# State v. Timmendequas

> Supreme Court of New Jersey · August 11, 1999 · 161 N.J. 515

URL: https://www.frixlaw.com/law-library/cases/9649498

## Case

- **Full name:** State of New Jersey, Plaintiff-Respondent, v. Jesse Timmendequas, Defendant-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** August 11, 1999
- **Citations:** 161 N.J. 515; 737 A.2d 55; 1999 N.J. LEXIS 1007
- **Precedential status:** Published
- **Opinion:** Dissent by Handler
- **Judges:** Garibaldi, Handler, King, Stein
- **Cited by:** 307 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9649498

## How later opinions describe it (automated extraction)

- stating that "[g]enerally, if no objection was made to . . . improper remarks, the remarks will not be deemed prejudicial" because the "failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial" and the court was "deprived o…
- holding that the defendant’s forty-four hour interrogation, which began at 12:30 a.m., did not warrant suppression of his interrogation as the questioning was not “round the clock,” the defendant was afforded breaks, and the defendant never indicated that he was too tired or h…
- holding that due process concerns prevented the court from setting aside plea agreement based solely on prosecutor's failure to notify victim of the State's plea offer
- recognizing that arguments of counsel "can mitigate prejudice resulting from a less-than-perfect charge"
- finding that "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made" and "deprives the court of the opportunity to take curative action"

## Opinion text

HANDLER, J.,
dissenting.
It has been often said that justice is blind. By that we mean judicial resolutions are not preconceived or preordained. The justice this Court metes out today seems to have come by way of a course selected to reach a specific destination — the execution of Jesse Timmendequas. Death is a punishment that we impose upon the worst among us. Yet, in seeking to administer this punishment, we cannot help but bring out the worst in ourselves. This case presents that danger of a system of justice failing in the face of its most extreme challenge — the prosecution of capital murderers. The Court has, by its decision, compromised well-established legal principles to justify defendant’s death sentence.
One can say with certainty that the crime committed by Jesse Timmendequas was horrific, so uniformly condemned that it changed the legal landscape for sex offenses nationwide. See Doe v. Poritz, 142 N.J. 1, 17-19 , 662 A.2d 367 (1995). With equal certainty, however, one can say that this defendant did not receive *651 the most basic right of our justice system and civilization: a fair trial. To condemn to death a defendant who has been denied such a fundamental right is not justice.
I
Defendant, Jesse Timmendequas, appeals his conviction for capital murder and his death sentence. On May 30, 1997, defendant was convicted of the kidnapping, sexual assault and murder of seven-year-old Megan Kanka. He was sentenced to death on June 20,1997.
Defendant raises nineteen issues with this Court, most of which do not warrant a remedy. Four of defendant’s claims, however, clearly require reversal.
First, the trial court erred in reconsidering and countermanding its initial decision to empanel a jury from Camden County. That reconsideration and reversal not only implicated and impaired defendant’s Sixth Amendment right to a jury selected from a fair cross-section of the community, it also likely contributed to the prejudice that is raised by another of defendant’s claims of error— a majority of the jury members had knowledge or suspected that defendant was a long-time sex offender. The trial court’s failure to use all available methods to empanel an impartial jury thus resulted in extreme prejudice to defendant, a level of prejudice that this Court has heretofore held requires, at the very least, a new penalty trial. Next, the prosecutor engaged in a pattern of misconduct throughout defendant’s guilt- and penalty-phase trials that, in my view, requires reversal of defendant’s conviction as well as vacation of his sentence. Finally, the trial court committed reversible error in failing to admit mitigating evidence pursuant to this State’s broad rules for admission of such evidence.
I, therefore, dissent.
II
Defendant asserts that the trial court’s decision to reconsider its initial order to empanel a jury from Camden County, which *652 resulted in the granting of the State’s motion to empanel a jury from Hunterdon County, constituted a violation of his Sixth and Fourteenth Amendment rights to due process and a fair and impartial jury, and, therefore, that his conviction must be reversed and his sentence vacated. I agree with the majority that defendant’s due process rights were not implicated by the trial court’s second reconsideration of the venue issue. See ante at 562, 737 A.2d at 80. Unlike the majority, however, I find that defendant’s Sixth Amendment rights were clearly circumvented.
Defendant’s claim is based on two important factors: (1) the disparity in racial demographics between Hunterdon County and Mercer County; and (2) the level and inflammatory nature of press coverage in this case.
A.
On September 22, 1995, due to the flood of publicity that inundated this case, see id. at 550-51, 737 A.2d at 73, defendant made a pretrial motion for a change of venue, in which he cited a total of 544 separate articles, including stories, columns, cartoons, advertisements, and letters to the editor, from Mercer County’s two daily newspapers, the Trentonian and the Trenton Times. Analyzing the publicity in accordance with the standard used in State v. Koedatich, 112 N.J. 225, 271-73 , 548 A.2d 939 (1988) (Koedatich I), cert. denied, 488 U.S. 1017 , 109 S.Ct. 813 , 102 L.Ed.2d 803 (1989), the trial court acknowledged the overwhelming and brazen press coverage of defendant’s case, and determined that prejudice from the pretrial publicity must be presumed. A “change of venue,” the court concluded, “is necessary to overcome the realistic likelihood of prejudice from pretrial publicity.”
In determining the judicial remedy necessary to confront and combat the pretrial publicity, the trial court was mindful of the need for the replacement jury pool to reflect a cross-section of the community in which the trial would be held. The court also recognized that the replacement county must have the capacity to accommodate jury selection. See State v. Harris, 282 N.J.Super. *653 409, 417-18, 660 A.2d 539 (App.Div.1995), appeal after remand, 156 N.J. 122 , 716 A.2d 458 (1998). Accordingly, the trial court ordered a change of venue to Camden County pursuant to Rule 3:14-2. In so doing, it noted,
[I]t is to be expected that publicity mil reach new heights at the time of trial; perhaps unprecedented publicity. Even considering that which has been generated in the ongoing Harris case.
Subsequent to the court’s ruling, the State requested a hearing on the location chosen by the court for the trial because the prosecutor had not yet presented evidence on demographies. The court allowed the State to submit a motion for reconsideration on the choice of venue. On November 21,1995, the State did so. At the December 15, 1995, hearing, the State argued that the court should reconsider its ruling on venue in light of the constitutional rights of the victim’s family, pursuant to the Victim’s Rights Amendment to the New Jersey Constitution (VRA), see N.J. Const, art. I, ¶ 22. The State asked first that the court empanel a foreign jury from Camden in lieu of changing the venue of the trial. Recognizing the importance of protecting victims’ rights and responding to the State’s argument that a change of venue would violate the VRA because of the hardship it would cause for the victims, the court granted the State’s motion on December 21, 1995, ordering that a foreign jury from Camden County be empaneled in Mercer County. The court also emphasized the invective nature of the press coverage of the case, and explained that the court’s redetermination of venue did not impugn its original decision that maximum efforts must be taken to prevent and combat the prejudicial effects of the press coverage. 1 The court also took into account the similarity of Mercer and Camden *654 in terms of racial demographics and the fact that Camden could accommodate the selection of a jury for the case.
Following the order to empanel a foreign jury from Camden, the State made an informal oral request that the court consider empaneling a jury from Hunterdon County instead, an argument not presented in the State’s original motion. In response to that request, the court ruled that its order to empanel a foreign jury would stand, but that it would consider the State’s arguments in favor of other counties later. 2 On January 29, 1996, the court granted the State’s motion to empanel the jury from Hunterdon County instead of Camden. In doing so, the court overruled its original finding that the racial demographics of Camden and the “readiness” of the Camden courthouse to accommodate a lengthy and cumbersome voir dire justified a Camden jury. The court pointed out that it had based its original decision to have the jury brought in from Camden County significantly on the similar racial demographics of that county and Mercer County, but accepted the State’s argument that the racial demographics of the county should not be a paramount concern because both defendant and the victim were of the same race in this case. The court also noted that Hunterdon County would be an appropriate county from which to draw the jury because it had no pending death penalty cases and the court administrators, judges and Sheriffs officers to whom the court had spoken had confirmed that they had ample facilities to accommodate a lengthy jury selection process. Further, the court found that travel time for the jurors from Hunterdon to Mercer County would be less burdensome than it would be from any other county.
B.
Defendant argues that the trial court’s decision to empanel a jury from Hunterdon County violated his Sixth Amendment right *655 to a fair and impartial jury under the United States Constitution and his comparable right pursuant to article I, paragraph 10 of the New Jersey Constitution. He asserts first that interlocutory motions for reconsideration of rulings in criminal cases are not authorized. I disagree with that contention and join the majority in its analysis of that issue, see ante at 553-54, 737 A.2d at 75. Nevertheless, I conclude that the State’s motion for reconsideration of the foreign jury panel venue should have been denied by the trial court in this case because the decision to empanel a jury from Hunterdon County compromised defendant’s constitutional rights.
The trial court reversed itself on venue for the second time based on its application of the American Bar Association (ABA) guidelines regarding change of venue and jury selection, presented in Harris, supra, 282 N.J.Super. at 421 , 660 A.2d 539 , and endorsed by this Court in Harris, supra, 156 N.J. at 148-49 , 716 A.2d 458 , and State v. Feaster, 156 N.J. 1, 51 , 716 A.2d 395 (1998). Both the trial court and the majority misapply those guidelines.
The five ABA factors are:
(1) The nature and extent of pretrial publicity, if any, in the proposed venue;
(2) The relative burdens on the respective courts in changing to the proposed venue;
(3) The hardships to prospective jurors in traveling from their home county to the site of the trial and the burden imposed upon the court in transporting the jurors; 3
(4) The racial, ethnic, religious and other relevant demographic characteristics of the proposed venue, insofar as they may affect the likelihood of a fair trial by an impartial jury; [and]
(5) Any other factor which may be required by the interests of justice.
[Harris, supra, 282 N.J.Super. at 421 , 660 A.2d 539 (quoting Criminal Justice Standards: Trial by Jury, ABA Crim. Just. Sec. Standard 15-1.4 (3d ed. 1993) (ABA Standards)).]
First, the Court considers the nature and extent of pretrial publicity in the proposed county. Beyond dispute, the publicity *656 that preceded defendant’s trial was “horrendous.” See ante at 551, 737 A.2d at 74. 4 In analyzing the extent of the publicity, however, the Court underestimates the different levels of circulation in Camden and Hunterdon of the two inflammatory Trenton newspapers, the Trentonian and the Trenton Times. See id. at 558-59, 737 A.2d at 77-78 (noting that Court has allowed empanelment of juries with far greater disparities between level of publicity in defendant’s county and that from which jury was empaneled). The Court’s standard for determining whether the proposed county is an acceptable choice from the point of view of press coverage requires examination of only the number of relevant newspapers circulated in each county, to ascertain whether the county was “inundated with publicity about the murders,” ibid, (quoting Feaster, supra, 156 N.J. at 51, 716 A.2d 395 ), and whether the “ ‘net effect was [ ] significantly different’ ” from that if the jury had been from defendant’s proposed county, id. at 560, 737 A.2d at 78 (citing Harris, supra, 156 N.J. at 148-50, 716 A.2d 458 ). When the circulation rates of the Trenton newspapers are examined, however, Camden County emerges as a venue more likely than Hunterdon to have produced a jury not prejudiced by press coverage.
Rationalizing its rejection of a jury selected from Camden, the trial court observed that “there will be pretrial publicity found in any county in this state.” Although the court’s observation is correct, given the state-wide and even national coverage of this case, that does not obviate the need to take all steps available to *657 empanel a jury untainted by the prevalent, exceedingly prejudicial press coverage that plagued this case. Camden County presented the best possibility for such a jury. According to then-current statistics, Hunterdon County had a population of 107,776 as of 1991, or 39,000 households. Camden had a population of 502,824 or 181,800 households. The circulation of the Trentonian in Camden County in 1991 was 110, or .06% of Camden households; in Hunterdon County it was 1,342, or 3.44% of the households. The 1991 Trenton Times circulation in Camden was under 25, or .01% of households; in Hunterdon, the 1992 estimate was 1,796, or 4.62% of households. See 1994-95 New Jersey Municipal Data Book (.Data Book). Assuming no overlap, then, the two papers combined to reach .07% of the households in Camden County in 1991 and approximately 8.06% of the households in Hunterdon according to combined 1991 and 1992 estimates. Ibid. When calculating circulation according to population, 181,690 households in Camden did not receive either of the newspapers, as compared to 37,658 in Hunterdon. The rates of circulation of the newspapers in Camden and Hunterdon are significantly different. Even if the rates themselves do not connote “inundation,” this Court’s standard is designed to assess the possibility of prejudice by predicting whether a jury pool is likely to have been exposed to the case by press. Here we know the jury was exposed to prejudicial coverage of this case, so the circulation rates of the newspapers are relevant to indicate that Camden might have produced a jury pool that was not prejudiced by the coverage. 5 Based on those rates, the likelihood that potential jurors who may not have been exposed to the most inflammatory of the pre-trial publicity could be identified in Camden but not in Hunterdon is substantial.
