HANDLER, J., dissenting in part and concurring in part.

The defendant, Steven Davis, was arrested for the murder of his friend, Barbara Blomberg, in January 1983. He was indicted the following April on several counts of murder and weapons offenses. At his arraignment, approximately one week after the return of the indictment, the State served the defendant with a notice of aggravating factors, thus converting the case into a capital-murder prosecution. The defendant, represented by retained counsel, entered a plea of not guilty and not guilty by reason of insanity. Thereafter, on September 14, 1983, the defendant entered a plea of guilty to capital murder, thereby exposing himself to the death penalty.

The Court in its opinion observes that the indictment, to which defendant pled guilty, alleged two distinct crimes of murder in violation of N.J.S.A. 2C:11-3, one capital and the other non-capital. Ante at 367. Because defendant pleaded guilty to murder as charged in the indictment, the Court correctly concludes that the guilty plea must be set aside.

In my opinion, the defendant was not adequately advised of the consequences of his guilty plea and hence I agree with the Court that the plea must be vacated. However, I also believe, as a matter of constitutional dimension reflecting principles of due process, fundamental fairness, and the avoidance of cruel and unusual punishment, that a defendant in a capital prosecution may not be convicted of capital murder on a guilty plea unless that plea meets exacting standards. Such heightened requirements are mandated in a capital-murder prosecution, the consequences of which may be death. This augmented standard, I believe, must be available to the defendant on the remand of this case.

There are other issues addressed by the Court. I differ with respect to two of them. The aggravating factor of c(4)(c) in this case relates solely to "depravity." In my view, this standard, both as construed by this Court and as applied to the facts in this case, is unconstitutional on grounds of vagueness and overbreadth. Moreover, the depravity factor was not sufficiently explained to defendant as part of the plea proceeding, nor was it properly explained to the jury in the trial court's instructions in determining whether the death penalty should be imposed. Further, the evidence of depravity, I believe, is insufficient to establish the aggravating factor of c(4)(c), and principles of double jeopardy and fundamental fairness serve to bar the State from any further attempt to resentence defendant to death in reliance on this factor.

Finally, I differ from the Court's formulation of the standard governing effective assistance of counsel. It concludes, unwisely and unsoundly in my estimation, that a more stringent test for determining effective assistance of counsel is not required in capital-murder prosecutions.

These issues raise major concerns that I feel must be addressed. Their resolution, as well as continuing constitutional and statutory deficiencies that surround our capital-murder prosecutions, see, e.g., State v. Ramseur, 106 N.J. 123 , 382-408 (1987) (Handler, J., dissenting) and State v. Bey (II), 112 N.J. 123, 188-90 (1988) (Handler, J., dissenting) demand reversal of defendant's conviction and death sentence.

I.

A.

The record of the plea hearing in this case exposes the major substantive and procedural obstacles in entering a guilty plea to capital murder. At the plea hearing the defendant was questioned by his attorney and by the trial court to determine his understanding of the consequences of the plea as well as the voluntariness of the plea. His answers were limited largely to "yes" and "no" in response to rather lengthy and complicated questions. Nevertheless, with little or no probing by the trial court or counsel, he insisted that he understood the significance of his guilty plea and had decided to plead guilty. This, I believe, falls woefully short of what must be required to entertain a plea of guilty to capital murder that will expose the defendant to a death sentence.

This is what the record reveals. The basis for the decision to plead guilty was provided by the defense counsel in his questions to the defendant. Counsel indicated that he had talked with the defendant and his father at the jail on September 12, 1983. It was counsel who advised defendant to plead guilty. The defendant acknowledged that defense counsel had reviewed the confessions he had made to various people, the proofs against him, and the report of the defense psychiatrist, Dr. Willoughby, before advising him as follows:

Q And you recall my pointing out to you that it is her [Dr. Willoughby] professional opinion that you were insane at the time of the killing in a sense that you did not know the difference between right and wrong and could not appreciate the nature and quality of your act, however, that it was my judgment after having reviewed all the evidence and having consulted with other lawyers who do the same kind of work as I do, that given all the evidence and understanding that we have, this defense of insanity, that such a defense would not be successful in a court. Do you understand that?

A Yes.

Q And it is my further feeling that realizing the same jury would have to try the death penalty phase of the case, if you were convicted that we have a better chance of saving your life if we admitted that you committed these crimes and forthrightly told the jury. That on a death penalty phase or trial, rather than contesting the issue of whether or not you committed these crimes, or if you did, whether or not you were insane at the time you committed them; do you understand what I have just said?

A Yes

* * * * * * * *

Q So that you understand that by pleading guilty . . . you are giving up your right to a jury trial on the issue of whether or not you committed these crimes, and . . . you are giving up the right to present the psychiatrist and any other witnesses who would defend for you those charges. You are giving up the right that you have through me to cross-examine the witnesses and the State, giving up the right to prove that perhaps there is a reasonable doubt that you committed these crimes. You are giving up all these rights in exchange for what you might call a strategy to permit us to argue and to plead before the jury, a fresh jury, who has not heard you contesting the crimes that you have been charged with, contesting your guilt, to permit a fresh jury to hear . . . why they should spare your life. Do you understand that?

A Yes.

Q Do you remember I explained all that to you and you asked me some questions? You first asked me if we were going to have one trial or two trials and that I recommended to you that we have just one trial, because I felt that if we put evidence before a jury first, that you would be convicted and that jury might be so upset that they would be much less likely, in my judgment, to spare your life at a second trial in the issue of the death penalty. Do you remember asking me about this?

A Yes.

Q And I told you the answer and you thought about it and you told me that you wanted to plead guilty, do away with the first trial . . . and have one trial on the issue of whether or not your life should be spared. Do you remember that?

A Yes.

Q Are you satisfied with the choice that you made after talking with me?

A Yes.

* * * * * * * *

Q Do you agree with it?

A Yes.

Q Is there any question you want to ask of me or even the Judge . . . before you agree to plead guilty?

A No.

Q Are you sure?

A Yes.

Following this questioning the defendant entered his plea of guilty, thus waiving his right to a trial on his guilt or innocence, and at the same time automatically exposing himself to a sentencing trial at which he risked his life.

As noted, on the record, the plea establishes only that the defendant is guilty of murder as charged in the first count of the indictment. That count charged defendant with "purposefully or knowingly caus[ing] the death of or serious bodily injury resulting in the death of Barbara Blomberg." (emphasis added). Our decision in State v. Gerald, 113 N.J. 40 (1988), made clear that the second form of murder alleged in the indictment is non-capital murder. The question, therefore, becomes whether the plea itself nonetheless establishes the required intent to found capital murder.

The majority acknowledges that defendant's statement in the plea transcript contradicts the required intent that he purposely or knowingly killed Barbara Blomberg and therefore the guilty plea does not establish a factual basis for a capital conviction. Ante at 371. The Court also recognizes that because defendant was unaware of the Gerald distinction, he did not "fully understand" the material terms and relevant consequences of the offense to which he pled, and thus the plea was not knowing and voluntary. Ante at 368-370. I fully agree.

In this case, the plea transcript reiterated the defendant's statement in his confession, and later in his trial testimony, that he did not "go into that apartment with the idea or intention to kill her." But he did "in fact . . . commit the acts." This Court has, in previous capital cases, minimized the significance of such contradictions or ambiguities in assessing the adequacy of the evidence to establish a defendant's guilt of capital murder. It has determined that although a jury's guilty verdict was based on such ambivalent evidence concerning the defendant's intent, there was no possibility that its determination was premised on the intent to cause only bodily injury that resulted in death. See, e.g., State v. Pitts, 116 N.J. 580 , 614-20 (1989); State v. Hunt, 115 N.J. 330 , 376 (1989). Hence, at least with respect to a jury verdict, even though a charge may present two distinct forms of murder, evidence of guilt of capital murder can be used to negate and overcome the latent ambiguity generated by such a charge as well as the potential confusion of a jury not attuned to the differences between the various forms of murder.

