dissenting.
The Office of the New Jersey Public Defender appeals the denial of its petition for post-conviction relief (PCR) from the conviction of murder and sentence of death imposed on John Martini, Sr. Although the Office of the Public Defender seeks vacation of defendant’s death sentence, it filed its petition without Martini’s approval. Martini, through personal counsel, contests the Public Defender’s appeal, as does the Bergen County Prosecutor.
This Court has twice affirmed the Public Defender’s right to pursue post-conviction proceedings on Martini’s behalf despite defendant’s desire not to. The present case, however, marks the Court’s first opportunity to assess the merits of the Public Defender’s PCR petition. The foundation of the Public Defender’s appeal is that newfound mitigating evidence is sufficient to warrant a reversal of Martini’s death sentence and a new penalty-phase trial. The PCR court concluded that the evidence was not *279mitigating and denied relief. In my opinion, that decision lacks critical support and was in error. This Court’s affirmance of that judgment, I respectfully urge, is similarly unsupportable.
The evidence crucial to this proceeding, although double-edged, is mitigating nonetheless. It amply supports the Public Defender’s claim that defendant’s counsel provided ineffective assistance by failing to uncover and present the contested evidence in the penalty phase of defendant’s trial, as well as the claim that the State’s failure to disclose the evidence violated due process. Accordingly, this Court should reverse the court’s order on post-conviction review and vacate defendant’s death sentence.
A deeper problem looms. The Court does not acknowledge a fundamental dilemma and consequently fails to recognize that the State cannot, in any principled way consistent with constitutional standards, prosecute defendant for capital murder and exact the death penalty. Both defendant and the State, pursuant to its responsibility for the fair administration of the death penalty, have a confidentiality interest in the newly discovered evidence. The evidence may not, therefore, be introduced in a public proceeding; nor may that evidence be used in an in camera proceeding, in observance of defendant’s constitutional right and the public’s entitlement to a fair and open trial. Yet, to seek the death penalty in a trial that denies defendant this newly discovered mitigating evidence would deprive defendant of full constitutional protections that require the use of mitigating evidence in an open trial.
The just resolution is inescapable: the petition for post-conviction relief must be granted; defendant’s death sentence must be vacated; and the matter remanded for the imposition of a life sentence.
I
A.
The death penalty must be administered with a basic respect for human dignity. U.S. Const. amend. VIII, XIV; N.J. Const. art. I, *280¶ 12; see Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597-98, 2 L.Ed.2d 630, 642 (1958) (plurality opinion). Therein lies the notion that capital punishment must reflect contemporaneous standards of decency and be consistently applied. Furman v. Georgia, 408 U.S. 238, 274-79, 92 S.Ct. 2726, 2744-47, 33 L.Ed.2d 346, 369-72 (1972) (Brennan, J., concurring); id. at 309-10, 92 S.Ct. at 2762-63, 33 L.Ed.2d at 390 (Stewart J., concurring); State v. Ramseur, 106 N.J. 123, 169, 190, 524 A.2d 188 (1987).
The State is fundamentally responsible for maintaining these standards, and the ultimate exercise of such duties rests with an informed and unbiased sentencer, be it jury or judge. “In capital cases, jury sentencing constitutes a link between contemporary community values and the penal system.” State v. Bey, 112 N.J. 123, 162, 548 A.2d 887 (1988) (Bey II) (citing Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859, 874 (1976)); see Witherspoon v. Illinois, 391 U.S. 510, 520 n. 15, 88 S.Ct. 1770, 1776 n. 15, 20 L.Ed.2d 776, 783 n. 15 (1968) (noting that in exercising the discretion to choose between life imprisonment and capital punishment juries “maintain a link between contemporary community values and the penal system”) (citation omitted). Insofar as the jury speaks as the “conscience of the community,” a jury verdict of capital punishment validates the death penalty. See Bey II, supra, 112 N.J. at 162, 548 A.2d 887; Ramseur, supra, 106 N.J. at 316, 524 A.2d 188. In order to ensure that the State does not “inflict[ ] upon some people a severe punishment that it does not inflict upon others,” Furman, supra, 408 U.S. at 274, 92 S.Ct. at 2744, 33 L.Ed.2d at 369 (Brennan, J., concurring), it is crucial that the sentencer “evaluate the unique circumstances of the individual defendant,” Spaziano v. Florida, 468 U.S. 447, 459, 104 S.Ct. 3154, 3161, 82 L.Ed.2d 340, 351 (1984). The sentencer must consider “the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). In short, for the protection of the rights of individual defendants, and to maintain the *281validity of a death penalty administration, “[t]he jury should know whom it is sentencing to death.” Bey II, supra, 112 N.J. at 157, 548 A.2d 887.
It is essential, in furtherance of this constitutional mandate, that the sentencer in a capital case “not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973, 990 (1978) (plurality opinion) (emphasis in original). “Jurors must be permitted to consider and give effect to any mitigating evidence.” State v. Biegenwald, 126 N.J. 1, 48, 594 A.2d 172 (1991) (emphasis in original); see Bey II, supra, 112 N.J. at 156, 548 A.2d 887; Ramseur, supra, 106 N.J. at 185-86, 524 A.2d 188. Only a fully informed jury can perform its function and thereby safeguard the State’s interest in reliable death sentences. See State v. Hightower, 120 N.J. 378, 415, 577 A.2d 99 (1990); State v. Koedatich, 112 N.J. 225, 332, 548 A.2d 939 (1988) (Koedatich II), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989). Where a sentencing jury cannot evaluate all evidence that is mitigating, the death penalty may not, constitutionally, be imposed. See, e.g., Hitchcock v. Dugger, 481 U.S. 393, 399, 107 S.Ct. 1821, 1824-25, 95 L.Ed.2d 347, 352 (1987) (reversing death sentence where trial court instructed jury that death penalty statute precluded consideration of unenumerated mitigating factors); Skipper v. South Carolina, 476 U.S. 1, 8-9, 106 S.Ct. 1669, 1673, 90 L.Ed.2d 1, 9 (1986) (holding death sentence invalid where sentencing court excluded evidence of defendant’s positive adjustment in prison); Eddings v. Oklahoma, 455 U.S. 104, 116-17, 102 S.Ct. 869, 878, 71 L.Ed.2d 1, 12 (1982) (holding death sentence invalid where sentencing judge failed to consider evidence of young defendant’s family troubles); Lockett, supra, 438 U.S. at 608-09, 98 S.Ct. at 2967, 57 L.Ed.2d at 992 (reversing death sentence and holding unconstitutional statute that limited jury’s consideration of relevant mitigating evidence); cf. Morgan v. Illinois, 504 U.S. 719, 739, 112 S.Ct. 2222, 2235, 119 L.Ed.2d 492, *282509 (1992) (reversing death sentence after inadequate voir dire led to risk that at least one juror may have been unable to consider and give effect to all relevant mitigating evidence). It follows that when it is evident that mitigating evidence will be ignored or unpresented, the State may not, constitutionally, seek the death penalty. The State may not, in such circumstances, proceed to prosecute a defendant for capital murder.
