State v. Szemple, ___ N.J ___ (2021); J.K. v. New Jersey State Parole Bd., ___ N.J. ___ (2021). The Court decided these two criminal appeals in the last two days. Szemple, issued on Wednesday, was a 4-3 decision, while J.K., which came out yesterday, was a unanimous ruling.
Szemple was a murder case that had been to the Supreme Court before. State v. Szemple, 135 N.J. 406 (1994) (affirming defendant’s conviction). Like State v. Lodzinski, in which the Supreme Court deadlocked 3-3, thus affirming defendant’s conviction for murder as discussed here, the Szemple case could easily be the subject of a television movie or other dramatization.
Nicholas Mirov disappeared in 1975. Shortly after his disappearance, defendant told members of Mirov’s family that he had driven Mirov to a bus station so that Mirov could go to New York. Four months later, police found a body in the woods. But they did not identify the body as Mirov until sixteen years later, in 1991, when defendant’s brother told the police, in connection with a different homicide, that defendant had admitted killing Mirov.
A trial in 1991 ended in a mistrial. At that trial, a key piece of evidence was a letter that was believed to be from defendant to his then-wife, Theresa Boyle (“the Boyle letter”) in which defendant confessed to the murder of Mirov. It was Theresa Boyle’s father who produced that letter. The Boyle letter was admitted into evidence over objection. At a second trial, Szemple was convicted, and the Supreme Court eventually upheld that conviction.
The Supreme Court’s opinion this week resulted from the fact that, to quote Justice Solomon’s majority opinion, “In 2018, forty-three years after Mirov’s murder and nearly twenty-five years after defendant’s conviction, defendant moved to compel the State to produce any statements or reports memorializing interviews with Theresa following her father’s production of the letter. In doing so, defendant claimed the discovery sought might support a motion for a new trial. ” The State opposed that. The Law Division rejected Szemple’s motion, but the Appellate Division reversed, concluding (as Justice Solomon summarized it) that “the State’s obligation to produce discovery continued post-conviction under Rule 3:13-3(b)(1)(F) and (G) and the constitutional requirement to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963).”
By a 4-3 vote, the Supreme Court reversed. Joining Justice Solomon in the majority were Justices Patterson, Fernandez-Vina, and Pierre-Louis. Justice Albin filed a dissent, in which Chief Justice Rabner and Justice LaVecchia joined.
The majority applied the abuse of discretion standard of review. The continuing duty of the State to disclose material such as any interview with Theresa Boyle ended upon Szemple’s conviction, Justice Solomon said. Neither Rule 3:13 nor Brady creates an automatic right to discovery. Defendant’s new trial motion required a showing of “reasonable diligence,” and defendant could not make that showing, having waited so many years to make his application. The majority opinion contains a detailed discussion of the standards for post-trial discovery motions, focusing in particular on State v. Marshall, 148 N.J. 89 (1997).
The dissenters argued that “[t]he passage of time does not bar a court from ordering the disclosure of relevant evidence withheld from the defense that may shed light on a flawed trial process.” They found the majority’s opinion inconsistent with Marshall and other cases, and with “fundamental notions of justice,” especially given the central importance of the Boyle letter to Szemple’s conviction.
In contrast to the dramatic facts of Szemple, and the 4-3 split among the Justices, J.K. was a unanimous per curiam opinion, though an unusual one. The issue there was whether the Parole Board had acted arbitrarily, capriciously, or unreasonably in denying the application of J.K., a dual citizen of the United States and Poland who was convicted of attempting to lure a minor into a motor vehicle and was sentenced to Community Supervision for Life, to relocate to Poland. Affirming the Appellate Division, the Court upheld the Parole Board’s ruling, finding J.K.’s submissions to the Parole Board “inadequate to secure the relief sought.”
J.K. argued that he had “refined and updated” his application to relocate. The Court said that, to the extent that was so, his recourse was to the Parole Board in the first instance, not the Court. The Court also declined to address constitutional and other issues that J.K. had not raised below.
This case was unusual because the Parole Board had adopted a policy, Policy # 09.821, titled “Offender Requests to Reside Outside of the United States of America,” that was not disclosed to the Supreme Court, “as it should have been,” until just before the oral argument of this case. That policy, the Court said, would have “render[ed] most of this appeal unnecessary to address” if it were valid. The Court ordered briefing about the policy, and the case was re-argued.
The Attorney General contended that the Parole Board lacked authority to promulgate the policy. The Court rebuffed that argument. “Read as a whole, the Parole Act broadly allows the Board to impose and alter conditions of parole. We see no reason why the permanent residence of a parolee may not be one of those conditions that may be imposed or altered by the Board–so long as the Board determines it can adequately continue to supervise the parolee. No statutory impediment emerges from the Parole Act that denies the Board the ability to permit international relocation of a CSL parolee, such as J.K.,who enjoys dual citizenship with another country, while maintaining Board supervision.” J.K. will now have the ability to make a new submission to the Parole Board under that policy.