A plea, however, is very different in both substance and procedure from a jury verdict. In New Jersey, a guilty plea to a non-capital charge cannot be accepted unless the defendant has acknowledged his guilt. State v. Reali, 26 N.J. 222 (1958); State v. Sands, 138 N.J. Super. 103 (App.Div. 1975), aff'd on other grounds, 76 N.J. 127 (1978); R. 3:9-2. The problem in this case is that while there may be sufficient facts available to support a finding that the defendant knowingly and purposefully committed murder, his statements contradict any such finding. Thus, I agree with the Court's disposition to vacate his guilty plea to capital murder. I would, however, further emphasize that this case illustrates the unique pitfalls that confront a defendant in a capital-murder prosecution. This record reveals the extreme uncertainties that can be encountered in entertaining a guilty plea to capital murder. It poses, moreover, other problems of comparable magnitude that implicate the standards required to govern a guilty plea to capital murder, touching on the kind of evidence that must be adduced to support such a guilty plea, identifying the critical consequences of such a guilty plea, and structuring an appropriate procedural framework within which a guilty plea can be taken.

B.

Rule 3:9-2 provides that a guilty plea is not valid unless the defendant understands the nature of the charges and consequences of the plea. Thus, for a plea to be valid, "all material terms and relevant consequences [must] be clearly disclosed, fully understood, and knowingly and voluntarily accepted by the defendant." State v. Warren, 115 N.J. 433 , 444 (1989). As noted, under Rule 3:9-2, a defendant in an ordinary criminal case can, and ordinarily does, supply the factual basis for his plea. However, the Rule creates an exception for capital defendants, allowing them to plead guilty without personally providing a factual basis, although a sufficient factual basis is still a prerequisite to acceptance of the plea. The rationale for this singular exception is that a defendant exposed to the death penalty should not be required to state anything that can support an aggravating factor; he need not aid in rendering his own death sentence. See Comment, Trial Judges Committee on Capital Causes, reprinted in Pressler, Rules Governing the Courts of the State of New Jersey, 533 (1989).

Rule 3:9-2 states:

When the defendant is charged with a crime punishable by death, no factual basis shall be required from the defendant before entry of a plea of guilty to a capital offense or to a lesser included offense, provided the court is satisfied from the proofs presented that there is a factual basis for the plea. (emphasis added).

Nevertheless, the Rule is silent in terms of the standards by which a court determines when it can be "satisfied" "that there is a factual basis for the plea" or in what form and within what procedural framework the court is to consider the "proofs presented."

In my opinion, because of the uniqueness of the crime of capital murder, the distinctive process by which ordinary murder is catapulted into capital murder, and the limited sentencing options mandated by a capital case, that is, life or death, the standards by which a defendant is informed of the nature and consequences of a guilty plea must be more meticulously defined and scrupulously applied. Moreover, because of the bifurcated trial methodology for the prosecution of a capital case, the format for the taking of a guilty plea in a capital prosecution must be structured differently from that used in noncapital cases. In sum, I would insist on a heightened application of each of the major requirements that currently govern the validity of a guilty plea. These relate to the full disclosure and explanation of all material aspects of the plea, the adequacy of the defendant's knowledge and understanding concerning the basis for and consequences of a guilty plea, and the voluntariness of the plea; all of these relate importantly to the accuracy of the underlying facts that support criminal guilt. See Warren, supra, 115 N.J. at 443.

It is generally acknowledged that the most critical requirement in entertaining a guilty plea to a criminal offense is its factual basis. J. Barkai, "Accuracy Inquiries for All Felony and Misdemeanor Pleas: Voluntary Pleas But Innocent Defendants?," 126 U.Pa.L.Rev. 88, 90-91 (1977) (hereinafter "Accuracy Inquiries"). The existence of a factual basis for the plea serves a variety of purposes. It informs every important component of a valid guilty plea. It assists the judge in determining the understanding and voluntariness that attends the plea, provides a better record for appellate review if the plea is subsequently challenged, increases the visibility of charge-reduction practices, and aids correctional agencies in the performance of their functions. See 2 W. LaFave J. Israel, Criminal Procedures § 20.4(f) (1984).

The primary justification for a factual-basis requirement is the protection it accords the defendant. E.g., McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, 426 (1969); Brown v. State, 250 A.2d 503, 505 (Del.Super.Ct. 1969); McCall v. State, 9 Md. App. 191, 199, 263 A.2d 19, 25 (1970). The protection rationale is based on the assumption that because some innocent defendants will offer guilty pleas, or defendants guilty of different or lesser offenses will seek to plead to offenses they did not commit, such defendants can be protected only if a factual basis is required before their pleas are accepted. See A. Goldstein, The Passive Judiciary, 1, 33 (1981). Thus, the factual-basis requirement in any plea proceeding assures accuracy and the function of accuracy ensures that no defendant offers a plea without understanding and realizing that his or her conduct actually falls within the charge. Barkai, Accuracy Inquiries, supra, 126 U.Pa.L.Rev. at 95.

Consequently, in my view, we must approach the issue of the factual basis for the guilty plea in a capital case not from the perspective of the contractual justification of plea bargaining or the reasonable expectations of the parties, but rather with regard to whether the evidence actually supports the plea, that is, whether the defendant really committed the crime and whether the defendant understands that the facts justify and comport with guilt of the crime.

In light of the importance of the factual-basis requirement, a more stringent evidentiary standard, both in terms of the source of the evidence and the standard of proof necessary to establish facts, must therefore be invoked. I believe that the evidence should be competent as well as relevant and that the standard of proof to be employed in capital guilty pleas should be "beyond a reasonable doubt." I would also insist that the taking of the guilty plea be based on actual proof of guilt, or the reliable proffer of such proof, that clearly satisfies the court that such evidence, if produced at trial, would enable a reasonable jury to conclude that defendant is guilty of capital murder beyond a reasonable doubt. Moreover, even though evidence may be proffered rather than introduced, the underlying evidence must be "competent" in order to constitute a factual basis to a capital plea. Cf. Barkai, Accuracy Inquiries, supra, 126 U.Pa.L.Rev. at 136-37 ("the judge can question the witnesses under oath, separate personal knowledge from hearsay, and inquire into facts related to specific defenses."). Statements by both the prosecutor and defense counsel may also aid in establishing an accurate factual basis, as both presumably have personally investigated the case and are knowledgeable about the law. Moreover, the court must be satisfied that the evidence proffered must be shown to be available to the State through present and competent witnesses. Further, the court should have the authority to call witnesses and require the production of actual evidence for good cause.

The knowledge and understanding of the defendant who pleads guilty to capital murder are critically important. Hence, the trial court must explain to the defendant all elements of the offense of capital murder. See, e.g., United States v. Coronado, 554 F.2d 166 (5th Cir.) (defendant should be advised as would a jury be instructed on the law), cert. den., 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149 (1977). In this case, for example, the majority has acknowledged and definitively stated that a capital defendant must be made aware of the distinction between the two forms of murder embraced by N.J.S.A. 2C:11-3(a)(1) and (2); the defendant must further understand the consequences of that distinction. At the very least, the court must explain, and presumably contrast, the element of intent for both capital murder and serious-bodily-injury murder. Moreover, the explanation must be genuinely intelligable and understandable to the defendant. "It is not sufficient for the trial court to explain the formal charges in legal terminology alone, but [the Court] should use language a lay defendant can understand." Riley v. Ziegler, 161 W. Va. 290, 241 S.E.2d 813, 815 (1978); Bond, Pleas, supra, ch. 6, at 8.

Further, we have recognized that the penal — the sentencing — consequences are a critical and material aspect of a knowing and voluntary guilty plea. See, e.g., Warren, supra, 115 N.J. at 444; State v. Taylor, 80 N.J. 353 (1979). Because the death sentence is a potential consequence of a guilty plea to capital murder, more exacting standards must govern the treatment of this penal consequence. In an ordinary case, we strive to give the defendant a maximum amount of information concerning his sentencing risks. See, e.g., Warren, supra, 115 N.J. at 444-45. We have recently amended our rules to permit the sentencing consequences to be addressed more specifically. See R. 3:9-3(c). 123 N.J.L.J. 1350 (June 1, 1989). The defendant in the ordinary case is also informed of the sentencing process and the possible or likely sentence he will receive. We further recognize that if a defendant's sentencing expectations are disappointed he may retract his guilty plea. See Warren, supra, 115 N.J. at 444.