B.
This appeal revolves around evidence discovered by the Public Defender after defendant was convicted and sentenced to death. The Public Defender argues that the discovery of newfound relevant mitigating evidence entitles defendant to a new trial. The Public Defender also claims reversible error lies in defense counsel’s failure to discover and present that evidence at defendant’s penalty phase trial; and, further, that because the State knew or should have known of the evidence, the State’s failure to divulge the evidence to defense counsel violated defendant’s right to due process of law in accordance with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
The Public Defender’s primary contention, that the evidence was mitigating, bears directly on the other claims. Indeed, the mitigating nature of the evidence is a prerequisite to a finding of prejudice required for ineffective assistance of defense counsel or to a finding of materiality necessary to support a Brady violation. Even so, newly found evidence is probative and relevant even in the absence of or apart from other violations of constitutional dimension, such as claims of ineffective assistance of counsel or a Brady violation, and may alone be a basis for reversal.1 Accordingly, in State v. Martini, 148 N.J. 453, 690 A.2d 603 (1997) *283(Order) (Martini IV), in which we vacated the PCR court’s order barring disclosure of the evidence and remanded for post-conviction review, we directed the trial court, as a preliminary matter, to ascertain whether the evidence was “mitigating,” and then asked “whether defense counsel’s failure to obtain the evidence constituted ineffective assistance of counsel or whether the omission of the evidence constituted a manifest injustice and a violation of defendant’s constitutional rights, entitling defendant to post-conviction relief.” Id. at 454, 690 A.2d 603 (emphasis added). Consideration of the Public Defender’s appeal, therefore, must begin with the determination of whether the evidence is mitigating, and an assessment of whether the discovery of the evidence is sufficient to warrant a new trial in its own right.
There is no dispute that the evidence presented is, in part, mitigating. As a general matter, evidence is “mitigating” insofar *284as it supports an inference that “might serve ‘as a basis for a sentence less than death.’ ” Skipper, supra, 476 U.S. at 4-5, 106 S.Ct. at 1671, 90 L.Ed.2d at 7 (quoting Lockett, supra, 438 U.S. at 604, 98 S.Ct. at 2965, 57 L.Ed.2d at 990). In State v. Martini, 131 N.J. 176, 316, 619 A.2d 1208 (1993) (Martini I), we noted that mitigating evidence serves “(1) to weaken the State’s proofs concerning the existence of aggravating factors; (2) to establish the existence of mitigating factors; and (3) to bolster the weight of those mitigating factors found to exist in an attempt to have those factors outweigh the aggravating factors found to exist during the jurors’ ultimate deliberation.” The evidence before us certainly fits that definition.
My debate with the Court concerns whether the evidence is sufficiently mitigating to require retrial. To be sure, the mere discovery of mitigating evidence does not warrant vacation of a death sentence and a new penalty trial. In most circumstances, the established standard for entitlement to a new trial based on evidence discovered or obtained after trial is strict. To receive a new guilt/innocence trial based on newly discovered evidence, a defendant must demonstrate that the evidence is “(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury’s verdict if a new trial were granted.” State v. Carter, 85 N.J. 300, 314, 426 A.2d 501 (1981) (remanding for reconsideration of whether newly discovered polygraph evidence required reversal of murder convictions and retrial); see R. 3:20-1 (authorizing new trial if there is a manifest denial of justice under the law). The preceding analysis, which focuses on the criteria for determining whether post-trial evidence should be considered, applies here. We ought to consider as an initial matter how the evidence came about, and who was at fault for its late arrival. Under the extraordinary circumstances of this case, we must excuse defendant for keeping the evidence under wraps, and defense counsel for failing to uncover it, to preserve the fair administration of capital punishment and avoid injustice.
*285We must then consider the materiality and potential effect of the evidence. The general standard, that to support a motion for a new trial newly discovered evidence must be “of the sort that would probably change the jury’s verdict,” has been applied with equanimity to claims of newly discovered evidence relevant to capital murder convictions. See State v. Bunk, 4 N.J. 482, 73 A.2d 245 (1950) (holding affidavits exculpating co-defendants made after conviction and imposition of death sentence did not require reversal of capital murder convictions and retrial); State v. Engel, 249 N.J.Super. 336, 402, 592 A.2d 572 (App.Div.) (holding discovery of x-rays allegedly revealing a “radio-opaque object” in victim’s skull unknown to defense at trial did not require reversal of murder convictions and retrial), certif. denied, 130 N.J. 393, 614 A.2d 616 (1991). The unique context of capital sentencing proceedings, however, demands that ordinary standards of review be held to distinct interpretations.
For example, a Brady violation traditionally lies where the prosecution has failed to disclose evidence favorable or mitigating to the defense that was also material. Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706, 713 (1972). Evidence is generally material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985) (plurality opinion); see id. at 685, 105 S.Ct. at 3385, 87 L.Ed.2d at 496 (White, J., concurring). We addressed the materiality of exculpating evidence excluded from a capital sentencing proceeding in State v. Nelson, 155 N.J. 487, 715 A.2d 281 (1998), cert. denied, — U.S. —, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999), and held that undisclosed evidence is material if, when considered by the jury, it is “reasonably probable that an additional juror or jurors would have found the existence of one or more of defendant’s mitigating factors” or “that the jury would have given greater weight to the mitigating faetor(s) thus substantiated____” Id. at 500-01, 715 A.2d 281. Finding that to be the case in *286Nelson, we reversed the defendant’s conviction. Id. at 501, 715 A.2d 281.
