State v. Wakefield

¶1dissenting.

¶2For proportionality review purposes, Brian Wakefield’s cohort is made up of a motley crew of life-sentenced multiple murderers, who laid in wait for their victims and bludgeoned, shot, stabbed, and scissored to death men, women, and children of all ages. Wakefield’s crimes, execrable as they were, were in fact not “worse” than those of his comparators and the personal stories of those in his group were not “better” than his. Yet alone among his cohort, Wakefield awaits lethal injection while every other defendant will live out his days in prison. Advancing inconsequential and unprecedented distinctions, or no distinctions at all, the majority declares Wakefield’s sentence of death to be proportional. Such a result cannot be countenanced in a system of laws.

¶3I.

¶4Because we believe that “death is different,” Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859, 883 (1976), we have developed a proportionality review methodology that provides a “more expansive source of protections against the arbitrary and nonindividualized imposition of the death penalty” than does the United States Constitution. State v. Ramseur, 106 N.J. 123, 190, 524 A.2d 188 (1987).

¶5*554Proportionality review is unique in that it is not a “just deserts” analysis of one defendant’s deathworthiness. Indeed, we presume that “the death sentence is not disproportionate to the crime in the traditional sense.” Pulley v. Harris, 465 U.S. 37, 43, 104 S.Ct 871, 876, 79 L.Ed.2d 29, 36 (1984). We “inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime.” Ramseur, supra,106 N.J. at 326, 524 A.2d 188 (quoting Pulley, supra,465 U.S. at 43, 104 S.Ct. at 876, 79 L.Ed.2d at 36). The role of proportionality review “is to place the sentence imposed for one terrible murder on a continuum of sentences imposed for other terrible murders to ensure that the defendant “has not been ‘singled out unfairly for capital punishment.’ ” ” State v. Timmendequas, 168 N.J. 20, 76, 773 A.2d 18 (2001) (Long, J., dissenting) (citations omitted).

¶6Proportionality review is not a numbers game. Rather, it is the difficult substantive measurement of one defendant’s character and crime against those of similarly-situated defendants. Indeed, even if every defendant in a cohort has been spared, a death sentence will not be disproportionate if the details of the subject defendant’s crime or of his character warrant different treatment than the life-sentenced group. The polestar in each case is whether a defendant’s culpability is greater than that of similarly-situated, life-sentenced defendants and whether “it equals or exceeds that of other death-sentenced defendants.” State v. Loftin, 157 N.J. 253, 335, 724 A.2d 129 (1999) (Loftin II) (quoting State v. DiFrisco, 142 N.J. 148, 184, 662 A.2d 442 (1995) (DiFrisco III), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996)).

¶7Because of the complexities of human nature and the enormously different details of individual crimes, the task of proportionality review is a difficult and, sometimes, macabre one. However, as Justice Brennan noted in Pulley,

although clearly no panacea, such review often serves to identify the most extreme examples of disproportionality among similarly situated defendants. At least to *555this extent, this form of appellate review serves to eliminate some of the irrationality that currently surrounds imposition of a death sentence.

[Supra, 465 U.S. at 71, 104 S.Ct. at 890, 79 L.Ed.2d at 53 (Brennan, J., dissenting).]

¶8II.

¶9Many of the deficiencies in our proportionality review scheme have been detailed previously. See In re Proportionality Review Project, 161 N.J. 71, 99-106, 735 A.2d 528 (1999) (Proportionality Review I) (Handler, J., concurring in part and dissenting in part) (criticizing Court’s standard for assessing disproportionality); Di-Frisco III, supra, 142 N.J. at 224-31, 662 A.2d 442 (Handler, J., dissenting) (criticizing principle of unique assignment); State v. Martini, 139 N.J. 3, 90-91, 651 A.2d 949 (1994) (Martini II) (Handler, J., dissenting) (discussing lack of statistical standard to measure disproportionality under frequency review); State v. Marshall, 130 N.J. 109, 249-50, 263-65, 613 A.2d 1059 (1992) (Marshall II) (Handler, J., dissenting) (criticizing coding of reversed death sentences as death sentences; inconsistency and inherent subjectivity of proportionality tests; inclusion of the defendant’s own case in frequency analysis; and abandonment of generally-imposed standard for proportionality), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 694 (1993).

Indeed,

the permeable boundaries of the process; its flaecidity; the constant change in standards from case to case; the utterly subjective way in which even legitimate standards are applied; and the consistent practice of the Court to focus only on the aggravating aspects of the case under review while underscoring the mitigating factors of the comparison cases allows the Court to conclude that virtually any death sentence is proportional.

[Timmendequas, supra,168 N.J. at 78, 773 A.2d 18 (Long, J., dissenting).]

¶10This case is emblematic of those problems.

¶11III.

¶12Frequency Analysis

¶13In frequency analysis, a statistical modality, we attempt to determine the relative proportionality of a death sentence by *556comparing it numerically with the universe of cases to which it is factually similar. State v. Morton, 165 N.J. 235, 245, 757 A.2d 184 (2000) (Morton II), cert. denied., 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed.2d 306 (2001). Here, Wakefield has been assigned to the E-1 cell, which consists of eases that involve multiple homicide victims killed during the commission of an additional felony. In rejecting Wakefield’s frequency-based claim of disproportionality, the majority points out that in the E-l aggravated multiple victim category, without Wakefield,1 5/28, or 18%, of the defendants were sentenced to death. Ante at 503, 921 A.2d at 1022. According to the majority, that augers poorly for Wakefield because it reflects a societal consensus that death is appropriate for E-l offenders. Ante at 504-505, 921 A.2d at 1023.

