Justice Solomon continued in relevant part: After an unsuccessful direct appeal, defendant filed for post-conviction relief (PCR) in 1999, alleging ineffective assistance of counsel and arguing that trial counsel failed to hire a handwriting expert and neglected to test for fingerprints or DNA on the letter. The PCR court denied defendant’s petition, finding trial counsel was a highly experienced criminal attorney who chose to impeach the letter as a forgery and not seek expert opinions that may have implicated defendant. In 2016, nearly twenty-five years after disclosure of the letter and defendant’s conviction, defendant’s attorney wrote to the Morris County Prosecutor’s office requesting copies of any statements or reports memorializing interviews with Theresa following Michael’s production of the letter.
The State responded that defendant had no right to post-conviction discovery. More than two years after the State’s response, and twenty-seven years after disclosure of the letter, defendant filed what he titled “Notice of Motion to Compel Disclosure of Exculpatory Evidence Necessary for Defendant to File a Motion for a New Trial” in December 2018. Defendant claimed that good cause existed to compel the State to produce any requested statements or reports that might exist because, in 1991, three years before defendant’s re-trial, detectives interviewed Theresa regarding an unrelated investigation of a business defendant owned. Noting that the State had provided defendant with a redacted nine-page copy of Theresa’s 1991 interview in post-indictment discovery, the court denied defendant’s request, which the court treated as “a second petition for post-conviction relief” and found that it was procedurally barred by Rule 3:22-4. The court also acknowledged that defendant’s motion could be construed as a motion for a new trial based on newly discovered evidence, which may be filed at any time; citing State v. Marshall, 148 N.J. 89 (1997), however, the court held that defendant failed to establish good cause to compel discovery.
This decision would not have much of a practical effect on Szempele. He is serving life sentences on other murders and therefore would not be released from prison if this conviction were overturned. It does create disturbing precedent for those accused of crimes for which the State does not wish to turn over exculpatory evidence.
