIVE
EFFORTS, THE IDENTITY OF THE PERPETRATOR REMAINED UNKNOWN. IN 2018, HOWEVER,
A NOVEL TECHNOLOGY BECAME AVAILABLE, GENETIC JEAN KNEE LOGICAL ANALYSIS AN THIS TECHNOLOGY,
WHICH ULTIMATELY IDENTIFIED JERRY ROSADO AS A PERSON OF INTEREST IN 2021. I
WANT TO TAKE A QUICK MOMENT ASIDE TO IDENTIFY ABANDON ERROR IN THE APPELLATE DIVISION
DECISION WHICH SAID MR. ROAST WAS IDENTIFIED IN 2018. HE WAS NOT. HE WAS NOT HE WAS
IDENTIFIED IN 2021 AFTER THE TWO AND A HALF YEAR PROCESS OF THE GENETIC JEAN KNEE LOGICAL
ANALYSIS WAS DONE AND THE IDENTITY WAS TO A RELATIVE OF HIS AN THAT LED TO FURTHER
INVESTIGATION. IN MAY OF 2022, A BUCCAL SWAP SWAB WAS TAKEN FROM MR. ROAST
WHICH WAS COMPARED AGAINST THE DNA EVIDENCE THAT WAS FOUND INSIDE THE VICTIM. A FORENSIC
SCIENTIST REPORTED A VERY HIGH STATUTORY PARTICULAR TECHNICAL PROBABILITY THAT THE
SPERM AN OTHER BIOLOGICAL MATTER RECOVERED FROM THE VICTIM WAS THE DEFENDANTS.
THE DEFENDANT WAS CHARGED IN APRIL OF 2022 WITH SECOND DEGREE SEXUAL ASSAULT ON A HELPLESS
OR INCAPACITATED PERSON AND THAT WAS THE 1990 LAW THAT HE WAS CHARGED UNDER. IN
1990 THE APPLICABLE STATUTE OF LIMITATIONS FOR SEXUAL ASSAULT WAS A GENERAL FIVE YEAR
PERIOD, AS DISCUSSED IN THE STATE'S BRIEF AND I WILL NOT FWOE INTO FWRAT TER DETAIL, IN
THE EARLY 1990 THE NEW JERSEY LEGISLATURE BEGAN ENACTING STATUTES RECOGNIZING THE IMPORTANCE
OF DNA, ELIMINATING THE STATUTE OF LIMITATIONS FOR SEXUAL ASSAULT AN CORRESPONDINGLY
AMENDING THE STATUTE OF LIMITATIONS TO. THE LEGISLATURE RECOGNIZED THAT DNA
EVIDENCE IS UNPARALLELED IN ITS ABILITY TO CONNECT DEFENDANTS TO CRIMES WHERE THEIR DNA
WAS FOUND LONG AFTER THAT CRIME HAS BEEN COMMITTED. THE 2002 EXCEPTION
REFLECTS THIS. THE STATUTE IS CLEARLY RETROSPECT I IN APPLICATION AND SHOULD
NOT BE READ TO BE PROS SPECS I HAVE ONLY, WHILE THE LANGUAGE TAKES EFFECT IMMEDIATELY
THIS PRESUMPTION MAY BE OVERCOME WHERE THE LEGISLATURE CLEARLY INTENDED A RETROACTIVE
APPLICATION AS THIS COURT HAS NOTED IN J V AN LANE. IN LEGISLATIVE EVEN TEPT MAY BE
EXPRESSED AN IT IS A QUOTE FROM LANE, THAT IS STATED IN THE LANGUAGE OF THE STATUTE OR
IN THE PERTINENT LEGISLATIVE HISTORY, OR IMPLIED, THAT IS, IT MAY BE NECESSARY TO MAKE
THE STATUTE WORKABLE OR GIVE IT THE MOST SENSIBLE INTERPRETATION. HERE THE
PERT NEPT LEGISLATIVE HISTORY FOR THE 2002 AN THE 1996 AMENDMENTS CLEARLY EXPRESSES THIS
INTENT FOR RETROACTIVE APPLICATION AN SUCH APPLICATION IS NECESSARY TO MAKE THE STATUTE
WORKABLE AND FWIF IT THE MOST SENSIBLE INTERPRETATION. IN DECLARING THIS
PROSECUTION BARRED BY THE FIVE YEAR STATUTE OF LIMITATIONS IT MARRIAGE NATURALIZED THE
IN TEPT, OVER WAITED THE PROTECTION OF THE DEFENDANT IN STALE EVIDENCE AND CAST ASIDE.
ALL OF THIS IN FAVOR OF THE DEFENDANT'S RIGHT TO PROMPT PROSECUTION AN
PROTECTION FROM STALE EVIDENCE. SINCE 1996 THE LEGISLATURE HAS DISCOUNTED
THESE CONCERNS AS REGARDS SEC YOU'LL ASSAULT WHEN IT ELIMINATED THE STATUTE OF LIMITATIONS
FOR SEXUAL ASSAULT AS FAR BACK AS CASES AS MAY OF 1991 ONE YEAR AFTER THE VIBLTH WAS ASSAULTED.
2002 DNA EXCEPTION AND THE APPELLATE DIVISION ERRED IN NOT FINDING SO.
THE APPELLATE DIVISION ALSO FOUND THAT THE APPLICATION OF DNA EXCEPTION TO THIS CASE
VIOLATED THE EX POST FACTO TOE LAWS BY RELYING ON A FACTUALLY AN LEGALLY DISTINGUISHABLE
CASE, STOGNER VERSUS CALIFORNIA STOGNER NEVER ADDRESSED UNKNOWN EVIDENCE AND DID NOT
APPLY TO UNKNOWN EVIDENCE. THE DEFENDANT ARGUES, WAS, AND THAT IT ONLY IS AN
EXPLANATION OF THE UNFAIRNESS. RESPECTFULLY I DISAGREE. THE LANGUAGE WAS INTENTIONAL
AND CRITICAL. THE COURT FOUND AN EX POST FACTO TORE VIOLATION BECAUSE THE
AMENDMENT PROVIDING THE ACTION, QUOTE, RETROACTIVELY WITHDRAWS A COMPLETE DEFENSE TO
PROSECUTION AFTER IT HAS ALREADY ATTACHED AND IT DOES SO IN A MANNER THAT ALLOWS THE STATE
TO WITHDRAW THIS DEFENSE AT WILL AND WITH RESPECT TO INDIVIDUALS ALREADY IDENTIFIED.
STOGNER INVOLVED A REVIVAL VAL STATUTE, THAT WAS THEIR EX POST FACTO TOE
HOLDING AND THAT LANGUAGE WAS CLEARLY WITHIN THAT HOLDING SFLFRMENTS COUNSEL, CAN A STATUTE OF
LIMITATIONS BE TOLD TOLLED AFTER IT IS EXPIRED? GRETCHEN A. PICKERING:
THAT IS A VERY GOOD QUESTION, YOUR HONOR, AN THAT IS THE CRUX OF THIS CASE. A STATUTE
OF LIMITATIONS I WOULD ARGUE THAT THE STATUTE OF LIMITATIONS, THE 2002 DNA EXCEPTION,
WHILE IT HAS BEEN CALLING A TOLLING EXCEPTION ALSO CREATES A NEW TRIGGERING EVENT AN I
THINK THAT IS WHERE IT APPLIES MORE DIRECTLY IN THIS SITUATION. THE STATUTE
OF LIMITATIONS DID EXPIRE, THE ONE THAT APPLIED IN 1990 AND THAT EXPIRED AND WE ACKNOWLEDGE
THAT, BUT BECAUSE STOGNER HELD THAT THAT COULD NOT HAPPEN, STOGNER WAS THE CASE THAT HELD
THAT THE STATUTE OF LIMITATIONS COULD NOT APPLY ONCE IT HAD TOLLED -- OR COULD NOT TOLL,
EXCUSE ME, ONES IT HAD BEEN ALREADY EXPIRED, OUR CASE IS DIFFERENT FROM STOGNER AND THE
UNDERLYING FACTS, THE UNDERLYING AVENUES -- SDMRFRJT PUT STOGNER TO ONE SIDE.
GRETCHEN A. PICKERING: CERTAINLY. THE COURT: HOW DO YOU GET AROUND
CONSTITUTIONAL CONCERNS IF CHARGES ARE BROUGHT AFTER A STATUTE OF LIMITATIONS HAS EXPIRED?
