On November 27, 2024, a three-judge appellate panel decided the Atlantic County case of State v. Jamel Carlton. The principal issue under N.J.S.A. 2C:44-3 concerned to application of New Jersey’s persistent offender sentencing statue in light of the U.S. Supreme Court’s holding in Erlinger.
Judge Susswein wrote for the panel in relevant part: In view of the Erlinger majority’s unambiguous rejection of the notion that overwhelming evidence obviates the need to have a jury make the decision, we are not convinced the constitutional violation in this case can be “disregarded” under the plain error rule or any other species of harmless error analysis. Cf. Rule 2:10-2 (“Any error or omission shall be disregarded by the appellate court unless it is of such nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.”). Furthermore, as we have noted, the Attorney General acknowledged at oral argument that its harmless error argument would likely apply to most pipeline cases. As a practical matter, that suggests, if given a foothold in pipeline cases, the harmless error exception might swallow the Erlinger rule.
More fundamentally, we are not convinced from our reading of the Erlinger majority opinion that the Fifth and Sixth Amendment right to have a jury decide fact-sensitive enhanced-sentence eligibility is less important or inviolable than the right to have a jury decide the fact-sensitive question of guilt. Certainly, denying a criminal defendant a jury trial on the question of factual guilt can never be deemed harmless constitutional error on the grounds that the State’s proofs are so overwhelming as to render a guilty verdict a foregone conclusion. A key question the State’s harmless constitutional error argument raises, therefore, is whether the Fifth and Sixth Amendment rights recognized in Erlinger regarding the determination of enhanced-sentence eligibility are deserving of less vigorous protection than the right to a jury trial on factual guilt or innocence.
Another reason that jury determinations cannot be undermined by a harmless error analysis is that juries remain the “conscience of the community.” Juries are therefore expected to ignore the law in the idiosyncratic cases in which its application would lead to a manifest injustice.