Sentencing for capital murder is different from ordinary sentencing in every major aspect. We have, nonetheless, struggled to accord a capital defendant the same entitlements due any defendant when being sentenced. See, e.g., State v. Zola, 112 N.J. 384, 428-32 (1988) (defendant has right of allocution); State v. Koedatich, 112 N.J. 225 , 327-32 (1988) (an attorney must present mitigating factors on behalf of a defendant); State v. Bey (II), supra, 112 N.J. 123 , 171-72 (1988) (though not charged, mercy and sympathy may be considered by a jury in addressing sentence); State v. Davis, 96 N.J. 611 , 619-21 (1984) (proof of mitigating factors not governed by rules of evidence). Thus, the trial court in a capital case should explain that once it has accepted the plea, the defendant is to be turned over to a jury, which will decide his or her fate. Further, the defendant should be made aware of precisely how the jury reaches its determination. Therefore, the concept of aggravating and mitigating factors, the elements for determining the existence of such factors, the balancing process entailed in their weighing and the standard of proof that applies should also be explained. The defendant should thus be made cognizant of what the State must prove, and is prepared to prove, to establish the aggravating factor(s) alleged in the case, and must be given an adequate basis to consider and determine the likely outcome of the sentencing phase. See Taylor, supra, 80 N.J. at 363. Finally, because it is a guilty plea that automatically exposes the defendant to a sentencing trial, the court should also require the State to demonstrate the evidence available to prove aggravating factors.

These considerations forcefully demonstrate that the taking of the guilty plea in a capital-murder prosecution should be structured with greater formality. The entry of a judgment of conviction of guilt of capital murder based on a guilty plea approximates a jury's determination of guilt following a trial. While the plea record cannot be used at capital sentencing, the fact of defendant's guilty plea can. The Court should therefore insist on necessary procedural protections to assure the integrity of the guilty plea process and to prevent its misuse or misapplication in the sentencing trial. For example, the defendant should have full discovery. The court should also determine initially in what form evidence should be adduced or proffered. Further, the court should satisfy itself independently that defendant understands fully the elements of the crime of capital murder and the sentencing consequences, including the procedures, substantive standards and possible outcomes that are unique to a capital-murder prosecution. To this end the court itself would be authorized to require pretrial proceedings to explore and ascertain the problems that may be involved in the taking of a guilty plea that will bear on its ultimate validity.

In sum, I do not believe a court can entertain a guilty plea to capital murder unless it is clearly established to the satisfaction of the trial court, apart from any incriminating statements made by defendant when pleading, that there is a factual basis for a conviction of guilt of capital murder, and that the State could introduce competent and relevant evidence that would enable a reasonable jury conscientiously, carefully, and fairly considering such evidence to determine beyond a reasonable doubt that defendant is guilty of capital murder.

Further, because the plea of guilty to capital murder must anticipate the penal possibility of a death sentence, it must reflect the knowledge, understanding, and the willingness of the defendant to expose himself to a death sentence. Thus, the defendant must be informed of the evidence and the procedures by which he may indeed be given the penalty of death. Such knowledge and understanding, I think, should be a constituent part of the plea to capital murder itself. The defendant quite clearly need not — and should not — be allowed to incur the death sentence without the judicial confirmation of these requisites. Finally, before the defendant can be exposed to a penalty trial for the imposition of the death sentence, the court must be clearly satisfied, when entertaining the defendant's guilty plea to capital murder, that the State in the penalty phase of the case will be able to introduce competent and relevant evidence. That evidence must be such that it would enable such a jury to find beyond a reasonable doubt an aggravating factor capable of outweighing any mitigating factors.

I think it behooves the Court to address these issues more systematically. The consequences of a failure to do so can be drastic for a capital defendant. Indeed, they can be for society in general, which has no purpose or desire in allowing the execution of a defendant not fully deserving the death penalty in accordance with the rigorous procedures demanded by our Constitution. In this case, the heightened standards that should govern a plea of guilty to capital murder were not met, consequently providing an additional reason for vacating defendant's conviction of murder.

II.

Defendant was sentenced to death because the jury was persuaded that the State had proved beyond a reasonable doubt both that aggravating factor c(4)(c) existed and that it outweighed any mitigating factors. Aggravating factor c(4)(c) in this case hinged on the alleged "depravity" of the murder. The evidence of depravity consists solely of the mutilation of the victim's body after she was strangled, as testified to by the Medical Examiner. The doctor's examination revealed that Blomberg had been killed between 11:30 p.m. and 5:30 a.m. on January 17th, and that the cause of death was "ligature strangulation." His external examination of the victim's body revealed numerous stab wounds, some made shortly after death, others at least twenty minutes later.

The capital-murder statute provides that an aggravating factor exists if "the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim." N.J.S.A. 2C:11-3c(4)(c). The Court recognized in State v. Ramseur, supra, 106 N.J. at 198-201, that this statutory definition of capital murder was unconstitutional in its vagueness and overbreadth. The Court then redefined this factor in an attempt to give it needed specificity and narrowness. It held that aggravating factor c(4)(c)

encompasses (1) murders "in which the defendant intended to cause extreme physical or mental suffering" prior to death, but only where the victim actually felt pain or suffered, as well as (2) murders manifesting depravity of mind, where, in other words, "the murder was not the product of greed, envy, revenge, or another of those emotions ordinarily associated with murder and served no purpose for the defendant beyond his pleasure of killing. . . ." [ 106 N.J. at 209.]

Thus, the Court envisaged a murder committed with depravity as one not accompanied by "emotions ordinarily associated with murder" and done only for the "pleasure of killing." The Court, in Ramseur, also determined that post-death mutilation may sustain the "depravity of mind" prong of c(4)(c). 106 N.J. at 209-10 n. 37. The facts in this case, however, underscore the infirmity of this definition or application of the depravity standard.

This case presents no evidence that the defendant "intended to cause extreme physical or mental suffering prior to [the] death" of the victim. With respect to whether the murder was one "manifesting depravity of mind," there is no direct evidence that the defendant did not have any of the "emotions ordinarily associated with murder" and that he committed the murder solely for the "pleasure of killing." The only evidence adduced consists of the mutilation of the body after death.

I acknowledge that approximately twenty-two states permit the imposition of the death penalty based on a finding that a murder was, in some ill-defined way, worse than other murders, and that mutilation of the victim's body after death can be relevant to whether a murder is of the horrific sort. See Richard A. Rosen, "The `Especially Heinous' Aggravating Circumstance in Capital Cases — The Standardless Standard," 64 N.C.L.Rev. 941 (1986). By its decision in this case, the Court aligns itself with this position; in the lexicon of Ramseur, the Court evidently believes that post-death mutilation constitutes sufficient evidence of (1) the absence of emotions ordinarily associated with murder and (2) the presence of pleasure as the sole reason for killing.

Yet, the intractable problem in understanding, defining, and applying "depravity" as a standard is the conceptual impossibility of confining the standard to the evidence available. The concept of "depravity" is so amorphous and unbounded that in the final analysis any determination of its existence is inherently speculative. The use of post-death mutilation evidence does not salvage the standard; it neither clarifies its definition, nor restricts its reach, nor guides its application.

This is exemplified by the depravity standard we adopted in Ramseur, where we chose to follow the path of the Georgia court. As I pointed out in Ramseur, however,

The Georgia court has found that physical harm to the victim after death will support a finding of depravity of mind. See Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980) (defendant who mutilates or seriously disfigures the victim's body after death may be found to have a depraved mind). Moreover, in interpreting "depravity of mind," the Georgia court has found that age and physical characteristics of the victim may be considered, see Thomas v. State, 247 Ga. 233, 275 S.E.2d 318 (1980), cert. denied, 452 U.S. 973, 101 S.Ct. 3127, 69 L.Ed.2d 984 (1981), as well as the intent to inflict psychological distress on a witness. Strickland v. State, 247 Ga. 219, 275 S.E.2d 29, cert. denied, 454 U.S. 882, 102 S.Ct. 365, 70 L.Ed.2d 192 (1981). The Georgia Supreme Court has on occasion, moreover, simply recited the facts of cases in which no torture or battery occurred and concluded that these facts evidenced a depraved mind. See Godfrey, supra, 446 U.S. at 436 [ 100 S.Ct. at 1768], 64 L.Ed.2d at 411 (Marshall, J., concurring). This is especially true of instantaneous gunshot murders, which the Georgia court labels "execution-style" by way of reaching its depravity conclusion. See, e.g., Solomon v. State, 247 Ga. 27, 277 S.E.2d 1 (1980), cert. denied, 451 U.S. 1011, 101 S.Ct. 2348, 68 L.Ed.2d 863 (1981) (execution-style murder of unarmed robbery victim); Ruffin v. State, 243 Ga. 95, 252 S.E.2d 472 (1979), cert. denied 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 425 (1979) (shotgun murder of child showed depravity); Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976), cert. denied, 430 U.S. 975, 97 S.Ct. 1667, 52 L.Ed.2d 370 (1977) (defendant's shooting of two non-offending defenseless persons execution-style was depraved). In still other cases, the Georgia Supreme Court has simply noted, in conclusory fashion, that "the evidence supported the jury's finding under § (b)(7)." Godfrey v. Georgia, supra, 446 U.S. at 440 n. 12, 100 S.Ct. at 1771 n. 12, 64 L.Ed.2d at 414 n. 12 (Marshall, J., concurring) (citing cases). [ 106 N.J. at 397-98.]