*658 The Harris factor relating to press coverage, therefore, certainly weighs in favor of defendant. Although it should not be dispositive in our analysis, an appropriate assessment does not produce a neutral outcome simply because, as the trial court asserted, there is bound to be publicity in any county. A trial court is required to “ ‘minimize the danger that prejudice [from extensive pretrial publicity] will infiltrate the adjudicatory process.’ ” Harris, supra, 156 N.J. at 149, 716 A.2d 458 (citations omitted). The court here did not take the requisite steps to fulfill that duty with regard to the press coverage.
Second, the majority finds that court officials in Hunterdon County assured the trial court that “jury selection would not disrupt their caseload.” Ante at 559, 737 A.2d at 78. Noting the greater number of death penalty as well as non-capital criminal cases pending in Camden, the Court states that “[c]learly, the relative hardships imposed on the prospective courts favored Hunterdon County.” Ibid. The majority exaggerates the weight of the evidence in favor of Hunterdon. Although this factor may seem to weigh in favor of the State, as a practical matter the factor is neutral. The record supports the finding that Camden could have accommodated a jury for this trial as well. In its October 20, 1995 order granting the State’s motion to empanel a jury from Camden rather than to change the venue to Camden, the trial court recognized as much, stating:
This Court is mindful of practical concerns with neighboring counties with regard to death penalty case involvement, case loads, and physical ability to accommodate this death penalty case. With those factors in mind, and with the knowledge of the discussion of the Appellate Division in State v. Harris as to racial demographics and the comparisons made between several cities, this Court orders that pursuant to Rule 3:14-2, the trial of this matter shall take place in Camden County.
Again, on December 21, 1995, reconsidering its change of venue decision, the trial court noted that “Camden County was designated since it was readily available to accommodate a domestic violence case and was uniquely acceptable with regard to concerns for racial demographies.” I question the reliability of the State’s assertion that five pending death penalty cases in Camden would have hindered jury selection in that county. Camden Court *659 records indicate that not a single death penalty case was tried in Camden county during the 1996 and 1997 calendar years. 6 I would point out, in addition, that the fact that Hunterdon had no pending death penalty cases and a significantly smaller number of pending indictments than Camden is misleading absent an assessment of the respective populations and resources of the two counties. Camden’s population is four times that of Hunterdon. Therefore, the difference between the number of pending indictments and capital cases in the two counties for purposes of determining jury-member availability is not as stark as the majority makes it seem. In sum, this factor favors neither the defendant nor the State.
The third factor, the burden on the parties, witnesses, and jury members, weighs in favor of the State. The travel time from Camden to Mercer exceeds that from Hunterdon. I take issue, however, with the Court’s willingness to accept the State’s argument that because “the area in Camden where the jurors would be dropped off was relatively desolate[,]” described by a local law enforcement officer as “a dangerous area after hours,” the burden on Hunterdon County jurors would be “less onerous.” Id. at 560, 737 A.2d at 78. If our courthouses are unsafe, the remedy should be to make them safe, not to move the trials elsewhere.
The fourth salient consideration in determining the likelihood of a fair trial by an impartial jury is the racial demography of the potential counties. The trial court, in granting the State’s motion to empanel a jury from Hunterdon, stated that it no longer believed that the racial demographic disparity between Hunterdon and Mercer Counties was an adequate justification for denying the State’s motion. I agree with the Court that “racial demographics should not be the sole factor,” id. at 561, 737 A.2d at 79, in a *660 court’s determination of the county from which a foreign jury should be empaneled, provided a defendant’s constitutional right to a fair and impartial jury is not circumvented. Moreover, the relevance of demographic factors is not to be measured against the defendant’s or the victim’s characteristics. The race, ethnicity, religion, education, gender, age, economic class, and social status of the parties cannot determine whether the jury is representative of the community at large. The collective character of defendant’s community becomes the operative measure of his peers. This factor is one that is acknowledged to be the driving force behind our commitment to community representation in our justice system. It must therefore be afforded significant weight, because it directly implicates defendant’s Sixth Amendment right to a fair cross-section of the community. See discussion infra at 662-64, 737 A.2d at 136-37.
As the Court correctly points out, the differences between the demographics in Camden and Mercer and those in Hunterdon and Mercer were comparable by most measures, including gender, per capita income, and percentage of college graduates. Ante at 560-62, 737 A.2d at 79. The racial disparity, however, between Mercer and Hunterdon was significantly greater than that between Mercer and Camden according to the most recently available census. In 1990, Hunterdon County was 96.3% White, 2.1% African-American, and 1.6% Hispanic; Mercer County was 75.0% White, 18.9% African-American, and 6.0% Hispanic; Camden County was 76.0% White, 16.2% African-American, and 7.2% Hispanic. See Data Book, supra. The racial demographics of Camden and Mercer Counties are almost identical, whereas a substantial disparity exists between the minority percentage population in Hun-terdon County and that in Mercer. This factor clearly weighs in favor of defendant. The trial court recognized as much in its first two venue change orders.
In sum, factors one and four, pertaining to press coverage and demographics, weigh heavily in favor of defendant. Factor two is neutral. Factor three, which measures hardship to jurors, favors *661 the State, slightly. Because factors one and four directly implicate defendant’s constitutional right to a fair trial, they must be given significantly more weight than the other factors. The trial court’s decision to keep the trial in Mercer County because “[t]he rights of victims are a matter of constitutional dimension in our State,” recognized that principle. The Court’s failure to afford the defendant’s constitutional rights the same deference in selecting a county from which to import a foreign jury is both inconsistent and indefensible. Whether the error requires reversal must then be considered.
C.
The trial court abused its discretion by reversing its original finding that Camden was the appropriate county from which to empanel a foreign jury. The court not only failed to accurately assess the Harris factors, it compromised defendant’s right to a fair and impartial jury as required by the Sixth Amendment and article I, paragraphs 5, 9, and 10 of the New Jersey Constitution. See State v. Gilmore, 103 N.J. 508, 524-25 , 511 A.2d 1150 (1986) (holding that article I, paragraphs 5, 9, and 10, when read together, “guarantee that in all criminal prosecutions the defendant is entitled to trial by an impartial jury without discrimination on the basis of religious principles, race, color, ancestry, national origin, or sex ... [including] the right to trial by a jury drawn from a representative cross-section of the community.”). The empanelment of a Hunterdon County jury resulted in two prejudicial outcomes: the resultant jury pool did not represent a cross-section of the Mercer County community as required by the Constitution and in accordance with the ABA guidelines; and, the Hunterdon County jurors had knowledge of highly prejudicial information that was not admitted at trial, regarding defendant and his alleged crime. Both results require reversal of defendant’s conviction and vacation of his sentence. The first is discussed here.
This Court has emphasized the “right to trial by an impartial jury drawn from a representative cross-section of the community.” Id. at 523 , 511 A.2d 1150 . In Gilmore , the Court reasoned:
*662 [I]n our heterogeneous society jurors will inevitably belong to diverse and often overlapping groups defined by race, religion, ethnic or national origin, sex, age, education, occupation, economic condition, place of residence, political affiliation; that it is unrealistic to expect jurors to be devoid of opinions, preconceptions, or even deep-rooted biases derived from their life experiences in such groups; and hence that the only practical way to achieve an overall impartiality is to encourage the representation of a variety of such groups on the jury so that the respective biases of their members, to the extent they are antagonistic, will tend to cancel each other out.
[Id. at 525, 511 A.2d 1150 (quoting People v. Wheeler, 22 Cal.3d 258 , 148 Cal.Rptr. 890 , 583 P.2d 748, 755 (1978)).]
Gilmore involved a challenge to the prosecution’s use of peremptory strikes to exclude potential black jurors from a jury. Nevertheless, the case applies to the principal issue here — that is, the purpose behind the right to a jury pool representing a cross-section of the community. The comment to Rule 3:14-2 emphasizes the need for a fair cross-section:
Where ... race is the demographic characteristic at issue, the change of venue must be to a county having the same racial demographics or a foreign jury must be drawn from a county having the same racial demographics as the county in which the crime was committed, even if there is no such contiguous county.
[Sylvia B. Pressler, Current N.J. Court Rules, comment on R. 3:14-2 (1998) (citation omitted) (emphasis added).]
In Harris, supra, the Appellate Division held that
the same state constitutional policies which underlie the limitations that Gilmore imposes upon a prosecutor’s use of peremptory challenges to exclude members of a particular race from a jury also require a trial court to consider racial demographics in exercising its authority under Rule 3:14-2 to change the venue of a criminal trial or to impanel a foreign jury.
[ 282 N.J.Super. at 417 , 660 A.2d 539 .]
That contention is supported by the ABA guidelines, which explicitly incorporate the Sixth Amendment right to a fair and impartial jury into the fourth factor. See ABA Standards, supra (“The racial, ethnic, religious and other relevant demographic characteristics of the proposed venue, insofar as they may affect the likelihood of a fair trial by an impartial jury.”) (emphasis added).
The majority contends that because the case at bar presents no overt racial issues given that both the victim and defendant are of the same race, the right to a jury that represents a cross-section of defendant’s community need not be paramount. See ante at *663 563-64, 737 A.2d at 80-81. Although the Court fully understands, and has held, that special attention must be paid to ensuring a racially representative jury in cases that present obvious racial issues, we have never recognized, and do not believe, that considerations of race may be discounted or ignored in effectuating a criminal defendant’s right to a cross-section that is representative of the community in foreign jury or change of venue decisions, no matter what the race of the defendant and the victim. The community cross-section requirement is required as much to preserve representation of the community’s diverse values, beliefs, and viewpoints as to respond to particular racial issues in the specific case. The constitutional right to a representative cross-section, which goes to the essence of a fair trial, therefore remains unyielding with regard to race even in the absence of a disparity in race between the victim and defendant.
In Harris, supra, the Appellate Division held that the disparity in racial demographics between Hunterdon and Mercer Counties was too great to guarantee a fair trial. 282 N.J.Super. at 420 , 660 A.2d 539 . The Harris court stated that the rights of the defendant, as well as the public’s perception that the judicial system operated fairly, especially for those members of minority groups “who are underrepresented in the jury pool,” were at stake in choosing a jury that adequately represented the community. Id. at 418, 660 A.2d 539 (referring to Georgia v. McCollum, 505 U.S. 42, 49 , 112 S.Ct. 2348, 2354 , 120 L.Ed.2d 33, 45 (1992)).
[I]f a demographically similar community is chosen as the new venue, local values might be approximated, thereby preserving both the right to a fair trial and the key interests served by local community participation. Moreover, the reasons that favor local community participation in the jury also favor ensuring minority participation in the jury____
[Id. at 419, 660 A.2d 539 (quoting Note, Out of tile Frying Pan or Into the Fire? Race and Choice of Venue After Rodney King, 106 Harv. L.Rev. 705, 715-16 (1993)).]
The court went on to offer other, preferable locations, one of which was Camden. The court noted:
The 1990 census indicates that there is a gross disparity between the racial demographics of Mercer and Hunterdon counties, with blacks comprising only *664 2.06% of the residents of Hunterdon compared to 18.87% of the residents of Mercer. At the same time, there are a number of other counties that are approximately the same distance from Mercer as Hunterdon that have much larger black populations: in Middlesex, 7.98% of the residents are black; in Monmouth, 8.54%; in Burlington, 14.31%; in Camden, 16.24%. 7
[Id. at 420, 660 A.2d 539 .]
In this case, a jury from Camden would have preserved defendant’s right to a fair cross-section of the community without compromising a majority of the other Harris factors for selecting a county for a foreign jury empanelment. Reversing its initial assessment of the appropriateness of empaneling a jury from Camden, the trial court plainly prized administrative convenience over defendant’s right to a fair trial. That result is not supportable.