GRETCHEN A. PICKERING: I WOULD ARGUE, YOUR HONOR, THAT THE STATUTE OF
LIMITATIONS DOES NOT CHANGE ANYTHING WITH RESPECT TO THE CRIME WHEN IT WAS ORIGINALLY
COMMITTED. THE CRIME IS STILL THE SAME THE SEXUAL SAUL ASSAULT ON THE INCAPACITATED PERSON
IS STILL THE SAME CRIME. THE PUNISHMENT DOES NOT CHANGE IN THE SENSE THAT THE DEFENDANT
WOULD NOT BE SUBJECT TO PUNISHMENT THAT WAS NOT IN EXISTENCE IN #19D 90. THE
COURT: STOP THERE FOR A SECOND. GRETCHEN A. PICKERING: YES. THE
COURT: LET'S LOOK AT IT IN A DIFFERENT WAY, THIS STATUTE OF LIMITATIONS RAN ON MAY 28TH
OF 1995, CORRECT? GRETCHEN A. PICKERING: THAT'S CORRECT.
CHIEF JUSTICE RABNER: COULD YOU HAVE BROUGHT A PROSECUTION ON THE DAY AFTER, MAY 29TH,
OF 1995. GRETCHEN A. PICKERING: NO. THE COURT: SO HOW.
CHIEF JUSTICE RABNER: SO HOW THEN COULD A PROSECUTION HAVE BEEN BROUGHT IN 2022 IN
LIGHT OF THE EBS POST FACTOR CLAUSE. GRETCHEN A. PICKERING: BECAUSE, YOUR HONOR,
OF THE NATURE OF THE STATUTE THAT IS IN QUESTION IN THAT IT ESSENTIALLY CREATED A TRIGGERING
EVENT FOR VERY NARROW ABDOMEN SPECIFIC CIRCUMSTANCES THAT WE HAVE IN THIS CASE,
WHERE WE HAVE A DEFENDANT WHO WAS NOT KNOWN, WAS NOT KNOWN AT THE TIME AN WE HAVE EXTREMELY
RELIABLE EVIDENCE SFLFRMTHS. THE COURT: HOW DOES THAT GET AROUND THE
PROTECTIONS IN THE CON STIT STIT TUSHGS. GRETCHEN A. PICKERING: THE EX POST
FACTO TOE CLAUSE PROVIDES PROTECTIONS FOR -- THE PROTECTION THAT IS PROVIDED FOR THE DEFENDANT
IS THAT HE DOES NOT HAVE TO MOUNLT A DEFENSE WHERE MEMORY HAS FADED EVIDENCE IS LOST,
WITNESSES BECOME UNAVAILABLE. THE DNA EVIDENCE THAT IS AT ISSUE IN THIS VERY CASE AND
THAT IS ADDRESSED IN THAT 2002 EXCEPTION MEANS THAT CERTAIN PIECES OF THAT EVIDENCE IS
NOT LOST. IT IS VERY RELIABLE AND IT CONTINUES ON SO IT UNDERMINES THE ULTIMATE PROTECTION
THAT THE EX POST FACTO TOE LAW DOES TRY TO PROVIDE. CHIEF JUSTICE RABNER:
BUT THE LEGAL CONSEQUENCES AN THEY ARE VERY SERIOUS CONSEQUENCES IN A CASE SUCH AS THIS,
OF COURSE, THOSE LEGAL CONSEQUENCES ENDED ON MAY 28TH OF 1995. YOUR ARGUMENT
WOULD CHANGE THAT. DOESN'T THAT VIOLATE THE EX POST FACTO TOE CLAUSE?
GRETCHEN A. PICKERING: IN A TECHNICAL SENSE, IT DOES, BUT I THINK THE EX POST FACTO
TOE CLAUSE AN THE NATURE OF THE STATUTES IN QUESTION, THIS IS NOT A QUESTION THAT GOES
TO AN AFFIRMATIVE DEFENSE. THIS IS NOT A QUESTION THAT GOES TO THE ELEMENTS OF THE
CRIME. THE STATUTE OF LIMITATIONS REALLY IS -- ADJUSTS THE TIME SPAN THAT ALLOWS FOR
PROSECUTION. IT PROTECTS THE ABILITY TO PROSECUTE SOMEONE WHEN YOU HAVE THE INFORMATION
BUT IT HASN'T BEEN RESOLVED AND IT'S A VERY, VERY SMALL CIRCUMSTANCE THAT THAT APPLIES
TO, YOUR HONOR. THE COURT: COULD THE. CHIEF JUSTICE RABNER:
COULD THE LEGISLATURE TODAY PASS A LAW THAT TOLLS THE STATUTE OF LIMITATIONS FOR ANY CRIMES
THAT ARE UNRESOLVED AN APPLY THAT RETROACTIVELY? GRETCHEN A. PICKERING:
NO, NOT IN A GENERAL SENSE. I DO NOT BELIEVE THAT IS THE CASE. JUSTICE
MICHAEL NORIEGA: ISN'T THAT THE EXTENSION OF WHAT YOU'RE ASKING US TO CONSIDER?
YOU'RE ASKING FOR A CARVE OUT WHERE ANY UNSOLVED CRIME OF THIS NATURE THAT OCCURRED AT
ANY POINT WHERE A DNA IS DISCOVERED AND A SUSPECT IS SOLELY IDENTIFIED BY DNA, THAT WOULD
REVIVE THE CASE AND DO AWAY WITH THE STATUTE OF LIMITATIONS? GRETCHEN A.
PICKERING: WELL THAT IS TRUE FOR CERTAIN CASES, FOR EXAMPLE, THE HOMICIDE CASES AND NOW,
SEXUAL ASSAULT SO IT WILL BE APPLIED TO A VERY NARROW WINDOW OF CASES BEFOREHAND. CASES
WITH RESPECT TO LIKE ROBBERY, FOR EXAMPLE, THAT KIND OF CASE, THE TWIGGS CASE ADDRESSED
THAT TO A CERTAIN DEGREE, BUT THAT WOULD NOT -- IT WOULD APPLY BACK UNDER THE CIRCUMSTANCES
BECAUSE OF THE TIME IN WHICH IT WAS ENACTED. HOWEVER, WE'RE NOT LOOKING AT
A BROAD BRUSH APPLICATION. THIS IS SUCH A NARROW CIRCUMSTANCE. I MEAN I'M NOT AWARE
OF ANY OTHER CASE THAT IS LIKE THIS UNDER THE CIRCUMSTANCES AN I DO NOT THINK WE'RE ASKING
THIS COURT TO SAY THAT FOR ALL CASES UN THOSE CIRCUMSTANCES IT WOULD APPLY THAT WAY.
WE'RE SAYING WE'RE DEALING WITH A VARIANCE VERY NARROW SET OF SESHGS THAT WOULD BE ACCEPTED
AND ARE DIFFERENT PR THE CASE WHICH IS THE FUNDAMENTAL HOLDING THAT IS STOGNER PD AN I
RECOGNIZE I HAVE TO STEP AWAY FROM STOGNER, BUT IT IS DIFFERENT. IT IS A VERY SMALL
CIRCUMSTANCE AND BECAUSE OF THAT SMALL CIRCUMSTANCE AND BECAUSE WE ARE NOT DEALING
WITH ANYTHING THAT CHANGES THE ACT THAT OCCURRED AT THE TIME OR CHANGES THE PUNISHMENT
THAT COULD BE INFLICTED AT THE TIME, WE'RE LOOKING AT A DIFFERENT ANIMAL.
CHIEF JUSTICE RABNER: DOES IT CHANGE THE PUNISHMENT IN THE SENSE THAT AFTER THE
STATUTE OF LIMITATIONSING THAT EXPIRED IN THIS CASE, THE PUNISHMENT WOULD HAVE BEEN ZERO
AN NOW, OF COURSE, IF THERE IS A CONVICTION IN THIS CASE, IT WOULD BE DRAMATICLY DIFFERENT?
GRETCHEN A. PICKERING: LOOKING AT IT THAT WAY, YES, YOUR HONOR, BUT THAT IS,
AGAIN, PART OF THE ISSUE WE HAVE WITH RESPECT TO THIS CASE IS THAT SHORTLY AFTER THIS,
THERE WAS A CHANGE THAT MADE THE PUNISHMENT APPLY REGARDLESS. ESSENTIALLY,
IT'S -- THE 2002 AMENDMENT MADE THAT CHANGE TASH DASH EXCUSE ME, THE 1996 AMENDMENT MADE
THAT CHANGE BY REMOVING THE STATUTE OF LIMITATIONS WITH RESPECT TO SEXUAL SALTS.