With regard to ineffective assistance of counsel in the context of capital sentencing, the Court has redefined the traditional standard for assessing prejudice. In ordinary criminal proceedings, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987). Pursuant to Strickland, supra, when a defendant challenges a death sentence, “the question is whether there is a reasonable probability that absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” 466 U.S. at 695, 104 S.Ct. at 2069, 80 L.Ed.2d at 698. Recognizing “the profound distinction between our circumscribed appellate-review function and the capital jury’s significantly less-restricted role in deciding between life and death,” however, we deem it necessary to “adapt” the prejudice prong of the test for ineffective assistance of counsel “to the realistic limitations on appellate review of jury penalty-phase deliberations.” State v. Marshall, 148 N.J. 89, 250, 690 A.2d 1 (1997) (Marshall III), cert. denied, — U.S. —, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997); cf. State v. Davis, 116 N.J. 341, 356, 561 A.2d 1082 (1989) (declining to adjust Strickland /Fritz standard for capital cases in general). Therefore, prejudice is established at the penalty phase of a capital trial if “there is a reasonable probability that, but for counsel’s unprofessional errors, the jury’s penalty-phase deliberations would have been affected substantially.” Marshall III, supra, 148 N.J. at 250, 690 A.2d 1; see State v. Morton, 155 N.J. 383, 431, 715 A.2d 228 (1998). That is, “if a reasonable juror would have considered the material in his or her deliberative process, then vacation of the death sentence is required.” Morton, supra, 155 N.J. at 481, 715 A.2d 228 (Handler, J., dissenting); Marshall III, supra, 148 N.J. at 310-11, 690 A.2d 1 (Handler, J., dissenting).
*287So, too, Eighth and Fourteenth Amendment protections requiring the presentation of all relevant mitigating evidence to the sentencer in a capital trial demand substantial alteration of the standard for newly discovered evidence when the new evidence would be presented as mitigation at the penalty-phase. In light of the foregoing, it follows that in a capital context newly discovered mitigating evidence requires a new sentencing proceeding if it creates an inference that could weigh, in the mind of a reasonable juror, against imposition of the death penalty. If one juror could draw an inference from the evidence that would support a life verdict, then discovery of the new evidence requires vacation of the death sentence.
Given the nature of death penalty sentencing proceedings that will often be the case. A court can hardly ever, perhaps never, legitimately say that mitigating evidence would not lessen a capital defendant’s blameworthiness in the mind of at least one sentencing juror. When the evidence is double-edged, determining its mitigating effect is certainly too complex an inquiry to be confidently performed by a court. Evidence that a person is an alcoholic or is inclined to substance abuse, for example, may convey blameworthiness in some respects and yet evoke sympathy, empathy, or simply provide justification in others. When the ultimate issue is whether to put someone to death, it is virtually impossible for a court to determine that evidence that is dual in nature is not mitigating. The dual nature of the mitigating evidence presented by the Public Defender in support of Martini’s appeal does not dispel its relevance as mitigation. The mitigating aspect of the evidence is sufficient to create an inference that could weigh in the mind of a reasonable juror against sentencing Martini to death.
C.
The PCR judge, who presided over defendant’s trial as well, based his decision upon his own impressions of the evidence. He also relied upon how he thought the jurors at Martini’s trial would *288have reacted to the evidence, and, in doing so, drew upon the remarks of two of the jurors who sat at the penalty phase. Those jurors, he concluded, would not have looked upon the evidence as mitigating. “[I]f all of that was presented to the jury,” the judge observed, “it probably would have taken them less time to decide for death.”2
That decision is inappropriately and fatally subjective. The standard by which to assess the impact of newly discovered evidence, be it in a capital sentencing proceeding or otherwise, is objective. It relates to an objectively reasonable juror, not to a particular juror or even to the entire jury in the given case. As in assessing the “prejudice” or “materiality” of other errors, this objective standard neither requires nor permits a court to base its decision upon the views of actual jury members, especially when only some of the jurors have disclosed their views. The PCR court was also mistaken to measure the evidence under a standard of whether the evidence may have changed the mind of one of the jurors. It is plain that, in a capital sentencing context, error need not be outcome-determinative to provide a basis for reversal. See Marshall III, supra, 148 N.J. at 250, 690 A.2d 1.
The Court’s conclusion regarding the impact of the evidence is flawed in a different respect. The majority determines that “the evidence presents a troubling picture that has some mitigation value mixed with a substantial downside potential,” and that “[i]n effect, the usefulness of the evidence as mitigation is seriously *289undermined by its unfavorable aspects.” Ante at 261, 734 A.2d at 264-65. The Court holds that even if a limiting instruction was given, as this Court requires where mitigating evidence is offered that has a substantial potential to prejudice the defendant, see State v. Rose, 112 N.J. 454, 503-08, 548 A.2d 1058 (1988), the ultimate effect of the evidence would not have been beneficial to defendant. See ante at 262, 734 A.2d at 265. In short, the majority weighs what it views to be the positive aspects of the evidence with the negative, and finds a preponderance of the latter.
In Marshall III, supra, we recognized that “an appellate court cannot predict the outcome of penalty-phase deliberations, [although] it is entirely capable of assessing whether the production of additional mitigating evidence would have been likely to have a substantial effect on the jury’s deliberations.” 148 N.J. at 250-51, 690 A.2d 1. Within those parameters, the appellate court should simply ascertain whether the mitigating aspects of the evidence would have altered the deliberations of a reasonable juror. The majority of this Court, concluding that the evidence is double-edged to such an extent that its presentation would likely have harmed more than helped defendant’s plea for mercy, exceeds its role. Weighing the evidence is an exercise properly left to the sentencer, be it jury or judge, at a sentencing proceeding. See Eddings, supra, 455 U.S. at 117, 102 S.Ct. at 878, 71 L.Ed.2d at 12 (“[T]he state courts lie., sentencing judge] must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances. We do not weigh the evidence for them.”). As this Court’s statement in Marshall III, supra, explains, our role is simply to ascertain whether the mitigating aspects of the evidence would have altered the deliberations of a reasonable juror.
Further, although the Court acknowledges that a limiting instruction must accompany rebuttal to the presentation of mitigating evidence, see Rose, supra, 112 N.J. at 503-08, 548 A.2d 1058, it apparently ignores the scope of that requirement. In Rose, the *290prosecutor responded to a capital defendant’s proffer of good character evidence by burying the defendant with character-destroying rebuttal evidence, including incidents of racial bigotry and threats of violence. Id. at 499-502, 548 A.2d 1058. Noting that “[i]n the penalty phase of a capital case, the function of the jury has been sharply defined by the Legislature,” we held that “the jury is not permitted, in its weighing process, to add other evidence of defendant’s past conduct to the weight it assigns to the aggravating factors, nor to consider other evidence of defendant’s past conduct, except to the extent offered to rebut mitigating factors, as detracting from the weight it assigns to the mitigating factors.” Id. at 507-08, 548 A.2d 1058; see State v. Mejia, 141 N.J. 475, 505, 662 A.2d 308 (1995); State v. McDougald, 120 N.J. 523, 574, 577 A.2d 419 (1990). Moreover, the State may not put forth “a new aggravating factor under the guise of producing rebuttal evidence.” State v. Biegenwald, 110 N.J. 521, 543, 542 A.2d 442 (1988). Therefore, despite the potentially aggravating nature of the evidence presently offered by the Public Defender, a sentencing jury would be strictly limited in its consideration.