The Court asserts “there is no assurance that the composition of the jury pool would have been radically different in Camden County.” Ante at 563, 737 A.2d at 80. That contention is, however, only speculative rationalization. The pool of 715 prospective jurors contained fifteen minorities — five African-Americans, six Asians, one Hispanic, and three East Indians. That two percent minority representation does not begin to approach the minority representation in Mercer County (twenty-five percent), and is not surprising given the small minority population in Hunterdon County (less than six percent). If the trial court had selected a jury pool from Camden instead of Hunterdon, the level of minority representation in the jury pool would have increased to a level commensurate with what the representation would have been in a pool from Mercer County; if it had not, defendant would have had a valid cross-section claim to make based on Camden’s jury selection system. See Taylor v. Louisiana, 419 U.S. 522, 538 , 95 S.Ct. 692, 702 , 42 L.Ed.2d 690, 703 (1975) (“[J]ury checks, pools of names, panels or venues from which juries are drawn must not [be designed to] systematically exclude distinctive groups in the *665 community and thereby fail to be reasonably representative thereof.”). Given the relatively small percentage of overall minority representation in the disputed counties, that potential increase (almost twenty percent) cannot be glossed over as insignificant.
Finally, the Court’s conclusion that “[t]here is no evidence that the racial composition of the jury venire affected the jury’s ability to be impartial,” ante at 563, 737 A.2d at 80, is not relevant to our assessment. A Sixth Amendment claim regarding a violation of the fair cross-section requirement is not subject to a harmless error analysis. Violation of this constitutional right requires reversal. In State v. Bey, 112 N.J. 45 , 548 A.2d 846 (1988) (Bey II), the Court examined the standard of review for constitutional violations in death penalty cases:
[I]n assessing the impact of error in either the guilt or penalty phase of a capital case, we ... determine reversibility on the basis of a qualitative determination that considers, in the context of the entire case, whether the error was clearly capable of affecting either the verdict or the sentence. The only exception involves “constitutional violations ... [that] by their very nature east so much doubt on the fairness of the trial process that, as a matter of law, they can never be considered harmless.”
[Bey II, supra, 112 N.J. at 94-95, 548 A.2d 846 (quoting Satterwhite v. Texas, 486 U.S. 249, 250 , 108 S.Ct 1792, 1794 , 100 L.Ed.2d 284, 293 (1988).)]
The United States Supreme Court in Satterwhite, supra, held that Sixth Amendment constitutional violations that may be considered under a harmless error analysis and those that require automatic reversal are distinguished by whether or not the violation “pervade[s] the entire proceeding.” 486 U.S. at 256 , 108 S.Ct. at 1797 , 100 L.Ed.2d at 293 ; see also Coleman v. Kemp, 778 F.2d 1487, 1541, n. 24 (11th Cir.1985). The failure to fulfill the Sixth Amendment right to a jury empaneled from a cross-section of the community can never be considered harmless. 8 We held in Gil *666 more, swpra, that our Constitution provides for a “right to trial by an impartial jury drawn from a representative cross-section of the community,” 103 N.J. at 523 , 511 A.2d 1150 , due to our profound commitment to achieving “‘overall impartiality by allowing the interaction of diverse beliefs and values the jurors bring from their group experiences,’” id. at 525 , 511 A.2d 1150 (quoting Wheeler, supra, 148 Cal.Rptr. 890 , 583 P.2d at 761 ).
Under the New Jersey Constitution, , the right to a trial by an impartial jury drawn from representative cross-section of the community is of “exceptional significance” and “goes to the very essence of a fair trial.” State v. Williams, 93 N.J. 39, 60 [ 459 A.2d 641 ] (1983). Its infraction may not be treated as harmless error.
[ Id. at 543-44, 511 A.2d 1150 .]
That holding is supported by the decision in Harris, supra, in which the Court found that the demographics factor of the ABA guidelines did not require reversal because the racial demographics of Burlington and Mercer Counties were “substantially similar.” 156 N.J. at 150, 716 A.2d 458 . The issue relevant to reversal, then, is the objective lack of similarity between the demographics of the two counties, rather than the actual evidence that the error in selecting a county affected the impartiality of the jury. The racial demographics of Hunterdon and Mercer Counties are simply not “substantially similar,” as the court in this case, initially, recognized.
The Court contends “[t]he record reveals that the trial court took more than adequate measures to ‘minimize the danger that prejudice would infiltrate the jury process.’ ” See ante at 566, 737 A.2d at 82 (citation omitted). The diverse beliefs and views of the Mercer County community, in which this trial would have been held if not for the press coverage, however, were not represented. *667 The amount of evidence leveled against defendant, see id. at 563, 737 A.2d at 80 (noting that “[gjiven the overwhelming evidence against defendant, it is highly doubtful that a jury from Camden would have reached a different verdict or sentence”), is irrelevant. 9 One cannot minimize the prejudice that inheres in the failure to provide defendant with a jury pool representing the diverse viewpoints of the community in which he should have been tried. Defendant’s constitutional right to a fair and impartial jury was violated. Therefore, his conviction must be reversed. See Gilmore, supra, 103 N.J. at 544 , 511 A.2d 1150 (reversing and remanding for new trial because of cross-section violation).
Ill
Defendant claims that he was denied a fair trial because most of the jurors sitting on his case had knowledge or suspicion of his prior sex offense convictions. The Court holds that the trial court’s refusal to strike for cause any jurors with knowledge of defendant’s record was proper in light of the presumed impossibility of empaneling a jury without such knowledge. Ante at 568, 737 A.2d at 82-83. What is crucial, the Court asserts, is that the trial court prevented prejudice by conducting a thorough voir dire in which each juror was asked if he or she could remain impartial, id. at 572-73, 737 A.2d at 85, and by instructing the jury at various points in the trial to decide the case solely on evidence presented at trial, 10 id. at 575, 737 A.2d at 86-87. I believe that the Court’s *668 assessment of the efficacy of the trial court’s palliatives is artificial and unrealistic. I disagree with both the Court’s analysis and determination.
A.
1.
On May 7, 1996, the United States Senate voted to require all states to implement some kind of sex offender notification system. The coverage of this national effort was widespread throughout our State and, indeed, the country. It was widely publicized that defendant was the instigation for the law. Some news stories explicitly alluded to defendant as a prior sex offender and referred to his two prior sex offense convictions.
The sex offender notification law in this State was named Megan’s Law, after defendant’s victim. On May 10,1996, prior to voir dire, defendant moved to strike for cause all jurors who had knowledge of Megan’s Law on the ground that anyone with this knowledge would likely make the association between Megan’s Law and defendant, and necessarily conclude that defendant had a prior record as a sex offender. Defendant contended that probing the jurors on their knowledge would only spread, increase, and reinforce such knowledge, and thus could not correct the problem. The court rejected defendant’s objection, opting instead to pursue extensive voir dire questioning. The trial court conducted voir dire over three months. Following examination of the extensive jury questionnaires, the court and the attorneys engaged in an extremely detailed oral questioning of each potential juror, referring to certain answers in the questionnaire that signaled potential *669 bias of one form or another, and paying particular attention to whether the jurors read the Trenton newspapers and their knowledge of Megan’s Law and defendant’s criminal record. Each juror subsequently empaneled answered that he or she either had no knowledge of the prior convictions or could disregard that knowledge and use only the evidence presented at trial to decide the case at both the guilt and penalty phases. Throughout voir dire in this case, defense counsel asked that each juror who believed or suspected that defendant had been convicted of a prior sex offense be struck for cause. Those requests were denied in each case. On April 15, 1997, when a majority of the potential jurors had been questioned and an adequate number of them qualified by the court, defendant moved to have the panel excused and jury selection recommenced in Camden County because of the likelihood that the jury would be unable to remain impartial in light of their collective knowledge of defendant’s criminal record. That application was also denied.
The result was that all but two jurors on the case knew or suspected that defendant had a prior record. Of those ten, nine at least suspected that defendant’s prior record included a sex offense conviction, and one knew as much. In addition, several jurors had more general knowledge and preconceived notions about the case. Juror D., when asked during voir dire about her knowledge of the case, responded, ‘Well, I’ve heard that, that he did murder her.” When the juror was asked what effect, if any, that knowledge might have on her if she were a jury member, she stated, “I think I can be impartial, that I can listen to both sides of it and hear what each side has to say, and I feel I can be impartial dealing with that.” Juror C.B. told the court that he remembered seeing Representative Zimmer of the 12th District on television discussing Megan’s Law. Juror C.B. made the connection between Megan’s Law and defendant, which led him to believe that defendant had a prior sex offense conviction. When asked if he had worked for Zimmer or if he had heard anything from the broadcast that would sway him one way or the other, he responded, “No.” Juror L. stated in his questionnaire that he *670 reads the Trenton Times. He noted that he had not read about the story regularly, but had read enough to state
[t]hat Megan Kanka was killed in a house across the street from where she lived in Mercerville. That the person that lived in the house was accused of murdering her. That she was in some way lured into the house or enticed into the house. And the person that lived there had a prior conviction for a sex offense.
In addition, Juror L. wrote on the questionnaire that he had seen parts of Megan Kanka’s funeral on the news and that he remembered the pink ribbons Megan’s family was wearing and people were putting around trees to remember Megan. He recalled seeing Megan’s parents on television and “how upset they were.”
These examples highlight the extent to which the press coverage in this case saturated the Hunterdon County jury pool and, indeed, the actual jury, contrary to the Court’s impression that the chosen county “was clearly outside the circulation range of the Trenton newspapers.” Id. at 559, 737 A.2d at 78 (citation omitted). Whether or not the number of Trenton newspapers circulated in Hunterdon County indicates “inundation,” see id. at 559, 737 A.2d at 78, most of the jurors had knowledge of and biases with regard to this defendant, his crime, and, most importantly, his criminal record. The trial court, when it realized the extent of the jury’s knowledge, erred by refusing defense counsel’s renewed motion to discontinue the voir dire and empanel a jury from Camden. The Harris factors, at that point, overwhelmingly called for that remedy.
2.
The trial court’s responsibility to preserve the integrity of the jury “under both the federal and state constitutions ... is at its peak in cases involving the death penalty.” State v. Williams, 93 N.J. 39, 63 , 459 A.2d 641 (1983) (Williams I); see Ramseur, supra, 106 N.J. at 324 n. 84, 524 A.2d 188 . The Sixth Amendment right to a “trial by an impartial jury ... goes to the very essence of a fair trial.” Williams I, supra, 93 N.J. at 60 , 459 A.2d 641 . “All doubts concerning a juror’s ‘sense of fairness or ... mental integrity’ should be resolved by dismissing the challenged venireman.” State v. Singletary, 80 N.J. 55, 65 , 402 A.2d 203 (1979) *671 (quoting State v. Jackson, 43 N.J. 148, 160 , 203 A.2d 1 (1964)); see State v. Deatore, 70 N.J. 100 , 358 A.2d 163 (1976).
[Tjhis Court [has] emphasized the right to trial by an impartial jury, secured by Article I, paragraph 10 of the New Jersey Constitution as well as the [SJixth [A]mendment of the United States Constitution, that a jury panel be “as nearly impartial ‘as the lot of humanity will admit.’ ” State v. Williams (I), 93 N.J. 39, 60-61 [ 459 A.2d 641 ] (1983) (citations omitted). “This requirement of fairness— and particularly jury impartiality — is heightened in cases in which the defendant faces death.” Id. at 61 [ 459 A.2d 641 ]; State v. Ramseur, 106 N.J. 123 , 324 n. 84, 524 A.2d 188 (1987).
[State v. Williams, 113 N.J. 393, 409 , 550 A.2d 1172 (1988) (Williams II).]
We give deference to trial court decisions on impartiality of jurors. See State v. Marshall, 123 N.J. 1, 87 , 586 A.2d 85 (1991) (Marshall I) (“It has [] been observed that this [C]ourt is ‘perhaps too far removed’ from the realities of the voir dire to appreciate the nuances concealed by a ‘bloodless record’; therefore, deference to the trial court is usually prudent.”) (quoting Williams II, supra, 113 N.J. at 411 , 550 A.2d 1172 (internal citations omitted)). Nevertheless, I believe that the trial court here failed to fulfill its duty to “‘minimize the danger that prejudice [from extensive publicity would] infiltrate the adjudicatory process,’ ” Koedatich I, supra, 112 N.J. at 268, 548 A.2d 939 (quoting Williams I, supra, 93 N.J. at 63 , 459 A.2d 641 ), which resulted in an overwhelming likelihood that defendant’s trial was prejudiced.
In State v. Feaster, No. 50254-94 (Law Div. Mar. 27, 1996), the trial court recognized that particular prejudice that inevitably results when jurors are cognizant of the defendant’s commission (or alleged commission) of another crime similar to the one for which he stands trial. In Feaster’s case, the court was concerned that the jury not have knowledge of a second murder for which defendant had been charged but not convicted. The trial court began jury selection in Gloucester County, but as “[problems associated with Gloucester County jury selection soon became apparent ... it was difficult to determine whether potential jurors knew of the second murder without asking the question directly.” Feaster, supra, 156 N.J. at 48, 716 A.2d 395 . In spite of continued *672 efforts by the trial court to conduct a thorough and searching voir dire, it finally concluded that a jury could not be empaneled from Gloucester:
I simply do not have the confidence level that I feel I should have to be assured that this process will yield a fair and impartial jury, consisting of no one who is likely to have heard about the other murder and this defendant’s implication in it.