PERIOD. THAT WAS NOT AVAILABLE AT THE TIME. THERE ARE CHANGES AN THERE HAVE BEEN CHANGES
FOR KWIELT SOMETIME. THE CHANGE WHEN HOMICIDE GOT PUT INTO A CATEGORY WHERE THERE IS
NO STATUTE OF LIMITATIONS. IT STILL IS THE SAME TYPE OF LIMITATIONS. THE COURT:
I KEEP COMING BACK TO THE EX SPOES S, POST FACT TOE CLAUSE BECAUSE THAT IS ONE THING
THAT HASN'T CHANGED AND THAT'S WHAT I THINK, RESPECTFULLY YOU HAVE TO GET AROUND.
GRETCHEN A. PICKERING: I UNDERSTAND THAT, YOUR HONOR. I THINK THE EX
POST FACTO TOE CLAUSE IS STILL THERE. IT IS STILL VIEWED. I THINK THERE ARE LAWS THAT
ARE CHANGING IT. THERE IS A CASE IN INDIANA, KWIN VERSUS STATE WHICH I CAN GIVE THE COURTS
A CITE TO WHERE A 1988 RAPE -- LET ME SEE, WHERE THE INDIANA COURT OF APPEALS FOUND THAT
THERE WAS NO EX POST FACTO TOE VIOLATION FOR THE APPLICATION OF A 2 T 9:00 DNA APPLICATION
IN THE STATUTE OF APPLICATIONS TO A 19788 RAPE THAT HAD THE FIVE YEAR STATUTE OF LIMITATIONS
THAT HAD EXPIRED. WHILE THE EX POST FACTO TOE CLAUSE IS SEMENTD IN STONE,
THE UNDERLYING CATEGORIES THAT WERE SET FORTH IN CASE CITED THAT THIS COURT AN THE SUPREME
COURT HAVE ALL RELIED ON ARE IN STONE, THE EXPANSION, THEY HAVE BEEN READ MORE EXPANSIVE
LY AND UN INITIAL -- IN EARLIER CASES SUCH AS MILLER -- MILLER LER ACTUALLY SAID THAT A
N A STATUTE OF LIMITATIONS DOESN'T FALL WITHIN THAT STATUTORY TORE REBLANK OF KALD THAT
STOGNER RELIED ON. I THINK WHILE THE FUND MENT TALS ARE STILL THERE, THERE ARE
TERPGSZ THAT ARE CHANGING THE EX POST FACTO TORE LAWS AN BROADENING IT AND I THINK STOGNER
IS ONE OF THEM. IT BROADENED THE INTERPRETATION OF THE EX POST FACTO TOE LAW AN BROADENED
THE CATEGORIES THAT WERE THERE. JUSTICE SOLOMON: CAN YOU CLARIFY TWO THINGS
FOR ME, ONE IS NOT DIRECTLY RELATED TO THE QUESTION BEFORE US BUT A MATTER OF CURIOSITY.
FIRST, DO YOU READ THE 1996 AMENDMENT TO THE STATUTE OF LIMITATIONS TO APPLY
RETROACTIVELY? GRETCHEN A. PICKERING: I DO YOUR HONOR. THE
COURT: 1996. GRETCHEN A. PICKERING: THE LANGUAGE IS CLEAR IN 1996 AND 2002.
JUSTICE SOLOMON: I SAW WHERE THE ORIGINAL, THAT THE AMENDED FINDING WAS
HOMICIDE. GRETCHEN A. PICKERING: THAT'S CORRECT. JUSTICE SOLOMON:
AN DNA REVEALED THAT THIS DEFENDANT WAS THE PERPETRATOR? GRETCHEN A.
PICKERING: THE DNA REVEALED -- THE STATISTICAL ANALYSIS REVEALED TASH DASH.
JUSTICE SOLOMON: THAT'S WHY YOU CHARGED HIM. PAC. GRETCHEN A. PICKERING:
THAT'S WHY HE WAS CHARGED WITH SEXUAL ASSAULT. THE COURT: HE WAS NOT CHARGED
WITH HOMICIDE. GRETCHEN A. PICKERING: HE WAS NOT SFLFRMENTS NOW, HOW
HOMICIDE STATUTE OF LIMITATIONS AS NOT AN WILL NOT EXPIRE. GRETCHEN A. PICKERING:
THAT'S CORRECT SFLFRJT IS THERE A REASON WHY WE'RE HERE ON THE SEXUAL ASSAULT.
GRETCHEN A. PICKERING: YES, BECAUSE IN EVALUATING THE EVIDENCE THAT WE HAD AVAILABLE
THERE WERE QUESTIONS WHETHER WE COULD PROCEED ON THE HOMICIDE CHARGE. JUSTICE
SOLOMON: YOU COULD PROCEED, THERE IS A QUESTION WHETHER YOU WOULD WIN. GRETCHEN
A. PICKERING: I THINK THERE IS A QUESTION OF WHETHER WE COULD PROCEED ON THE CHARGE.
JUSTICE SOLOMON: YOU COULD PROCEED. GRETCHEN A. PICKERING:
WE COULD PROCEED BUT WHETHER WE COULD SUCCESSFULLY MOUNT THAT AND WHETHER THAT
WOULD BE APPROPRIATE UPD THE CIRCUMSTANCES. JUSTICE SOLOMON: THIS INDIVIDUAL
COULD BE CHARGED, THERE IS DNA EVIDENCE. THERE IS DNA EVIDENCE RELEVANT TO THE HOMICIDE
THAT A SEXUAL ASSAULT TOOK PLACE, WHICH YOU THINK YOU CAN PROVE. GRETCHEN A.
PICKERING: THE SEXUAL ASSAULT, YES. THERE ARE OTHER QUESTIONS WITH RESPECT TO THE OTHER
ELEMENTS, YOUR HONOR. JUSTICE SOLOMON: I AM FAMILIAR WITH THE OTHER
ELEMENTS. I AM JUST ASKING, IS THERE ANYTHING BARRING -- YOU MAY NOT WIN, THE PROSECUTOR
SOMETIME IS CALLED UPON TO PURSUE A CASE BECAUSE THEY BELIEVE WHAT HAPPENED, HOW IT HAPPENED,
WHY IT HAPPENED AND THAT THERE IS A REASONABLE PROBABILITY OF A CONVICTION, BUT THEY MAY NOT
WIN IT. GRETCHEN A. PICKERING: I THINK -- I WAS NOT PARTY TO THAT STIGS
MAKING YOUR HONOR, BUT I WILL ANSWER TO THE BEST OF MY ABILITY AN THAT IS --
JUSTICE SOLOMON: YOU'VE ANSWERED THE QUESTION THAT I HAD. JUSTICE PATTERSON:
I GUESS THE LEGAL ISSUE IS, KS THERE IS NO IMPEDIMENT IN THE EX POST FACTO TOE LAW OR
IN THE ISSUE OF RETRO ACT TIT, THE STATUTE OF LIMITATIONS, NONE OF THAT APPLIES TO A
HOMICIDE PROSECUTION IN THIS CASE. GRETCHEN A. PICKERING: YES, THAT'S CORRECT.
FOR FELONY MURDER OR HOMICIDE, EITHER WAY, IT WOULD PRECEDE, BUT THAT IS, I THINK THAT
BASED ON WHAT WE KNEW AN WHAT THE OFFICE FELT AT THE TIME THAT IT WOULD NOT HAVE BEEN
JUST, APPROPRIATE, TO PROCEED WITH THOSE CHARGES SO THAT DECISION WAS MADE AND I CAN'T
TASH DASH I CAN ACKNOWLEDGE THAT THAT IS WHAT WAS DONE. JUSTICE WAINER APTER:
JUST STIS SOLOMON ASKED WHETHER YOU THOUGHT THAT THE 1996 AMENDMENT WAS RETROACTIVE APPEND
YOU SAID DEFINITELY YES, BUT I'M LOOKING AT THE 1996 AMENDMENT WHERE IT SPECIFICALLY SAYS
THAT THE ACT SHALL SHALL TAKE EFFECT IMMEDIATELY AND, QUOTE, SHALL BE MREK ABDOMINAL TO
ALL OFFENSES NOT YET BARRED FROM PROSECUTION UNDER THE STATUTE OF LIMITATIONS AS OF THE
EFFECT I DATE SO THAT'S THE LIR SAYING IT'S NOT RETROACTIVE AS TO THE WHERE THE STATUTORY
TUT OF LIMITATIONS HAS ALREADY BEEN BROUGHT, PECULIAR PIQUE THAT'S WHAT IT SAYS, WHAT
THE GENERAL RULE WAS THAT IT INTENDED TO HAVE A RETROACTIVE EFFECT BECAUSE THEY PUT IN
THAT THAT YOU COULD LOOK BACKWARD, THEY USED THE LANGUAGE TAKE EFFECT IMMEDIATELY AS WELL AS
THE ADDITIONAL LANGUAGE THAT SAYS IT ONLY AMRIELS OR IS LIMITED TO THE CASE WHERE THE
STATUTE OF LIMITATIONS HAS NOT RUN. THERE ARE OTHER VARIOUS TASH DASH.
