By Joseph F. Sullivan - New York Times

December 1, 1990

On June 16, 1985, Nathaniel Harvey entered a garden apartment in Plainsboro through an unlocked patio door. In taking a watch and jewelry from a bedroom dresser, he woke the tenant, Irene Schnaps. She hit him in the nose. He beat her to death with a "hammer like" weapon, then choked her, a Medical Examiner testified, for as long as an hour.

On Oct. 18, 1990, the New Jersey Supreme Court overturned Mr. Harvey's death sentence, saying the jury in his case should have been asked to decide whether he had intended to kill Ms. Schnaps, or only to cause serious injury.

That decision, the 25th consecutive one in which New Jersey's highest court overturned a death sentence, prompted the state's Attorney General, Robert J. Del Tufo, to issue an unusual public statement in which he said the court appeared intent on preventing executions in New Jersey under any circumstances.

Charging that the court's rulings had undermined public confidence in the criminal justice system, he stated, "If the court's underlying message is that it philosophically objects to the death penalty, then it is time to eliminate the charade and to reassess directly and expressly the continued death penalty in the state."

Mr. Del Tufo's public criticism comes as the Legislature is again preparing to take up the state's 1982 capital punishment law. Administration officials say Gov. Jim Florio is also preparing to address the issue of an 8-year-old death penalty that has yet to result in an execution.

A legislative committee will conduct hearings in January and expects to release a new package of bills aimed at streamlining the sentencing process in time for a vote before the 1991 legislative elections, assuring the death penalty will be an issue then, as it was in the governor's race in 1989.

The heart of the criticism by the Attorney General, and by several county prosecutors, is a belief that inconsistencies in the court's rulings suggest that the justices will turn in any direction to reverse a death sentence. They are particularly concerned by the court's emphasis on determining the intent of killers.

The New Jersey court, regarded by legal experts and academics as one of the leading state courts in the nation, has not responded to the criticisms from Mr. Del Tufo, county prosecutors or members of the Legislature. Carl Golden, the court's spokesman, said, "The court, as always, will let its opinions speak for themselves."

Supporters of the court, including the New Jersey Public Advocate's office, counter that reversals occurred when trial judges and prosecutors did a poor job of preparing to try capital cases, and then committed errors that have required action by the high court.

Dale Jones, the assistant public defender who oversees the defense of all condemned prisoners, said that, in contrast, his office took a crash course when it became apparent the law would be enacted.

"We traveled around the country to states that already had the death penalty, and learned how trials are conducted," he said. "There was no similar preparation by the prosecutors or the courts."

But a deputy attorney general who has supervised capital cases, Boris Moczula, said prosecutors are becoming cynical. They believe, he said, that if there are no other grounds to overturn the death penalty, the Supreme Court turns to the question of intent -- whether a person intended to kill, or only to inflict serious injury which then led to death -- to find a way to order a new sentencing hearing. Series of Rulings

In one case, overturned because of a judge's error in instructing the jury, the court said that the defendant, an armed robber who shot a convenience-store cashier three times, obviously intended to kill his victim.

But in another, in which a man chased his victim, dropped him with a shot in the leg and then stood over him and fired two more shots into his head and back, the court said the intent was unclear. It ruled that the jury should have been asked to decide whether the gunman meant to kill.

The issue of intent was first raised in 1987, when the high court upheld the death-penalty law. The sole dissenter, Justice Alan B. Handler, complained about the "extraordinary" range of defendants who would be subject to the death penalty, because state law defined murder as both "purposely and knowingly causing death" and "purposely and knowingly causing serious bodily injury that leads to death."

The next year, in reviewing the case of Walter Gerald, the court ruled that the New Jersey Constitution allowed the execution only of people who had intended to kill, not those who meant to inflict serious injury.

In doing so, the court departed from the United States Supreme Court, which has said that people who exhibit a "reckless indifference to human life" in causing death can be subjected to the death penalty.