The Court’s reasoning is not justified by the fact that it reached similar decisions in Marshall III, supra, and Morton, supra. See ante at 261-62, 734 A.2d at 264-65. In both Marshall III and Morton, this Court rejected the defendants’ claims of ineffective assistance of counsel despite the failure of defendants’ respective counsel to present all mitigating evidence. In each case, the Court claimed that the evidence in question may have harmed the defendant. See Morton, supra, 155 N.J. at 431-33, 715 A.2d 228; Marshall III, supra, 148 N.J. at 255-56, 690 A.2d 1. The Court’s basis for these decisions was improper. In a capital sentencing proceeding, evidence that would provide for an inference in the mind of a reasonable juror favorable to defendant must be considered by the jury. Justifying the absence of mitigating evidence and defense counsel’s failure to present such evidence on the ground that the evidence may have been harmful to defendant is, I maintain, inconsistent with the federal and State constitutional *291requirements that a capital defendant be sentenced by a folly informed penalty-phase jury.
D.
As a final point, I emphasize that the PCR court and now a majority of this Court minimize the mitigating potential of the evidence by subduing the reports and testimony of two mitigation experts retained by the Public Defender. In support of its claim that the new evidence is mitigating, the Public Defender wished the court to hear Ms. Aviv’s and Ms. Nardone’s views on how the evidence could have been used to construct a social history for Martini that would have appealed to a penalty phase jury. Both were specialists in mitigation in criminal trials and both had testified at defendant’s penalty phase.
Despite this Court’s directive in Martini IV, supra, ordering the trial court on remand to “hear any further evidence and arguments from the parties,” 148 N.J. at 453-54, 690 A.2d 603, the PCR court refused to consider the experts’ testimony or reports. “I don’t believe I need the help of an expert,” the PCR judge declared, “I’ve already told what I believe this jury would do and the effect [the evidence] would have had on the deliberations in my opinion. I don’t believe I need [the mitigation experts] in deciding that.” The judge, nevertheless, suggested to counsel:
Again you may want to address Ms. Nardone’s situation and certainly Ms. Aviv’s situation assuming there’s a new trial as to the penalty situation. I think you already know what my position is on that, but certainly she may help the ordinary citizen in analyzing someone’s life history and how the various events have affected them.
Following the court’s refusal to hear the testimony of the mitigation experts, the Public Defender requested that the court admit the experts’ written reports into evidence. That the judge allowed, noting, however, that he most likely would not read the reports.
The Court determines that the PCR court’s treatment of the expert evidence did not constitute an abuse of discretion because the expert reports provide information that is merely cumulative. *292See ante at 287-88, 734 A.2d at 279. I disagree. Cumulative evidence in some contexts may be corroborative. Evidence that is corroborative may be significant when its weight as well as its probative worth can affect the outcome of jury deliberations. In the penalty phase of a capital case, testimony that supports or tends to prove a mitigating factor or add to its weight or disprove or weaken an aggravating factor is relevant and admissible. See, e.g., State v. Bey, 129 N.J. 557, 586-87, 610 A.2d 814 (1992) (Bey III) (holding State psychologist’s diagnosis of defendant’s personality disorder and upbringing relevant to alleged mitigating factors of mental or emotional disturbance and mental defect or intoxication). Testimony by mitigation experts, for instance, psychologists or social workers, is particularly important at the penalty phase of a capital trial; it may add to the weight of existing mitigating evidence. As I explained in Morton, supra:
The testimony of a mitigation expert could have affected the penalty-phase deliberations. The expert witness would have explained to the jury how defendant’s difficult childhood or low intelligence or defendant’s mother’s irresponsible child rearing impacted on defendant’s deathworthiness. Without the testimony of a mitigation expert, the mitigating evidence was obscure and devoid of context.
[ 155 N.J. at 481-82, 715 A.2d 228 (Handler, J., dissenting).]
Although Martini’s case is a post-conviction rather than penalty trial, the preceding considerations are equally applicable here. As in a penalty-phase trial, the mitigating nature of the evidence is directly at issue in this case. Therefore, the PCR court erred by refusing to consider the expert testimony.
The State argues that the prejudice caused by failure to admit the experts’ testimony was cured by the court’s subsequent decision to admit the written reports of Nardone and Aviv into evidence pursuant to Rule 1:7-3. The State correctly notes that a petition for post-conviction relief may be determined on the papers without oral testimony. See State v. Flores, 228 N.J.Super. 586, 589-90, 550 A.2d 752 (App.Div.1988), certif. denied, 115 N.J. 78, 556 A.2d 1220 (1989); R. 3:22-11. Because the content of the reports in this case likely mirrors the content of the experts’ proposed testimony, the court’s decision to bar the testimony was *293not clearly capable of producing an unjust result. R. 2:10-2. The PCR judge, however, admitted the experts’ reports with the qualifying statement that he most likely would not read them. The Court may not treat that concession by the lower court dismissively, as so much badinage. If the PCR court did not read the reports, then the State’s argument fails because the PCR court completely ignored the expert mitigation testimony in making his decision. Omission of the evidence, therefore, compromised the fairness of the post-conviction proceedings and the integrity of the judge’s decision. The Court should recognize, as the PCR court did, that the expert testimony would have substantial impact at a new sentencing trial.
In sum, the petition for post-conviction relief must be granted, and defendant’s death sentence must be vacated. We cannot be confident of a death sentence where evidence that could have affected at least one juror’s deliberations concerning defendant’s sentence was not introduced to the jury, much less considered for that purpose.
II
The Public Defender claims that Martini was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of the federal Constitution and Article I, paragraph 10 of the State Constitution because Martini’s appointed trial counsel failed to investigate avenues that would have led to discovery of the evidence now before the Court and use the potential fruits of such an investigation at the penalty phase of Martini’s trial.