THE COURT: ONE AT A TIME. JUSTICE WAINER APTER: SO YOU WOULD BELIEVE
THAT IT IS NOT RETROACTIVE IF THE STATUTE OF LIMITATIONS HAD ALREADY RUN AT THE TIME OF
THE 1996 AMENDMENT. FOR EXAMPLE, IN THIS CASE YOU AGREE THAT THE STATUTE OF
LIMITATIONS RAN ON MAY 28TH, 1995. GRETCHEN A. PICKERING: THAT'S CORRECT.
JUSTICE WAINER APTER: IT WAS THEN NOT REVIVED IN 1996 BECAUSE THE LEGISLATURE
SPECIFICALLY SAID, QUOTE, SHALL BE APPLICABLE TO ALL OFFENSES NOT YELT BARRED FROM PROSECUTION
UNDER THE STATUTE OF LIMITATIONS AS OF EFFECTIVE DATE, WHEREAS BEFORE IT, THIS OFFENSE
ALREADY HAD BEEN BARRED FROM PROSECUTION AS OF THE EFFECTIVE DATE. GRETCHEN A.
PICKERING: YES. JUSTICE WAINER APTER: OKAY. GRETCHEN A.
PICKERING: YES PIQUE. JUSTICE WAINER APTER: SO YOU'RE SAYING IT'S RETRO
ACTIVE WHERE THE STATUTE OF LIMITATIONS HAD NOT ALREADY RUN. GRETCHEN A.
PICKERING: YES, THAT IS CORRECT. THE LEGISLATIVE HISTORY OF THAT AMENDMENT SHOWS VARIOUS
ATTEMPTS TO ADDRESS RETROACTIVITY AN THERE IS CLEARLY AN INTENT FOR IT TO BE RETROACTIVE,
THOUGH MAYBE NOT NECESSARILY TWO CASES THAT ARE BARRED BY THE STATUTE OF LIMITATIONS BUT
IT WAS NOT A PROSPECT EF OM STATUTE OF LIMITATIONS WHICH IS WHAT THE APPELLATE COURT
FOUND AND THE SAME IS TRUE WITH THE 2002 # IS THAT THERE IS CLEARLY AN INTENT TO HAVE IT
APPLY TO CASES THAT WERE IN EXISTENCE PRIOR TO IT'S ENACTMENT. THE COURT:
IT WAS RECEIPT TOE ACTIVE AS TO SOME CASES BUT NOT ALL CASES. GRETCHEN A.
PICKERING: THE 96 AMENDMENT, YES, THAT'S CORRECT. THE COURT: SO, FOR EXAMPLE,
A SEXUAL ASSAULT CASE WHERE THE OFFENSE WAS COMMITTED IN MAY OF 1990 WOULD NOT HAVE
BENEFITED FROM THE 1996 AMENDMENT BECAUSE THE STATUTE WOULD ALREADY HAVE RUN, CORRECT?
M. GRETCHEN A. PICKERING: CORRECT. JUSTICE PATTERSON: AN
THE LANGUAGE IN THE 2002 AMENDMENT IS DIFFERENT. GRETCHEN A. PICKERING:
IT IS DIFFERENT, YOUR HONOR, BUT THE LEGISLATIVE HISTORY ALSO SHOWS AN INTENT FOR IT TO
APPLY RETROACTIVELY AND I TASH DASH. JUSTICE MICHAEL NORIEGA: IF I CAN INTERRUPT
YOU, WHAT ABOUT IT IS AMBIGUOUS THAT WOULD REQUIRE US TO GO TO THE LEGISLATIVE HISTORY
WHEN IT SAYS THIS SHALL TAKE EFFECT IMMEDIATELY FROM THAT POINT FORWARD, WHAT GIVES US
PAUSE TO LOOK ANYWHERE ELSE? GRETCHEN A. PICKERING: THE HISTORY OF THE
STATUTE. THE STATUTE OF LIMITATIONS ESSENTIAL FORCES A LOOK BACK; THAT'S THE NATURE OF THE
BEAST. IT'S NOT LIKE SOME STATUTES WHERE YOU CAN JUST CLEARLY MAKE A BLACK LINE. IT
DOES THAT, BUT THE LANGUAGE IN THE LEGISLATIVE HISTORY DOES FORCE YOU -- DOES MAKE YOU
LOOK BACK AN DOES MAKE YOU CONSIDER THAT AND THAT'S PART OF WHAT LANE SAID IS YOU CAN
LOOK BACK AN FINE THE INTENT OF THE LEGISLATURE IN THE LANGUAGE AS WELL AS IN THE PERTINENT
LEGISLATIVE HISTORY AND THE LANGUAGE IN THE 2002 AMENDMENT IS PRETTY CLEAR, THIS PILL
WOULD REMOVE TIME LIMITATIONS ON THE PROSECUTION OF CRIMES -- EXCUSE ME THIS IS THE
LEGISLATIVE HISTORY, THIS BILL WOULD REMOVE TIME LIMITATIONS ON THE PROSECUTION OF CRIMES
WHEN THE PERSON WHO COMMITTED THE CLIMB IS UNKNOWN AT THE TIME BUT DNA EVIDENCE
COLLECTED AT THE CRIME SCENE CAN BE USED TO IDENTIFY THE PERSON AT A LATER TIME.
THE NUMBER OF DNA PROFILES OF CRIMINALS AN SUSPECTS STORED IN STATE AN FEDERAL DATABASE
BANKS IS GROWING RAPIDLY THIS INCREASES AN OVERWELL MS CRIME LABS IN THE ANALYSIS OF DNA
EVIDENCE, THIS HAS RESULT IN CASES WHERE PROSECUTING BARRED FROM BRINGING CHARGES
FWENS THE SUS SPENT ON THE GROUNDS THAT THE STATUTE OF LIMITATIONS ON THE CRIME HAD
EXPIRED. UNDER THE BILL AUTHORITIES WOULD NOT BE BARRED FROM PROSECUTING SUCH CRIMES IN
THIS STATE. THE TRA DESHGS NATURAL RATIONALE FOR THESE STATUTES IS TO PROTECT
DEFENDANTS FROM THE USE OF STALE EVIDENCE PENS THEM BUT THIS RATIONALE IS WEAKENED BY
VAN ES IN DNA TECHNOLOGY, DNA EVIDENCE THAT HAS BEEN PROPERLY COLLECTED FROM A CRIME SCENE
CAN BE USED TO IDENTIFY DEFENDANTS MANY YEARS AFTER A CRIME HAS BEEN COMMITTED. THAT
CLEARLY SHOWS THAT THEY ARE LOOKING TO APPLY IT RETRO ACT EFLY AND GOING BACKWARDS.
JUSTICE PIERRE-LOUIS: WHAT IN THE LANGUAGE OF THE 2002 AMENDMENTS INDICATES THAT IT IS
APPLICABLE TO THE SEXUAL ASSAULT OFFENSES THAT THE LEGISLATURE ALREADY ADDRESSED IN THIS
1996 AMENDMENT? SO, BY 2002, THERE HAD ALREADY BEEN NO STATUTE OF LIMITATIONS
FOR SEXUAL ASSAULT OEVENGS SZ FOR OFFENSES FOR OVER 6 YEARS, CORRECT? GRETCHEN
A. PICKERING: YES. JUSTICE PIERRE-LOUIS: IN 1996 AT THE POINT THAT THE
LEGISLATURE MADE THAT AMENDMENT, IT WAS VERY CLEAR THAT THE LEGISLATURE DID NOT ENCOMPASS
WITHIN THAT NEW ELIMINATED STATUTE OF LIMITATIONS, CASES FOR WHICH THE STT STATUTE
OF LIMITATIONS HAD ALREADY EXPIRED SO BY 2002, THERE WAS NO CATEGORY OF SAI SAI CASES FOR
WHICH THEY HAD BEEN COMMITTED UNDER THE PREVIOUS FIVE YEAR STATUTE OF LIMITATIONS STATUTE OF
LIMITATIONS REGIME THAT HAD ALREADY EXPIRED DO YOU SEE WHAT I AM SAYING. GRETCHEN
A. PICKERING: I DO UNDERSTAND WHAT YOU'RE SAYING AN I THINK THAT IS ONE OF THE THENGS
THE BILL SPECIFICALLY ADDRESSED CASES LIKE THE ONE I HAVE HERE WHERE WE HAVE A SITUATION
WHERE WE HAVE SOLID EVIDENCE, WHERE WE HAVE BEEN SEARCHING AND TRYING TO FIND THE PERSON
AN WE FEEMLY FIEPD THEM 30 YEARS LATER AND ARE NOW IN A SITUATION WHERE WE CAN'T PROBABLY
PROVE THE HOMICIDE, BUT WE ARE LOOKING AT A SEXUAL ASSAULT THAT WE CAN PROVE AND WE FEEL
VERY STRONGLY THAT WE CAN PROVE SEXUAL ASSAULT AGAINST AN INCAPACITATED PERSON.