Mr. Gerald had beaten to death a 55-year-old man during a robbery by stomping on him and hitting him in the head with a television set. Split Decisions

Following the Gerald decision, the court overturned several death sentences, saying that if there is any doubt about a defendant's state of mind, a judge in a capital case must require a jury to decide the question of intent.

Mr. Moczula and others point to reversal of the death sentence in the case of Kevin Jackson as one that strains the meaning of intent. Mr. Jackson pleaded guilty in 1986 to stabbing a 51-year-old female neighbor 53 times.

Since the Gerald decision, some members of the court have also been unhappy about how it has been applied. In the cases of Frank Pennington, who was convicted of shooting a bartender to death, and Ronald Long, convicted of fatally shooting a liquor store owner, the decisions to overturn the death sentences and send them back for new sentencing hearings came on 4-to-3 votes.

Mr. Jones, the public defender, said: "It's not hard for anyone to be troubled by the Gerald decision, and I understand the frustration of prosecutors, but I believe the Supreme Court made the right call, and it was very difficult call to make." 'Not Your Average Joe'

He pointed out that Mr. Jackson, for instance, was high on drugs when he stabbed his neighbor. "That's the situation in many of these cases," he said. "That and the fact that some of the defendants suffer from diminished mental capacity. These are the people who wind up on death row, not your average Joe on the street."

Mr. Jones said the Legislature and the public as a whole also do not understand the pace of death penalty litigation, which takes an average of 12 years, including Federal appeals, from indictment to execution.

Senator John F. Russo, a Democrat of Toms River and chief sponsor of the 1982 law, agreed. "People forget t took 8 to 14 years for an execution under our old law," he said.

Mr. Russo said he intended the death penalty to be imposed for only the most egregious intentional murders, and added that he believes the court has been unfairly criticized for its ruling in the Harvey case.

"I've read the decision and the court didn't say Harvey didn't intend to kill his victim, it said the question of intent was one for the jury," he said. "I have no problem with that."

Is New Jersey Poised to Execute an Innocent Man?

Fighting for His Life

By Laura Masnerus

May 15, 2005 - The New York Times

Plainsboro, New Jersey

IRENE SCHNAPS, a 37-year-old widow, was found dead on a June day in 1985 in the blood-splashed bedroom of her garden apartment here, and within days a man in her life became a suspect.

The man was a neighbor whose name, Pete, appeared often on Ms. Schnaps's personal calendar, although her friends told the police she considered him a pest. Investigators questioned him for hours, administered a lie-detector test and took some of his belongings that appeared to have bloodstains.

But a few months later - still without enough evidence for an arrest - the police in West Windsor Township found another suspect, a burglar who confessed to a rape in the area. They charged him with Ms. Schnaps's murder, and their case would prove all but unshakable.

Twenty years later, that suspect, Nathaniel Harvey, is on death row at the New Jersey State Prison in Trenton. He tells his lawyer to make sure the remaining evidence in his case is preserved even if he is executed. Someday, he says, it will show that he did not kill Ms. Schnaps.

With new information about that evidence, which a lower court recently refused to hear, Mr. Harvey's case will now go before the New Jersey Supreme Court, probably next year. While the court takes great pains with all death-penalty cases, Mr. Harvey's is different from the other 10 on death row and, indeed, presents a claim that the court has not heard in decades: that the state plans to execute the wrong man.

Middlesex County prosecutors say the claim is outlandish. They contend that Mr. Harvey's guilt was demonstrated by, among other things, a confession and by DNA evidence from Ms. Schnaps's bedroom, evidence that was accepted by jurors and ratified by courts, including the state Supreme Court - not once but twice.

But Mr. Harvey has always insisted that he never confessed. And now the lawyer who took his case five years ago, Eric V. Kleiner, has unearthed evidence of a flawed investigation, contaminated evidence, false testimony and potentially fatal mistakes by defense lawyers. Mr. Kleiner contends that the DNA evidence was badly botched, an error with the perverse stamp of scientific certainty. He also obtained the original suspect's polygraph results; the jury and the Supreme Court were told that the man had passed, but he had in fact failed decisively.