Ineffective assistance of counsel claims require that a defendant show both deficient performance by counsel and resultant prejudice. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Fritz, supra, 105 N.J. at 58, 519 A.2d 336. Prejudice is manifest when errors by counsel deprive the defendant of a fair and reliable trial. See Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 697-98. With regard to *294capital penalty-phase proceedings, this Court recognizes that a defendant is prejudiced by counsel’s performance if “there is a reasonable probability that, but for counsel’s unprofessional errors, the jury’s penalty phase deliberations would have been affected substantially.” Marshall III, supra, 148 N.J. at 250, 690 A.2d 1. In other words, “if a reasonable juror would have considered the material in his or her deliberative process, then vacation of the death sentence is required.” Morton, supra, 155 N.J. at 481, 715 A.2d 228 (Handler, J., dissenting); Marshall III, supra, 148 N.J. at 310-11, 690 A.2d 1 (Handler, J., dissenting). The evidence proffered by the Public Defender meets that standard. See discussion supra at 286-88, 734 A.2d at 278-79. Indeed, the State concedes: “[ojbviously, if the evidence [ ] had been introduced at the penalty phase, the jury’s deliberations would have been radically different, thus satisfying the Marshall III standard of whether ‘deliberations would have been affected substantially.’ ”
Whether or not trial counsel’s representation was deficient is a more involved issue. Legal representation is deficient if it falls below an objective standard of reasonableness. Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Marshall III, supra, 148 N.J. at 156-57, 690 A.2d 1. As noted previously, the Court has adopted a unique standard of prejudice for the penalty-phase of capital cases. I maintain that “the profound difference between capital and noncapital criminal prosecutions compels, as a matter of state constitutional law, the adoption of an enhanced standard for which to measure the competence of counsel” as well. Davis, supra, 116 N.J. at 413, 561 A.2d 1082 (Handler, J., dissenting in part and concurring in part).
We must recognize that counsel representing a defendant in a capital-murder prosecution must demonstrate the competence of a specialist and expert, not simply the skills of an average practitioner. Most particularly, counsel should exhibit this level of competence in the sentencing phase of a capital murder prosecution.
[Ibid.]
See Marshall III, supra, 148 N.J. at 311, 690 A.2d 1 (Handler, J., dissenting); State v. Savage, 120 N.J. 594, 644, 577 A.2d 455 (1990) *295(Handler, J., concurring in part and dissenting in part); State v. Oglesby, 122 N.J. 522, 544-45, 585 A.2d 916 (1991) (Handler, J., concurring).
Martini’s defense counsel failed to exhibit this heightened level of competence in two respects: trial counsel failed to adequately investigate mitigating evidence; and, consequently, trial counsel failed to present the jury with the information necessary to make an individualized sentencing determination. “The failure to investigate, assemble, and present mitigating evidence is the most basic form of ineffectiveness of capital counsel.” Marshall III, supra, 148 N.J. at 322, 690 A.2d 1 (Handler, J., dissenting).
This Court has recognized that the “critical element” of representation in the penalty phase of capital trials is investigation. See Savage, supra, 120 N.J. at 625, 577 A.2d 455. Defense counsel has a duty to conduct “reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 618, 577 A.2d 455 (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695). Where “counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is ‘virtually unchallengeable.’ ” Id. at 617, 577 A.2d 455 (quoting Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 695); see Burger v. Kemp, 483 U.S. 776, 791, 107 S.Ct. 3114, 3124, 97 L.Ed.2d 638, 655 (1987) (holding that after conducting interviews and consulting psychiatric reports regarding defendant’s history, attorney’s choice not to present such evidence as mitigation was a “reasonable decision”). Although “clairvoyance is not required,” Dooley v. Petsock, 816 F.2d 885, 890-91 (3d Cir.), cert. denied, 484 U.S. 863, 108 S.Ct. 182, 98 L.Ed.2d 135 (1987), a strategic choice by an attorney not to inquire into critical, mitigating facts is not reasonable, see Savage, supra, 120 N.J. at 625, 577 A.2d 455.
In Savage, for example, an attorney represented a client who had a history of psychiatric problems. Rather than pursue a mental incapacity defense, the attorney decided to present a reasonable doubt defense. Id. at 607, 577 A.2d 455. Trial counsel *296did not submit his client to a psychiatric examination and did not investigate the client’s psychiatric history. This Court held that while counsel’s choice not to pursue a psychiatric defense could have been a “a legitimate tactical decision,” it was not adequate under the circumstances. Id. at 621-22, 577 A.2d 455. In the Court’s view, “defense counsel failed thoroughly to consider the soundness of his own strategy and was thus unable to conclude that he was pursuing a plausible defense.” Ibid. In short, counsel’s failure to investigate “rob[bed]” his trial strategy of “any presumption of-competence.” Id. at 622, 577 A.2d 455 (quoting Davis, supra, 116 N.J. at 357, 561 A.2d 1082); see id. at 625, 577 A.2d 455; id. at 644, 577 A.2d 455 (Handler, J., concurring in part and dissenting in part) (holding failure to investigate and lack of preparation supported presumption of prejudice).
In the present case, the PCR court found that nothing in counsel’s files indicated trial counsel were ineffective for failing to investigate or uncover the evidence, and concluded that any deficiency in counsel’s performance was marginal. Counsel, the court further believed, “were stopped by Mr. Martini.” As such, no amount of investigative effort would have sufficed, and a strategic choice by counsel not to pursue an investigation that would have uncovered the evidence now before the Court would have been reasonable. Further, in the PCR court’s view, counsel’s failure to present the evidence was not deficient because the effect on the jury would have been gravely detrimental rather than beneficial to defendant. Even if trial counsel had possessed the evidence, the attorneys would not, in the PCR court’s view, have acted unprofessionally by not introducing the evidence because they had a reasonable basis for such a strategic decision.
The Court shares these views. See ante at 290-92, 734 A.2d at 281-82. I disagree. Counsel’s failure to investigate cannot be excused as a reasonable tactical choice. As Savage suggests, only a complete lack of knowledge can excuse failure to investigate potentially mitigating evidence in a capital case. As reasonable as trial counsel’s conclusion may ultimately have been, it does not *297relinquish their responsibility to investigate. Because trial counsel were given clues that established knowledge on their part sufficient to warrant such investigation, the failure to do so was unreasonable, and the representation deficient. The fact that the evidence was not presented at the sentencing proceeding compounds the deficiency — failure to present all relevant mitigating evidence at a penalty-phase trial is patently unreasonable. See Morton, supra, 155 N.J. at 475-80, 715 A.2d 228 (Handler, J., dissenting); Marshall III, supra, 148 N.J. at 313-15, 318-24, 690 A.2d 1 (Handler, J., dissenting). Defense counsel may not be excused by defendant’s non-disclosure in these circumstances. Cf. Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2061, 80 L. Ed.2d at 695-96. In a situation such as this, given ample clues, counsel should have recognized defendant’s situation, presented the dilemma to the court, and moved for a life sentence. At least, trial counsel should have sought presentation of the evidence in an in camera proceeding, as the Public Defender is doing now. See discussion infra at 301-05, 734 A.2d at 287-89.