JUSTICE PIERRE-LOUIS: AGAIN, IN 1996 THE LEGISLATURE HAD ALREADY MADE CLEAR EVERYTHING
BEFORE THIS STATUTE, THE EFFECTIVE DATE OF THIS STATUTE, THAT FOR WHICH THE STATUTE OF
LIMITATIONS HAD ALREADY EXPIRED, THOSE ARE OUT, I MEAN YOU WOULD AGREE WITH THAT. I THINK
YOU FWRAE WITH THAT? GRETCHEN A. PICKERING: YES. WE AGREE WITH THE 19
96 AMENDMENT SAYING THAT THOSE ARE OUT. JUSTICE PIERRE-LOUIS: I DON'T SEE
ANYTHING IN THE 2002 AMENDMENT THAT REVIVES THOSE CASES AND COUNTERS WHAT THE LEGISLATURE
AMENDED IN 1996. GRETCHEN A. PICKERING: THE LANGUAGE OF THE ACTUAL
AMENDMENT TUESDAY NOT SAY THAT. IT DOES NOT SAY REVIVE. WHAT IT DOES DO IS IT CHANGES
THE TRIGGER OF THE STATUTE OF LIMITATIONS FOR A VERY NARROW TYPE OF CASE WHICH IS THE
CASE THAT WE HAVE HERE. BY CHANGING THE TRIGGER AND I THINK THE LEGISLATIVE HISTORY SUPPORTS
AND SUGGESTS THAT IT IS INTENDED TO APPLY TO CASES SUCH AS OURSELVES WHERE WE'VE HAD THIS
EVIDENCE FOR A LONG PERIOD OF TIME BUT THE LANGUAGE OF THE AMENDMENT ITSELF OTHER THAN
CHANGING THE TRIGGER DATE DOES NOT TRAES THAT SITUATION OR DOES NOT SPECIFICALLY SAY WE
ARE REVOOIFG BOTH CASES. JUSTICE PIERRE-LOUIS: THE 2002 AMENDMENTS DOES
JUST APPLY TO SEXUAL ASSAULT CASES. GRETCHEN A. PICKERING: AGREED.
JUSTICE PIERRE-LOUIS: AGAIN, BY 2002, THERE WAS NO NEED TO TOLL ANYTHING WITH REGARD TO
SAY SEXUAL ASSAULT SEXUAL ASSAULT CASES BECAUSE THERE WAS NO STATUTE OF LIMITATIONS SO
AT THE TIME THE LEGISLATURE WAS ENACTING THIS AMENDMENT WITH REGARD TO THIS DNA EVIDENCE,
ANY SEXUAL ASSAULT CASE, THIS WASN'T EVEN MREK ABDOMINAL IN 1996. GRETCHEN A.
PICKERING: I CAN UNDERSTAND THAT. I DISAGREE -- WE DISAGREE WITH THAT WHICH IS WHY WE
PROCEEDED WITH THAT, BUT I UNDERSTAND THAT INTERPRETATION, YOUR HONOR. L I CAN'T REALLY
SAY THAT EXCEPT TO THE EXTENT THAT THE LEGISLATIVE HISTORY SUGGESTS THAT THE CASE
THAT WE HAVE IS ONE THAT IS -- THERE HAS BEEN EXTENSIVE LEGISLATIVE INVOLVEMENT WITH
RESPECT TO THIS CASE WHICH I THINK THE AMICUS WILL BE ADDRESSING. JUSTICE
PIERRE-LOUIS: IT'S SIMILAR TO THE DISCUSSION YOU HAD PREVIOUSLY WITH REGARD TO HOMICIDE.
THIS DNA SECTION HAS NOTHING TO DO WITH HOMICIDE CASES WOULD YOU AGREE. GRETCHEN
A. PICKERING: I WOULD WOULD. JUSTICE PIERRE-LOUIS: BECAUSE THERE IS NO
STATUTE OF LIMITATIONS SO WHEN THE LEGISLATURE WAS AMENDING THIS 2002, I THINK IT IS A
REASONABLE INTERPRETATION THAT THE LEGISLATURE WASN'T EVEN THINKING ABOUT HOMICIDE CASES,
THE SAME WAY THAT THEY PROBABLY WEREN'T THINKING ABOUT SEXUAL ASSAULT CASES THAT THEY
HAD KIND OF HANDLED THE STATUTE OF LIMITATIONS ISSUE SIX YEARS PRIOR. GRETCHEN
A. PICKERING: I CAN UNDERSTAND THAT, YOUR HONOR, I THINK SOME OF THE LEGISLATIVE HISTORY
SUGGESTS OTHERWISE THAT THEY WERE CONTEMPLATING CASES OF THIS SORT BUT EK NOT COME UP
WITH ANY SPECIFIC THING TO ADDRESS THAT. JUSTICE WAINER APTER: DOES PT.
JUSTICE WAINER APTER: I'M LOOKING AT THE SPONSOR STATEMENT, SPECIFICALLY
IT SAYS, THE SIGNATURE SUBSTITUTE WOULD TOLL THE APPLICABLE STATUTE OF LIMITATIONS FOR
THE COMMISSION OF A CRIME IN CERTAIN CASES UNTIL THE STATE IS IN POSSESSION OF DNA OR
FINGERPRINT PRINT EVIDENCE TAKEN FROM THE SUSPECTED CHLTH. A STATUTE OF
LIMITATIONS CANNOT BE TOLD IF IT HAS ALREADY EXPIRED BECAUSE THERE IS SIMPLY NOTHING TO
TOLL. IT WOULD NEED TO BE REVIVED FIRST AN THEN IT COULD BE TOLLED. HERE,
THEY'RE SPECIFICALLY JUST SAYING THE SENATE SUBSTITUTE WOULD TOLL THE APPLICABLE STATUTE
OF LIMITATIONS IN CERTAIN CASES. THEY'RE NOT SAYING IN EVERY CASE, BUT IT SEEMS LIKE
THEY ARE NJ ACKNOWLEDGING THAT WHERE THE STATUTE OF LIMITATIONS HAS ALREADY RUN AN EXPIRED
THERE IS SIMPLY NOTHING TO TOLL. IS YOUR POSITION YOU CAN TOLL A STATUTE OF
LIMITATIONS AFTER IT HAS EXPIRED? GRETCHEN A. PICKERING: NO, YOUR HONOR.
I DON'T THINK THAT IS OUR POSITION. OUR POSITION IS THAT THIS ESSENTIALLY CREATED A NEW
STARTING POINT FOR A STATUTE OF LIMITATIONS IN A SITUATION THAT FELL IN BETWEEN ALL OF THE
CRACKS IN A WAY THAT WAS VERY UNFORTUNATE FOR THE VICTIM AN HER FAMILY AN WE FINALLY
HAVE THE INFORMATION AVAILABLE TO PROSECUTE SOMEONE AND ARE IN A POSITION WHERE WE
STRUGGLE TO DO THAT. THERE IS A FAIRNESS, THERE IS A FAIRNESS ON THE SIDE OF THE DEFENDANT
THAT I UNDERSTAND AND I THINK THAT WE ALL UNDERSTAND AND AS PROSECUTORS WE UNDERSTAND.
THERE IS A FAIRNESS TO THE VICTIM WHERE THEIR CASE IS ELIMINATED BASED ON A DATED -- BASED
ON A DATED SENSE OF EVIDENCE AND THAT'S THE BASIS FOR THE EX POST FACTO TOE LAW AN THAT'S
THE BASIS FOR A LOT OF THESE LAWS AN WE ARE STUCK WITH A SITUATION WHERE IF IF THIS SEA
HAD OCCURRED IN 1991 WE WOULDN'T BE HERE. WE'RE FACED WITH A SITUATION WHERE WE HAVE
A CASE -- THERE COULD BE A CASE BROUGHT IN 1991 OR 1992 FOR SEXUAL ASSAULT THAT IS NOT
BARRED BY THE STATUTE OF LIMITATIONS THAT RELIES ON LESS EVIDENCE AND LESS SIGNIFICANT
EVIDENCE OR LESS RELIABLE AN ACCURATE EVIDENCE THAN WE HAVE FROM A CASE FROM 1990 AND
WE KPT DO ANYTHING ABOUT IT AND THERE IS FRUSTRATION WITH REGARD TO THAT.