[Id. at 49, 716 A.2d 395 .]
Accordingly, the court selected Salem County for jury selection and began the lengthy process again.
In Bey II, supra, 112 N.J. 45 , 548 A.2d 846 , the Court reversed the defendant’s conviction because the trial court failed to individually examine the jurors to determine their possible exposure to midtrial publicity that revealed the defendant’s connection to another murder for which he had been indicted at the time of trial. The Court held that
[j]urors exposed to this publicity could have discovered that the second murder was committed close in time and in a similar manner to the [murder on which they deliberated]. It is hard to imagine publicity with a greater capacity to prejudice a defendant’s case. The trial court itself concluded as much, as during jury selection it excused for cause any juror who knew of the second indictment____ We believe the repeated coverage in the local press created a realistic possibility that at the time of defendant’s motion, the information may have reached one or more of the jurors.
[Id. at 90, 548 A.2d 846 .]
A similar problem was flagged in State v. Biegenwald, 126 N.J. 1, 25 , 594 A.2d 172 (1991) (Biegenwald IV), but we held that no prejudice resulted because “[t]he voir dire of the one deliberating juror who indicated awareness of more than one murder [did] not reflect awareness of any facts not to be presented and considered during the sentencing proceeding.”
In Marshall I, supra, we declined to reverse the defendant’s conviction in response to defendant’s claim that the jury was so tainted by pretrial publicity that it could not have been impartial. In doing so, however, we stated:
We find no indication that any juror was so tainted by pretrial publicity as to affect the deliberative process. We emphasize that any deliberating juror who indicated exposure to pretrial publicity also disclaimed any detailed knowledge about the case---- Finally, we note the significant differences between trying the ease in *673 Ocean County and in Atlantic County. Neither the victim nor defendant was prominent in Atlantic County. There was no indication in the record that the Atlantic County community was hostile toward defendant or predisposed to his guilt. We are convinced that there was no “realistic likelihood” of prejudice from pretrial publicity.
[ 123 N.J. at 78-79 , 586 A.2d 85 .]
“Once it is established that a juror has been exposed to pretrial publicity, then, in order to vindicate a defendant’s right to an impartial jury, the voir dire must unequivocally establish that the potential juror can put that information or opinion aside.” Williams II, supra, 113 N.J. at 433 , 550 A.2d 1172 (emphasis added). In Williams II, supra, we reversed the defendant’s conviction on the ground that the voir dire was inadequate to ensure an impartial jury. The Court described the problem using several examples, including the voir dire of juror Minnick, who had stated that she might have an opinion as to the defendant’s guilt. In spite of juror Minniek’s contention that she could put her opinion aside and be impartial, as well as the fact that she had no specific recollections of the facts of the case, nor familiarity with the defendant’s name, 11 we noted that the voir dire “was insufficiently probing to fulfill [its] role [as] an indispensable mechanism for assuring the impartiality of a jury.” Williams II, supra, 113 N.J. at 435 , 550 A.2d 1172 .
*674 In Biegenwald IV, supra, we responded to the defendant’s claim that a juror with knowledge of facts pertaining to unrelated murder investigations of the defendant should have been struck for cause. The defendant claimed that although counsel had peremptorily excused the juror, the juror’s subsequent presence in the jury room required reversal because of the possibility that she “might [have] triggered] mass recall of inadmissible evidence by the other jurors.” 126 N.J. at 27 , 594 A.2d 172 . Rejecting the defendant’s claim that his motion for a mistrial should have been granted, the Court held:
Although the argument that the juror should have been excused for cause is persuasive, we find the failure to have excused her unproblematic for several reasons. Foremost the juror did not deliberate; she was excused peremptorily shortly after she had been qualified. Consequently, the juror’s presence in the jury room was brief and ended before the jury was exposed to the evidentiary phase, which, particularly in a murder case such as this one, can understandably pique the urge to discuss the case.
[ Id. at 27-28, 594 A.2d 172 .]
This Court noted with approval in Harris, supra, that one precaution taken by the trial court that lessened the need for reversal was the court’s decision to strike any juror for cause who read the Trentonian regularly. 156 N.J. at 149, 716 A.2d 458 . Likewise, in Koedatich I, supra, the Court noted, as one of its justifications for not reversing the trial court’s decision not to order a change of venue, that the court had “discharged any juror who stated that he or she had read of the prior murder.” 112 N.J. at 282, 548 A.2d 939 .
Prior crimes evidence carries with it the gravest possibility of prejudice that a defendant may face in a criminal trial. Jurors are likely to be particularly swayed in the guilt phase by the notion that if defendant previously committed one sex offense, he likely committed the one for which he is being tried; and in the penalty phase by the belief that if defendant has a prior record, he is likely to reoffend in the future. See Theodore Eisenberg, Stephen P. Garvey, & Martin T. Wells, But Was He Sorry? The Role of Remorse in Capital Sentencing, 83 Cornell L.Rev. 1599, 1633 (1998) (examining jury considerations in capital sentencing and *675 noting that “among those aggravating factors relating to the defendant, the two most powerful in jurors’ minds were the defendant’s prior history of violent crime and the jurors’ belief in future dangerousness”) (citing Stephen P. Garvey,. Aggravation and Mitigation in Capital Cases: What Do Jurors Think?, 98 Colum. L.Rev. 1538, 1560 (1998)). One of defendant’s prior sex offense convictions is the most prejudicial sort because it involves the sexual assault of a child, precisely the crime for which defendant was tried in this case. In light of the fact that none of the jurors seemed to know how long ago defendant committed the prior offense, the potential for damage in both the guilt and the penalty phases by knowledge of the convictions is extreme. The trial court recognized this and conducted an in-depth voir dire with the jury members to determine the extent of their knowledge concerning defendant’s priors. By doing so, the court hoped to determine in advance which jurors had made an association between defendant and Megan’s Law, acknowledging that such an association implied knowledge or awareness of defendant’s prior convictions, and that “gross prejudice ... on the defendant, should this connection occur during the deliberation process, or at some other earlier point ... [with] the clear capacity to produce an unjust result,” must be prevented.
Time and time again, this Court has stated in no uncertain terms that prejudice resulting from juror knowledge of a defendant’s similar prior convictions or bad acts is likely to taint the impartiality of the jury and effectively requires that jurors with such knowledge be struck. Here, the jurors had far more knowledge of defendant and his crime than in any of the aforementioned cases. In Bey II , we reversed defendant’s conviction even though we only suspected that jurors might know of the defendant’s similar indictment. The similar acts here are even more prejudicial than those in Bey II because they are convictions. In Biegenwald TV, supra, we did not reverse defendant’s conviction under a plain error standard only because the juror’s knowledge related to defendant’s other murder indictment that did not exceed information presented at trial, and the prejudice was there *676 fore minimized by a limiting instruction. Here, we review a juror’s knowledge of defendant’s identical prior conviction, evidence of which was not presented at trial and was therefore not accompanied by a limiting instruction. Moreover, not only do we suspect that some of the jurors may have known of defendant’s prior sex offense conviction, we are certain they did. Some of the jurors also had specific knowledge of the facts of the case itself, had seen the victim’s family in their grief, and had heard public officials comment on the crime. Defendant and the victim were well-known throughout the State and evidence of wide-spread hostility towards defendant is incontrovertible. Some jurors had even heard that defendant was guilty.
The protestation by jurors that they would not be influenced by and could remain impartial when presented with this kind of knowledge is simply not sufficient to generate confidence and reliability. See Williams II, supra, 113 N.J. at 434 , 550 A.2d 1172 (reversing defendant’s sentence due in part to juror’s contention that she had “in a sense” formed an opinion as to defendant’s guilt, in spite of her contention she could remain impartial). This Court, in Harris, supra, effectively ruled that jurors with knowledge of a defendant’s similar prior convictions or bad acts must be struck for cause, relaxing the rule in that case only because the juror involved did not participate in deliberations. The Court’s failure to remain loyal here to the rule established in Harris is insupportable. In doing so, the Court ignores the “gross prejudice that [is] visited on [a] defendant” when jurors with knowledge of his similar prior convictions, or even alleged bad acts, are empaneled.
B.
Even were I to believe that the trial court’s voir dire was adequate in that it eventually resulted in a proclamation from each juror that he or she had the full capacity to remain impartial and follow the trial court’s instructions, I maintain that defendant’s conviction must be reversed and his sentence vacated. Although *677 jurors may well believe they have the ability to lay aside prior knowledge, and fully intend to do so, we simply cannot realistically expect or trust that all jurors have the ability to accomplish this in the face of the kind of overwhelmingly inflammatory evidence at issue here. See State v. Brunson, 132 N.J. 377, 386-87 , 625 A.2d 1085 (1993) (citing jury study by Professors Roselle L. Wissler and Michael J. Saks concluding that admission of “prior-conviction evidence [with a limiting instruction] did not affect the predisposition of jurors to doubt the credibility of criminal defendants,” but that evidence did affect jurors’ dispositions on guilt, with “the highest conviction rate resulting when the prior crime was the same as the charged offense”). Justice Stein, dissenting, states that the jurors’ knowledge of defendant’s prior convictions requires vacation of defendant’s sentence because the trial court did not specifically instruct the jurors to disregard their knowledge of defendant’s priors in their deliberations. See post at 641, 737 A.2d at 123 (Stein, J., dissenting). I do not think that the proposed instruction, if undertaken by the trial court, would have had the prophylactic capacity to block out juror prejudice. The instruction might have even magnified that prejudice by tainting the deliberations of the two jurors who had no suspicion of defendant’s criminal background. Nevertheless, I agree with Justice Stein that defendant’s sentence must be vacated and a new penalty trial conducted. I believe, moreover, that the logic and import of his reasoning demands an additional remedy. I conclude that we must also reverse defendant’s conviction, despite the overwhelming evidence of guilt. Cf. id. at 640, 737 A.2d at 123 (Stein, J., dissenting) (joining majority opinion affirming defendant’s capital murder conviction). The error is so fundamental and profound that it goes to the essence of a fair trial and constitutional judicial review.
1.
Our case law requires that a defendant’s sentence rendered by a penalty-phase jury with knowledge of a defendant’s similar prior convictions must be vacated, regardless of the extensiveness of the voir dire and the jurors’ contentions that they could remain *678 impartial. This Court has all but required a dual two-tiered jury for the prosecution of cases in which the State offers evidence of a prior murder to prove the existence of an aggravating factor pursuant to the death penalty statute. The Legislature has explicitly provided that “for good cause, the court may discharge [the guilt-phase] jury and conduct the [penalty] proceeding before a jury empaneled for the purpose of the proceeding.” N.J.S.A. 2C:11-3(c)(l). This Court applied Section (c)(1) in Biegenwald IV, supra, in which the State submitted to the court the prior murder aggravating factor, holding:
[W]e recognize that our finding that defendant is entitled to voir dire potential jurors on the possible blinding impact of the c(4)(a) factor most likely will require a two-jury system for all capital eases in which the State seeks to prove that factor.
[ 126 N.J. at 43-44 , 594 A.2d 172 .]
The Court was concerned about the prejudice that would result from the process of voir dire, implying that no amount of questioning by the trial court to determine a jurors’ ability to remain impartial when faced with prior murder evidence would suffice. 12
Although the Court has allowed for exceptions to the dual jury requirement, see Harris, supra, 156 N.J. at 160, 716 A.2d 458 , it has expressly cautioned the lower courts that prior convictions for sex offenses should be treated differently:
We can envision circumstances in which evidence of other “unsanitized” convictions, such as child sexual abuse, might pose a potential for impermissible spillover into the penalty phase thus requiring two juries.
[Ibid, (citing State v. Erazo, supra, 126 N.J. 112, 132-33 , 594 A.2d 232 (1991)).]
The Court in Harris acknowledged that knowledge of similar prior convictions of distinctive crimes, such as child sexual abuse, is bound to be used improperly during deliberations even if instruc *679 tions are given to warn against such use. Now, faced with that situation, the Court ignores this basic truth.
