N.J. families fear killers could leap out loophole

TRENTON - After her 7-year-old daughter, Megan, was murdered by a sex offender in 1994, Maureen Kanka led a national movement to track sex offenders and notify the communities where they live.

Because her daughter's killer was sent to death row, it's a law she never thought she'd need for him.

But as New Jersey lawmakers craft legislation to abolish the death penalty after a special commission recommended doing so last month, some attorneys suggest a remote possibility that rankles family members of victims: that current death-row inmates could eventually be released because of a legal loophole.

If the state gets rid of the death penalty, there's a chance the inmates on death row - among them Jesse Timmendequas, who killed Megan Kanka - could be resentenced under the laws that existed at the time they committed murder, according to some death-penalty experts and public defenders.

Under the law, a sentence of life without parole is not an available punishment for all types of murders, and a life sentence wasn't available for some of the crimes that sent the nine killers to New Jersey's death row.

"I'm amazed the commission would even move forward after hearing concerns that the people on death row wouldn't be able to have life in prison as a definite sentence," said Maureen Kanka, who wants to see her daughter's killer executed.

Such fears are not grounded only in emotion, but in history. After the state's death penalty was overturned in 1972 by the U.S. Supreme Court, all but four of the 21 men on death row were eventually paroled because they had to be resentenced under the laws that existed at the time they committed murder.

Among those released was Thomas Trantino, who was convicted of murdering two Lodi police officers execution-style in 1963. He served 38 years of his sentence before the state Supreme Court ruled the parole board had to release him.

Brian Kincaid, a Parsippany lawyer who supports the death penalty, thinks a scenario similar to Trantino's is possible for the nine men on death row now.

"I believe it can and will happen again," said Kincaid, one of the few capital-punishment supporters who testified before the state's death-penalty commission.

New Jersey reinstated the death penalty in 1982, following another U.S. Supreme Court ruling, but has yet to execute anyone on death row.

Marilyn Flax, whose husband was kidnapped and killed in 1991 by John Martini, told commissioners that she feared Martini would be paroled and make good on his threats to kill her if he were ever taken off death row.

"John Martini said to me, 'One day somebody will come after you and get you, too, if I'm ever caught,' " Flax said. "What I'm really concerned about is that the death penalty is not used and he is given life imprisonment. It's not going to be life, he's going to be eligible for parole and he's going to be out on the street."

But according to calculations by the state Public Defender's Office, the chance is slim that any of the nine men on death row would still be alive if they were resentenced under the laws at the time they committed their crimes, then paroled.

David Cooper would be the youngest at 78 before he was eligible for parole, assuming he was released at his first parole hearing. Jesse Timmendequas would be 88. And John Martini would be 105 before he could be eligible for release from New Jersey, only to be sent to serve time in other states on separate murder convictions.

To avoid even that scenario, the 13-member commission that studied New Jersey's capital punishment recommended that the Legislature resentence only the death-row inmates who agree to accept life in prison without parole. They must also agree to waive all future appeals related to sentencing.

However, given that the last execution in New Jersey was in 1963, legal experts, including death-penalty commission members, say there's little incentive for a death-row inmate to ask for life in prison without parole. A death sentence affords more opportunities to appeal their conviction altogether.

The nine inmates on New Jersey's death row, including the county in which they were convicted, their crime, the date they arrived on death row, and how old they would be at the earliest possible parole date, if they were resentenced:

Marko Bey, Monmouth, Dec. 16, 1983, returned Sept. 13, 1990. Convicted of the murders of Cheryl Alston and Carol D. Peniston in April 1983. Death sentences were reversed on appeal, but was resentenced to death in the Peniston case and that sentence was upheld by the state Supreme Court. Age at earliest possible parole, if resentenced: 99.

John Martini, Bergen, Dec. 13, 1990. Convicted of murdering Fair Lawn businessman Irving Flax on Jan. 23, 1989; also has admitted to two murders in Arizona and faces a murder trial in Pennsylvania. Age at earliest possible parole, if resentenced: 105.

Donald Loftin, Mercer, Dec. 6, 1994. Convicted of the May 5, 1992, slaying of Gary Marsh of Trenton, an attendant at a Lawrence gas station. Age at earliest possible parole, if resentenced: 92.

Nathaniel Harvey, Middlesex, Oct. 17, 1986, returned Dec. 16, 1994. Convicted of the 1985 bludgeoning murder of Irene Schnaps in Plainsboro. Won a new trial; was convicted and sentenced again in 1994. Age at earliest possible parole, if resentenced: 122.

David Cooper, Monmouth, May 17, 1995. Convicted of kidnapping 6-year-old Latasha Goodman in Asbury Park, raping her, and strangling her July 18, 1993. Age at earliest possible parole, if resentenced: 78.

Ambrose Harris, Mercer, March 1, 1996. Convicted of murdering 22-year-old Kristin Huggins, an artist from Lower Makefield, on Dec. 17, 1992. Age at earliest possible parole, if resentenced: 152.

Sean Padraic Kenney, Gloucester, formerly known as Richard Feaster, March 27, 1996. Convicted of the October 1993 shotgun slaying of Keith Donaghy, a Gloucester County gas station attendant. Age at earliest possible parole, if resentenced: 102.

Jesse Timmendequas, Mercer, May 14, 1997. Convicted of the murder of 7-year-old Megan Kanka of Hamilton, July 1994. Crime led to passage of Megan's Law, requiring certain released sex offenders to register with police. Age at earliest possible parole, if resentenced: 88.

Brian P. Wakefield, Absecon, sentenced March 4. Pleaded guilty to the Jan. 18, 2001, slayings of Richard Hazard, 70, and Shirley Hazard, 65, in Pleasantville. Age at earliest possible parole, if resentenced: 94.

SOURCES: New Jersey Department of Corrections; New Jersey Public Defender's Office

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