Even if trial counsel’s level of knowledge was sufficiently inchoate or fragmentary to explain their failure as individuals to act upon it, ineffective assistance of counsel can be ascribed on a broader basis. Effective assistance of counsel may be an institutional obligation. We do not hesitate to impute knowledge to institutional bodies in similar contexts. We dealt with such an issue recently in the context of a Brady violation in Nelson, supra, 155 N.J. 487, 715 A.2d 281. In Nelson, one of the mitigating factors urged by the defendant was that the police had been inadequately trained to deal with an individual like Nelson, who was distraught and violent. The defendant claimed that because she suffered exaggerated fears and delusions, she attacked and killed the threatening police officers. Id. at 494-95, 715 A.2d 281. One of the surviving officers brought a civil complaint against the police department for failure to train police in confronting such persons, and served the complaint on the prosecutor’s office during Nelson’s capital-murder trial; the complaint was not, how*298ever, brought to the personal attention of the prosecuting attorney. Id. at 496-97, 715 A.2d 281. The allegations set forth in that complaint supported the defendant’s defense. This Court found, in accordance with substantial Brady precedent, that the prosecutor’s office bore an institutional responsibility to advise the defense of the officer’s suit as exculpatory Brady material. Id. at 501, 715 A.2d 281.
The Public Defender’s nondelegable responsibility for a capital defendant’s defense and its overall control of Martini’s trial counsel in this case put the Office in a quasi-supervisory role. Therefore, a claim of ineffective assistance of counsel could, lie against the Office of the Public Defender itself. Martini’s original trial counsel was a public defender. Original trial counsel resigned shortly after he began to represent Martini, and when he did so the Office of the Public Defender dropped the case as well. The Office of the Public Defender, however, kept original trial counsel’s notes on file. Soon thereafter, the court appointed new counsel for Martini, and ordered the Office of the Public Defender to compensate new counsel and provide ancillary services for Martini. The record shows that after original trial counsel and the Office of the Public Defender officially withdrew from the case, an Assistant Public Defender, who was familiar with the original trial counsel’s files, continued to be involved in the case as a liaison between the Office of the Public Defender’s and newly appointed counsel. Memoranda from the Assistant Public Defender to the new trial counsel demonstrate that the Public Defender engaged not only in authorizing payment, but also in giving counsel substantive legal advice. In fact, the PCR court suggested that trial counsel’s failure to investigate, discover, or use the evidence in Martini’s defense was due in part to a strategic decision by the Assistant Public Defender. Because the Assistant Public Defender remained involved in Martini’s representation after the case was reassigned to trial counsel, the Office of the Public Defender may not disclaim institutional responsibility in assuring defendant effective assistance of counsel.
*299The next question is whether the Assistant Public Defender’s performance could be deemed deficient. The Assistant Public Defender had original trial counsel’s notes on file. Those notes contained information that would have provided reason to conduct an investigation that may have led to the mitigating evidence at issue. The Assistant Public Defender did not give the file to trial counsel, or even notify them of its existence. In the PCR court’s view, the Assistant Public Defender made a strategic decision to try to bury the information on file because he believed it would prejudice Martini. Regardless, the Public Defender had a duty to turn over that information. The fact that neither the Assistant Public Defender nor anyone else in the Office of the Public Defender’s turned the materials over to trial counsel constitutes deficient performance of counsel. The omission of the evidence from defendant’s sentencing trial was highly prejudicial. An ineffective assistance of counsel claim therefore holds, on an institutional level, against the Office of the Public Defender.3
Ill
Ordinarily, a finding of ineffective assistance of counsel at the penalty-phase of a capital trial would be grounds to vacate a defendant’s death sentence. Likewise, a finding that newly dis*300covered mitigating evidence would have substantially affected the jury deliberations should lead, in most circumstances, to a new sentencing proceeding at which the omitted evidence would be taken into account.
In this case, however, defendant has a legitimate and protecta-ble interest in keeping the evidence confidential, which complicates the matter. Because under the circumstances a fair and individualized sentencing proceeding before a fully informed jury must include the mitigating evidence in question, defendant’s interest in a fair and individualized sentencing proceeding cannot simultaneously be protected and reconciled with his interest in confidentiality. Faced with this paradox, defendant, preferring to maintain strict confidentiality of the evidence, has chosen to forego a comprehensive sentencing proceeding. In essence, defendant seeks to preserve his confidentiality interest by waiving his right to present mitigating evidence, and his right to appeal. Defendant should not, however, have been put to that Hobson’s choice.
In light of the fact that defendant is entitled to a new trial, we must consider whether a new trial could be conducted under conditions, perhaps in camera, that would allow full effect to be given to all of defendant’s rights and interests. If not, the State must abandon its effort to impose the death penalty on defendant.
A.
The Public Defender urges that defendant’s interest in a fair and individualized sentencing proceeding may be given full effect along with his confidentiality interest if a new sentencing proceeding was conducted, at least partially, in camera. We asked the PCR court to consider the efficacy of protecting defendant’s confidentiality interest in a penalty-phase proceeding by
imposing conditions on the admission of the evidence, such as in camera proceedings, redaction of information, or the presentation of the evidence through summar-ization or paraphrasing in a form that will eliminate the concerns for confidentiality.
[Martini IV, supra, 148 N.J. at 454, 690 A.2d 603.]
*301The PCR court responded that the entire penalty phase would have to be closed. The Court does not reach this issue. See ante at 271 n. 6, 734 A.2d at 270 n. 6. Because I believe that defendant’s death sentence should be vacated, I must consider whether closed proceedings would be an adequate solution to the intricate and importunate constitutional demands presented by this case. I conclude that the in camera presentation of mitigating evidence would be constitutionally inadequate, in this or any capital penalty-phase trial.
Closing the courtroom of a criminal proceeding infringes upon a defendant’s right to a fair and public trial. See Waller v. Georgia, 467 U.S. 39, 47-48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d 31, 39-40 (1984); Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); see also Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (extending Sixth Amendment right of trial by jury to all state criminal proceedings through Fourteenth Amendment); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (holding fair and impartial jury in state criminal proceedings required by due process clause of Fourteenth Amendment). “[0]ne of the most important means of assuring a fair trial is that the process be open to neutral observers.” Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 7, 106 S.Ct. 2735, 2739, 92 L.Ed.2d 1, 9 (1986) (Press-Enterprise II). “The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned____” In re Oliver, 333 U.S. 257, 270 n. 25, 68 S.Ct. 499, 506 n. 25, 92 L.Ed. 682, 692-93 n. 25 (1948); see Waller, supra, 467 U.S. at 46, 104 S.Ct. at 2215, 81 L.Ed.2d at 38; Gannett, supra, 443 U.S. at 380, 99 S.Ct. at 2905, 61 L.Ed.2d at 622.