¶14Nothing could be further from the truth. The actual percentage is zero. Indeed, all five death sentences that constitute the numerator in the majority’s fraction were reversed because of errors that rendered the trials in which they were imposed unfair. The four defendants comprising the five death sentences (Bobby Lee Brown (TI, V2), Walter Johnson (TI, V2), Anthony McDougald (TI, VI), (TI, V2), and Thomas Koskovich (Tl)) have since been resentenced to life. To suggest that death sentences that were imposed in wrongful proceedings should somehow count against Wakefield in a societal consensus analysis is chilling. “The unfathomable irony of the Court’s holding today is that although the Court found the reversed verdicts too untrustworthy for use in sentencing the individual defendants subject to them, it now finds them sufficiently trustworthy for use in sentencing other defendants who were not subject to them.” Marshall II, supra, 130 N.J. at 254, 613 A.2d 1059 (Handler, J., dissenting).

¶15*557In short, a real calculation of death sentencing frequency demonstrates no societal consensus that death is an appropriate penalty for defendants in the E-l category. On that backdrop, precedent-seeking review is of particular importance.

[T]he higher the frequency of life sentences in the pool of similar cases, the more searching will be the inquiry to test whether comparison with the life-sentenced cases (or more culpable death-sentenced eases) suggests that [a defendant’s death] sentence was disproportionate in the sense of his having been singled out unfairly for capital punishment.

[Id. at 159, 613 A.2d 1059.]

¶16IV.

¶17PrecedenP-Seeking Review

¶18A. Moral Blameworthiness

¶19This ease is a textbook example of the Court changing its standards on a case-by-ease basis in order to achieve a foreordained outcome. For example, although Wakefield admitted to planning the robbery of the Hazards, no evidence was presented to prove that the murder itself was premeditated. In State v. Papasavvas, where the defendant broke into a home in order to steal possessions therein and eventually murdered the owner, we noted that “the murder was not premeditated, at least not in advance of [defendant’s] entry into the [victims’] home.” 170 N.J. 462, 481-82, 790 A.2d 798 (2002). Based at least in part on that factor, we found “Papasawas’s moral blameworthiness to be moderate,” and determined that his death sentence was disproportionate. Id. at 482, 495, 790 A.2d 798. Similar consideration was not given to Wakefield.

¶20Further, the majority does not find Wakefield’s age (twenty-three at the time the crime was committed) to reduce his blameworthiness. Ante at 513, 921 A.2d at 1028. Yet, in assessing Papasavvas, who was also twenty-three years old when he committed murder, we assigned “some mitigating weight to his age.” Papasavvas, supra,170 N.J. at 482, 790 A.2d 798.

¶21*558The other side of that coin is that in upholding death sentences on proportionality review, we have found defendants more death-worthy than those in their cohort, in part because those in the comparison group were only twenty-two or twenty-three years old when they committed murder. See, e.g., State v. Harvey 159 N.J. 277, 298, 731 A.2d 1121 (1999) (Harvey III) (“Age was a mitigating factor for Dollard, Wolfe and Hart who were all twenty-two years or younger when they committed the murders for which they were charged.”), cert. denied., 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed.2d 683 (2000); State v. Harris, 165 N.J. 303, 341, 757 A.2d 221 (2000) (Harris II) (“Unlike Harris, Marrero was relatively young when he committed murder, twenty-three years old.”), cert. denied., 532 U.S. 1057, 121 S.Ct. 2204, 149 L.Ed.2d 1034 (2001); Loftin II, supra, 157 N.J. at 341, 724 A.2d 129 (“Feaster ... was only twenty-two-years old at the time of his offense”). Yet, Wakefield’s age plays little part in the majority’s evaluation.

¶22Further, although Wakefield has an extensive prior record, it is significant that he has never been convicted of a crime of violence. That is yet another characteristic that he shares with Papasawas, whose death sentence we overturned on proportionality review. Papasavvas, supra,170 N.J. at 495, 790 A.2d 798. As we said in Papasavvas, “[h]is criminal history increases his culpability. However, that is offset by the absence of violent offenses prior to this offense.” Id. at 483, 790 A.2d 798. If we found Papasawas’s culpability diminished based on his lack of premeditation, his age, and his non-violent prior record, it is inconsistent that we not do the same when evaluating Wakefield’s character.

¶23The majority opinion is also paradigmatic of the Court’s consistent practice of focusing our attention on a single feature of the ease under review without recognizing its ubiquity. For example, Wakefield’s motive to escape detection and the fact that he “likely could have completed the robbery without committing the murder” are declared by the majority “to substantially exacerbate his moral blameworthiness.” Ante at 509, 921 A.2d at 1025. Those *559factors, however, are nearly universally present in the comparison cases and yet are never considered in assessing the culpability of those defendants. Moreover, to the extent that a consideration is universal, it cannot be used to differentiate the culpability of one defendant from others.