The Florida Supreme Court has determined that post-death desecration or mutilation of the corpse of the victim is not probative of whether a killing is heinous. The Court made its initial determination that evidence of post-death mutilation was irrelevant to their especially heinous aggravating circumstance in Halliwell v. State, 323 So.2d 557 (Fla. 1975). That case involved a love triangle in which defendant flew into a violent rage after the husband of the woman he loved had beaten her. Defendant grabbed a nineteen-inch metal bar and beat the husband's skull with lethal blows and then continued beating, bruising, and cutting the husband's body with the metal bar after the first fatal injuries to the brain. Several hours later, defendant used a saw, machete, and fishing knife to dismember the body of his former friend and placed it in the creek. In holding that the dismembering of the body was irrelevant to finding the murder "especially heinous," the Court stated:

It is our opinion that when Arnold Tresch died, the crime of murder was completed and that the mutilation of the body many hours later was not primarily the kind of misconduct contemplated by the Legislature in providing for the consideration of aggravating circumstances. If mutilation had occurred prior to death or instantly thereafter it would have been more relevant in fixing the death penalty. [ 323 So.2d at 561.]

Part of the difficulty in using this kind of evidence of post-death conduct is in relating it to the homicidal act. The interval of time alone cannot render such evidence probative. For example, in Halliwell, the Florida Court noted that the post-death conduct was "several hours later." Yet in subsequent cases the time interval is shortened considerably — to simply "after death." Thus, in Pope v. State, 441 So.2d 1073 (Fla. 1983), the Florida Supreme Court succinctly stated that "[e]vents occurring after death, no matter how revealing of depravity and cruelty, are not relevant to the atrocity of the homicide." See also Smith v. State, 344 So.2d 915 (Fla.Dist.Ct.App. 1977) ("evidence relating to deeds after the killing would not be relevant to the issue of whether the crime was committed in such a heinous manner as to justify the death penalty"), overruled on other grounds sub nom. Ruffin v. State, 397 So.2d 277, 279 (Fla.), cert. den., 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981). But see, Peavy v. State, 442 So.2d 200 (Fla. 1983) (where majority held that evidence of a sugary substance and a liquid poured into a large wound on the victim's abdomen constituted enough evidence to support a finding of heinousness, the concurrence urged that the trial court relied incorrectly on what was done to the body after death).

What is lacking in the majority's analysis in this case is recognition that depravity must be connected with the act of killing. Under c(4)(c), it must be shown that the murder itself involved depravity of mind. Thus, even if mutilation could be evidence of depravity, the difficult question is whether the depravity is evidence of the kind of murder that was committed. This may depend on whether so much time has passed between the murder and the mutilation that one cannot say that the defendant exhibited a depraved mind at the time he committed the murder.

The Tennessee Supreme Court, in considering this problem in State v. Williams, 690 S.W.2d 517 (1985), held that where circumstances of the disposal of the victim's body, including use of an explosive, dogs, and the burning of the house with the body in it, occurred nearly forty-eight hours after the homicide, the interval of time between death and mutilation was so great that "the inference cannot be fairly drawn that the murderer possessed the depravity of mind at the time the fatal blows were inflicted, [and] then it cannot be said that the murder, itself, involved depravity of mind." Id. at 530; cf. State v. O'Guinn, 709 S.W.2d 561 (Tenn.) (a "victim need not have been alive in order to demonstrate the perpetrator's depravity of mind if the acts occurred so close to the time of the victim's death that the inference can be fairly drawn that the murderer possessed that depravity of mind at the time of the actual killing."), cert. den. sub nom. O'Quinn v. Tennessee, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986). Thus, according to the Tennessee Supreme Court, if "the inference cannot be fairly drawn that the murderer possessed the depravity of mind at the time the fatal blows were inflicted, then it cannot be said that the murder itself involved depravity of mind." Ibid. This would suggest that the mutilation must occur instantly or shortly after the infliction of the fatal blows to enable one to infer that the lethal acts themselves were undertaken by a defendant exhibiting a depraved state of mind.

Our own standard, however, does not reconcile the conflicting notions of depravity attending death and mutilation following death. The statute, as the Court has defined it, requires that the murder involve depravity; in order to establish depravity by mutilation of a corpse, it also requires that a defendant knew he was acting on a dead body. Ramseur, 106 N.J. at 210 n. 37. Thus, on one hand, the Court would require that mutilation must occur sufficiently proximate in time to the killing in order for the murder itself to have been committed with a depravity of mind; on the other hand, enough time must elapse between the killing and the mutilation in order for the defendant to figure out that the person is dead. Thus, with respect to capital murder, timing is an essential component of depravity, but it is simply too elusive to be a reliable determinant.

The Court may believe it has sufficiently clarified and narrowed the meaning of depravity by insisting it be shown that the defendant knew it was a dead body he intentionally damaged. In suggesting such post-death mutilation as a definition of depravity, however, the Court necessarily divorces such acts from the homicidal act itself. I thus argued in dissent in Ramseur, and I do now, that a standard based on such a construction is unmanageable because in cases where there are multiple wounds and the moment of death is indeterminate, the jury, without clear guidance, can find either suffering before death or, if pain cannot be proved, mutilation after death. Similarly, in the recent case of State v. Zola, supra, 112 N.J. 384 , the majority, in examining the sufficiency of the evidence to support c(4)(c), was indefinite on this point. It merely stated: "[t]he wounding and scalding of the victim here may indicate defendant's desire to make the victim suffer before he killed her, or, if these injuries were inflicted after the victim had died, they could constitute a mutilation of the corpse." Id. at 434. This was reiterated in State v. Matulewitz, 115 N.J. 191 , 194-95 (1989) (commenting on Zola, "we observed that the scalding or stabbing of the body of the strangled victim could establish either an intent to inflict nonlethal, purposeful torment or a senseless desecration of the victim's body.")

The majority in its opinion here is equally indifferent to the need to correlate the acts of mutilation to the killing itself, stating simply that "the mutilation and stabbing of the victim here may indicate defendant's desire to make the victim suffer before he killed her, or, if these injuries were inflicted after the victim had died, they could constitute a mutilation of the corpse." Ante at 376. In effect, we are holding that any murder in which there are many wounds can be found to be aggravated under c(4)(c).

Given the dual use that can be made of cases involving multiple wounds unrelated to the time of death, each of these cases will inevitably turn into ghoulish exercises undertaken to persuade a jury that the post-death desecration, not the murder, was disgusting and revolting; and this will be done, undoubtedly, by the most horrific evidence that can be found. It is the inflammatory content of such evidence that will be stressed by the State to show "depravity." The irony and unfairness of this is that a defendant will be helpless to counter this evidence. A defendant will be powerless to claim, under Evidence Rule 4, that the probative worth of such evidence is outweighed by its prejudice — its inflammatory content is precisely the same.

