procured the murder and at least one aggravating factor
must exist. All death-sentenced defendants are included
in the universe, even if the death sentence subsequently
was reversed. State v. Bey IV, 137 N.J. 334, 347-48
(1994).
The defendant’s death sentence is reviewed under a
frequency analysis and under a precedent-seeking
method. Frequency analysis is a statistical review of
defendant’s death sentence using the salient factors test
which groups defendants into categories based upon
aggravating factors, e.g., prior murder. It measures the
relative frequency of death sentences in factually similar
cases. State v. Morton II, 165 N.J. 235, 244 (2000).
The precedent-seeking method employs the same
comparison groups as that used in the salient factors test.
Id. at 254. It requires the Court to examine death eligible
cases similar to the defendant’s to determine whether the
defendant’s death sentence is aberrant when compared to
the sentences received by defendants in those other cases.
State v. Chew II, 159 N.J. 183,210 (1999), cert. denied,
120 S.Ct. 593 (1999); State v. Marshall II, 130 N.J. at
- In determining which cases should be compared to
the defendant’s, cases that fall within the defendant’s
salient factors group, i.e., prior murder, are presump-
tively included within defendant’s comparison group.
Conversely, cases outside the salient factors group should
be presumptively excluded from the comparison group.
State v. Morton II, 165 N.J. at 256.
To gain a reduction to a life term, a defendant bears
the burden of showing that the death sentence was
disproportionate. State v. DiFrisco III, 142 N.J. at 162;
State v. Martini II, 139 N.J. at 47. A death sentence is
considered disproportionate if other defendants in the
jurisdiction who have similar characteristics commit
similar offenses and receive life sentences. State v.
Marshall II, 130 N.J. at 131.
Under precedent seeking review, the Court uses all
relevant aggravating and mitigating factors rooted in
traditional sentencing guidelines. Id. at 159.
Comparison cases are selected from the death-eligible
universe based on the aggravating factors present in
defendant’s case and evaluations are based only on
objective criteria actually presented to the jury or trial
judge. State v. Bey IV, 137 N.J. at 368.
The Court will discount cases where the facts are
significantly dissimilar even if the same aggravating factor
is arguably similar. However, with regard to the catch-
all factor, the Court recognizes that the jury may have
been influenced by evidence presented in support of a
specific statutory mitigating factor that it rejected. Id.B. Systemic Proportionality
When a defendant claims that the death penalty has
been imposed because of some unconstitutional factor,
such as the race of the victim or the race of the defendant,
he or she is making a systemic proportionality challenge.
The study of system-wide discrimination requires the use
of statistical techniques in socio-political settings. To
determine whether the system is operating in a
discriminatory manner, the Court will utilize a
multifaceted approach, including bivariate analysis,
regression analysis and case-sorting analysis. In re
Proportionality Project II, 165 N.J. 206 (2000). The
Court will not rely upon any single methodology to
determine if race had an invidious impact on the death
penalty; rather, the defendant has to relentlessly
document the risk of racial disparity and do so by
showing a consistent finding using multiple techniques.
Id. at 225.VIII. POST-CONVICTION RELIEF
The New Jersey Supreme Court has ruled that “the
public interest” requires that a post-conviction relief
petition must be filed in capital cases. When a capital
defendant does not wish to pursue this remedy, a special,
truncated procedure for post-conviction relief is to take
place. State v. Martini III, 144 N.J. 603 (1996).The Public Defender or designated counsel must file
a petition within 30 days after learning that the
defendant does not wish to file. The unwilling defendant
also should be assigned standby counsel. The
Assignment Judge of the vicinage must assign the
petition to a judge who will conduct the hearing on a
continuous day to day basis. Moreover, the court must
be provided with a computer-assisted court reporter so
that transcripts may be generated simultaneously with
the proceedings. At the conclusion of the hearing, the
trial judge must certify the record to the Supreme Court
and issue either an oral or written opinion. An “aggrieved
party” must file its notice of appeal and supplemental
brief within 15 days thereafter, and the Supreme Court
must issue its decision within 45 days after the appeal is
filed or 30 days after oral argument. Id. at 613-16.The Court has condemned a defendant’s attempt to
fragment claims raised in post-conviction relief to escape
the procedural bars of R. 3:22-4 and 3:22-5, State v.
Marshall III, 148 N.J. at 144, but also indicated that it