Supreme Court sets aside sentence for death-row

[SoulTrainOz]

inmate

A hit man who said he was paid $2,500 to shoot a Maplewood pizzeria owner to death 20 years ago had his death sentence set aside by New Jersey's Supreme Court on Wednesday, the 5th time he appealed his sentence to the state's highest court.

In a 4-3 ruling, the court vacated Anthony DiFrisco's death sentence and sent the case back to trial court so he can be sentenced to life in prison.

After he is resentenced by the lower court, DiFrisco will be removed from Trenton State Prison's death row, where he has spent most of the past 18 years along with 10 other convicted murderers and where he has been housed consistently since 1993, when his last appeal was denied.

"I'm obviously very, very pleased. We have been working on this case for 12 years," said DiFrisco's public defender, Lawrence Lustberg. "It is a closely divided court that highlights the fact that there really is no social consensus in our highest court that this guy should die. Under those circumstances, I think there is no way he should be executed."

The successful appeal centered on complex procedural issues involving the type and timing of reviews afforded in capital cases.

The high court had narrowly affirmed the imposition of the death penalty and in a later review determined that the sentence was imposed properly. In the latest appeal, Lustberg successfully argued that if the 2 proceedings had been combined - as such hearings are today - a majority of justices would have voted for a life sentence.

"We thought it would be a close case, and we felt we would wind up on the winning side," said Kenneth Ply, who argued the case for the state. "But we have to live with the decision the Supreme Court makes. Basically, it's a matter of New Jersey procedural law. We don't see any appealable issue to the U.S. Supreme Court."

DiFrisco admitted he shot pizza shop owner Edward Potcher at close range 4 times on Aug. 12, 1986. He made the confession after being arrested in New York for various traffic violations and car theft. Court records show he believed he would be better served by implicating a "higher-up" in the murder.

DiFrisco said he was paid $2,500 by Jack Franciotti to kill Potcher
because he was going to inform police about illegal activities by
Franciotti. He also said Franciotti forgave a $500 drug debt.

The court records, however, say DiFrisco then backed out of a plan to call Franciotti to tape record a conversation implicating him in the murder. An Essex County grand jury subsequently indicted DiFrisco for murder.

(source: Associated Press)

[SoulTrainOz]

ruling

Earlier votes to spare man's life in murder-for-hire were combined

The New Jersey Supreme Court yesterday spared the life of Anthony DiFrisco, who killed Maplewood pizzeria owner Edward Potcher in 1986 for $2,500.

In the 4-3 ruling, DiFrisco, now 45, actually benefited from a change in procedures the justices and their critics hoped would speed up the drawn-out process of reviewing death sentences.

According to court records, DiFrisco entered Jack's Pizzeria in Maplewood on Aug. 12, 1986, ordered a pie, took a few bites from one slice and asked Potcher for some water. When Potcher turned his back, DiFrisco shot him five times, using a silencer.

Police later matched the partially eaten slice to DiFrisco's dental
impressions.

But the crime went unsolved for nine months until DiFrisco, who lived in the Bronx, was arrested by New York City police for receiving a stolen car. They told him he might help himself if he had information about a more serious crime. He told them about the contract killing, saying he had been paid by a man who feared Potcher could implicate him in drug activity.

At first, police were skeptical, but they took DiFrisco seriously when he was able to supply details, such as the fact that Jack's pizzeria sold only whole pies, not slices.

DiFrisco pled guilty to capital murder and was sentenced to death.

In 1994, the high court upheld DiFrisco's death sentence by a vote of 4-3. A year later, during a separate "proportionality review" to determine whether DiFrisco was being punished more harshly than others who had committed similar killings, the court again upheld his death sentence by a vote of 5-2. One of the dissenters was Justice Daniel O'Hern, who had voted a year earlier to uphold the death sentence.

That meant four justices had voted to spare DiFrisco's life, but had done so in different proceedings for different reasons.

In 1998, a commission headed by former U.S. Rep. Richard Zimmer
recommended abolishing proportionality review, which added 18 months to the average death penalty appeal. That recommendation was not adopted, but in 1999, in a 6-1 ruling by O'Hern, the court consolidated proportionality and death penalty reviews into a single hearing.

Yesterday, Justice James Zazzali ruled the votes from DiFrisco's 1994 and 1995 appeals "must be combined because they are aspects of the same determination -- whether a death sentence has been properly imposed." By Zazzali's count, a majority of the justices who had reviewed DiFrisco's case a decade earlier had voted to spare him.

Justices Jaynee LaVecchia, John Wallace and Roberto Rivera-Soto dissented.

Newark lawyer Lawrence Lustberg, who argued DiFrisco's appeal for the Public Defender's Office, said, "It's been 12 years I've been working on this case. I'm very happy about it." Lustberg said DiFrisco is "looking forward to getting off death row."

Kenneth Ply, who argued the case for the state, said he doesn't believe it will be appealed in federal court.

"We thought it would be a close case, and we felt we would wind up on the winning side," said Ply. "But we have to live with the decision the Supreme Court makes. Basically, it's a matter of New Jersey procedural law. We don't see any appealable issue to the U.S. Supreme Court."

DiFrisco's departure leaves nine men on death row. A moratorium on executions is in effect while a commission studies whether New Jersey should continue to have the death penalty, which has not been implemented since it was reinstated in 1982.

New Jersey carried out its last execution in 1963.

(source: Newark Star-Ledger)[/left]