I agree with my dissenting colleague who explains, with regard to influence on a jury’s deliberations, that no practical difference exists between the admission of prior convictions as evidence at trial and the jurors’ knowledge of the convictions from sources external to the trial. See post at 642-43, 737 A.2d at 124-25 (Stein, J., dissenting) (citing Marshall v. United States, 360 U.S. 310, 312-13 , 79 S.Ct. 1171, 1173 , 3 L.Ed.2d 1250, 1252 (1959)). The damage wrought by prejudicial information learned outside the trial may be even more extensive and indelible than that resulting from evidence admitted at trial. At trial, evidence is received simultaneously with limitations on its permissible use by the trial court. In the guilt phase, we allow such evidence but require a contemporaneous limiting instruction explaining to the jurors specifically that they may not use evidence of similar prior convictions to conclude the defendant has a propensity to commit such crimes. In the penalty phase, if the evidence has not been integrated into the testimony, we require an instruction that the jury may not consider the evidence. When jurors’ knowledge is based, as here, not on evidence admitted at trial, but on media accounts read before trial, the court is not required to administer a limiting instruction to the jury that their knowledge of defendant’s priors cannot play a role in their deliberations because the information has not been admitted into evidence. Justice Stein believes that the trial court should have done so anyway in both the guilt and penalty phases. 13 See id. at 645, 649, 737 A.2d at 126, 129 (Stein, *680 J., dissenting). I am not so sure. In spite of our requirement that limiting instructions must be administered when other crimes evidence is properly admitted, the Court has remained skeptical of the value of these instructions in certain cases. See Brunson, supra, 132 N.J. at 385-86 , 625 A.2d 1085 . More importantly, had the trial court instructed the jurors to disregard any knowledge they might have had of defendant’s prior record, I believe the instruction would have served only to arouse the suspicions of the two jurors who had no knowledge of defendant’s record — inducing them, perhaps, to make the “forbidden connection” at the most critical moment, just before deliberations. Thus, such a limiting instruction would have been impractical, and likely prejudicial and mischievous. Defense counsel’s failure to request one surely represents a fair, if not forced, tactical decision based on the overwhelming potential of an instruction to escalate the prejudice against defendant.
Nevertheless, I agree with Judge Stein that the only remedy available to the Court is to remand for a new penalty trial in Camden with the expectation that the extra 143,932 14 households not receiving the Trenton newspapers will allow for the selection of an impartial jury. If this endeavor were to prove impossible, as it may after the inevitable tidal resurgence of press coverage that a retrial would trigger, defendant may not be sentenced to death. Cf. State v. Martini, 160 N.J. 248, 290 , 734 A.2d 257 (1999) *681 (Handler, J., dissenting) (Martini V) (holding where circumstances prohibit sentencing trial before fully informed jury, State must desist from capital prosecution).
2.
a.
Despite the overwhelming evidence of guilt against defendant, I contend that his conviction must be reversed as well. Existing case law dictates such a result, as does the special nature of defendant’s crime and prior convictions. This Court has held that when a voir dire leaves any doubt as to the ultimate impartiality of the jury, reversal of both the guilt-and penalty-phase verdicts is required. Williams II, supra, 113 N.J. at 445 , 550 A.2d 1172 . “No matter how convinced we may be of defendant’s guilt, unless we are similarly convinced of the jury’s impartiality, we cannot allow the death penalty to be imposed.” Ibid. I believe that the nature of defendant’s crime — a sex offense — combined with the incredibly wide-spread pretrial coverage of defendant and Megan’s Law resulted in a likelihood that defendant’s trial was prejudiced, in spite of the voir dire responses of jury members that, at least superficially, indicate their intentions to remain impartial.
Before the jurors began deliberations for the guilt phase, the court instructed them to “apply” their “knowledge” and “life’s experience,” and “evaluate the evidence in light of [their] knowledge of how people behave____” That directive had tremendous potential to neutralize or negate the intended prophylactic effect of the few, non-specific admonitions the court gave the jury to disregard non-evidence. See supra at 667 n. 10, 737 A.2d at 139 n. 10. The invitation to the jury to use their common knowledge of how people behave suggested to the jurors that they could apply not only their knowledge of human behavior in general, but their understanding about the behavior of sex offenders in particular. A careful analysis of jury responses during voir dire, in light of the publicity surrounding Megan’s Law, suggests that the instruction actually may have encouraged some of the jurors to improperly use their knowledge of defendant’s prior sex offense convictions *682 in their deliberations; the instruction surely did not impel the jurors to disregard that knowledge or to disregard their preconceptions or neutralize prejudices.
After Megan Kanka was sexually assaulted and murdered, her parents actively led the movement to enact Megan’s Law as an effort to deter and prevent similar sex crimes in the future. That law, collectively referred to as The Registration Law, N.J.S.A. 2C:7-1 to 5, and the Community Notification Laws N.J.S.A. 2C:7-6 to 11, was enacted on October 31, 1994. The Law specifically targets released sex offenders, whether they murdered their victims or not. The distinction seems to be rooted in the notion that sex offenders are not only vicious in nature, but are also dangerous and prone to reoffend when released. That assumption is supported by the press coverage surrounding the Megan’s Law effort, as well as in the legislative history of the Law. On statewide and nationwide levels, public officials, commentators, and the media repeatedly documented the recidivist tendencies of sex offenders. The Trentonian printed a story entitled, “Experts Say Child Molesters Nearly Impossible to Cure.” Mary M. Mooney, The Trentonian, Aug. 2, 1994, at 7. Another story carried the headline, “Stats Show There May Be: Molester Hiding on Every Block,” documenting that nearly forty percent of sex offenders will commit another crime. Mark A. Wallgore, The Trentonian, Aug. 4, 1994, at 1-3. The Trenton Times published similar articles, noting the importance of having some way to notify people when a “dangerous sexual predator” is among them, and alluding to Megan Kanka, “who [was] brutally murdered, allegedly by [a] neighbor[] whose history of sex crimes was unknown to [her] eommunitfy].” Editorial, Defending Megan’s Law, Trenton Times, Jan. 5, 1995, at A16. Throughout the campaign to pass Megan’s Law, Hamilton Mayor Jack Rafferty expressed the following view:
I know this is an old cry, but these people like Jesse Timmendequas should not be allowed on the street. They should be incarcerated or executed ... You just can’t fool with them.
*683 [Raymond Hennessey, Who’s Living Next Door?, The Trentonian, Aug. 1, 1994, at 10.]
Assemblyman Holzapfel stated, “People like Jesse Timmendequas can never overcome their dark urges.” Dave Neese, Lawmakers pledge Action Against Sickos, The Trentonian, Aug. 16,1994, at 4. Representative Zimmer referred to defendant’s case in helping to push through the federal legislation requiring that states adopt notification laws. 15 Brian Kladko, Megan’s Unfinished Legacy, Asbury Park Press, June 23, 1997, at 14. At the same time, the leader of the State Assembly, Garabed Hayatain called a special session of the Legislature to push through a set of anti-crime measures, including community notification laws for sex offenders. Ibid.
With the passage of Megan’s Law in 1994, the Legislature basically codified the theory that a defendant who commits one sex offense is likely to commit another — the very theory that the jury is prohibited from invoking during its guilt-phase deliberations.
The Registration and Notification Laws represent [ ] the conclusion by the Legislature that those convicted sex offenders who have successfully, or apparently successfully, been integrated into their communities, adjusted their lives so as to appear no more threatening than anyone else in the neighborhood, ... that the characteristics of some of them, and the statistical information concerning them, make it clear that despite such integration, reoffense is a realistic risk, and knowledge of their presence a realistic protection against it.
[ Doe, supra, 142 N.J. at 13 , 662 A.2d 367 .]
In Doe, supra, the Court detailed the remedial nature of the Law, citing numerous studies documenting the recidivist tendencies of sex offenders, and in summary made the following statement:
Concerning the basic facts, ... there is no dispute: as far as society is concerned, sex offenses of the kind covered by the law are among the most abhorrent of all offenses; the relative recidivism rate of sex offenders is high compared to other offenders; treatment success of sex offenders exhibiting repetitive and compulsive characteristics is low; and the time span between the initial offense and re-offense can be long.
[Id. at 15 n. 1, 662 A.2d 367 .]
*684 Although many of the jurors selected here did not express knowledge of the details of Megan’s Law or defendant’s case when questioned in voir dire, they all knew about the Law. The jurors heard about it on the news, discussed it with friends, or read about it in papers. That, when combined with the inevitable suspicion or belief that defendant previously had been convicted as a sex offender, required a more in-depth and forceful voir dire than was administered by the trial court. Illustrative questioning regarding Megan’s Law by the trial court is included in the voir dire of juror S.D., viz:
Q: Megan’s Law is talked about in this, and you have — you indicate you’ve heard of Megan’s Law. Your understanding again is what, your words?
A: Notification can be given to people if a sex offender moves into the neighborhood or is in their neighborhood.
Q: Do you have any opinions about it?
A: I agree with it.
Q: Are you aware of the origins of Megan’s Law, how it came to be?
A: I had always thought it was as a result of Megan Kanka, what happened to her and, basically, you know, what’s going on here.
Q: And do you believe the defendant has any connection with all of that, therefore?
A: I feel that it had something to do with why the law came about.
In addition, the questioning of the court explored the possibility that the juror could disregard her knowledge of defendant’s prior offenses, viz:
Q: [W]ould your knowledge, as you think it through, of the defendant and the potential of a criminal record, your suspicion or belief that he has a criminal record, enter into your thinking if you are involved in the penalty phase of this trial?
A: I would base the penalty phase on just this trial alone, not anything in the past.
Q: Well, there may be things in the past that are brought up, but if a matter of a defendant’s record is not something that’s brought up, could you exclude that from your thinking and not base any of your decision-making on that suspicion or belief that you have?
A: Yes.
Q: Do you have any reservation about your ability to do that?
A: No.
*685 The deficiency in this voir dire, in my view, is the Court’s failure to inquire into why the juror agrees with Megan’s Law, i.e., what it is about sex offenders that requires such a law. The juror’s belief that she could disregard defendant’s prior record in light of her apparent feelings about Megan’s Law is a grossly inadequate gauge of her impartiality. Because the underpinning of Megan’s Law is the assumption that sex offenders, are more likely to recidivate than other offenders, it was singularly important to find out from the jurors whether the danger of recidivism and some notion about how sex offenders behave, influenced their approval of the Law. Some jurors may have been able to dispel this concern by stating that they believed sex offenders were no more likely to recidivate than other types of criminals, but that because sex offenses were so much more egregious than other crimes it was more important to protect against the possibility of re-offense, however slim the likelihood. On the other hand, some may have expressed strong belief that there was something distinctive about sex offenders — that sex offenders were likely to re-offend more often than not. The strength of that sentiment, combined with a suspicion that defendant had been convicted of a sex offense once and perhaps twice before, would likely have created the kind of “blinding impact” that even a juror with the best intentions of remaining impartial would not be able to ignore. 16 See Biegen-wald IV, supra, 126 N.J. at 43-44, 594 A.2d 172 .
Although in some instances, the trial court was able to draw out more complex feelings from the jurors about what they thought of Megan’s Law, the court never tried to determine why any of the jurors thought the Law might be beneficial. The court had the following exchange with Juror B.:
*686 Q: What’s your general knowledge of Megan’s Law? ...
A: Okay. My understanding is that, you know, that a convicted — a convicted sex offender, upon his release, must notify the neighborhood, or wherever he lives — his residence must be made known to the public.
Q: What’s your view of that? That being your understanding of it, how do you feel about it?
A: I have mixed emotion.
Q: How do you mean?
A: Insofar as I could understand what the law is trying to do, but by the same token, if somebody has committed a crime, and has paid their debt to society, I don’t know if people should interfere with his privacy as to where to live. 17
Although the juror expressed ambivalence about the Law, his concern for the offender’s privacy rights may not in any way be an indication that he does not believe sex offenders are likely to recidivate. The fact that Juror B. stated that he “could understand what the law is trying to do” indicates he generally believes the Law has a valid purpose, but we cannot surmise from his words what he believes that purpose to be or how strongly he feels. Repeatedly, jurors who believed defendant had been previously convicted as a sex offender stated that they agreed with the Law or had mixed feelings about it, but they were never pressed to disclose and explain their reasons.
The voir dire of Juror S. is particularly problematic:
Q: And what is your feeling about the law: agree, disagree?
A: I’d have to say, overall, I agree with it.
Q: Okay, anything about your feelings about Megan’s Law that might impact or interfere with your ability to judge this case, the guilt or innocence of the defendant charged in the indictment that I outlined to you?
A: I don’t — I don’t think so. I don’t think there would be a problem listening to the evidence and deciding which way it goes.
Q: Well, that is your obligation to decide the case on the evidence that is adduced and brought before you in the course of the trial, but you gave that one some pause when I asked you. What is your hesitancy, what is your thinking in this area?
*687 A: I’m just trying to put myself in that situation, where you actually come down to it and you have to make a big decision.