¶24Likewise, the majority concludes that the vulnerability of the Hazards adds to Wakefield’s moral blameworthiness. Ante at 511-12, 921 A.2d at 1027. Again, vulnerable victims are a hallmark of the cases in Wakefield’s cell. Ronald Mazique killed a six year old; Felix Diaz an eight year old; Peter Regan two adolescents. Brown, Masini, and Crumpton killed very elderly people, some older than the Hazards, one stroke-ridden. Thus vulnerability, as a universal characteristic, cannot be used to ratchet up Wakefield’s culpability but not that of the others.

¶25For the same reason, the majority’s inclusion of the notion of family victimization in this analysis, ante at 512-13, 921 A.2d at 1027-28, is analytically unsound,

not because it is not terribly real, but because it is universal and thus cannot serve as a basis to distinguish between defendants. Morton II, supra, 165 N.J. at 293 [757 A.2d 184] (Long, J., dissenting) (criticizing Court’s application of the “non-decedent victim factor” to “every case in which the victim was a ‘unique person’ with a ‘web of familial relations’ — in other words, to every single murder case”) (citation omitted).

[Timmendequas, supra,168 N.J. at 83, 773 A.2d 18 (Long, J., dissenting).]

¶26B. Victimization

¶27I agree that the victimization in this ease was high and that the Hazards suffered intense physical and mental pain. Where I part from the majority is in its concomitant suggestion that Wakefield’s victimization of the Hazards exceeded that of the other criminal comparators. See ante at 515-16, 921 A.2d at 1029. The horrific details of the comparison crimes, laid bare in Part V., infra, plainly underscore the wrongness of that conclusion. In the E-l category, all victims suffered unimaginable deaths including beatings, stabbings, burnings, shootings, and bludgeonings. Victims had their skulls fractured, their dentures split, or their throats slit. *560Some were murdered while attempting to crawl away. One iived on in a chronic vegetative state long after the assault. Several victims were older than the Hazards. Several were children, one as young as six. Some defendants actually laid in wait to murder their victims. One victim was stroke-impaired. Several defendants performed sexual acts on their victims post-mortem. Some defendants killed three or four victims. In the face of those facts, there is no rational basis from which to conclude that Wakefield’s victimization of the Hazards exceeded that of his compatriots in crime. That is very important because the majority bases most of its justifications regarding Wakefield’s sentence on that flawed sentiment. E.g., ante, at 524, 531-32, 921 A.2d at 1034, 1038-39.

¶28C. Character

¶29In terms of Wakefield’s character, I find extraordinary the majority’s conclusion that, although there was “evidence that Wakefield suffered from emotional disease or defect” and a troubled upbringing, (conditions we have always recognized as mitigating, e.g., Marshall II, supra, 130 N.J. at 155, 613 A.2d 1059; Papasavvas, supra,170 N.J. at 482, 790 A.2d 798), it “was contested by the State, thereby reducing its impact on defendant’s blameworthiness.” Ante at 512, 921 A.2d at 1027. This is the first time that mere State opposition is viewed as somehow affecting the quality of a mitigator.

¶30Further, with respect to cooperation with the authorities, the majority recognizes defendant’s statements to the police, his request that his mother cooperate, and his unconditional plea to all the crimes for which he stood charged. Ante at 518, 921 A.2d at 1030-31. That kind of cooperation has always been considered important mitigation in proportionality review cases. See, e.g., Papasavvas, supra,170 N.J. at 491, 790 A.2d 798 (distinguishing Papasavvas from life-sentenced defendant based on latter’s confession to “everything except stealing the homeowner’s jewelry”); Harris II, supra, 165 N.J. at 339, 757 A.2d 221 (noting life-sentenced defendant’s willingness to plead guilty as mitigating *561factor); State v. Cooper, 159 N.J. 55, 104, 731 A.2d 1000 (1999) (Cooper II) (distinguishing Cooper’s death sentence from similarly-situated, life-sentenced defendant who, while initially denying involvement in murder, ultimately confessed), cert. denied., 528 U.S. 1084, 120 S.Ct. 809, 145 L.Ed.2d 681 (2000); State v. Chew 159 N.J. 183, 217, 731 A.2d 1070 (1999)(C%ew II) (crediting another defendant with cooperation with authorities because, while sporadic, he confessed to killing the victim and implicated principal in murder-for-hire scheme), cert. denied, 528 U.S. 1052, 120 S.Ct. 593, 145 L.Ed.2d 493 (1999); DiFrisco III, supra, 142 N.J. at 207-08, 662 A.2d 442 (distinguishing defendant from similarly-situated, life-sentenced defendant who offered unconditional confession and voluntarily turned State’s evidence). Yet, Wakefield receives no benefit because the majority concludes his cooperation was “designed to better his own plight, and not out of any sense of correctness.” Ante at 518, 921 A.2d at 1031. Other than adopting the State’s view, the majority’s wholly subjective conclusion has no basis whatsoever. Moreover, even if it were true, we do not dice a defendant’s cooperation so finely in assessing its bearing on culpability.

¶31Again, with its failure to adhere to standards by which we have lived in prior cases, the majority effectively cuts the heart out of our proportionality review process.

¶32V.

¶33Comparison Cases2

¶34Because all E-l offenders ultimately received life sentences, in order for the Court to uphold Wakefield’s death sentence it must *562conclude that Wakefield is worse than, not merely as culpable as, his cohorts. Who are those comparison defendants that the majority concludes deserve to live while Wakefield awaits death?