With regard to the presentation of mitigating evidence at a capital sentencing proceeding, the right of a criminal defendant to a fair and public trial, rooted in the Sixth and Fourteenth Amendments, harmonizes with the Eighth and Fourteenth Amendment bar to cruel and unusual punishment. Like the right to a public *302trial, the ban on cruel and unusual punishment demands public scrutiny. That would be absent from a penalty-phase trial closed for the presentation of mitigating evidence. To authorize such veiled proceedings, and respect a death sentence derived therefrom, would bring us precariously close to a practice of off-the-record convictions and secret executions, which the Eighth and Fourteenth Amendment were intended to prevent.
Given the high level of public accountability and responsiveness required for the implementation of a valid death sentence, the presentation of mitigating evidence in a capital penalty trial cannot, consistently with constitutional imperatives, be conducted in camera.4
B.
If a closed penalty trial is not possible, and defendant’s confidentiality interest prevents disclosure of the evidence in open court, two options apparently remain: allow defendant to waive his right to a new penalty trial, remain sentenced to death, and proceed to his execution; or prohibit defendant from being prosecuted capitally, to remain in prison for the rest of his life.
*303To allow defendant to forego a new penalty trial would allow him essentially to waive his right to present mitigating evidence in a capital sentencing proceeding as well as his right to appeal. Those rights are not the exclusive domain of the defendant. They are expressive of the public’s interest in the reliability and fair administration of capital punishment. The State has a profound and unshakable interest in death sentences that are reliable and meted out justly and fairly. We have previously held that the policy reasons that undergird that overarching public interest prohibit a capital defendant from waiving the right to present mitigating evidence in a capital sentencing proceeding, see Hightower, supra, 120 N.J. at 415, 577 A.2d 99; Koedatich II, supra, 112 N.J. at 329-30, 548 A.2d 939, or the right to appeal a death sentence, see State v. Koedatich, 98 N.J. 553, 489 A.2d 659 (1984) (Koedatich I). That public interest, as we held specifically regarding defendant’s case, prohibits a capital defendant from waiving his right to post-conviction review. See Martini III, supra, 144 N.J. at 607, 677 A.2d 1106. This is the first time the Court has considered waiver of a capital penalty trial or the right to present mitigating evidence therein that was motivated by defendant’s exercise of another protectable interest — namely, defendant’s desire to keep the evidence confidential.
Whether defendant’s confidentiality interest demands special treatment or presents grounds for an exception to the otherwise absolute and non-waivable rights discussed in Koedatich I and II and Hightower is not a question that need be reached to arrive at a fair, just, and constitutional solution to the problem in the present case. It should be clear that the Court’s opinion in this case does not make or endorse an exception to the rules, enunciated in Koedatich and Hightower, that “under our law a defendant may not waive a sentencing hearing, may not waive the presentation of mitigating evidence, and may not waive an appeal,” Martini III, 144 N.J. at 609, 677 A.2d 1106. Unimpressed with the evidence put forth by the Public Defender, the Court has simply avoided the issue. See ante at 271, 734 A.2d at 270 (noting that the Court “need not decide whether defendant’s confidentiality *304interest alone is sufficient to exclude the evidence at a new penalty-phase trial”).
Where a defendant is being forced to choose between sacrificing rights, the issue of whether the defendant, having made the choice between the lesser of two sacrifices, can waive some of those rights over others is beside the point. The crux of the matter is that any waiver under circumstances such as these is involuntary and beyond the pale of constitutional principles. See Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174, 181 (1978) (“The waiver rule cannot be exalted to a position so lofty as to require this Court to blind itself to the real issue — the propriety of allowing a state to conduct an illegal execution of a citizen.”); People v. Stanworth, 71 Cal. 2d 820, 80 Cal.Rptr. 49, 457 P.2d 889, 899 (1969) (“The law cannot suffer the state’s interest and concern in the observance and enforcement of this policy [that in favor of capital appeals] to be thwarted through the guise of waiver of a personal right by an individual.”). The truth is, Martini, abetted by the State, has been forced to choose between sacrificing rights. It is doubtful that Martini truly wants to be killed by lethal injection. Rather, he wants to prevent disclosure of the evidence, and has been forced to bargain his life for that end. The State may not participate in that bargain.
The Court deceptively suggests that no one is forcing defendant. It points out that it is Martini who is insisting on confidentiality and insinuates that it is Martini’s confidentiality interest that creates the dilemma, a predicament of his own choosing. The Court, however, does not suggest — and would not dare intimate— that defendant’s need for confidentiality is shallow, pretextual or capricious. Defendant’s claim of confidentiality is not a flippant claim borne of convenience or whimsy. It is based on solid reasons and implies more than an interest in confidentiality that is solely personal. Indeed, it is fair to say, and in the circumstances should be emphasized, that the State has a strong interest in protecting defendant’s confidentiality interest because that is the just and humane thing to do. Further, the State has a parallel *305and equally compelling basis for assuring confidentiality — the public interest and its overarching responsibility in protecting all of its citizens.
“[T]he Eighth Amendment not only protects the right of individuals not to be victims of cruel and unusual punishment, [it] also expresses a fundamental interest of society in ensuring that state authority is not used to administer barbaric punishments.” Gilmore v. Utah, 429 U.S. 1012, 1019, 97 S.Ct. 436, 440, 50 L.Ed.2d 632, 636 (1976) (Marshall, J., dissenting from termination of stay of execution). Criminal justice is administered by the State. The State alone may seek and secure a death sentence; the defendant may not seize the initiative in determining whether he is to be put to death. It is the State’s duty in vindicating societal interests to ensure that the death penalty is imposed with respect for human dignity, that is, decently and consistently. See Furman, supra, 408 U.S. at 274-79, 92 S.Ct. at 2744-47, 33 L.Ed.2d at 369-72 (1972) (Brennan, J., concurring); id. at 309-10, 92 S.Ct. at 2762-63, 33 L.Ed.2d at 390 (Stewart, J., concurring); Ramseur, supra, 106 N.J. at 169, 190, 524 A2d 188. To procure a death sentence by placing a defendant in an insoluble and precarious conundrum does not achieve that aim. Justice Marshall’s reprimand of the Supreme Court reverberates and is equally applicable to this Court’s holding today:
This Court’s toleration of the death penalty has depended on its assumption that the penalty will be imposed only after a painstaking review of aggravating and mitigating factors. In this case, that assumption has proved demonstrably false. Instead, the Court has permitted the State’s mechanism of execution to be [resolved] by an entirely arbitrary factor: the defendant’s decision to acquiesce in his own death.