The court probed Juror S. to try to get at the nature of his hesitancy, but the juror had not yet been asked about defendant’s prior criminal history, except on the questionnaire. Therefore, Juror S. was likely uncertain about what, exactly, the court was asking. Even if unable to put it into words, Juror S. was initially unsure as to his ability to remain impartial. That should have been a warning signal to the trial court and grounds for dismissal. See Williams II, supra, 113 N.J. at 433 , 550 A.2d 1172 (“Once it is established that a juror has been exposed to pretrial publicity, then, in order to vindicate a defendant’s right to an impartial jury, the voir dire must unequivocally establish that the potential juror can put that information or opinion aside.”) (emphasis added). Later, Juror S. responded to the court’s question as to whether he could put aside his belief that defendant had a prior sex offense conviction: “I think I could put it aside, yes.” The court eventually received a more definitive answer from the juror, but the exploration, in my view, was inadequate to insure against prejudice.
Even the voir dire of the two jurors who stated they did not believe defendant had a prior conviction as a sex offender, Jurors D. and P., evokes cause for concern. In light of the trial court’s comment that “gross prejudice” would be “visited on the defendant” should one of the jurors in the middle of the trial or deliberations make the connection between Megan’s Law and defendant’s prior record without telling the court, it was equally necessary to explore their views on Megan’s Law. Juror P. recognized that Megan’s Law was instigated by defendant’s case, and Juror D. suspected that a connection existed between the case and the Law, but neither had reached or expressed the next logical conclusion — that defendant had a prior criminal history as a sex offender. The danger that they may have done so at some point during the trial, however, is very real, and we have no way of knowing if that danger came to fruition. Juror D. was not asked how he felt about Megan’s Law. Juror P. expressed in no *688 uncertain terms that she agreed with Megan’s Law, but was not asked why. Juror P. expressed hesitancy about her ability to be impartial, stating “I think I could judge fairly.” If either juror reasoned at some point during the trial that defendant must have a prior sex offense conviction because he had been the catalyst for Megan’s Law, their motivations for endorsing Megan’s Law would have become critical.
Finally, Juror A.C. was not adequately screened by the trial court. Like Juror B., Juror A.C. expressed mixed feelings about Megan’s Law, and stated that he believed defendant’s case triggered the Law. He also stated that he believed it likely that defendant had previously been convicted as a sex offender. Juror A.C. stated that to the extent that he agreed with Megan’s Law it was because he “would love, you know, the community to be, you know, safe[,]” which suggests his belief that the Law is required because sex offenders are likely to re-offend. 18
*689 The trial court, while conducting a thorough voir dire in many ways, did not manage to determine the reasons behind the jurors’ support for Megan’s Law, and therefore lost the opportunity to fully assess the extent to which they would be able to completely disregard their suspicions that defendant had a prior criminal record. This Court’s concerns, expressed in Biegenwald IV, swpra, 126 N.J. at 44, 594 A.2d 172 , that jury members cannot be counted on to remain impartial in all instances, even when they have stated that they can, should guide its decision in this case. In spite of the jurors’ promises, some expressed more tentatively than others, that they could judge defendant only on the evidence presented at trial, the risk of prejudice here was simply too great to overlook.
Although the trial court, if requested, might have permitted defense counsel to question the jurors further on the foundation of their feelings about Megan’s Law, 19 counsel’s failure to pursue this line of questioning in these circumstances cannot be determinative. In Biegenwald IV, supra, the Court stressed that defense counsel’s failure to compensate for the trial court’s inadequate voir dire could not be dispositive:
We acknowledge the paucity of objection by defense counsel. However, whatever lack of zealousness and vigor one might ascribe to defense counsel in no way diminishes our duty to ensure that defendant is sentenced by a fair and impartial jury....
[Id. at 42, 524 A.2d 130 .]
In the prosecution of a capital case, the responsibility to assure the selection of a fair and impartial jury is that of the court, and it is not delegable.
B.
In Coleman, supra, 778 F.2d at 1541 , the court stressed that a harmless error analysis should not be applied to the penalty phase of a capital trial. The determination that a death sentence is to be *690 imposed is intrinsically and inherently subjective and therefore defies any conclusion that deathworthiness as the basis for the sentence of death is or is not based on “overwhelming evidence.” When the defendant’s prior conviction is similar to — or, in this case, exactly the same as — the crime for which a defendant is being tried, and the jury becomes aware of it, the potential for prejudice cannot be doubted. We have required admissible evidence of prior similar crimes to be “sanitized” in the guilt phase because of the real and unacceptable risk that the jury will interpret that evidence as tending to demonstrate the defendant’s propensity to commit such crimes. Brunson, supra, 132 N.J. at 391-92 , 625 A.2d 1085 . That sanitizing requirement is based on the premise that in dealing with like crimes, instructions regarding the limited use for which the jury is permitted to consider the evidence of such prior crimes are ineffective.
Commentators generally agree that the use of prior-conviction evidence is fraught with a high risk of prejudice, and they express skepticism about the effectiveness of an instruction to the jury to limit its use of the evidence to an assessment of defendant’s credibility.
[Id. at 385, 625 A.2d 1085 .]
“ ‘The theory of ‘limited use’ under which such explosive evidence is put before the jury fails to correspond to the actual effect of the evidence even in the minds of the most sober and conscientious jurors.’ ” Id. at 386 , 625 A.2d 1085 (quoting H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. Pa. L.Rev. 845, 882 (1982)); see id. at 386-87 , 625 A.2d 1085 .
The Court constructed its rule for dealing with like crimes in recognition of the concern that limiting instructions are inadequate to ensure fair and impartial comparative evaluation of those crimes. It held that when a prior conviction is the same or similar to the charge before the jury, only the degree of the crime and the date, not the nature, of the offense may be revealed to the jury. Brunson, supra, 132 N.J. at 391 , 625 A.2d 1085 . The Court then reversed Brunson’s conviction because the evidence of his prior record of drug offenses, similar to the offense under review by the *691 Court, had not been sanitized. Id. at 393 , 625 A.2d 1085 . In Brunson , the defendant offered no actual evidence of prejudice resulting from the unsanitized evidence — the Court fully understood that such unsanitized evidence is per se inadmissible due to the high risk that the jury will misuse it in spite of thorough limiting instructions. Id. at 391 , 625 A.2d 1085 . As such, when the jurors have “unsanitized” knowledge of a defendant’s prior sex offense convictions — acknowledged by this Court to be different from other crimes, see Harris, supra, 156 N.J. at 160, 716 A.2d 458 , and as information particularly likely during guilt-phase deliberations to provoke belief in the defendant’s criminal propensity — reversal of defendant’s conviction is unquestionably required, regardless of how the jurors come upon that knowledge.
C.
Part of the difficulty with these issues is that the remedies for the kind of rampant press coverage that characterized this ease are not obvious. Although it is true that the trial court may have been able to avoid some of the problem by empaneling a jury from Camden instead of Hunterdon, and erred by not attempting to do so, the fact that Megan’s Law coverage was so widespread diminishes the strength of the argument that empaneling a jury from Camden would have made a significant difference. At least in Camden, however, defendant would have been tried by a jury selected from a pool representing a cross-section of the community-
in spite of the difficulty in finding a solution, and the reluctance, perhaps, to recognize defendant’s habitual “nature” — the singular reason that makes defendant more detestable in the eyes of the public — as the one factor that entitles him to a new trial, hesitancy over the necessary remedy should not evolve into doubt or paralysis in doing what is required. There should be no question that in these circumstances defendant’s sentence must be vacated and his conviction reversed.
*692 IV
Defendant also claims that the State engaged in prosecutorial misconduct throughout the guilt and penalty phases. The Court acknowledges that some of the prosecution’s tactics were impermissible, but concludes the misconduct was not “so egregious as to deny defendant a fair trial.’ ” Ante at 596, 737 A.2d at 99 (quoting State v. Moore, 122 N.J. 420, 462 , 585 A.2d 864 (1991)). I disagree. Throughout defendant’s trial, the prosecution deliberately attempted to inflame the jury, to present defendant as an inhuman pervert — most notably by eliciting information regarding defendant’s prior sex offense convictions — and to denigrate the defense by characterizing defense counsel and defense witnesses as deceptive and biased. All of this was done continuously, in spite of repeated warnings by the trial court. Such misconduct had the clear capacity to affect the jury and prejudice defendant.
A.
Prosecuting attorneys are “afforded considerable leeway in making opening statements and summations.” Williams II, supra, 113 N.J. at 447 , 550 A.2d 1172 . At the end of trial, they are allowed to sum up the State’s case “ ‘graphically and forcefully.’ ” Feaster, supra, 156 N.J. at 58, 716 A.2d 395 (citation omitted). In general, prosecutorial misconduct, measured in isolated instances or by cumulative effect, will not stand as a basis for reversal unless it is so prejudicial as to have deprived the defendant of a fair trial. Id. at 59 , 716 A.2d 395 ; State v. Zola, 112 N.J. 384, 426 , 548 A.2d 1022 (1988); Ramseur, supra, 106 N.J. at 322, 524 A.2d 188 .
Nevertheless, prosecutorial misconduct is a chronic malady of the criminal justice system. See Williams II, supra, 113 N.J. at 456 , 550 A.2d 1172 ; State v. Spano, 64 N.J. 566, 568-69 , 319 A.2d 217 (1974). Too often, prosecutors lose sight of the fact that their principal obligation is not to convict, but to see that justice is done. Marshall I, supra, 123 N.J. at 152-53 , 586 A.2d 85 . As a result, *693 despite the restrictive standard for gauging prosecutorial misbehavior, see Feaster, supra, 156 N.J. at 59, 716 A.2d 395 , prosecuto-rial misconduct does lead to reversals of criminal convictions. See, e.g., State v. Farrell, 61 N.J. 99, 102-07 , 293 A.2d 176 (1972) (reversing conviction for armed robbery); State v. Welsch, 29 N.J. 152, 158 , 148 A.2d 313 (1959) (reversing conviction for public indecency); State v. West, 29 N.J. 327 , 149 A.2d 217 (1959) (reversing conviction for violation of Securities Law); State v. Landeros, 20 N.J. 69, 74-75 , 118 A.2d 521 (1955) (reversing conviction for assault), cert. denied, 351 U.S. 966 , 76 S.Ct. 1025 , 100 L.Ed. 1486 (1956); State v. D’Ippolito, 19 N.J. 540, 546-48 , 117 A.2d 592 (1955) (reversing conviction for perjury); State v. Jenkins, 299 N.J.Super. 61, 69 , 690 A.2d 643 (App.Div.1997) (reversing conviction for third-degree attempted burglary); State v. Gregg, 278 N.J.Super. 182, 191 , 650 A.2d 835 (App.Div.1994) (reversing conviction for aggravated manslaughter and assault), certif. denied, 140 N.J. 277 , 658 A.2d 300 (1995).
Repeated and extended prosecutorial misconduct intended to induce improper inferences and reinforce impermissible impressions are particularly prejudicial, and will overcome evidence of guilt. See, e.g., State v. Frost, 158 N.J. 76, 87-88 , 727 A.2d 1 (1999). Especially in “close and sensitive” cases involving sexual assault, and more so where the victim is a child, improper appeals by prosecutors “calculated to arouse sympathy for the victim and hate and anger against the defendant have a strong potential to cause a miscarriage of justice.” State v. W.L., 292 N.J.Super. 100, 110-11 , 678 A.2d 312 (App.Div.1996) (reversing conviction for sexual assault of child); see State v. Acker, 265 N.J.Super. 351, 357 , 627 A.2d 170 (App.Div.) (reversing conviction for second-degree sexual assault upon children under thirteen), certif. denied, 134 N.J. 485 , 634 A.2d 530 (1993); State v. Bruce, 72 N.J.Super. 247, 251-52 , 178 A.2d 233 (App.Div.1962) (reversing conviction for rape).
“[S]crupulous[ ] review” of allegations of prosecutorial impropriety is especially called for in contexts where the State is *694 seeking the death penalty. State v. Biegenwald, 106 N.J. 13, 40 , 524 A.2d 130 (1987). “ ‘Because death is a uniquely harsh sanction, this Court of necessity will more readily find prejudice resulting from prosecutorial misconduct in a capital case than in other criminal matters...’ ” State v. Rose, 112 N.J. 454, 524 , 548 A.2d 1058 (1988) (reversing death sentence where cumulative effect of prosecutor’s penalty phase statements deprived defendant of right to fair trial) (quoting Ramseur, supra, 106 N.J. at 324, 524 A.2d 188 ).
Defendant’s case is thus particularly sensitive: He was charged not only with the sexual assault of a young girl, but also capitally, for her murder.
B.