¶35Felix Díaz and a co-defendant broke into Diaz’s ex-lover’s house, awakening a male family member. They beat him and an eight year-old niece. Then they cut the man’s throat and bludgeoned the eight year old to death before setting their bodies on fire. Diaz and his co-defendant then laid in wait for several hours for the ex-lover, rigging a light switch “so that the [victim] would be in a specific position for the murder.” Hon. David S. Baime, Report of the Special Master on Proportionality Review: State v. Brian Wakefield B-12 (Oct. 21, 2004) [hereinafter Wakefield Report]. When the victim, a sixty-three year-old man, arrived home, Diaz shot him repeatedly and set his body on fire. A pet dog was also killed. Diaz’s culpability is actually greater than Wakefield’s. The majority recognizes the similarity between Diaz and Wakefield, and acknowledges the sentences are “disparate.” Ante at 526, 921 A.2d at 1035.

¶36Frank Masini murdered four people, including an elderly couple for whom he had worked as a handyman. He repeatedly stabbed the couple in the neck with a letter opener. When found, both were covered in blood, and the woman’s girdle and underpants had been cut off. The victims had a number of defensive wounds on their hands. While investigating those murders, the police discovered similarities with the earlier murders of two elderly women (one Masini’s eighty-five year-old aunt), each of whom had been stabbed repeatedly and found partially nude. Masini’s culpability, as a middle-aged man with no psychological, alcohol, or drug abuse problems, who killed four people, is plainly greater than Wakefield’s. Grudgingly, the majority characterizes them as equal. Ante at 528, 921 A.2d at 1036.

¶37Walter Johnson, a twenty-four year old with a record of burglaries, shot a man and bludgeoned the man’s wife to death with a poker as she attempted to escape after the gun misfired. The majority recognizes that Johnson’s character, degree of blamewor*563thiness, and the victimization were “similar” to Wakefield’s. Ante at 527, 921 A.2d at 1036.

¶38Roy Watson, a forty-four year-old man with a long criminal history, beat an elderly couple to death, drinking scotch while watching them die and later stealing their belongings. His life sentence is recognized by the majority as “disparate.” Ante at 532, 921 A.2d at 1039. However, his drug addiction is declared as a mitigating factor, whereas Wakefield’s neurological impairment is not. See ante at 532-33, 921 A.2d at 1039. The majority also apparently does not consider the post-murder scotch drinking conduct as evidence of a lack of remorse although it concludes otherwise with respect to Wakefield’s consumption of fast food after the commission of his crime. See ante at 532-33, 921 A.2d at 1039.

¶39Ronald Mazique killed a woman and her six year-old grandson by striking them over thirty times each with a hammer, and then attempted to blow up their apartment by turning on the gas. Although recognizing his case as “quite similar” to Wakefield’s, the majority simply distinguishes them on the ground of Mazique’s “traumatic upbringing,” while discounting the jury’s findings of emotional and physical neglect and domestic violence by Wake-field’s family. Ante at 529, 921 A.2d at 1037.

¶40Peter Regan, a twenty-eight year old with a history of robbery and assault, was burglarizing his girlfriend’s house when a fifteen year old entered the residence. He picked up an aluminum baseball bat and hit her in the head. When she started screaming and tried to get up from the floor, he continued to hit her in the head until she died. When his girlfriend’s twelve year-old daughter entered the home, Regan killed her by hitting her six times in the head with the aluminum bat. He then removed the victims’ clothing from the waist down to make it look as if a rape had occurred. How the majority can conclude that the victimization in this case is less than Wakefield’s is unfathomable. Ante at 531-32, 921 A.2d at 1038.

¶41*564Anthony McDougald was twenty-seven years old when he enlisted the help of a thirteen year-old girl, with whom he was romantically involved, in murdering the parents of another thirteen year-old girl, with whom he had had a sexual relationship. McDougald first slit the father’s throat and stabbed him in the chest multiple times. When the victim began crawling away, McDougald hit him on the head with a bat, crushing his left ear and fracturing his skull on both sides. The Medical Examiner estimated that the father continued to survive for approximately ten to fifteen minutes. McDougald then entered the bedroom and hit the mother on the head with a cinder block and the bat before cutting her throat. He also pulled down her underpants and inserted the bat three inches into her vagina. McDougald came from a deprived, abusive background and was involved with drugs when he committed murder. Nevertheless, the sheer brutality of his crime, along with the fact that he persuaded a thirteen year-old girl to be his accomplice, renders him more culpable than Wakefield. Yet, despite its assessment that McDougald’s crimes were “horrifying,” the majority concludes, without discussing Wakefield’s own mitigators, that because McDougald had two mitigators that Wake-field did not (extreme mental disturbance and intoxication), Wake-field’s death sentence is not disproportionate. Ante at 530, 921 A.2d at 1038.

¶42Louis Crumpton’s case, especially, suggests the disproportionality of Wakefield’s sentence, because of the similarity of the facts. Crumpton, like Wakefield, brutally killed two elderly people in the course of a burglary. In Crumpton’s case, one of his victims, an eighty-six year-old woman, was discovered with severe trauma to her head and face, blackened eyes, and dentures split in two. The other victim, an eighty-one year-old woman was found sitting upright against a couch, covered in blood and with severe trauma to her face. She did not die immediately but lived in a vegetative state for several months. Crumpton, a thirty-six year-old man, had perpetrated numerous burglaries in the area. The majority justifies Wakefield’s death sentence on the ground that he entered the Hazard’s home knowing it was occupied. Ante at 525, 921 *565A.2d at 1034. How could that be the difference between life and death given the extraordinary violence of Crumpton’s crimes against elderly victims and the absence of standard psychological mitigators in his case?