This implicates an issue concerning the sufficiency of such evidence. In this case, the evidence of post-death mutilation was not in any way related to the act of killing. The evidence adduced thus was clearly insufficient to establish depravity as encompassed by aggravating factor c(4)(c). It would be, in my view, fundamentally unfair and a violation of principles of double jeopardy to allow the State an additional opportunity to again prove depravity through the use of additional evidence, including that relating to post-death mutilation. See, e.g., Biegenwald, supra, 106 N.J. at 98-109 (Handler, J., dissenting) (violation of double jeopardy to allow State a second opportunity to prove depravity under c(4)(c) when evidence was insufficient to establish aggravated battery or torture in first trial leading to the death penalty); accord Ramseur, supra, 106 N.J. at 457-68 (Handler, J., dissenting). To allow the State to pursue the death penalty again relying on evidence of depravity is tantamount to retrying defendant for the same crime; this is violative of principles of double jeopardy. See Biegenwald, supra, 106 N.J. at 103 (Handler, J., dissenting).

What is most troublesome about using post-death mutilation inflicted for self-pleasure as an aggravating factor is that it will constitute cogent evidence that the defendant is truly insane. Mutilating a corpse for no apparent purpose is a strong indicator of an acutely sick mind; yet, it is unlikely defense counsel would present such evidence at the guilt phase to bolster an insanity defense or diminished capacity argument because counsel thereby runs the risk of establishing c(4)(c) for the State. Are we not thus preventing defense counsel from proving that the defendant was not responsible for his or her actions because the defendant was not of the right mind?

The Court in Ramseur believed that "depravity of mind" relates principally to the absence of motive. It is this absence of purpose behind the defendant's murderous actions that inferentially suggests that the defendant did it for pleasure and thus indicates a depraved mind. However, in my perception, post-death mutilation, particularly when it constitutes the sole aggravating factor, is just not a sufficient reason to put someone to death. It may be that the "motiveless" definition of depravity of mind is legitimized by the necessity to protect society from killers who strike with no reason. As the Chief Justice said in Ramseur, depravity of mind "isolates conduct that causes the greatest abhorrence and terror within an ordered society, because citizens cannot either in fact or in perception protect themselves from these random acts of violence." 106 N.J. at 209. I do not believe post-death desecration invokes the same societal concern. One may ask, does not purposeless mutilation that is not part of the homicidal act itself demonstrate only profound mental sickness?

The mutilation definition of depravity traceable to the Ramseur formulation is, in my view, a subjective requirement; it is distinguished from aggravated battery and torture "by the distinct mental state that causes a murderer intentionally to damage a body that he believes is no longer a live human being." Ramseur, 106 N.J. at 210 n. 37. In order for there to be sufficient evidence to support the "depravity of mind" prong of c(4)(c), the prosecutor must proffer some evidence that defendant, as opposed to the reasonable person, actually believed he was damaging a corpse.

Thus, the depravity standard, defined in part by acts of post-death desecration, raises a deep concern:

The point, however, is that motives are both innumerable and, ultimately, inscrutable; this is evidenced by the majority's own open-ended catalog of standard motives for murder ("greed, envy, revenge, or another of those emotions ordinarily associated with murder. . . .") ante at 211. Indeed, to the extent that a given defendant is likely to fit within the majority's definition of depravity, i.e., his motives are inexplicable in ordinary terms, he is also likely to verge on insanity. It is troubling that our society, which seeks to safeguard its citizens against arbitrary treatment by the state, responds to its most disturbed citizens by executing the depraved while acquitting the insane.

[ Ramseur, supra, 106 N.J. at 401 (Handler, J., dissenting).]

The words "depravity of mind," according to Ramseur, "mark society's concern to punish severely those who murder without purpose or meaning as distinguished from those who murder for a purpose (albeit a completely unjustified purpose)." 106 N.J. at 209. "The killer who does it because he likes it, perhaps even because it makes him feel better . . . evinces what we define as depravity of mind." Ibid. Yet this case underscores the deficits of the depravity standard in effectuating that philosophy. The record discloses a strangulation murder. It is not contended that without more such a murder, in the parlance of capital-murder law, is the kind of egregious, heinous, or horrific murder under c(4)(c) that demands the penalty of death. While the post-death desecration of a corpse is unquestionably revolting, there is simply no principled way to use such evidence in these circumstances to establish a depraved killing, as opposed to a killing by a depraved person. Nevertheless, this is a distinction that we are importuned to make under our Constitution if we are to avoid the imposition of cruel and unusual punishments. The capital murder statute may have been intended to secure the punishment of sadistic killers; it was not intended to authorize the execution of necrophiliacs.

III.

The final issue is whether the defendant was denied effective assistance of counsel guaranteed under both the sixth amendment to the federal Constitution and Article I, paragraph 10 of the State Constitution. Defendant claims that he was denied effective assistance at the guilt phase by his counsel's failure (1) to consult with him adequately about the case; (2) to investigate and pursue a psychiatric and/or diminished capacity defense; (3) to advise him of his right to testify; and (4) by counsel's introduction of highly prejudicial evidence and his numerous errors of law. Defendant also claims he was denied effective assistance at the penalty phase by counsel's failure to investigate and present a "meaningful" case in mitigation. The thrust of the Court's opinion is that aside from the infirmities of defendant's guilty plea, not attributable primarily to counsel, defendant was adequately represented. Its standard for determining the adequacy of such legal representation is, in my view, wholly inadequate to accord the protections to which one charged with capital-murder is entitled.

The federal constitutional standards for ascertaining whether a defendant has been afforded effective assistance of counsel were set forth relatively recently in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Those standards were adopted by this Court as a matter of state constitutional law in State v. Fritz, 105 N.J. 42 , 58 (1987). In Fritz, a non-death penalty case, we repudiated the "farce and mockery" standard for ineffective assistance found in earlier New Jersey cases as creating perhaps too high a standard for defendants to satisfy. The Court traced the evolution in the federal courts away from a requirement that a defendant show that the performance of counsel rendered the trial a "farce and mockery," and toward a standard of "reasonably competent assistance." Id. at 50-51. This evolution, the Court stated, culminated in and was synthesized by the Supreme Court's standards in Strickland. We ruled that "if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." Id. at 58.

It should be emphasized that the Court in Fritz was faced with an ordinary criminal prosecution. The Court intimated no view on whether it agreed with the Strickland Court's separate conclusion that the context of a capital sentencing trial was indistinguishable from a non-capital prosecution, or whether a different standard for evaluating effectiveness of assistance in death-penalty cases should obtain. See Ramseur, 106 N.J. at 364 n. 12 (Handler, J., dissenting).

The Court in this case now rules that the Strickland/Fritz standard governing ineffective assistance of counsel is adequate for evaluating attorney performance in capital cases, conceding, however, that the presumption of competence under the Strickland/Fritz standard is inappropriate in the context of capital punishment litigation. It says:

We see no need, then, to alter the Strickland/Fritz standard for capital cases. Capital defendants are guaranteed competent capital counsel. Obviously the measure of an advocate's competency depends on the task to be accomplished. The best intentions and the most devoted of efforts do not necessarily equate with capital competence. We expect capital defense counsel to have an expertise regarding the special considerations present in capital cases. The Strickland/Fritz standard demands no less. [ Ante at 356 (citations omitted).]

I disagree with the notion that the Strickland/Fritz standard is appropriate in capital cases. I believe the "special considerations present in capital cases" demand specialized competence on the part of counsel. Counsel in these cases must provide competence grounded in experience, training, and professional skill that will suffice to provide a defendant with the full measure of all the heightened protections a capital-murder prosecution engenders. It is not sufficient to define the professional competence required in a capital-murder prosecution as one that is "reasonable" in terms of an average attorney or is measured by the "task to be accomplished." These definitions carry no intrinsic meaning or objective guidance. As Justice Marshall stated in his objection to the performance standard that is adopted by the Court today: "[the standard] is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied. . . . To tell lawyers and the lower courts that counsel for a criminal defendant must behave `reasonably' and must act like `a reasonably competent attorney' . . . is to tell them almost nothing." Strickland, supra, 466 U.S. at 707-08, 104 S.Ct. at 2075, 80 L.Ed.2d at 706 (Marshall, J., dissenting) (citations omitted).

It is thus unfortunate that the majority squanders the opportunity to formulate a more protective standard or even provide clearer guidance than that which can be gained from its talismanic invocation of "reasonableness." Indeed, the Court even provides contradictory signals; although the majority notes that good intentions and devoted efforts do not necessarily denote capital competence, it goes on to celebrate precisely these characteristics of defense counsel's performance in this case. Ante at 359-360. I do not intend to demean these characteristics, but I must point out that the Court does not come close to dealing with the professional adequacy of counsel's performance in terms of ensuring a level of competence that should be brought to bear when a client's life is at stake.