In the guilt phase of the trial, the overwhelming theme of the prosecution was the degradation of defendant’s character. That was accompanied by a simultaneous effort to evoke sympathy for the victim through the presentation of highly prejudicial testimony and arguments often irrelevant to the central issue of defendant’s guilt. The prosecution continually referred to defendant’s lack of emotion or remorse following the crime; it portrayed defendant as sexually perverted, specifically by alluding to defendant’s prior convictions as a sex offender. In light of the jurors’ knowledge and awareness of defendant’s prior sexual offenses, the prejudice that undoubtedly redounded from this kind of misconduct is obvious. Finally, the State set the stage for the penalty trial by continuously depicting defendant as cold, emotionless, and void of remorse.
1.
The State’s guilt-phase misconduct is best illustrated by the assistant prosecutor’s closing argument, which drew together the themes alluded to throughout the trial. After the Court dissects and desiccates the tangled strands of prosecutorial misconduct that enveloped this case, many of the prosecution’s improprieties, considered in isolation, do not appear egregious. Those impro *695 prieties, however, must be considered as interrelated and in light of the State’s highly inflammatory and improper closing. Reviewed in that context, defendant’s claim of excessive prosecutorial misconduct clearly prevails.
The most egregious portions of the prosecutor’s closing, many of which were, notably, omitted from the majority’s opinion, follow:
What kind of man could do such awful deeds? What kind of man could commit such evil acts? The kind of man who could cavalierly dump a child’s body and make his next stop a WAWA. The kind of man who could, after executing her daughter, look Maureen Kanka in the eye, within minutes, and not flinch. The kind of man who had the unmitigated gall to offer to hand out fliers for the child whose life he had just snuffed out. The kind of man who, over, the course of two days, could talk about the rape and murder and the brutalizing of a child and never show a shred of emotion. The kind of man who could talk about Megan’s death and blame her because his hand hurt. The kind of man like the defendant.
The defendant killed to protect his own self interest. He killed, he claims to protect himself, because he didn’t want Megan to get loose. He didn’t want Megan to tell on him. He didn’t kill in a rage. He didn’t kill in a panic. He didn’t kill by accident. This killing was so cold and so calculating that it is chilling in the extreme.
He killed Megan because she posed a threat to him. And as a threat, he had to exterminate her like you would step on a bug. He proved throughout this entire investigation that he would do anything to protect himself. He would do anything in his own self interest. He proved he would connive, manipulate, lie, deceive, and even kill if he thought it would help him.
He scooped up Megan’s body, put it in the toy box and dumped her in the weeds. What did he do next? He went to a WAWA You have heard statement after statement that he gave regarding his actions. You have heard words out of his mouth about his activities. Did you hear one word about reflection, concern, introspection about what he had done to Megan? He had just committed some of the most heinous acts a human being can commit. Did you hear in those statements one word of remorse? He dumped her body, and his only concern was to get to a WAWA to get cigarettes and a newspaper.
After the WAWA he proceeded home. He crossed the street, and that’s where he encountered Maureen Kanka. He had just dumped her daughter. Maureen is out, distraught, looking for her missing little girl. The defendant was able to stand there, looked that mother in the eye [sic ], and not flinch.
*696 Detective Pukenas hoped against hope that Megan might still be alive, but the defendant knew better. And indeed, she was dead. A little blue shirt was all that she wore, on her side, plastic bags over her head, her body covered with insects. It was a sight so tragic and perverse that every person who saw it will be haunted forever. And we will be haunted as well. Just the photograph of her body outlined in the weeds was so deeply disturbing for each and every one of you, because this wasn’t TV, this wasn’t a movie. This wasn’t an actress who would get up when the scene was done. This had been a real live, breathing child. And this was a real death at his hands.
The prosecutor’s provocative recreation of the crime was also graphic and extreme:
Dr. Ahmad told that you [sic] with all the variables, she couldn’t say how long until Megan became unconscious. It could have been two minutes, three minutes, longer, shorter. But the defendant himself, in his statement, said that the struggle in the door with the belt around her neck lasted five minutes. Five minutes, Megan, in pain, in terror, the belt being wrapped around her neck. You can almost hear her gasping for air.
We will never know how long her conscious terror persisted. We will know — we will never know how long it took until darkness overtook her. We will only know that the last face she saw on this earth was the face of the man committed to her destruction. However long it was, it was an eternity for Megan. We may not know the exact sequence of events, but we do know that whatever the sequence, it was so repulsive, so disturbing, so unsettling, so horrific, that it permeates to your very soul.
You have seen the pictures of the bags over Megan’s head. In your worst nightmares, did you ever think you would see such evidence of callousness? In your darkest moments, did you ever dream you would see such inhumanity? Is there any adult alive on the face of the planet who doesn’t know the effect of putting plastic bags over someone’s head? Could his intent have been any more crystalline? Could there be any question what he was intending?
And then, the prosecutor offered this finale, after which defendant objected:
Members of the jury, sexual violation in the park. Is there any image more despicable? Is there any act more depraved than that one? After all that he had done to that child, and he had to violate her one more time. He didn’t rip the bags off her head to try to save her. He stuck his finger in her vagina. Can there by any question of his intent?
*697 He dumps her, and then he drives off. This was a man who wanted to kill, intended to Idll, meant to Mil, chose to Mil, and did Mil purposely or knowingly by his own conduct.
It is hard for most of us, as human beings, to understand the unmitigated evil that this case represented. It is hard for most of us, as human beings, to understand that any adult could intentionally MU a chUd. It would have been beyond reprehensible if he had just committed the sexual acts and let her Uve. But if he had done that, she would have been damaged, she would have been hurt, but she would have been aUve. But she [sic] chose not to do that. He chose to take the gigantic step that raised these acts from the horrific to the catastrophic.
It is the brutaUty, the senselessness, the cold, calculating nature of these acts that is so appaUing, and so clearly tells you his intent.
This was not just a man who MUed. This was a man who kiUed without a shred of emotion. A man who MUed without a scintiUa of concern. You heard his statements over the course of two days. Did you ever once hear in any of those statements that it was an accident? Did you ever once hear him say in any of those statements, I didn’t mean this to happen? Did you ever once hear him say in any of those statements, I would do anything if I could change the results? You didn’t, because he didn’t ever say anything Uke that.
In those statements, did you once, even once, hear him mention anything about Megan or concern for what she had suffered? Megan would never laugh and never smUe again, and he blamed her for the wound on his hand. Megan was on a morgue table, and he wanted a band-aid.
Members of the jury, there are images from this ease that wiU Uve with all of us. AU of us who have seen and heal’d things in this case, these images wiU Uve with us forever. Some of them come from the descriptions that you have just heard from the testimony, acts so perverse, so offensive, that they shock our coUective conscience. Other images wiU come to you from normal every day [sic] things that suddenly have become sinister, different.
The belt. Something most of you men wear every day. You wiU never be able to look at a belt again and think of it only as a piece of wearing apparel. You wiU now forever see it as an instrument of destruction, something capable of being wrapped around a chüd’s neck, something capable of maMng grooves in a ehUd’s neck, being used as a leash, something used to destroy, to choke, to strangle, to annihUate.
A toy box. Before this trial, I am sure that the image of a toy box was something that brought great joy. It conjured up chñdhood happiness, laughter, aU of the treasures that would be found inside. You wUl never again be able to look at a toy box and think of elnldhood treasures. Instead, you wiU see in your mind’s eye Megan. It is no longer a toy box. It was a coffin. Megan’s crumpled, battered body inside. Will that image ever fade? I don’t think so.
A park. Before this case, you would think of a park as a place that was bucolic, idyllic, peaceful. A place where families would go to enjoy life, where children could run and play. Now, it will invoke images of death. It was a place where the *698 defendant chose to dump Megan’s body, a place now defiled by his despicable acts. Megan, cast aside like so much garbage.
Plastic bags. Something most of us see or use every day. Will you ever be able to look at a plastic bag again and not think of the ultimate horror? You have seen the pictures of Megan’s head encased in those particular bags put on by the defendant. Those bags, ties tightly around her neck, each bag guaranteeing that death would follow. Each bag a declaration by the defendant that he wanted her dead. A child playing with a dog. Is there any image that does more to evoke childhood than that one? It brings to mind all that childhood is, innocence, happiness, laughter, trust—
You will think what might have been. Megan died without ever knowing why. You know that Megan had to be thinking why, why, and she would never have known. No one on earth deserves to die as Megan did. In pain, in terror, in anguish. No one on earth deserves to die that way.
Megan died at the hands of a man who knew no mercy, who knew no decency, who showed no humanity. There are not words to express the outrage. There are no words that can express the horror. There are no words that can express the disdain.
There is only one word that can begin to do justice, and that one word must come from you. And that word is guilty.
Confronted with this vivid presentation, the court instructed the jury prior to guilt-phase deliberations simply to distinguish “emotional words [ ] or phrases that have a tendency to inflame from descriptive language,” urging them to disregard the former. Ante at 586, 737 A.2d at 93.
a.
The most vivid theme of the prosecution, used throughout the trial and illustrated most prominently in the closing, was the degradation and dehumanization of defendant. The prosecution, well attuned to the jurors’ awareness of defendant’s prior convictions as a sex offender, alluded in many ways to those convictions. In addition to portraying defendant as a sex pervert, the prosecution also attempted to leave the jury with the overall sense that defendant was disgusting and sleazy, a pariah to be avoided.
In the opening statement, the prosecutor described defendant’s interest in Megan as longstanding and his thoughts with regard to her as “anything but pure.” In contrast, the prosecutor remarked *699 that Megan, as she “walked into that house ... couldn’t know about the defendant.” See id. at 577, 737 A.2d at 87. The prosecutor elicited from Detective O’Dwyer the following reading from defendant’s statement:
Q: What was your intention of bringing her into the house?
A: My intentions were just to feel her up and kiss her and try to get her not to say anything. I didn’t want to hurt her physically, but I knew I was hurting her mentally by what I was doing.
Q: What do you mean by feel her up?
A: Rub my hands up and down her legs and feel her butt. I learned that my main attraction to younger girls was the softness of their skin.
Q: What attracted you towards Megan?
A: A lot of times during the summer she would be sitting on the curb across from my house on the curb or in the street. She would write with chalk in the street. She would wear loose shorts with no panties underneath, and I would see this as she had her legs open.
Q: Were you sexually aroused by observing Megan’s actions with her legs open and had no underwear? Had no underwear? I’m sorry.
A: I got a reaction from it, but I never got a hard on from it.
Q: What reaction would you get from this?
A: I would get sweaty palms and my heart would race. I would go back into the house.
Q: Did you masturbate when you went back into the house after observing Megan?
A: No. If I still felt aroused at night, I would pull out magazines that I had and would masturbate to them.
Q: What type of magazines do you have?
A: Triple X, porno magazines that come from the recycle shed work that I became attracted to upon seeing them.
Q: Did any magazines involve child pornography?
A: No. They were all adults, and I have never seen child pornography magazines. I never tried looking for one.
Q: Were you under the influence of any drug or alcohol during this time span of this incident?
A: No.
Q: What do you think is the reason for what you are doing?
A: The softness of the skin and the hairlessness of the body is what I am really attracted to.
*700 During the testimony of Detective O’Dwyer, the prosecutor wore latex gloves while handling defendant’s clothing in front of the jury. She did not do so while handling the victim’s clothing. Defense counsel objected to this at sidebar. The prosecutor replied that it was her normal practice, and the court allowed the practice to continue.
The portrayal of defendant as a sexual deviant continued as the prosecutor elicited testimony from Officer Shaw, who described the “small portion of a print, as if it could have been made by a smaller person” found in defendant’s bedroom. Defense counsel objected to this description, but the court did not strike the testimony. The court allowed Shaw to explain that the fingerprint did not match the victim’s, thus leaving the jury with the impression that defendant had previously had young girls in his bedroom other than the victim.
The prosecutor’s closing crystallized the impermissible implication:
He had been lusting for this child for weeks or months, as he told Sergeant Stanley on Sunday. He had been watching little girls for weeks and months, and getting those feelings for them. It is an image that is so appalling that it is hard to put into words. He had been lusting after this child.
b.
The prosecution relentlessly portrayed defendant as inhuman, cold, remorseless and void of emotion. In the State’s opening, the prosecutor described how defendant denied having seen the victim when asked by her mother if he knew where Megan was:
At the point in time that the defendant had this conversation with Maureen Kanka, he had already kidnaped, brutalized and murdered Megan. Yet he was able to stand there, look that child’s mother in the eye and tell her he hadn’t seen Megan since earlier that night.
The prosecutor then described defendant’s calculated disposition of the victim’s body:
And [after the murder] he realized he had — ironically—a toy chest, a toy chest that he had converted into a tool box. And he thought that Megan’s body would fit nicely into this toy chest.