JUSTICE PATTERSON: STATUTES OF LIMITATIONS ARE SOMETIMES CITED AS AN EXAMPLE WHEN PEOPLE
MAKE ARGUMENTS BASED ON ARBITRARINESS AN THE UNFAIRNESS THAT NECESSARILY RESULTS FROM
ARBITRARINESS AN THERE IS A LOT OF LAW HERE AN ELSEWHERE THAT SAYS THE LEGISLATURE CAN
MAKE A CALL ON A STATUTE OF LIMITATIONS AND THERE ARE GOING TO BE PEOPLE IN CASES THAT
FALL ON ONE SIDE OR THE OTHER OF THAT AND THAT SIMPLY IS A LEGISLATIVE DETERMINATION.
GRETCHEN A. PICKERING: THAT IS CORRECT. I THINK THIS CASE -- THE STATUTES
THAT WE'RE TALKING ABOUT SHOW AN INTENT TO TRY TO TO SOMETHING ABOUT THAT, BUT IT MAY
NOT WORK. IT MAY FALL FLAT, BUT IT IS STILL A TREMENDOUS FRUSTRATION THAT THIS IS A MATTER
OF TIMING IN A LOT OF RESPECTS. THE COURT: SO YOUR ANSWER TO JUSTICE WAINER
APTER APARTMENT JUST MINUTES AGO, I THINK YOU SAID THESE AMENDMENTS CHANGED A STARTING
POINT TO THE STATUTE OF LIMITATIONS? GRETCHEN A. PICKERING: YES.
THE COURT: DON'T THEY IN FACT CHANGE THE ENDPOINT. GRETCHEN A. PICKERING:
THE WAY THE 2002 AMENDMENT READS THE STATUTE OF LIMITATIONS DOESN'T START UNTIL AFTER
THE STATE IS IN POSSESSION OF THE PHYSICAL EVIDENCE FROM THE CRIME AND THE DNA EVIDENCE
TO COMPARE FWENS IT FOR PURPOSES OF IDENTIFYING THE DEFENDANT OR THE SUSPECT, THE ACT
OR, OFFENDER, WHATEVER TERM YOU WESH TO CHOOSE. IN A SENSE THE STARTING POENT IS CHANGED
IT CHANGES TO WHEN YOU HAVE BOTH OF THOSE PIECES OF EVIDENCE IN PLACE AN THEN YOU HAVE
TO DEAL WITH IT AFTER THAT SFLFRJT I UNDERSTAND. CHIEF JUSTICE RABNER: I
UNDERSTAND. CHIEF JUSTICE RABNER: I UNDERSTAND. IS THERE ANYTHING
ELSE YOU WOULD LIKE TO ADD. GRETCHEN A. PICKERING: AT THIS POINT NO, I
WILL SAVE MY OTHER COMMENTS FOR REBUTTAL. THANK YOU. CHIEF JUSTICE
RABNER: THANK YOU. MR. POMPELIO. RICHARD D. POMPELIO: GOOD
AFTERNOON, YOUR HONOR IS MAY IT PLEASE THE COURT. MY PURPOSE AS AMICUS WAS
TO TRY TO ENLIGHTEN THIS COURT ON MY INVOLVEMENT IN THE LEGISLATIVE HISTORY. SINCE
I WAS INVOLVED IN IT, IT WAS A LITTLE BIT DIFFICULT BECAUSE I DIDN'T WANT TO SUBMIT
THENGS TO THE COURT WHICH I HAD NO PROOF OF, BUT I BELIEVE IT IS CLEARLY IMPORTANT BECAUSE
THIS TIME PERIOD, MEANING, BETWEEN 1990/91 AND 2001/2002, WHEN THE STATUTE, WHEN THE LATEST
AMENDMENT WAS ENACTED WAS TRULY THE MOST TASH DASH IN MY OPINION, THE MOST VOLATILE TIME
AND I USE THAT WORD LOOSELY IN THE HISTORY OF THE CRIMINAL JUSTICE SYSTEM IN THIS STATE.
IT JUST WASN'T A NORMAL LEGISLATIVE FUNCTIONING. AND I HEAR COMMENTS LIKE,
WELL, THE LEGISLATURE THOUGHT THIS. AND IF I COULD JUST TRAES THAT A MOMENT.
IN 1991 YOU HAD THE CULL MEN NAGS OF THE VICTIMS RIGHTS MOVEMENT WITH THE PASSAGE OF THE
VICTIMS RIGHTS AMENDMENT. THAT WAS THE FIRST HUMAN RIGHTS AMENDMENT TO THE NEW JERSEY CON
STITUTION SINCE 1844. WE CITED MA HAM MED EXTENSIVELY IN OUR BRIEF BECAUSE
I THINK MA HAM MED IS REALLY THE CRITICAL CASE WHEN ANYBODY ADDRESSES THE ISSUE OF VICTIMS
RIGHTS. AND HERE WAS THE TENURE AT THE TIME, THE DEATH PENALTY WAS STILL IN NEW JERSEY.
WE HAD, I THINK, BY 1990 WE HAD OVER 30 PEOPLE ON DEATH ROW. THE SUPREME COURT IN THE
'80S, THEY WERE RENDERING DECISIONS LIKE JACKSON WAS ONE OF THEM WHERE YOU HAD TO DEFINE
INTENT IN THE MURDER AND THAT ENDED UP WITH THE PROSECUTION PUSHING TO HAVE THE CONSTITUTION
AMENDED, WHICH THEY DID, TO REMOVE THAT. AND THEN IN 1992, THE EXECUTIVE BRANCH
CHANGED SO YOU HAD ALL OF THIS ACTIVITY, AND I WOULD SAY BECAUSE THEY CHANGED, THERE WAS
CONFLICT TO A CERTAIN DEGREE. AND IN ALL OF THAT -- AN THEN IN 1994 YOU HAD MEGAN'S LAW
AND THAT WAS A MAJOR ACT TIT ON BEHALF OF THE EXECUTIVE BRANCH AN THE LEGISLATIVE BRFRJ
TO TRAES THE ISSUE OF SEXUAL ASSAULT. AND THAT IGNITED IN THE EARLY '90S AT THE
SAME EXACT TIME THAT WE WERE TRYING TO GET JUSTICE FOR SUSAN NAG BY FILING A LAWSUIT
AGAINST THE MEDICAL EXAMINER WHO REFUSED TO CORRECT THE DEATH CERTIFICATE.
AND, AS I INDICATED IN MY BRIEF, THERE WAS SO MUCH NEWS GOING ON ABOUT THIS CASE. I MEAN
THE STACK OF NEWS ARTICLES IS THIS HIGH. THERE WAS SO MANY TV PIECES ABOUT IT. I
SAY THAT ONLY BECAUSE IN THE MIND OF THE LEGISLATURE, IN THE MIND OF PEOPLE, OF
PROSECUTORS AND IN THE CRIMINAL JUSTICE SYSTEM, THIS CASE WAS VERY WELL KNOWN.
THE ULTIMATE SPONSORS OF THE BILL THAT PASSED IN 2001, TOO, WERE TWO OF THE MOST STRONGEST
ADVOCATES FOR VICTIMS RIGHTS, SENATORS AL LEN AND -- I FORGOT HIS NAME. HE WAS FROM BERGEN
COUNTY. BUT IT WAS THERE, S.N.'S CASE WAS THERE AND IT WAS THERE WHEN IT WENT
TO THE LEGISLATURE. UNFORTUNATELY, IN 1995 WHEN THEY WERE LOOKING TO AMEND
THE LEGISLATION, THEY COULDN'T FRAE ON TOO MUCH. POLITICS WAS STILL CHANGING. THE BEST
THEY FWOT OUT OF IT WAS THE '96 STATUTE. OBVIOUSLY THAT WASN'T SATISFACTORY FOR THE
PURPOSE OF INDICTING OR FINDING SOMEONE TO ARREST IN S.N.'S RAPE AN MURDER.
NEVERTHELESS, THE NAG GER SMITH ISSUE STAYED WITH THE LEGISLATURE. IT STAYED HEAVIER BECAUSE
THERE WAS SUCH A DESIRE TO FIX -- APPEND I SAY THIS TO YOU KAND TIDLY BECAUSE I KNOW. I WAS
THERE FOR MUCH OF IT. THERE WAS SUCH A DESIRE ON THE PART OF THE LEGISLATURE TO FIX THE
INJUSTICE OF S.N. AND THAT WAS PART OF IT, I BELIEVE, BECAUSE THE WAY SHE HAD BEEN SO
DISREGARDED AS A HUMAN. TO THINK, 30 DAYS OF THE TAKE SHE WAS KILLED THE COUNTY
PROSECUTOR CLOSED THE CASE. THE S.N.S FAMILY FOUND OUT BY READING SOMETHING IN THE
NEWSPAPER. WHAT KEPT THIS ALIVE WAS S.N.'S FAMILY. IT'S THE OLD TEST CASE IN MY OFFICE.