"This stuff is so egregious," Mr. Kleiner said. "If they knew then what we have now, everything would be different."

That protest - if they knew - has brought the release of more inmates from death rows around the nation, 83 since 1989, than legal experts in the pre-DNA world thought possible. In Mr. Harvey's case the prosecution is fiercely contesting the claims of new evidence, and last month the state Superior Court - the trial-level court that has presided over Mr. Harvey's habeas corpus challenge for five years - refused his request for a new evidentiary hearing and dismissed the case.

Now the Supreme Court faces the question of how much doubt is reasonable doubt, what evidence is truly new evidence, and how DNA testing might unravel decisions that were official truths years ago.

Mr. Kleiner was appointed by the public defender's office mainly because of his expertise in DNA testing. A voluble, intense man with a solo practice in Englewood Cliffs, he began tugging at other strings, pried thousands more pages of documents from the prosecutors, brought in his own experts and ended up tearing the case apart.

The defense also built a case against the initial suspect, accusing him of murdering not just Ms. Schnaps but another woman in the area. And he wants more testing, including DNA tests on items taken from the man's car 20 years ago, to see if Irene Schnaps's blood is on them.

While Mr. Kleiner has accused prosecutors of withholding and destroying evidence, they have accused him of concocting conspiracy theories, demanding irrelevant evidence and slandering an innocent man. Julia McClure, the first assistant prosecutor, declined to be interviewed but said in an e-mail message that testing the old evidence "would not yield material results."

"It's absolutely indefensible," Mr. Kleiner said. "It is not seeking answers to questions that are unresolved. It's the best evidence we have left, and there's no justifiable explanation for wanting to put somebody to death without looking at it."

The evidence was also a problem for one former State Supreme Court justice, Alan B. Handler, who dissented emphatically when the justices upheld Mr. Harvey's conviction in 1997. Justice Handler, now retired, routinely dissented in death-penalty cases, but his objections in Mr. Harvey's case were unusually specific, including a 64-page analysis of the DNA testing. Looking to the habeas challenges sure to follow, he wrote, "I have little doubt that when the time comes, this case will eventually be reversed by this court or a federal court."

Colleague Finds the Body

Ms. Schnaps's body was found by a worried co-worker who went to her apartment, in a development called Hunter's Glen, when his colleague - widowed for 10 weeks and living alone - did not show up for work at the nearby RCA offices.

It was a Monday afternoon, June 17, 1985, and Ms. Schnaps had died Saturday night or early Sunday morning. Neighbors had heard nothing unusual, but Ms. Schnaps's bedroom was horribly bloodied. Her body was nude and her head battered by what investigators termed a "blunt metallic instrument." A pillowcase on the floor bore part of a bloody footprint.

The police found boxes for a camera and a Seiko watch, but the crime did not seem to be an aborted burglary. There was no sign of forced entry, and the killer had left valuables behind. Next to the body was an empty cassette recorder - a clue that made more sense when her friends said Ms. Schnaps, a stenographer, kept a diary on tapes.

As neighbors gathered, a man from the next building named Peter Stohwasser volunteered to the police that he saw Ms. Schnaps often. Mr. Stohwasser, 41 and divorced, said that he had asked her out but that she said she was not interested in a sexual relationship so soon after her husband's death; he told her he would wait. He told the police they went out for Chinese food the week before she died.

From Ms. Schnaps's friends the police learned that a neighbor named Pete was constantly at her door, and on her calendar, which served as a diary of sorts, the name "Pete" appeared often. (The next-to-last reference, on May 18, said, "Turned Pete down," and a week later she wrote, "Party w/Pete.") The police also learned that Mr. Stohwasser had served time in jail for stalking and threatening a girlfriend.

Mr. Stohwasser told the police he was home Saturday night and did laundry Sunday morning, then talked to Ms. Schnaps on the phone. They had not disclosed the time of death, and, suspicious of the discrepancy, asked him to take a polygraph. He failed many questions, including the crucial one: "Did you murder Irene?"