*701 The prosecutor contrasted defendant’s demeanor following the crime with the relatively emotional response of the investigating officers, needlessly highlighting the tragedy of the crime by describing the victim’s clothes:
It wasn’t until they got out of the ear and ran over to the area that all hope was extinguished. There was Megan, lying on her side, naked, except for a little blue and pink shirt. Her head covered with plastic bags. It was a difficult and emotional sight for every law enforcement officer in that park, but their job was not done ... They had to secure the scene and body for further forensics. Detective Pukenas and McDonough returned the defendant to the police station. In the car, after leading the police to her body, the defendant coldly, unemotionally described what he had done to Megan ...
[emphasis added.]
Defendant did not object to these statements at trial, but now contends that they laid the foundation for the prejudicial themes of defendant’s lack of emotion and sexual perversion.
The State continued its assault on defendant’s lack of emotion during the examination of several witnesses. The lead prosecutor asked Detective Pukenas about defendant’s demeanor in the police car as defendant recounted the murder to the accompanying officers:
Q: Detective, let me ask you, on the way back in the car, as he’s giving this narrative of what happened, what was his tone of voice?
A: It remained a normal tone of voice. He was telling us what happened. He was very cooperative. Nothing really had changed in his demeanor of his tone of voice.
Q: Was there any point in time in the telling of this story that he got emotional?
A: No.
MR. GREENMAN: Objection, Judge.
THE COURT: Objection overruled.
Q: Was there any point in time in the telling of this version where his voice cracked?
A: No.
Q: Or wavered?
A: Never.
Q: Did you ever see him shed a tear?
A: Never once.
Q: On the way back, in the car, did he at any time indicate any concern about Megan?
*702 A: Not at all. I think he was the only one not crying.
Defendant objected again and the court sustained the objection. The court then gave a limiting instruction to the jurors, telling them to disregard the last statement regarding defendant’s emotional state. Ignoring the court’s warning, the prosecutor continued in the same vein:
Q: Detective, did he ever in the car on the way back say that it was an accident?
A: He never said that.
Q: Did he ever say that he didn’t mean to kill her?
A: He never indicated that at all.
Q: Did he ever say he was sorry that he killed her?
A: He never said that.
Q: Did he ever say any words whatsoever that indicated remorse?
A: Nothing like that at all.
Pukenas also testified that defendant maintained the same control in the interview room during his written confession, and stated on redirect that during interrogation, defendant was “talking a little bit more than he had prior to that ... [b]ut not in any tone of voice that would indicate remorse.” Again, counsel objected and the objection was sustained. The court told the jury to disregard the witness’s conclusory statement about defendant’s remorse.
On direct examination of Sergeant O’Dwyer, the prosecutor continued impermissible inquiry into defendant’s emotional state at the time of his first statement to the police:
Q: During the giving of this statement by the defendant, did his tone of voice ever change?
A: No, ma’am.
Q: Was there any point in time when he gave this statement that his voice cracked with emotion?
A: No, ma’am, never.
Q: Was there any point in time during the giving of this statement that there was a catch in his voice as if to indicate an emotional reaction?
A: No, ma’am, none.
Q: Detective, was there any point in time during this statement that he had to stop to compose himself?
A: No, ma’am, never at any point.
Q: At any point in time did he have to stop to collect his thoughts?
MR. GREENMAN: Objection, Judge.
*703 THE COUET: The objection is sustained.
Q: Was there any point in time when he cried during this statement?
A: No, ma’am.
Q: At any point in time, did he ever say he regretted what he did to Megan?
A: No, never.
Q: And Detective, when you asked him how he felt, and his response was, I am trying not to cry — remember that question and answer?
A: Yes, I do, ma’am.
Q: Do you know if he was trying not to ay because he had killed Megan, or because he had been caught?
ME. GEEENMAN: Objection, your Honor.
THE COUET: Objection sustained. Please disregard that, ladies and gentlemen. Ms. Flicker, there was no reason for that question whatsoever.
Q: Do you know why he responded as he did?
ME. GEEENMAN: Objection, your Honor. An interpretation by this witness, I object to. That’s up to the jury to decide.
THE COUET: Only if something further was said. There was some inquiry. So it’s overruled to that extent. If there was something further said.
Q: Was there anything further said?
A: No, ma’am.
The prosecutor then asked Detective O’Dwyer to read defendant’s statement to the jury. In doing so, the witness broke down in tears and the court allowed him to take a break. Several of the other testifying officers also rendered emotional testimony. Defense counsel objected to O’Dwyer’s reading of the statement, claiming that the emotional delivery was a “farce.” The trial court allowed the testimony, nevertheless.
Sergeant Charles Stanley testified regarding his interrogation of defendant immediately following Dr. Askin’s examination of defendant’s hand wound. The prosecution asked Stanley the following questions:
Q: Now, did something else happen at the beginning of your interview with the defendant?
A: Yes. After Dr. Askin’s examination of the defendant, and the defendant’s hand was apparently, had been manipulated for the purpose of taking photographs, *704 and that he was complaining that the wound was bothering him, and he also mentioned — he was also blaming Megan for inflicting that wound upon him.
Q: Was there any further mention of the hand?
A: Yes. He continued to complain about his hand being hurt and, again, he felt that Megan was responsible, and he blamed her for that injury.
Q: Sergeant, during this process with the defendant on that afternoon, did he at any time say that he regretted what he had done to Megan?
A: No.
Q: Did he ever say it was an accident?
A: No, he didn’t.
Q: Did he ever say that he was sorry?
A: No.
Q: Did he ever show any emotion?
A: The only emotion that he ever displayed when, was when he was being a little upset about his hand wound, and he was upset about [sic] Megan had inflicted that wound upon him. But even that was — he wasn’t grievously upset about it, but he was complaining about it.
Q: Did you see him physically demonstrate any type of emotion when he talked about it — when he gave the statement?
A: No.
Defense counsel objected and the objection was sustained.
c.
Finally, the State improperly played on the emotions of the jurors by constantly referring to the victim, both in death and in life. The prosecution emphasized the victim’s innocence and naive trust of defendant, as well as the more gruesome aspects of her death and examination of her body. The prosecutor began this improper tactic in her opening, referring to Megan entering defendant’s house with “her head [ ] filled with vision of a puppy.” Dr. Askin testified that he had removed the victim’s lower jaw during the autopsy. The prosecutor referred to the jaw removal several times, and induced Dr. Askin to discuss it on direct. That testimony prompted the court to call counsel to sidebar, where he *705 reprimanded the prosecutor. 20 The court, however, did not administer a curative instruction to the jury. The theme of the victim’s innocence was prevalent during the State’s summation. See supra at 580-85, 737 A.2d at 89-92.
2.
The Court holds that “[ajfter carefully examining the record and recognizing that some of the prosecutor’s remarks were improper, we are fully satisfied ‘that it was the weight of the evidence, particularly the damning statements uttered by defendant himself, that led to this capital murder conviction rather than the prosecutor’s improper comments____’” Ante at 596, 737 A.2d at 99 (quoting Feaster, supra, 156 N.J. at 63-64, 716 A.2d 395 ). Unfortunately, defendant’s damning statements were presented through the haze of the prosecutor’s damning and unprofessional conduct. Even under a plain error standard of review, I find that the cumulative effects of the State’s misconduct had a clear capacity to corrupt the impartiality of defendant’s jury. As long as we are in doubt, we cannot, in good conscience, take a human life.
Although I agree with the Court that portions of the prosecutor’s opening statement that simply alluded to evidence that would be presented at trial did not constitute reversible error, see id. at 589, 737 A.2d at 95, and that much of the State’s examination of witnesses was proper to demonstrate defendant’s motive, intent, *706 bias, or voluntary waiver, see ibid., those conclusions are counterbalanced and offset by the State’s repeated derogatory allusions to defendant’s character — which has absolutely no bearing on the issue of defendant’s guilt. Those allusions were made in a highly inflammatory manner, often without an accompanying limiting instruction by the court. For instance, the prosecutor’s expressions of revulsion and contempt for defendant by wearing plastic gloves while handling his clothes, dramatically and graphically, if subliminally, conveyed to the jury the that defendant was a loathsome, less than an ordinary human being. In addition, the prosecutor improperly elicited evidence indicating that defendant was guilty of prior sex crimes. Officer Shaw’s testimony that fingerprints of a “smaller person” other than the victim were found in defendant’s bedroom easily laid the groundwork for an inference by the jury that defendant was a pedophile, a chronic molester, who had another child in his bedroom and was guilty of sexual misconduct with that child. The State’s elicitation of Officer Shaw’s testimony was patently improper.
The prosecutor also engaged in impropriety by condemning, indeed ridiculing, defendant for complaining about the pain he felt in his hand. The prosecutor portrayed defendant as contemptible, asserting that his pain was petty weakness or simple vanity when compared with the profound suffering the victim experienced before dying, conjuring the feeling that if anyone deserved to experience the throes of death, it was defendant. In Gregg, supra, the Appellate Division reversed a conviction for aggravated manslaughter and assault resulting from a drunken driving accident because the prosecutor made similar remarks. 278 N.J.Super. at 191 , 650 A.2d 835 . The court noted that “while we have no doubt that the evidence respecting defendant’s post-crash behavior was relevant, albeit to a limited degree and for a limited purpose, it is regrettably clear that the prosecutor abused this evidence by using it for the primary purpose of portraying defendant as an utterly vile, contemptible and despicable person.” Id. at 189-90 , 650 A.2d 835 . Such is the case here. Although the evidence regarding defendant’s hand and defendant’s lack of remorse is *707 relevant to the limited extent that it goes to the voluntariness of the defendant’s confession, .the multitude of allusions to defendant’s lack of remorse suggests that the “primary purpose” of the evidence, contrary to State’s claims, was to encourage the jury to despise defendant.
The prosecutor’s repeated reference to the fact that Dr. Askin removed the victim’s lower jaw during an autopsy in order to make a model of her teeth was also highly improper. The trial court recognized as much and harshly reprimanded the prosecutor. It was painfully obvious to the court, and surely was to the jury as well, that this invasion of the victim’s body was, even in death, a defilement that was defendant’s fault, made necessary because of the need for forensic evidence caused by defendant’s crime. The court, however, did not repeat its admonition to the jury. Therefore, one must assume that this graphic and gratuitous tactic had a prejudicial effect that was amplified by the ongoing efforts of the prosecution to inflame the jury.
Many of defendant’s other claims of misconduct are, when examined in isolation, not substantial. When placed in the mosaic of the entire prosecution, however, they serve to reinforce the prejudice that infected the jury’s understanding of the gravity of the evidence, as well as the jury’s perception of the strength of the evidence when making the final determination of defendant’s guilt and blameworthiness.
Ultimately, the cumulative effect of the prosecutor’s guilt-phase misconduct and its exploitation of admissible evidential testimony was epitomized by the prosecutor’s closing. In its summation, the State is given the opportunity to tie all the evidence together, and thus the potential to rejuvenate the prejudicial effect of misconduct otherwise cured or counteracted. See Farrell, supra, 61 N.J. at 106 , 293 A.2d 176 (“[Bjecause the prosecutor represents the government and people of the State, it is reasonable to say that jurors have confidence that he will fairly fulfill his duty to see that justice is done whether by conviction of the guilty or acquittal of the innocent. His comments in summation whether proper or *708 improper carry with them the authority of all he represents. It is unlikely a juror will believe a prosecutor would intentionally mislead him.”) (citation omitted); see also Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314, 1321 (1935) (“It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions; insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.”). The prosecutor’s closing in this ease was highly prejudicial. This was an emotional case, and the prosecutor exploited it as such. On summation, the prosecutor made a multitude of references to the victim’s impeccable character accompanied by degrading remarks on the defendant’s character.
Any capital trial will necessarily involve testimony and physical evidence pertaining to the victim. This evidence, though admissible, cannot be used in a manner calculated to so confuse or impassion the jury that it inappropriately intertwines irrelevant emotional considerations with relevant evidence. There are occasions when evidence relating to the victim’s character and personality may be probative of critical aspects of the trial, e.g., defendant’s assertion of self-defense or provocation. Where, however, as in the matter before us, the victim’s character has no bearing on the substantive issue of guilt or the penalty to be imposed, the prosecution may not comment on the evidence in a manner that serves only to highlight the victim’s virtues in order to inflame the jury.
[Williams II, supra, 113 N.J. at 451-52 , 550 A.2d 1172 .]
In Williams II , the Court found “[t]he prosecutor’s remarks were clearly improper and should have been stricken from the record and the jury properly instructed to disregard them.” Id. at 452 , 550 A.2d 1172 . 21 The prosecutor’s remarks in this case *709 similarly contrasted the victim’s life and dreams with the terror she felt at the moment of her death. And, as in Williams II , this prosecutor depicted the vict

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9649498. Public record. Not legal advice.