The Court in this case, despite protestations to the contrary, sees no difference between capital and non-capital prosecutions and no difference between capital and non-capital defendants. It says:

we do not feel impelled to adopt stricter standards for judging constitutional rights in capital cases than in noncapital cases. To judge capital defendants differently would effectively diminish the rights of noncapital defendants, a disquieting result that we reject. There either is a constitutional violation or there is not. There can be no double standards. At the same time, we have committed ourselves to a searching and stringent review of capital records, which, we believe, coupled with an enhanced application of the harmless error standard, would be "sufficiently flexible to accommodate our heightened concerns and responsibilities in reviewing death penalty prosecutions." [ Ante at 356 (citation omitted).]

I do not understand how affording a capital defendant the assistance of counsel that is sufficiently effective to assure and maximize the protections of a person facing the death penalty can "diminish the rights of noncapital defendants." The Court thus follows the lead of the Strickland majority in its suggestion that "[f]or purposes of describing counsel's duties," a capital sentencing proceeding "need not be distinguished from an ordinary trial," Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. This approach, however, depreciates the heightened necessity for assuring the reliability of the adversarial process in capital-murder prosecutions and, particularly, in a capital-sentencing trial. The concern with reliability is always paramount in capital cases, but the context for determining reliability in a sentencing trial differs drastically from other kinds of cases:

"[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." [ Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976) (plurality opinion) (footnote omitted).]

As Justice Marshall emphasized in his dissent to Strickland, effective assistance of counsel is of singular importance in capital cases, particularly in the sentencing phase, because of the unique challenges entailed in representing a defendant fighting for his very life:

"Reliability" in the imposition of the death sentence can be approximated only if the sentencer is fully informed of "all possible relevant information about the individual defendant whose fate it must determine." Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). The job of amassing that information and presenting it in an organized and persuasive manner to the sentencer is entrusted principally to the defendant's lawyer. The importance to the process of counsel's efforts, combined with the severity and irrevocability of the sanction at stake, require that the standards for determining what constitutes "effective assistance" be applied especially stringently in capital sentencing proceedings. [ 466 U.S. at 715-16, 104 S.Ct. at 2079, 80 L.Ed.2d at 711-12.]

I believe that the profound difference between capital and non-capital criminal prosecutions compels, as a matter of state constitutional law, the adoption of an enhanced standard by which to measure the competence of counsel and the degree of prejudice sufficient to find a violation of the right to such assistance. The urgency of this position is accentuated in a case such as this where defendant, in pleading guilty to capital murder, waived his right to a trial on the issue of guilt or innocence through an entry of a plea with serious substantive and procedural shortcomings, see discussion supra at 379-382.

In considering an enhanced standard by which to measure the performance of counsel and to determine whether such assistance is effective, we must recognize that counsel representing a defendant in a capital-murder prosecution must demonstrate the competence of a specialist and expert, not simply the skills of an average practitioner. Further, such an attorney must have above-average ability and skill in advocacy and performance to apply in the defense of his client. Such apptitude must include special knowledge, training and experience, and, in a given case, must reflect careful preparation and concentration. These requisites are essential in assuring effective assistance of counsel in a capital-murder prosecution, and most particularly in its sentencing phase. Further, it cannot be overstressed that the demands placed on trial attorneys during a sentencing phase are unique; defense counsel must present to the jury a portrait of the defendant demonstrating his or her worthiness to remain alive. Numerous commentators have pointed out that the crafting of such humanizing presentations requires that defense counsel consult with their clients and pursue exhaustive investigations in order to prepare a psychological defense. See Burger v. Kemp, 483 U.S. 776, 810, 107 S.Ct. 3114, 3134, 97 L.Ed.2d 638, 667 (1987) (Blackmun, J., dissenting); Strickland, supra, 466 U.S. at 717-18, 104 S.Ct. at 2080-81, 80 L.Ed.2d at 712-13 (Marshall, J., dissenting); see also Goodpaster, "The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases," 58 N.Y.U.L.Rev. 299 (1983). In light of such demands, the Court can ill-afford to dismiss casually the problem of assessing attorney performance.

The Court also is content to follow the Strickland/Fritz test for determining prejudice attributable to ineffective assistance of counsel. The Court, I think, gravely underestimates the difficulty of identifying and assessing prejudice, particularly with respect to the sentencing trial in a capital-murder prosecution. The degree of prejudice sufficient to warrant finding a violation of the right to effective assistance of counsel is, even in the guilt phase of a capital trial, essentially inscrutable. As observed by Justice Marshall in Strickland, "seemingly impregnable cases can sometimes be dismantled by good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government's evidence and argument would have stood up against rebuttals and cross-examination by a shrewd, well-prepared lawyer." 466 U.S. at 710, 104 S.Ct. at 2076, 80 L.Ed.2d at 708. Indeed, the "evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel." Ibid.

The prejudice standard adopted by the Court is so difficult to apply that it borders on the illusory. Our Court has already shown a proclivity to minimize prejudice by resorting to a superseding test premised on overwhelming-evidence-of-guilt. See, e.g., Pitts, supra, 116 N.J. at 619-20 (defendant was not prejudiced by the court's failure to charge jury on serious-bodily-injury murder because of the overwhelming evidence of defendant's guilt of knowing murder); Hunt, supra, 115 N.J. at 376 (noting that only in the most tenuous sense would the evidence have supported a serious-bodily-injury murder charge due to the overwhelming evidence that defendant knowingly murdered his victim; thus defendant was not prejudiced by court's failure to give a Gerald charge); Rose, supra, 112 N.J. at 489 (where evidence of defendant's guilt was overwhelming in murder prosecution, admission of testimony concerning defendant's reason for purchasing shotgun used to fatally shoot officer was harmless error, despite its capability to prejudice jury and its limited relevance).

Thus, under the Court's standard of appellate review, a manifestly guilty defendant will find it almost impossible to demonstrate prejudice sufficient to constitute reversible error. Ibid. It may be equally impossible for a manifestly guilty defendant to be able to show that he received an unfair trial through ineffective assistance of counsel. Does this then imply that a manifestly guilty defendant is not truly entitled to a fair trial effectively assisted by competent counsel? I do not think the Court today furnishes an effective rebuttal to the parallel concern articulated by Justice Marshall in Strickland:

the assumption on which this Court's holding rests is that the only purpose of the constitutional guarantee of effective assistance of counsel is to reduce the chance that innocent persons will be convicted. In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair procedures. The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process. [ 466 U.S. at 711, 104 S.Ct. at 2077, 80 L.Ed.2d at 708 (Marshall, J., dissenting).]

The operative standard for prejudice adopted by the Court is whether a "different result" would obtain if defendant had effective assistance of counsel. The majority, however, is almost blase about the difficulty of estimating the likelihood of a different result in a capital case, particularly with respect to the penalty phase. In determining the propriety of life or death, the jury's function is essentially normative rather than evaluative. See, e.g., Pitts, supra, 116 N.J. at 623-25 (Handler, J., dissenting); Gabriel, "The Strickland Standard for Claims of Ineffective Assistance of Counsel: Emasculating the Sixth Amendment in the Guise of Due Process," 134 U.Pa.L.Rev. 1259, 1266-72 (1986); Genego, "The Future of Effective Assistance of Counsel: Performance Standards and Competent Representation," 22 Amer.Crim.L.Rev. 181-212 (1984). Thus, the test of both a lawyer's competence and failings takes on different meaning in this kind of trial, a sentencing trial in which the outcome is either life or death. As one scholar explained:

the capital defendant's lawyer has an obligation to advocate a life sentence. The Court's stress on reliability, even interpreted simply as the lack of a causal relationship between counsel's deficient performance and the death sentence, in no way links the attorney's duty to the "cure" for its breach. . . . [O]ne can hardly begin to guess what arguably mitigating factors, if presented to the sentencer, might have convinced it to show leniency. [Berger, "The Supreme Court and Defense Counsel? Old Roads, New Paths — A Dead End?," 86 Col.L.Rev. 9, 95 n. 443 (1986).]