¶43Bobby Brown, a twenty-three year old, killed his paramour’s eighty-two year-old, stroke-impaired aunt and sixty-four year-old uncle. The uncle was stabbed ten times with scissors and was “hard to kill” according to Brown. Baime, supra, Wakefield Report, at B-6. The aunt was shot. Brown had no psychiatric history or drug influence. The majority recognizes Wakefield’s mitigation as greater than Brown’s but justifies Wakefield’s death sentence based solely on “increased victimization.” Ante at 524, 921 A.2d at 1034.

¶44The details of those comparison cases underscore that there is no real distinction between Wakefield and the others that justifies his death over their lives.

¶45VI.

¶46Perhaps recognizing that the subjective distinctions in its comparisons do not justify a lethal injection for Wakefield and a life sentence for everyone else, the majority adopts a new scheme of comparisons,

by engaging in a more detailed comparison between defendant and the remaining nine murderers within his El statistical cohort. As points of comparison, we distinguish between defendant and Crumpton, Johnson, Masini and Began because their life sentences were the result of negotiated plea agreements, whereas defendant chose instead to place his fate in the hands of a jury. We also differentiate between defendant and Díaz, Mazique, McDougald and Watson because the juries in each of those latter eases either found that the aggravating factors did not outweigh the mitigating factors or they deadlocked on the issue, automatically resulting in the imposition of a life sentence. Thus, of the Category El group, only Brown remains as a meaningful point of comparison.

[Ante at 533-34, 921 A.2d at 1039-40.]

¶47The problems with that approach are legion. First, we have never made the distinctions in death penalty eases that the majority here adopts. For example, it distinguishes Crumpton, Johnson, Masini, and Regan from Wakefield, on the basis of the former having been *566subject to plea agreements. Ante at 533-34, 921 A.2d at 1039-40. Defendant thus stands as the only individual in the history of this Court’s proportionality review to be deprived of the benefit of comparison to defendants who have pled guilty, thereby avoiding capital prosecution.3 As prior cases make clear, the Court has never before used a plea bargain, in itself, as a distinguishing characteristic among death-eligible cases.

¶48The majority’s error in distinguishing eases where a jury “either found that the aggravating factors did not outweigh the mitigating factors or they deadlocked on that issue,” is even graver. Ante at 534, 921 A.2d at 1040. A jury verdict that the aggravating factors do not outweigh the mitigating factors is a unanimous determination that the defendant is not deathworthy under N.J.S.A. 2C:11-3c(3)(b). Further, where a jury is deadlocked on the ultimate balance of the aggravating and mitigating factors, this Court has, without fail, treated such cases as life sentences for the purposes of proportionality review comparisons.4

¶49*567In treating a plea, a verdict, and a jury’s inability to decide whether a defendant is deathworthy as characteristics distinguishing between eases, the Court essentially creates distinctions where there should be none. Ante at 533-34, 921 A.2d at 1039-40. Those invalid distinctions reduce the universe of cases to a point where proportionality review is no longer meaningful. To be sure, the majority is free to jettison our scheme or to retool it for future cases. What it is not free to do is to rely on distinctions that confound our prior jurisprudence to justify Wakefield’s death. Wakefield is no better or worse than the members of his band. Yet, he alone awaits death and they have been spared. That outcome cannot stand.

¶50VII.

¶51One final note. The death penalty was declared constitutional over twenty years ago in Ramseur, supra,106 N.J. at 154, 524 A.2d 188, and we have continued perfunctorily to give that declaration lip service. See, e.g., State v. Josephs, 174 N.J. 44, 138-40, 803 A.2d 1074 (2002). Nevertheless, it is time to revisit the issue because Ramseur, supra,relied on “evolving standards of decency” to uphold that ultimate sanction. 106 N.J. at 171, 524 A.2d 188 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, 642 (1958)). If those standards applied then — they apply now. I have previously detailed some changes that have taken place since Ramseurwas decided.

Indeed, ... a recent survey by the highly respected Eagleton Center for Public Interest Polling, a project of the Institute of Politics of Eutgers University, provides compelling evidence that community consensus against the death penalty is continuing to evolve. Eagleton Institute of Politics, New Jerseyans’ Opinions on a Death Penalty Moratorium (May 2002) [hereinafter Eagleton Survey].

The study, based on interviews conducted with 803 New Jersey residents in May 2002, evinces a significant decrease in support for the death penalty. It shows that *56860 percent of New Jersey residents support the death penalty as punishment for murder. Id. at 1. Sixty-three percent supported it when the issue was studied in 1999. Id. at 2. When we last considered the constitutionality of the death penalty, the then most recent surveys, conducted in 1977 and 1981 by the Eagleton Poll, showed public support for this State’s death penally at 72 percent.

When presented with the alternative of life in prison without parole, the public’s support for the death penalty dropped to 36 percent, down from 44 percent in 1999. Eagleton Survey at 3. Moreover, as in prior years, New Jersey residents are less likely than other Americans to prefer the death penalty over life in prison without parole. Ibid. In addition, 66 percent of New Jersey residents — including 60 percent of those who favor the death penalty overall — favor a temporary halt to executions while a study is conducted to ascertain whether the death penalty is being administered accurately, fairly, and economically. Id. at 4.

