Harris presumption in New Jersey

1997In decisions subsequent to Harris, however, the Court clarified that the Harris presumption against finding a procedural default “ ‘applies only ... where a federal court has good reason to question whether there is an independent and adequate state ground for the decision.’” Preciose, supra, 129 N.J. at 471 , 609 A.2d 1280 (quoting Coleman v. Thompson, 501 U.S. 722, 739 , 111 S.Ct. 2546, 2559 , 115 L.Ed.2d 640, 662 (1991)).

1997In decisions subsequent to Harris, however, the Court clarified that the Harris presumption against finding a procedural default “ ‘applies only ... where a federal court has good reason to question whether there is an independent and adequate state ground for the decision.’” Preciose, supra, 129 N.J. at 471 , 609 A.2d 1280 (quoting Coleman v. Thompson, 501 U.S. 722, 739 , 111 S.Ct. 2546, 2559 , 115 L.Ed.2d 640, 662 (1991)).

2006Because Rudbart plainly instructs that unconscionability is a concept that draws breath only from specific facts, the better view is the one adopted by Judge Lifland of the United States District Court for the District of New Jersey, who denied Harris’s motion for summary judgment and granted Delta’s cross-motion to compel arbitration, explaining that Harris’s unconscionability claims require “a fact-sensitive analysis and must therefore be determined on a case-by-case basis.” Delta Funding Corp. v. Harris, 396 F.Supp.2d 512, 516 (D.N.J.2004).

2006Because Rudbart plainly instructs that unconscionability is a concept that draws breath only from specific facts, the better view is the one adopted by Judge Lifland of the United States District Court for the District of New Jersey, who denied Harris's motion for summary judgment and granted Delta's cross-motion to compel arbitration, explaining that Harris's unconscionability claims require "a fact-sensitive analysis and must therefore be determined on a case-by-case basis." Delta Funding *126 Corp. v. Harris, 396 F.Supp. 2d 512, 516 (D.N.J.2004).

1999See State v. Gilmore, 103 N.J. 508, 524-25 , 511 A.2d 1150 (1986) (holding that article I, paragraphs 5, 9, and 10, when read together, “guarantee that in all criminal prosecutions the defendant is entitled to trial by an impartial jury without discrimination on the basis of religious principles, race, color, ancestry, national origin, or sex ... [including] the right to trial by a jury drawn from a representative cross-section of the community.”).

1999See State v. Gilmore, 103 N.J. 508, 524-25 , 511 A.2d 1150 (1986) (holding that article I, paragraphs 5, 9, and 10, when read together, “guarantee that in all criminal prosecutions the defendant is entitled to trial by an impartial jury without discrimination on the basis of religious principles, race, color, ancestry, national origin, or sex ... [including] the right to trial by a jury drawn from a representative cross-section of the community.”).

1999At the same time, there are a number of other counties that are approximately the same distance from Mercer as Hunterdon that have much larger black populations: in Middlesex, 7.98% of the residents are black; in Monmouth, 8.54%; in Burlington, 14.31%; in Camden, 16.24%. 7 [Id. at 420, 660 A.2d 539 .] In this case, a jury from Camden would have preserved defendant’s right to a fair cross-section of the community without compromising a majority of the other Harris factors for selecting a county for a foreign jury empanelment.

1999At the same time, there are a number of other counties that are approximately the same distance from Mercer as Hunterdon that have much larger black populations: in Middlesex, 7.98% of the residents are black; in Monmouth, 8.54%; in Burlington, 14.31%; in Camden, 16.24%. 7 [Id. at 420, 660 A.2d 539 .] In this case, a jury from Camden would have preserved defendant’s right to a fair cross-section of the community without compromising a majority of the other Harris factors for selecting a county for a foreign jury empanelment.

1999The trial court’s responsibility to preserve the integrity of the jury “under both the federal and state constitutions ... is at its peak in cases involving the death penalty.” State v. Williams, 93 N.J. 39, 63 , 459 A.2d 641 (1983) (Williams I); see Ramseur, supra, 106 N.J. at 324 n. 84, 524 A.2d 188 .

1999The trial court’s responsibility to preserve the integrity of the jury “under both the federal and state constitutions ... is at its peak in cases involving the death penalty.” State v. Williams, 93 N.J. 39, 63 , 459 A.2d 641 (1983) (Williams I); see Ramseur, supra, 106 N.J. at 324 n. 84, 524 A.2d 188 .

1992Those decisions respond to Justice' Kennedy’s concern that Harris would create “perverse incentives” for prisoners to burden state courts with “a never-ending stream of petitions for post conviction relief” in the hopes of eventually obtaining “a suitably ambiguous rebuff.” Harris, supra, 489 U.S. at 282 , 109 S.Ct. at 1053 , 103 L.Ed.2d at 330 (Kennedy, J., dissenting).

1992Those decisions respond to Justice' Kennedy’s concern that Harris would create “perverse incentives” for prisoners to burden state courts with “a never-ending stream of petitions for post conviction relief” in the hopes of eventually obtaining “a suitably ambiguous rebuff.” Harris, supra, 489 U.S. at 282 , 109 S.Ct. at 1053 , 103 L.Ed.2d at 330 (Kennedy, J., dissenting).

1975See, e. g., State v. Jorgenson, 108 Ariz. 476 , 502 P. 2d 158 (Ariz. Sup. Ct. 1972); People v. Moore, 54 Ill. 2d 33 , 294 N. E. 2d 297 (Ill.

1975See, e. g., State v. Jorgenson, 108 Ariz. 476 , 502 P. 2d 158 (Ariz. Sup. Ct. 1972); People v. Moore, 54 Ill. 2d 33 , 294 N. E. 2d 297 (Ill.

1975See the cases collected in Harris v. New York, supra, 401 U. S. at 231 n. 4, 91 S. Ct. 643 (Brennan, J. dissenting).

1975See the cases collected in Harris v. New York, supra, 401 U. S. at 231 n. 4, 91 S. Ct. 643 (Brennan, J. dissenting).

1975See the cases collected in Harris v. New York, supra, 401 U.S. at 231 n. 4, 91 S.Ct. 643 (Brennan, J. dissenting). [1] The public defender's brief in the companion case of State v. Davis, 67 N.J. 222 (1975), notwithstanding, the New Jersey Constitution contains no provision similar to the Fifth Amendment to the Federal Constitution expressly setting forth a privilege against involuntary self-incrimination.