These objections seem to me meritorious; the Supreme Court's conclusion, seemingly adopted by our Court today — that there is no need to distinguish sentencing phases of capital cases from ordinary trials because the penalty phase is conducted like a trial — fails to take into account that the focus of both defense counsel's efforts and the sentencer's deliberations in a capital-sentencing proceeding differs radically from an ordinary trial. The capital sentencer is not primarily finding facts but weighing and comparing them. See, e.g., Rose, 112 N.J. at 573-77 (Handler, J., dissenting). The judgment of the sentencing jury, though guided, is thus highly subjective. It seems clear, moreover, that as a judgment becomes more subjective, the task of assessing the extent to which that judgment might have been influenced by more competent representation becomes more difficult. Tying the effectiveness of representation to the "reliability" of a result thus seems quixotic when one's assessment of that "reliability" cannot itself be made with any degree of "reliability."

I do not think that these fears attending the standards adopted by the Court for effective assistance of counsel — a sliding scale for measuring performance and a test of prejudice that evaluates its gravity in inverse proportion to the evidence of guilt — are groundless. The case law to emerge since Strickland sheds doubt on whether the flexible and amorphous Strickland standards are as protective as the Court believes. This experience is particularly germane to this case in which a defendant, on his lawyer's advice, is exposed only to a sentencing trial in which his depravity is a dominant issue and the adequacy of professional preparations relating to his own defense was highly problematic.

In the wake of Strickland, several federal courts have held that the failure of counsel to investigate and present mitigating evidence constituted ineffective assistance of counsel. See Jones v. Thigpen, 788 F.2d 1101, 1103 (5th Cir. 1986) (defense counsel presented no mitigating evidence at all, despite fact that defendant was mentally retarded, seventeen years of age at the time of the crime, and "was not proved to have had any intent or role in the homicide"), cert. den., 479 U.S. 1087, 107 S.Ct. 1292, 94 L.Ed.2d 148 (1987); Thomas v. Kemp, 796 F.2d 1322, 1324-25 (11th Cir.) (defendant's lawyer made no effort to investigate possible sources of mitigating evidence beyond interviewing defendant's mother; thus, in light of post-trial evidence that several people would have testified if called, "[i]t cannot be said that there is no reasonable probability that the results of the sentencing phase of the trial would have been different if mitigation evidence had been presented"), cert. den., 479 U.S. 996, 107 S.Ct. 602, 93 L.Ed.2d 601 (1986); Blake v. Kemp, 758 F.2d 523, 533 (11th Cir.) (defendant's sentence prejudiced by failure of counsel to make any preparation whatsoever "because he believed that [defendant] would be found not guilty by reason of insanity," and where there were character witnesses who could have testified), cert. den., 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985); Tyler v. Kemp, 755 F.2d 741 (11th Cir. 1985) (defendant denied effective assistance of counsel during sentencing phase where defense counsel presented no evidence of mitigating circumstances although defendant had no prior criminal record, a good work record, and family members and employer would and could have testified as to mitigating facts), cert. den., 474 U.S. 1026, 106 S.Ct. 582, 88 L.Ed.2d 564 (1985) overruled on other grounds sub nom. Peek v. Kemp, 784 F.2d 1479, 1494 (11th Cir.), cert. den., 479 U.S. 939, 107 S.Ct. 421, 93 L.Ed.2d 371 (1986).

Other courts, however, in arguably indistinguishable contexts, have taken a more restrictive view of the Strickland test, particularly its prejudice element. The court in Dobbs v. Kemp, 790 F.2d 1499, 1513 (11th Cir. 1986), cert. den., 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987), modified on other grounds, 809 F.2d 750 (11th Cir. 1987), concluded that counsel's investigation was "reasonably substantial" and the failure to present mitigating evidence was a reasonable tactical decision. In Whitley v. Bair, 802 F.2d 1487 (1986), cert. den., 480 U.S. 951, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987), the Fourth Circuit denied relief despite defense counsel's failure to investigate mitigating circumstances, leaving him ignorant of evidence of (1) defendant's heavy drinking in the weeks preceding the crime, (2) "the tragic circumstances of [defendant's] childhood, and (3) defendant's organic brain dysfunction and "antisocial personality disorder." Id. at 1492. In determining that "negative aspects" of the evidence would have outweighed its mitigating effect, the court reached a conclusion reminiscent of the weighing of evidence that our own Court has now endorsed on appellate review for other kinds of trial error. See, e.g., Pitts, supra, 116 N.J. at 614-20; Hunt, supra, 115 N.J. at 376. In Glass v. Blackburn, 791 F.2d 1165, 1170-71 (5th Cir. 1986), cert. den., 481 U.S. 1042, 107 S.Ct. 1985, 95 L.Ed.2d 824 (1987), the court held that there was no prejudice in failing to present evidence in the penalty phase of a capital case despite affidavits of friends and neighbors who indicated their willingness to testify and of trial counsel who stated that failure to call witnesses "was not the result of a strategic choice but was, rather, the result of mental and physical fatigue at the conclusion of the guilt phase." Id. at 1170. The court was not persuaded of the likelihood that the jury would have rendered a different verdict. Again, the court relied on the circumstances of the crime, execution-style murder.

In Burger v. Kemp, supra, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638, the Supreme Court splashed headlong into this muddy water and roiled it even more, holding 5-to-4 that a defendant was not denied effective assistance of counsel despite the failure of counsel to offer mitigating evidence during the penalty phase. Defendant was seventeen at the time of the incident; a psychologist testified at the suppression hearing that defendant had an IQ of eighty-two and functioned at the level of a twelve-year old child. 483 U.S. at 779-80, 107 S.Ct. at 3118, 97 L.Ed.2d at 648. Defense counsel, however, presented no mitigating evidence. On appeal, defendant claimed that his counsel's performance had been deficient because he had failed to conduct an adequate investigation of possible mitigating circumstances and had no valid strategic explanation of his failure to offer any mitigating evidence. Nonetheless, the Court concluded, a more thorough investigation would have been unhelpful because the evidence produced by such an investigation "could have affected the jury adversely by introducing facts not disclosed by petitioner's clean adult criminal record." 483 U.S. at 793, 107 S.Ct. at 3125, 97 L.Ed.2d at 656. While the Court conceded that such an investigation could have been made, it stated that "`[w]e address not what is appropriate, but only what is constitutionally compelled.'" 483 U.S. at 794, 107 S.Ct. at 3126, 97 L.Ed.2d at 657, quoting United States v. Cronic, supra, 466 U.S. at 655 n. 38, 104 S.Ct. at 2050 n. 38, 80 L.Ed.2d at 672 n. 38. It noted, further, that counsel had interviewed "all potential witnesses who had been called to his attention"; "there was," therefore, "a reasonable basis for his strategic decision that an explanation of petitioner's history would not have minimized the risk of the death penalty." 483 U.S. at 795, 107 S.Ct. at 3126, 97 L.Ed.2d at 657.

Justices Blackmun and Powell, joined by Justices Marshall and Brennan, dissented. Justice Blackmun would have vacated the death sentence. He stressed "the force of such evidence [of a seriously disturbed childhood] in a decision whether an individual should be sentenced to die," and concluded that the failure to produce this evidence was not explained "by reasonable professional judgments." 483 U.S. at 817, 107 S.Ct. at 3137, 97 L.Ed.2d at 671. Justice Powell, also mindful of the youth of the defendant, his low IQ, and the fact that defendant "possibly had suffered brain damage from beatings when he was younger," 483 U.S. at 818, 107 S.Ct. at 3138, 97 L.Ed.2d at 672, observed:

Where information at the sentencing stage in a capital case may be highly relevant, counsel's burden of justifying a failure to investigate or present it is similarly heightened. There is no indication that counsel understood the relevance, much less the extraordinary importance, of the acts of Burger's mental and emotional immaturity, and his character and background, that were not investigated or presented in this case. This evidence bears directly on Burger's culpability and responsibility for the murder and in fact directly supports the strategy counsel claimed to have deemed best — to emphasize the difference in criminal responsibility between the two participants in the crime. Absent an explanation that does not appear in this record, counsel's decision not to introduce — or even to discover — this mitigating evidence is unreasonable, and his performance constitutionally deficient. [ 483 U.S. at 822, 107 S.Ct. at 3140, 97 L.Ed.2d at 674-75 (Powell, J., dissenting) (footnote omitted).]