IT'S NOW 32 YEARS OLD AN MR. NAG WAS RELENTLESS. L HE WAS RELENTLESS WITH GOVERNOR WHIT
MAN'S OFFICE. AND FROM WHAT I KNOW, THAT ULTIMATELY LED TO THE 2001/2002 AMENDMENT.
SO, AS I SEE IT, THE DIFFICULTY IS THEY DIDN'T DO IT RIGHT. THAT'S PART OF THE
PROBLEM. THEY DIDN'T DO IT RIGHT. THEY DIDN'T HAVE ENOUGH AGREEABLE EVIDENCE ON DNA
THAT IT COULD HAVE BEEN IN A STATUTE WITHIN TIME. THAT'S THE TRUTH. WHETHER IT HELPS
THIS CASE OR IT HURTS THIS CASE, MY OBLIGATION IS TO BE TOTALLY CANDID WITH YOUR HONORS
AND THAT IS THE TRUTH. THAT IS A FACT. AS I SEE IT, R THIS STATUTE WAS INTENDED
TO TRAES THE NAG CASE, DID IT PROPERLY, DID IT LEGALLY AND THAT IS GOING TO BE YOUR
DECISION. JUSTICE PATTERSON: WHEN YOU SAY THIS STATUTE, TOUM 2002 AMENDMENT
OR BOTH? RICHARD D. POMPELIO: THE 2002 AMENDMENT. JUSTICE
PATTERSON: BECAUSE 1995 THE LANGUAGE WOULD SUGGEST THAT THIS CASE WAS NOT IN MIND.
RICHARD D. POMPELIO: THEY RAN OUT OF TIME IS WHAT IT WAS. SO I DON'T KNOW IF
I HAVE ANY MORE TO FWIF YOU ON THE ISSUE OF LEGISLATIVE INTENT. I DON'T WANT TO CROSS
THE LINE AN PLEASE UNDERSTAND THAT. THE COURT: ASSUME EVERYTHING THAT YOU
HAVE SAID IS CORRECT AND WE ACCEPT IT, THE APPELLATE DIVISION IN ITS ANALYSIS GOES ONE
STEP FURTHER. RICHARD D. POMPELIO: RIGHT. THE COURT: AND
SAYS IF THESE STATUTES ARE RETROACTIVE, THERE IS A CONSTITUTIONAL PROBLEM, THE EX POST
FACTO TOE CLAUSE. RICHARD D. POMPELIO: YES. HOW DO I ADDRESS
THAT? WELL, I GUESS IT DEPENDS -- DON'T YOU HATE IT WHEN A LAWYER SAYS IT
DEPENDS? IT DEPENDS ON HOW ONE VIEWS THE STATUTE OF LIMITATIONS VIS-A-VIS
THE EX POST FACTO TOE LAW. NOW, I WENT BACK AND LOOKED AT THE HISTORY OF THE
EX POST FACTO TOE LAW AND I WENT ALL THE WAY BACK BECAUSE I HAD TIME THIS WEEK TO THE
FEDERAL LIST PAPERS AND READING COMMENTS BY MAD DIS SON AND HAMILTON AND THEY SPOKE OF THE
MOST EE FWREEJ YOUS CONDUCT EGREGIOUS CONDUCT THAT HAD GONE ON WITH RESPECT TO THE COLON
NISS AND THAT LED TO THE EX POST FACTO TOE LAWS. WHEN A MAN COMMITS AN ACT ON MONDAY
AND HE IS TRIED AN CONVICTED ON TUESDAY AN ON WEDNESDAY THEY PASS ANOTHER LAW SAYING
IT'S TUBL THE PENALTY. THEY WERE PLATE PLATE TANT. BLATANT. ALL OF THESE EXAMPLES ARE
BLATANT. THAT WAS THE FOUNDATION OF THE CRIMINAL JUSTICE SYSTEM IN THIS COUNTRY.
IT WAS A FOUNDATION THAT HAD NO RIGHTS FOR PEOPLE CHARGEDED. THEY CALLED THEM CRIMINALS
IN THE CONSTITUTION, BUT NO RIGHTS FOR PEOPLE THAT WERE CHARGED WITH A CRIME.
IF YOU LOOK AT THE FIRST CONSTITUTION OF NEW JERSEY, THE 1776 CONSTITUTION, THE ONLY RIGHT
A DEFENDANT HAS IS, I THINK IT'S ARTICLE 16 AND IT SAYS, ESSENTIALLY THAT THE RIGHTS OF
CRIMINALS SHALL BE EQUAL TO THE RIGHTS OF WITNESSES AN THE PROSECUTION. IT
IS THE PROSECUTION WAS UP HERE. THE STATE WAS UP HERE AND INDIVIDUALS, PEOPLE CHARGED
HAD NO RIGHTS AT ALL. AND IN THE LAST 200 YEARS, THAT IS WHAT HAS HAPPENED
IN THE CRIMINAL JUSTICE SYSTEM. IT HAS GONE FROM HERE TO HERE. AND IT WASN'T
UNTIL 1980 AFTER ALMOST 200 YEARS THAT SOMEBODY DECIDED TO TAKE A LOOK AT THE IMPACT
OF THE CRIMINAL JUSTICE SYSTEM ON NOT THE CRIMINAL JUSTICE SYSTEM NATURALS, BUT ON OTHER
PEOPLE IN THE CRIMINAL JUSTICE SYSTEM RJS NAMELY THE VICTIMS. IN 1980, THERE WAS
A TASK FORCE COMMISSIONED BY PRESIDENT RAIG BEGAN AND IT WAS AN EXTENSIVE TASK FORCE AND
IT WENT ALL OVER THE COUNTRY AND I THINK THEY WENT INTO SEVEN CITIES AN THEY INTERVIEWED
VICTIMS OF CRIME APPEND I THINK THERE WERE LIKE 146 VICTIMS THAT THEY INTERVIEWED AT LENGTH.
THE END RESULT OF THAT WAS A REPORT IN 1982 SUBMITTED TO THE PRESIDENT AN
THE CHAIRPERSON OF THE TASK FORCE SAID AND I'M QUOTING HER, SOMEWHERE ALONG THE WAY THE
SYSTEM FWAN TO SERVE THE LAWYERS AND JUDGES AND DEFENDANTS AND TREAT VICTIMS WITH
INSTITUTIONALIZED DIS INTEREST. IT WENT ON TO SAY THE TREATMENT OF CRIME VICTIMS IS A
NATIONAL DISGRACE. THE INSTITUTIONALIZED DIS INTEREST, WE KNOW WHAT
THAT IS AND THAT IS CRIME VICTIMS. CRIME VICTIMS INCLUDE THE PEOPLE, WERE KEPT OUT OF THE
SYSTEM. THE COURT: MR. POMPELIO, YOU'VE DONE IMMENSE WORK IN THE AREA OF
VICTIM'S RIGHTS AND THIS COURT'S OPINIONS ON THE SUBJECT HAVE LIKEWISE FOCUSED ON THE
IMPORTANCE OF VICTIM'S RIGHTS. AS YOU UNDERSTAND THE LAW, CAN AN INDIVIDUAL
BE PROSECUTED, CHARGED AFTER THE STATUTE OF LIMITATIONS HAS RUN UNDER OUR FEDERAL CON
STITUTION? HAD. RICHARD D. POMPELIO: AS I UNDERSTAND THE LAW, THE ONE SUPREME
COURT DECISION IS NO, BUT THAT WASN'T A DNA CASE. I THINK DNA IS THE DEFENSE HERE DIFFERENCE
HERE. WHEN YOU LOOK BACK AT MANY OF THE EX POST FACTO TOE CASES THEY TALK ABOUT FAIRNESS
AND THEY TALK ABOUT A BALANCING TO A CERTAIN DEGREE. THEY TALK ABOUT TASH DASH AND I
THINK -- IF I MAY. JUSTICE PATTERSON: YOU'RE REFERRING TO STOGNER
VERSUS CALIFORNIA IS THAT THE CASE YOU'RE REFERRING TO. RICHARD D.