[Lenhard v. Wolff, 444 U.S. 807, 815, 100 S.Ct. 29, 33, 62 L.Ed.2d 20, 23-24 (1979) (mem.) (Marshall, X, dissenting from denial of stay of execution).]
The State cannot proceed by tying the hands of the defendant. The State’s insistence on the validity of defendant’s death sentence in the circumstances is dishonorable. The State’s position that if the evidence were considered mitigating and a new trial required the evidence would have to be presented in open court is cruel. The State would force Martini to produce and expose the *306evidence or forsake it, either way at his own risk and peril. A capital prosecution and death sentence carried out under these circumstances, that puts a defendant on a procedural rack, is lacking in the principles of human dignity and due process of law that mark our civilization. Such an execution would indeed be a “barbaric punishment” shorn of the vestiges of fairness, and would be nothing short of savage and sinister.
IV
The same reasons that lead to the conclusion that a defendant cannot be prosecuted capitally where mitigating evidence cannot be used because confidentiality interests preclude its use, also lead to the conclusion that if those considerations prevent a defendant from availing himself of defenses constitutionally required, ie., ineffective assistance of counsel or Brady claims, due to confidentiality, then the State should not be allowed to proceed with a death penalty prosecution. Such is the case with the Brady claim raised by the Public Defender in this case.
V
Capital prosecutions cannot be mounted in any case without regard to their constitutional, institutional and societal costs. The newly discovered evidence before the Court entitles defendant to a new penalty trial. But the exactions of prosecuting defendant— either without mitigating evidence or in secret — profoundly and irreparably compromise the fair administration of criminal justice. Those exactions are prohibitive, and must impel the State to desist from the continued capital prosecution of defendant.
For affirmance — Chief Justice PORITZ and Justices POLLOCK, O’HERN, GARIBALDI, STEIN and COLEMAN — 6.
For reversal — Justice HANDLER — 1.
We should distinguish claims based on newly discovered evidence relevant to capital sentencing trials, in which the omission of evidence bears materially on whether the death sentence was validly imposed, from similar claims pertaining to the guilt/innocence phase of capital prosecutions. In Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), the Supreme Court reversed the defendant's death sentence pursuant to the Eighth Amendment in light of newly *283discovered evidence that the defendant was insane. In contrast, in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the Supreme Court held that Eighth and Fourteenth Amendment claims of actual innocence based on newly discovered evidence are not, in the absence of other constitutional claims, grounds for habeas corpus relief for death-sentenced defendants. The Supreme Court recognized in Herrera, however, that more lenient standards would apply for newly discovered evidence pertinent to a capital defendant's sentencing proceeding. Distinguishing Ford, supra, the Court stated: "Unlike petitioner here, Ford did not challenge the validity of his conviction. Rather, he challenged the constitutionality of his death sentence in view of his claim of insanity. Because Ford's claim went to a matter of punishment — not guilt — it was properly examined within the purview of the Eighth Amendment." Herrera, supra, 506 U.S. at 406, 113 S.Ct. at 863, 122 L.Ed.2d at 220. But see Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316, 329 (1990) (applying ‘reasonable likelihood' standard of reversible error with regard to capital penalty-trial jury instruction on mitigating evidence).
Eighth Amendment concerns regarding accurate sentencing determinations in capital cases outweigh concerns with finality and the general policy against retrial. Our concern that all mitigating evidence be before the final arbiter of death imbues mitigating evidence with perpetual relevance. Continuing consideration of mitigating evidence is necessary to insure that a death sentence is imposed consistently. Evidence relevant to a death-sentencing proceeding uncovered after a death sentence has been imposed must not, therefore, be dismissed simply because it is belated.
The judge elaborated on his reasons for that conclusion:
It would have taken them less time to make a decision. I have no doubt. I selected this jury. I sat with this jury ... I believe attached to the certification of the moving papers was an article where two of the jurors were interviewed, one being the foreperson. I remember the other juror was quoted as saying, "Yes, I had tears in my eyes." I remember the foreperson as being quoted as saying something to the effect, "We knew in our hearts if there was a case for the death penalty this was it," and so they voted. Would this have had a significant impact on their deliberations in that it may have changed any one of their minds? I don't think so at all. I do not think so at all.
Martini argues that the Public Defender is currently providing ineffective assistance by pursuing this appeal. Defendant claims the Public Defender’s alleged "representation” violates his constitutional rights. Martini argues that his admissions of guilt and his concession that his sentence was correct should close the debate. He also contends there is a violation of the attorney-client privilege. Further, compelling an unwilling defendant to accept legal counsel, he claims, violates his Sixth Amendment right to self-representation. In addition, according to Martini, the Public Defender’s conduct violates several Rules of Professional Conduct. We addressed related issues in State v. Martini, 144 N.J. 603, 677 A.2d 1106 (1996) (Martini III), and determined that the Public Defender could properly pursue PCR on defendant’s behalf. Moreover, the undertaking by the Public Defender in this case, even over the objections of Martini, is necessary to furthering the State's interest in assuring the fair, just and reliable imposition of a death sentence. Infra at 301-05, 734 A.2d at 287-89.
Closing the courtroom would also impair the First Amendment right of access held by both the public and the press to attend criminal proceedings. See Press-Enterprise II, supra, 478 U.S. at 14, 106 S.Ct. at 2743, 92 L.Ed.2d at 13-14; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248, 257 (1982); Richmond Newspapers v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 2829, 65 L.Ed.2d 973, 992 (1980); Application of VV Pub. Corp., 120 N.J. 508, 514, 577 A.2d 412 (1990). Nevertheless, the public’s right to access to criminal trials will give way "in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller, supra, 467 U.S. at 45, 104 S.Ct. at 2215, 81 L.Ed.2d at 38; see State v. Williams, 93 N.J. 39, 63, 70, 459 A.2d 641 (1983); see also State v. Marshall, 199 N.J.Super. 502, 489 A.2d 1235 (App.Div.1985). The presence of these First Amendment rights only reinforces my conclusion that capital sentencing trials are distinct from other capital proceedings and that, given the rights at stake, the presentation of mitigating evidence in such proceedings may never be in camera.