The majority’s reliance on our legislature’s inaction regarding the death penalty as “the best and most reliable indicator” of contemporary values is mysterious in light of its citation to the recent United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held, among other things, that a national consensus has developed in the last thirteen years against the execution of mentally retarded persons. Despite that national consensus, our capital legislation still authorizes the execution of the mentally retarded, indicating that, at least as far as the United States Supreme Court is concerned, our legislature is out of synchronicity with “evolving standards of decency.” Id. at 311, 122 S.Ct. at 2247, 153 L.Ed.2d at 344.

[Josephs, supra, 174 N.J. at 162-64, 803 A.2d 1074 (Long, J., concurring in part and dissenting in part) (citations omitted).]

¶52The majority’s citation to the New Jersey Death Penalty Study Commission Report that reinforces my view of the changing moral climate, renders more curious its adamant refusal even to consider the issue. Ante at 498, 921 A.2d at 1018. I remain, as I was in Josephs:

[M]ystified by the Court’s resistance to revisiting a fifteen [now twenty] year-old opinion that, by its very terms, was rooted in conclusions about the public’s appetite for the death penalty that appear to have changed. The suggestion that the Court’s past perfunctory rejection of equally perfunctory challenges to Ramseurover the years gives currency to that opinion is neither jurisprudentially sustainable nor an appropriate response to a case involving the ultimate sanction of death.

[Id. at 164-65, 524 A.2d 188 (Long, J., concurring in part and dissenting in part).]

¶53For those reasons, as well as the reasons expressed by Justice Wallace in his dissenting opinion on the merits, I dissent.

¶58dissenting.

¶59When life hangs in the balance, error has no place. Indeed, “the nature of the death penalty, which leaves no room for the error tolerable in other cases, requires ‘a level of error-free process that is commensurate with the criminal sanction of death.’ ” State v. Papasavvas, 163 N.J. 565, 636, 751 A.2d 40 (2000) (Long, J., dissenting) (quoting State v. Bey, 112 N.J. 45, 119, 548 A.2d 846 (1988) (Handler, J., concurring)), remanded by 170 N.J. 462, 790 A.2d 798 (2002).

¶60In defendant’s penalty phase trial, the process was far from error-free. In fact, there were numerous errors which, when considered cumulatively, served to deprive defendant of the right to a fair trial. Because I cannot place confidence in the death sentence imposed under such circumstances, I must dissent.

¶61I.

¶62This Court has previously recognized that it must exercise particular vigilance in reviewing prosecutorial misconduct claims in capital cases, dismayed as it was “by the frequency of prosecutor’s comments that lay ‘beyond the bounds of propriety.’ ” Papasavvas, supra, 163 N.J. at 622, 751 A.2d 40 (citation omitted). Moreover, this Court has expressed a willingness to find prejudice resulting from prosecutorial misconduct in a capital case more readily than in other criminal matters “[bjecause death is a uniquely harsh sanction.” State v. Ramseur, 106 N.J. 123, 324, 524 A.2d 188 (1987).

¶63To be sure, prosecutors have a special duty to seek justice. See, e.g., State v. Reddish, 181 N.J. 553, 641, 859 A.2d 1173 (2004) (noting that “prosecutors are charged not simply with the task of securing victory for the State but, more fundamentally, with seeing that justice is served”). “Prosecutors may fight hard, but they must also fight fair.” State v. Pennington, 119 N.J. 547, 577, 575 A.2d 816 (1990), overruled on other grounds by State v. Brunson, 132 N.J. 377, 625 A.2d 1085 (1993), and superseded by *570statute, N.J.S.A. 2C:ll-3i, as recognized in State v. Cruz, 163 N.J. 403, 412, 749 A.2d 832 (2000).

¶64In my view, the prosecutor overstepped the bounds of fairness on several occasions, beginning with the invocation of the authority of the State in the opening statement and later in easting unjustified aspersions on defense counsel and witnesses during the trial.

¶65A.

¶66Where a prosecutor has invoked the authority of the State, courts have not hesitated to find a deprivation of a defendant’s right to a fair sentencing hearing. The United States Court of Appeals for the Eleventh Circuit explained that “[sjueh arguments are objectionable because their effect is to assure the jurors that someone with greater experience has already made the decision that the law imposes on them.” Tucker v. Zant, 724 F.2d 882, 889 (11th Cir.1984), vacated and remanded sub nom. Tucker v. Kemp, 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985).

¶67In his opening statement, the prosecutor clearly invoked the authority of the State when he told the jury, “[tjhe State does not seek the death penalty on a routine basis. It is not something that we do lightly. The State seeks the death penalty when the State believes the facts call for it.” In response to defense counsel’s motion for a mistrial, which was denied, the trial court issued the following instruction to the jury:

If during the course of either opening any counsel referred to their personal opinion or personal belief, that is not a proper aspect of presentation and counsel’s belief or counsel’s opinion is not evidence and is indeed not proper argument either. So to the extent there was any such argument or presentation made, it should be disregarded by you and you should allow that to play no role in any determination which you make.

¶68That instruction fell short of curing any prejudice stemming from the prosecutor’s statements. Indeed, the instruction was conditional, and thus diluted. By referring to the expression of a personal opinion, the instruction did not directly address the true problem of the prosecutor’s invocation of the experience of the *571State. As this Court explained in a similar context, “only a clear and precise instruction referring specifically to the improprieties and disapproving them could possibly have eliminated the harm already done to the defendant’s rights.” State v. Farrell, 61 N.J. 99, 107, 293 A.2d 176 (1972). The failure to give a clear and precise instruction to disregard the prosecutor’s references to the State not seeking the death penalty on a routine basis, and the like, was error.