POMPELIO: YES, MA'AM, YES. SIR RIN SKI IS A NEW JERSEY SUPREME COURT CASE, OUR LEGISLATURE
HAS DETERMINED THAT THE SOCIETAL INTERESTS IN PUNISHING THE GUILTY IS SO STRONG WITH
RESPECT TO CERTAIN CRIMES THAT THE COUNTERVAILING CONCERN OF PROTECTING PERSONS FROM
PROSECUTION FOR CRIMES IN THE DISTANT PAST IS WHOLLY OVERCOME. I TAKE THAT
TO MEAN THAT IT IS NOT AN AUTOMATIC HARD AND FAST RULE. I TAKE THAT TO MEAN THAT WHEN
YOU ARE LOOKING AT WHETHER THERE IS AN EX POST FACTO TOE LAW BECAUSE OF THE STATUTE OF
LIMITATIONS, NELS, YOU STILL HAVE TO BALANCE THE EQUITIES IN THE SITUATION AND I THINK
THAT'S ABSOLUTELY CRITICAL BECAUSE THERE HAVE BEEN TWO FWAM CHANGERS IN THIS 200 PLUS
YEAR HISTORY OF THE CRIMINAL JUSTICE SYSTEM. ONE WAS VICTIM'S RIGHTS. IT CHANGED THE
TEN OR COMPLETELY IN THE CRIMINAL JUSTICE SYSTEM, IT ADDED A VICTIM TO THE EQUATION.
BUT, ALSO, IT ENABLES US TO LOOK BACK AT THE HISTORY OF THESE LAWS THAT WE'VE HAD SINCE
THE BEGINNING OF OUR NATION AND WHAT CAUSED AN EK POST FACT TOE LAW TO BE AN EX POST FACTO
TOE LAW, HORRIBLE, EGREGIOUS, UNFAIR, UNJUST CONDUCT, BUT THAT'S NOT WHAT WE'RE TALKING
ABOUT HERE. JUSTICE PATTERSON: BUT WE HAVE STOGNER. I UNDERSTAND THERE IS
A DISTINCTION BETWEEN STOGNER AND THIS CASE BECAUSE IN STOGNER THE DEFENDANT WAS
IDENTIFIED THROUGHOUT THAT PERIOD, BUT STOGNER IS TASH DASH SUGGESTS -- SUGGESTS THAT EX
POST FACTO TOE CONCERNS WOULD BE RAISED IF THERE WAS A RETROACTIVE APPLICATION OF THE
2002 AMENDMENT IN THIS CASE. RICHARD D. POMPELIO: I THINK, IN LOOKING AT
THAT CASE, WAS IT JUSTICE BROOIR, I'M SORRY, I FORGET. JUSTICE BROOIR. JUSTICE
BROOIR WENT LONG AND HARD. REMEMBER THAT WAS A 5 TO 4 DECISION. HE WENT LONG AN HARD.
THERE WAS NOTHING IN THE LIST OF ITEMS THAT FALL INTO EX POST FACTO LAWS, HE WORKED LONG
AND HARD TO FEEPD STATUTORY TUT OF LIMITATIONS LAWS AN INTERPRETED IT TO THAT.
THAT'S NOT ONLY TASH DASH. JUSTICE PATTERSON: BUT THE U.S. SUPREME COURT
IS THE FINAL ARBITER OF FEDERAL CONSTITUTIONAL LAW. RICHARD D. POMPELIO:
ABSOLUTELY POT POT EVEN THE 5 TO 4 DECISIONS OF WHICH THERE ARE MANY. RICHARD D.
POMPELIO: THAT'S WHY I SAY THERE IS A DISTINCTION BETWEEN THE TWO CASES BECAUSE ONE INVOLVED
JUST ADDING ON ANOTHER YEAR TO THE STATUTE OF LIMITATIONS. BEING ON, YOU HAVE FIVE YEARS
IN WHICH THE STATUTE EXPIRES, WE'RE FWOEG TO ADD ANOTHER YEAR. THAT'S ARBITRARY. MOST
IMPORTANTLY, IT'S NOT BASED ON ANY RATIONAL UNDERSTANDING OR ANY RATIONAL BASE TO PROVIDE
FAIRNESS. WHAT DNA DOES IS THAT. IN EVERY CASE WE FIND, NOT EVERY CASE, BUT
MANY CASES, THE COURTS TALK ABOUT THE FAIRNESS OF FINDING TRUTH, THE FAIRNESS TO THE
DEFENDANT; THAT'S WHAT IS SO UTTERLY AMAZING ABOUT WHEN YOU LOOK AT THIS FROM -- WHEN YOU
STEP BACK AN LOOK AT THE FACTS OF THIS CASE. THE IDEA OF THE EX POST FACTO
LAW IS TO PREVENT SOMEBODY FROM BEING HARMED EVEN IF THEY COMMITTED A CRIME. THE
CASE WE HAVE BEFORE YOU IS SO FAR DIFFERENT. WILL THERE EVENTUALLY BE THE CASE?
I AM SURE THERE WILL BE IF THIS ISN'T IT. DNA CHANGES EVERYTHING.
BECAUSE, TO ME, IT CHANGES WHAT IS BEHIND THE DEFENDANT TO PROTECT HEM NOW. TN PROTECTS
THE DEFENDANT OBVIOUSLY AS MUCH AS IT PROTECTS ANYONE ELSE. SO, I DON'T MEAN TO BE BLANKING
YOUR QUESTION, CHIEF JUSTICE. RICHARD D. POMPELIO: LET ME PUT IT THIS
WAY. I BELIEVE THERE IS A DISTINCTION BETWEEN STOGNER AND THIS CASE AN SOME OF THE OTHER
CASES WE CITED. I MEAN, I AM NOT AWARE OF ANY CASE THAT HAS CHALLENGED THE FEDERAL DNA
STATUTE. I'M AWARE OF CASES THAT HAVE TESTED IT AN INTERPRETED IT AN I QUESTION WELL,
WHY AT ANY TIME THE DEFENDANT FILE AN EK POST FACT CLAIM BECAUSE IF YOU DECIDE AGAINST
THE PROSECUTION IN THIS CASE, DON'T WE HAVE TO A CERTAIN DEGREE A DIFFERENCE BETWEEN THE
FEDERAL LAW AND THE STATE LAW? I THINK IT WAS -- WAS IT HAD LER, IN HAD
LER, THERE WAS A 2000 ROBBERY, 2 THOUSAND BLANK DNA HIT. THEY UPHELD IT. AGAIN, I HAD,
I HAVE SOME QUOTES FROM HAD LER. WHEN DNA EVIDENCE IS AVAILABLE, THE REASONS
FOR HAVING A STATUTE OF LIMITATIONS ARE SIGNIFICANTLY ATTENUATED OR PUT ANOTHER WAY,
THE F.E.D. STATUTE EXTEND THE LIMITATIONS PERIOD IN DNA CASES BECAUSE DNA EVIDENCE IS UNIQUE
LY PRECISE. JUSTICE WAINER APTER: ARE YOU SAYING THAT HAD LER HELD THAT
A PROSECUTION COULD BE REVIVED AFTER THE STATUTE OF LIMITATIONS HAD ALREADY RUN WITHOUT
OFFENDING THE EX POST FACTO CLAUSE. RICHARD D. POMPELIO: I DON'T BELIEVE
IT DID. L IF YOU READ IT AND I DID, I WILL TRUST YOUR READING, BUT. . . JUSTICE
WAINER APTER: ARE YOU AWARE OF OTHER CASES THAT HAVE SO HELD? RICHARD D.
POMPELIO: I HAVE TO THINK ON THE FEDERAL LEVEL, THERE IS HAD LER AND, I AM SORRY, THERE
WAS ANOTHER CASE. I THINK IT IS CITED IN THE STATE'S BRIEF OR OUR BRIEF. I
DON'T KNOW WHY. I DON'T KNOW THE FEDERAL STATUTE HAS NOT BEEN CHALLENGED AND I THINK THAT
QUESTION, I WISH I HAD MORE TIME TO COME UP WITH AN ANSWER, BUT THAT FWIFS ME PAUSE AS
TO WHY IT IS THE TASH DASH THE PROCESS IS FOEG ONE WAY IN THE FEDERAL COURTS AND THEN
PERHAPS DIFFERENT IN THE STATE. THE COURT: IF YOU COULD TRY TO BRING YOUR
ARGUMENT TO A CLOSE. RICHARD D. POMPELIO: I WILL BRING IT TO AN END RIGHT
NOW. I APPRECIATE YOUR TIME. THANK YOU. IT IS ALWAYS AN HONOR
TO HAVE THE VOICE OF TRIEM VICTIMS BE PRESENTED TO THIS COURT. IT MEANS SO MUCH TO THE
VICTIMS COMMUNITY THROUGHOUT THE STATE AN I TRULY BELIEVE THAT IT ENHANCED THE QUALITY
OF JUSTICE IN THIS STATE. THANK YOU SFLFRMTHS THANK YOU, COUNSEL