The Jersey Lawyer

After spending 21 years in prison, the Third Circuit Court of Appeals granted a writ of habeas corpus to Paul Kamienski.  Kamienski was incarcerated after being convicted of murder and felony murder in New Jersey state court 21 years ago, and was set to spend another 19 years in prison before he became eligible for parole.  After the jury convicted Kamienski, the trial court granted a motion for a judgment of acquittal because there was insufficient evidence to convict Kamienski of murder or felony murder.  However, the Appellate Division of the New Jersey Superior Court reversed the trial court and upheld the jury verdict convicting Kamienski.  The New Jersey Supreme Court refused to hear the case.  Having exhausted his appeals in the New Jersey state court system, Kamienski then appealed to the federal district court for the District of New Jersey for a writ of habeas corpus.  The District Court denied Kamienski’s petition.  Kamienski then appealed to the federal Third Circuit Court of Appeals.  The Third Circuit held that there was insufficient evidence to convict Kamienski and ordered the District Court to issue the writ of habeas corpus freeing Kamienski from prison.  On June 15, 2009, the District Court entered an order freeing Kamienski from prison on a $1 million bond, pending the Ocean County Prosecutor’s appeal of the Third Circuit’s decision.

In September of 1983, the bodies of Nick DeTournay and Barbara DeTournay were discovered by police in the waters of Barnegat Bay in New Jersey.  A police investigation revealed that they had both been killed by multiple gun shot wounds.  Investigators developed a theory that the DeTournay’s had been killed in the course of a drug deal involving Paul Kamienski, Anthony Alongi, and Joseph Marsieno.  At trial, Kamienski’s girlfriend testified that Kamienski had facilitated a cocaine deal between the DeTournays and Anthony Alongi.  A government informant also testified that a drug deal was scheduled for September 18, 1983 between the DeTournay’s, who were going to sell a large quantity of cocaine to Alongi.  Several witnesses testified that they heard from Alongi that a large quantity of cocaine would be available soon.  Marsieno’s girlfriend testified that Marsieno was supposed to pick up the cocaine and that at one point he said, “those lousy MF’ers, they wanted to see the money first.  I have no intention of paying them any money.  I’ll kill them before they get any of my money.”

Kamienski’s girlfriend testified that a short time after the deal allegedly occurred, Kamienski drove her to Alongi’s house and instructed her to wait in the kitchen.  She did not heed his instructions and went outside to a dock behind Alongi’s house.  She saw Kamienski standing by the dock, and a blanket and sleeping bag with what appeared to be a body.   After Alongi saw Kamienski’s by the girlfriend, he took her upstairs and showed her a gun.  He warned her that if she was not quite,  she would “end up like her friends.”  According to Kamienski’s girlfriend, Kamienski then told her that night that what happened was out of his control and if they said anything about it, they would both be in danger.   He also allegedly told her that “Nick went first” and “Barbra did not suffer.”  Kamienski’s girlfriend also testified that the blankets the bodies were found wrapped in were similar to blankets she had seen on Kamienski’s boat, that a towel that was found with the bodies resembled one she had seen Kamienski use to polish his boat, and that hitch knots depicted in photos of the recovered bodies that were used to tie the bodies to cement blocks were the same type of knots that Kamienski usually tied.

Based on all of this evidence, a jury found Kamienski guilty of first degree murder as an accomplice and felony murder.  The prosecutor conceded on argument that he did not think Kamienski knew that the DeTournay’s were going to get murdered by Alongi and Marsieno, but he should be found guilty of murder because he put together the drug deal that resulted in the murder and that Kamienski assisted Alongi and Marsieno in getting rid of the bodies.

According to the Antiterrorism and Effective Death Penalty Act, a federal court may grant a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court only if the adjudication in State court resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.  In Jackson v. Virginia, the United States Supreme Court held that every element of a crime has to be established beyond a reasonable doubt for a criminal conviction to be constitutional.   Thus, the issue in the Kamienski case was whether, viewing the evidence in the light most favorable to the state, it was objectively reasonable for the Appellate Division to conclude that a rationale trier of fact could have found, beyond a reasonable doubt, that Kamienski was guilty of felony murder or first-degree murder.

The New Jersey criminal code defines felony murder as a criminal homicide that is “committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, sexual assault, arson, burglary, kidnapping, carjacking, criminal escape or terrorism…and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants.”  The State argued that all three defendants were guilty of felony murder because the killings occurred in the course of a robbery.  The State could not rely on the drug deal as a predicate felony because it is not one of the predicate felonies listed in the statute.  Thus, to sustain a conviction of felony murder against Kamienski, the State had to prove, beyond a reasonable doubt, that Kamienski knowingly participated or aided in the commission of a robbery. 

The New Jersey criminal code defines first-degree accomplice murder as a criminal homicide where the actor purposely causes death or the actor knowingly causes death.  A person acts “purposely” if “it is his conscious object to engage in conduct of that nature or to cause such a result.”  A person acts “knowingly” if “he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence.  A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result.” 

The New Jersey criminal code also provides that a person is legally accountable for the conduct of another if he is an accomplice to the conduct of another.  A person is an accomplice of another in the commission of a crime if “(1) with the purpose of promoting or facilitating the commission of the offense; he (a) solicits such other person to commit it; (b) aids or agrees or attempts to aid such other person in planning or committing it….”  Finally, the New Jersey Supreme Court has instructed that “for both the accomplice and his partner to be guilty, it is essential that they shared the intent which is the crime’s basic element.”    This, in order for the jury to find Kamienski guilty of murder as an accomplice, the State must show, beyond a reasonable doubt, that Kamienski shared the specific intent to kill the DeTourneys.

According to the Third Circuit Court of Appeals, the government presented more than enough evidence to allow a reasonable juror to find, beyond a reasonable doubt, that Kamienski facilitated a cocaine deal and that he was involved in the disposal of the bodies of the DeTournays.  However, the State did not provide any evidence, either direct or circumstantial, that would allow a reasonable fact finder to determine, beyond a reasonable doubt, that Kamienski knew of Marsieno’s intent to either rob or kill the DeTournays.  Moreover, according to the Court of Appeals, to find that Kamienski shared Marsieno’s intent to rob or kill the DeTournays would constitute rank speculation.  Even under the deferential standards applicable to habeas corpus petitions, rank speculation cannot substitute for proof beyond a reasonable doubt.  The Court of Appeals conceded that proof of a crime can be established through inferences, but there must be some logical and convincing connection between the facts established and the conclusions inferred.

Criminal charges in New Jersey usually have very serious consequences.  Therefore, anyone charged with a crime in New Jersey should contact a New Jersey criminal defense lawyer for assistance.