¶69B.

¶70Additionally, the prosecutor overstepped the bounds of propriety on several other occasions throughout the penalty phase trial. It is well-established that prosecutors may not cast “unjustified aspersions on the defense or defense counsel.” State v. Nelson, 173 N.J. 417, 461, 803 A.2d 1 (2002) (citing State v. Smith, 167 N.J. 158, 177, 770 A.2d 255 (2001)). Here, when the prosecutor implied that defense counsel was not forthcoming in providing discovery materials and asking questions of defense experts that went beyond the proper scope of cross-examination, the prosecutor violated that fundamental maxim.

¶71Further, the prosecutor’s unwarranted comments and questions that impugned the integrity of various defense witnesses were not appropriate. This Court in Nelsonset aside the defendant’s death sentence because of the improper comments by the prosecutor, which included implications that defense witnesses were not credible because they were part of the “defense team.” Id. at 461-63, 803 A.2d 1. Here, the prosecutor’s comments similarly gave the impression that defense experts were biased, if not worse. The prosecutor asked a defense medical expert, “[y]ou were hired for court purposes. And once you are done here, your work is done with Mr. Wakefield, correct?” He then asked that expert, “[a]s a physician, your job and your oath requires you to help and treat patients, correct?” That series of questions was meant to imply that the doctor was merely a mercenary who violated his oath by evaluating defendant strictly for the purposes of trial.

¶72*572When the defense social worker who was presenting defendant’s social history testified on cross-examination, she told the prosecutor, in response to his comment that a specific quote did not appear in a report, “I don’t feel comfortable relying on what you’re saying.” The prosecutor responded, “[w]ell, the feeling is mutual, ma’am.” Such a personal attack on the witness’s veracity was completely improper and undermined the witness’s testimony. Because the social worker was a critical witness for defendant, the prosecutor’s comment served to violate defendant’s right to a fair trial.

¶73Along with the instances discussed above, the prosecutor engaged in other improper behavior throughout the trial, such as, in his summation, likening defendant to a wolf, a tactic that this Court has criticized. See State v. Williams, 113 N.J. 393, 455-56, 550 A.2d 1172 (1988).

¶74C.

¶75Under the rules of professional responsibility, the prosecutor must “exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extra judicial statement that the prosecutor would be prohibited from making.” RPC 3.8(f).

¶76At trial, prospective juror, Paul Trinkle, who was selected to serve during the initial voir dire process, was later excused when he revealed after a three month adjournment before the trial began that he and a secretary in the prosecutor’s office had talked about a witness in the case. When questioned by the trial court, Trinkle stated that what the secretary told him about the witness could impact his ability to fairly judge that witness’s testimony.

¶77Defense counsel wanted Trinkle as a juror on the panel, but the conduct of the prosecutor’s employee deprived counsel of the opportunity to do so. That deprivation, caused by the actions of the prosecutor’s secretary, can be attributed to the prosecutor under basic agency principles. See State v. Baker, 310 N.J.Super. *573128, 133, 708 A.2d 429 (App.Div.1998) (attributing knowledge to State where head of prosecutor’s office, rather than prosecutor on case, invaded secrecy of jury deliberation process). In failing to ensure that its employees did not taint the jury pool, the State denied defendant a juror who might have provided the single vote that could have made the difference between life and death — for in a capital case, if even one juror finds the aggravating factors do not outweigh the mitigating ones, death cannot be imposed.

¶78D.

¶79As this Court has stated, “[i]n the highly emotional setting of the penalty phase of a capital murder case, we cannot conclude that multiple violations of prevailing standards of prosecutorial conduct had no impact on th[e] jury’s deliberations.” State v. Rose, 112 N.J. 454, 523-24, 548 A.2d 1058 (1988). In my view, the cumulative effect of the prosecutor’s errors committed throughout defendant’s penalty phase proceeding deprived him of his constitutional right to a fair trial. Therefore, I cannot support the majority’s decision to affirm defendant’s conviction and death sentence.

¶80II.

¶81The trial court further denied defendant’s right to a fair trial by failing to heed this Court’s instruction that, in the penalty phase of a capital proceeding, “doubts must be resolved in favor of admission when evidence of a mitigating factor is offered by the defendant.” State v. Davis, 96 N.J. 611, 620, 477 A.2d 308 (1984) (footnote omitted), superseded by statute, N.J.S.A. 2C:11-3i, as recognized in Cruz, supra, 163 N.J. at 412, 749 A.2d 832.

¶82Defendant sought to introduce two photographs — one of his mother and one of the man who raised him and may be his father — which had been sent to him while he was in jail awaiting his capital murder trial. In the photograph of his mother, she is smoking something and written on the back is the following: “Fla/Got/Smokin to/ do. It ain’t/ nothing nice / Love/ mommy.” *574The other photograph depicts the man smoking what appears to be a cigar and written on it is: “The Real Puff Daddy/ Pla Style.” The trial court refused to admit the pictures, ruling that they were ambiguous as to the substance being smoked, prejudicial, largely irrelevant as post-homicidal, and cumulative.