Again, we are confronted with federal law that pulls conflictingly in different directions. The standard we adopt is not unlike the unanchored standard that we chose for appellate review in capital cases, see, e.g., State v. Bey (I), 112 N.J. 45, 91-95 (1988). It is doubtful that it will often reach the heightened level of protection that is the high-water mark of capital prosecutions or will not, as often, be weighted down by heavy evidence of the defendant's guilt.

In sum, I believe the profound difference between capital and noncapital criminal prosecutions compels, as a matter of state constitutional law, the adoption of an enhanced standard by which to measure the competence of counsel and the degree of prejudice sufficient to find a violation of the right to such assistance. We must recognize that counsel representing a defendant in a capital-murder prosecution must demonstrate the competence of a specialist and expert, not simply the skills of an average practitioner. Most particularly, counsel should exhibit this level of competence in the sentencing phase of a capital murder prosecution. Further, prejudice attributable to ineffective assistance of counsel as a basis for reversal should be viewed realistically, fairly, and tolerantly. This is particularly so in the sentencing phase of the trial. Such prejudice should be presumed when counsel's inadequacy relates to the factors that a jury must consider not only in determining the existence of facts but also in weighing their comparative worth in terms of whether the defendant should live or die.

The consequence of this standard, as applied to this case, is that defense counsel's failure to consult more extensively with his client or to pursue a psychological defense violated minimum standards of professional competence; the prejudice deriving from this violation in terms of the inherent reliability of the determination of the death sentence should be presumed.

IV.

For the reasons expressed, I would reverse defendant's conviction of capital murder and sentence of death.

GARIBALDI, J., dissenting in part and concurring in part.

Defendant pled guilty to the savage murder of Barbara Blomberg, a twenty-three-year-old woman. The plea was taken before our decision in State v. Gerald, 113 N.J. 40 (1988), was published. Therefore, we must determine whether there is a sufficient factual basis in support of the plea to establish that defendant intentionally murdered Ms. Blomberg. In Part 2E of its opinion, the majority concludes that there is an insufficient factual basis to establish that defendant knowingly intended to cause her death. Ante at 374 (1989). Thus, it concludes that defendant is not death-eligible. Id. at 375. I disagree. I find that the evidence overwhelmingly demonstrates that defendant killed deliberately.

By pleading guilty to murder, defendant hoped to avoid the death penalty. In order to establish a sufficient factual basis for his murder plea, defendant urged and the trial court agreed to admit into evidence a signed, sworn confession that he gave to the police. After reviewing the confession and admitting it into evidence, the trial court accepted the murder plea, finding that defendant had sufficiently acknowledged facts constituting the essential elements of the crime to which he was pleading guilty, State v. Sainz, 107 N.J. 283 , 293 (1987) — the murder of Barbara Blomberg.

Defendant's confession provides compelling evidence that defendant intended to kill. The following portion of defendant's confession speaks for itself:

Q. What did you do when you got to Barbara's house?

A. I drove up in my car and parked in her driveway in front of her car. I got out, rang the bell and nobody answered. I went into the pantry room. I tried breaking in with my knife but I couldnt get in so I went out to my car and got a screwdriver from my toolbox in the trunk of the car. With the screwdriver I pried open the molding on the door frame and it left a half inch gap and that gave me room to open the door with my knife.

Q. What does the knife look like?

A. It has a black handle, locking blade and the blade is 4 or 5 inches long.

Q. What did you do when you got inside?

A. I looked around the kitchen and found the cord.

Q. What did the cord look like or what color was it?

A. I dont remember. I had been drinking.

Q. After you got the cord what did you do?

A. I put it around my neck and I walked up the steps. When I got to the top of the steps and into the bedroom she asked "Who is it" a couple times. Then I jumped on the bed, didn't say anything, I wrapped the cord around her neck. I choked her with the cord for at least a couple of minutes. Im not sure how long. Then I took the screwdriver and I stabbed her once in the back, Im not sure how many times. I then took my knife and stabbed her in the neck, throat, and in the back somewhere. In the side a couple times.

Q. Earlier you told us about a telephone in the room, what did you say about it?

A. When I got on the bed I wrapped the cord around her neck and she grabbed the phone and tried to call for help or hit me with it I dont remember. I cut the cord.

Q. When you went in the house what lights were on?

A. Some light in the kitchen.

Q. Did you turn on any lights in the house after you got in anywhere before you later left?

A. No.

Q. What did you do after you stabbed Barbara?

A. I think I had a towel in my hand that I took with me. Then I went down the steps into the kitchen, cut the phone cord and took the phone.

* * * * * * * *

Q. What did you do after you left the house?

A. I got in my car, I put it in neutral and rolled it out of the driveway without starting it. I started it after I got it out in the street. I drove across the street from her house and went across the black top and into a field. Thats where I opened up the car door and threw away the rag and the phone. There is a dagger I took, I forgot. Its brass like letter opener or paperweight. I think I threw that there too.

Q. What did you do with the knife you stabbed Barbara with?

A. I washed it off in the kitchen and kept it. I think I threw it away in a field in Pennsylvania. [Emphasis added]

The Court acknowledges that "there may be sufficient facts available to support a finding that the defendant knowingly and purposefully murdered." Ante at 371. Nonetheless, relying exclusively on the following exchange at the plea hearing between the defense attorney and defendant, it concludes that there is an insufficient basis to find that defendant intended to kill his victim deliberately:

Q: Did you go into that apartment with the idea or intention to kill her?

A: No.

[Emphasis added]

Plainly read, this brief exchange does not "contradict" the overwhelming evidence that defendant intended to kill Blomberg. It merely suggests that he did not plan to kill her before he entered her apartment. It bears no relevance to the important question of whether he formed such an intent after he broke into the apartment. In view of overwhelming evidence to the contrary, it is difficult to understand the majority's position that there is an insufficient factual basis to find that defendant killed Barbara Blomberg intentionally and deliberately. Defendant's very decision to plead guilty to a crime for which he understood that he could be sentenced only to death or to a minimum thirty year term without parole under N.J.S.A. 2C:11-3 suggests otherwise.

More importantly, defendant's confession demonstrates clearly that he intended to kill. After entering the victim's home, defendant immediately proceeded to the kitchen in search of an electrical appliance cord. He quickly found his weapon, the appliance cord from a coffee maker. With premeditated calm, he placed the cord around his neck as he walked up the stairs towards the victim's bedroom. On reaching the top of the stairs, defendant pounced violently on Blomberg as she lay in bed. He wrapped the cord tightly around her neck and began strangling her. Defendant kept the cord pressed around her neck for several minutes. Struggling desperately to save her life, Blomberg attempted to grab the telephone. Defendant cut the telephone line. He then proceeded to stab her savagely in various parts of the body with a knife and a screwdriver.

Blomberg's mutilated and bloodied body was discovered two days later. An electrical appliance cord was found wrapped around her neck. One does not strangle someone for several minutes with an electrical appliance cord if one intends merely to injure.

Today's decision is especially incomprehensible in light of our recent decision in State v. Pitts, 116 N.J. 580 (1989). In Pitts a jury sentenced the defendant to death for the murder of Stacey Elizardo. Because the trial occurred before Gerald, supra, was decided, the jury was not instructed to consider whether the defendant purposely or knowingly caused death. Nevertheless, we determined that based on the evidence in the record, "it would be virtually inconceivable that a jury could have concluded that defendant intended to cause serious bodily injury to Elizardo, but not death." Pitts, ante 116 N.J. 580 , 620.

Likewise, had defendant in the instant case been convicted of murder by a jury and sentenced to death, I have no doubt that we would find based on the evidence that it would be virtually "inconceivable" that the jury could have concluded that defendant intended merely to cause bodily harm. Similarly, I find it virtually "inconceivable" that based on the evidence in support of the plea the trial court in this case could have concluded that defendant intended merely to cause bodily harm to Barbara Blomberg. To reward defendant merely because he chose to plead guilty to murder rather than stand trial, as the Court does today, seems inconsistent and unwise. I respectfully dissent.

For vacation and remandment — Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, O'HERN and STEIN — 5.

Concurring in part; dissenting in part — Justices HANDLER and GARIBALDI — 2.