¶83In seeking to offer the pictures, defendant wished to demonstrate his parents’ indifference to his situation. In my view, the photographs could have supported three of defendant’s proffered mitigating factors: (1) that he was raised in an environment where domestic violence, criminal activity, and substance abuse were pervasive (found by seven jurors); (2) that he was raised in a home without structure, boundaries, or positive role models (found by six jurors); and (3) that he suffered physical and emotional neglect from his family (found by three jurors).

¶84In Lockett v. Ohio, the United States Supreme Court held that a sentencer may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973, 990 (1978). The Legislature codified that proposition under N.J.S.A. 2C:ll-3e(2)(b), which allows a defendant at a capital penalty phase trial to “offer, without regard for the rules governing the admission of evidence at criminal trials, rehable evidence relevant to any of the mitigating factors.”

¶85Given the guidance from both the United States Supreme Court and this Court, as well as the statutory framework, the trial court should have admitted the photographs into evidence. This is especially so because the prosecutor contested the fact that the photographs would have helped to prove that defendant had a horrendous upbringing. When discussing the evidence defendant offered regarding his mother, the prosecutor argued that “things were exaggerated.” Although the jurors might have disbelieved the social worker who presented defendant’s background, it would have been more difficult for them to ignore physical evidence such as the photographs. Thus, had the photographs been offered, it is *575possible that more than three jurors might have found that defendant suffered neglect from his family and more than six jurors might have found that he was raised in a home without positive role models. In the context of a capital penalty phase trial, where a necessarily subtle and subjective weighing process might lead one juror to vote for life, thus removing the death penalty as an appropriate sentence, I conclude that such an error is substantial.

¶86This Court has “acknowledged that in the sentencing phase of a capital proceeding — a life or death contest — a defendant is entitled to the use of all reliable, helpful information.” Davis, supra,96 N.J. at 619, 477 A.2d 308. Because the trial court did not adhere to that standard, defendant’s case was unfairly hampered. It is impossible for me to conclude with confidence that not one juror would have weighed the aggravating and mitigating factors differently and voted to spare defendant’s life if the jury had been presented with photographs showing such blatant and disturbing indifference on the part of defendant’s parents to the fate of their son.

¶87III.

¶88One other factor might not, independently, warrant granting defendant a new penalty phase trial, but when considered in combination with the other errors discussed above, I believe contributed to the denial of his right to a fair trial.

¶89The trial court’s instruction to the jury on reasonable doubt failed to follow the instruction set forth by this Court in State v. Medina, 147 N.J. 43, 685 A.2d 1242 (1996), cert. denied, 520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed.2d 688 (1997). In particular, the trial court omitted the last two sentences from the Medinacharge:

If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you are not firmly convinced of defendant’s guilt, you must give the defendant the benefit of the doubt and find him not guilty.

[Id. at 61, 685 A.2d 1242.]

¶90*576Because a capital penalty phase jury must find that aggravating factors outweigh mitigating factors beyond a reasonable doubt, the omitted language could have been adapted to this setting, with the last sentence reading: “If, on the other hand, you are not firmly convinced that the aggravating factors outweigh the mitigating factors, you must give the defendant the benefit of the doubt and return a life sentence.”

¶91While this error might, at first blush, seem inconsequential, the omission of the “benefit of the doubt” • language represented a significant harm to defendant as the jury was not reminded of the essential presumption for life. The simple, straightforward quality of the “benefit of the doubt” language cannot be discounted, for a layperson on the jury can much better understand the nature of the balancing required when presented with such language. Without it, the State’s burden was unfairly lessened.

¶92IV.

¶93Defendant contends that he was further denied his right to a fair trial because the trial court did not charge the jury that he was entitled to a presumption of life. Although I agree with the majority that the court’s failure to issue such an instruction sua sponte was not error, I part company with the majority when it states that a presumption of life charge is never required.

¶94In Rose, supra,we held that a defendant is not entitled to a presumption against the death penalty charge. 112 N.J. at 545, 548 A.2d 1058. However, at the time Rose was decided, aggravating factors were not treated as the functional equivalent of elements of a crime. Because they now are, State v. Fortin, 178 N.J. 540, 646, 843 A.2d 974 (2004), the legal landscape has changed sufficiently that the presumption of life charge must be reconsidered.

¶95“The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126, 130 (1976). The presumption *577operates as a safeguard against the dilution of the State’s burden to prove all elements of a crime beyond a reasonable doubt. Taylor v. Kentucky, 486 U.S. 478, 485-86, 98 S.Ct. 1930, 1935, 56 L.Ed.2d 468, 475 (1978). Thus, the presumption is inextricably linked to the State’s burden to prove the elements.

¶96Because, after Fortin, the aggravating factors necessary to make a defendant eligible for the death penalty are treated like elements of a crime and must therefore be proven beyond a reasonable doubt, I conclude that a presumption of life instruction should be given.

¶97V.

¶98In sum, defendant received a death sentence based on a proceeding that was not fair. The majority is convinced that the jury would have returned a verdict of death even if none of those errors occurred. I am not. Because I cannot place such confidence in the outcome of an unfair proceeding, I would vacate defendant’s death sentence and remand for imposition of a sentence of life imprisonment.

¶99For affirmance — Justices LaVECCHIA, ZAZZALI, ALBIN and RIVERA-SOTO — 4.

¶100For reversal — Justices LONG and WALLACE — 2.