Investigators then got a search warrant and took a quilt that appeared to contain bloodstains from his apartment; from his car, they took a pair of white work gloves and a metal strip, both with small reddish spots.

Five days after the murder, the police took sheets and clothes, apparently washed but containing reddish stains, that had sat unclaimed in the common laundry room.

Tests on Mr. Stohwasser's quilt found human blood. Hairs were retrieved from his quilt, too, and examined along with the hairs collected from Ms. Schnaps's bedroom. The lab concluded that all of the hairs appeared to match the victim's.

In some ways, though, the evidence was not adding up. The shoeprint was too small for Mr. Stohwasser's size-12 foot. Lab reports on the gloves and metal strip from his car said blood was "not detected."

It is hard to tell exactly what the investigators knew in the fall of 1985, because many of the laboratory notes and worksheets are missing. At some point, an expert told prosecutors the shoeprint was probably made by a Pony sneaker. And while all the hair collected from the murder scene was originally designated Caucasian, a lab worker added this line: "and one negroid hair." The date was not noted.

The police found Mr. Harvey on Oct. 28, fleeing from a series of burglaries and, in the course of one of them, the attempted kidnapping of a 13-year-old girl. Mr. Harvey, 34, was the answer to a string of unsolved break-ins - the short, stocky black man described by several homeowners - and he quickly admitted these.

He was also wearing Pony sneakers, in a small size. His criminal record included a sexual assault, and after more questioning he admitted to a recent unsolved rape.

Mr. Harvey insisted that he had nothing to do with the Schnaps murder. "I been thinking a little while here, in all my life I never killed anytime," he told detectives as he twisted in his chair against tight handcuffs.

But a search of his car turned up a Seiko Lasalle watch, minus the band, like the one that was apparently missing from Ms. Schnaps's apartment. And after almost three days of questioning, the police reported, Mr. Harvey confessed.

The confession was not recorded or put in writing. But the two detectives who interrogated him said Mr. Harvey told them he entered Ms. Schnaps's apartment and killed her after she awakened and punched him in the nose.

Mr. Kleiner argues that the investigators' initial suspicion was right: that Ms. Schnaps's killing was more brutal, more personal, than a surprised burglar would inflict.

But Thomas Kapsak, the prosecutor who handled the investigation, said Mr. Stohwasser was not a killer, either.

"He was one of those guys who hung around the pool with gold necklaces trying to pick up women," Mr. Kapsak recalled.

Within days of Mr. Harvey's arrest, Mr. Kapsak authorized the return of Mr. Stohwasser's quilt.

"I was the A-number-one suspect," Mr. Stohwasser, now 61 and living not far from Hunter's Glen with his second wife, recalled in an interview this month. "And then one day I heard they arrested this guy, and it was over."

His account differs in places from the one he gave 20 years ago - he now says he and Ms. Schnaps never went out to dinner, for example - but he says, as he did then, that he was asking her out and getting nowhere.

He said he did see her the weekend of her death: "The only reason they came after me - and I don't know why I failed the polygraph, probably because I was nervous - was that I said I was probably the last person who saw her alive." He denied talking to her on the phone that weekend, as he had told the police, but acknowledged at another point in the interview that he might have.

Mr. Stohwasser also remembered the items taken from his apartment and car. He said the quilt did have blood on it, "from another girl I was seeing at the time" - although police reports show that the woman said a year earlier, when she accused him of stalking her, that their affair was over.

'Questioned and Questioned'

"I was questioned and questioned and questioned," he said, until the day he heard on the radio that another suspect had been found with items that linked him to the Schnaps murder.

He added, "I'm surprised they're still going after this."

Mr. Harvey declined to be interviewed for this article; Mr. Kleiner says that after 20 years on death row, his client barely communicates with anyone, and when last tested, in 1979, his I.Q. was 66. In a statement conveyed by Mr. Kleiner, Mr. Harvey said that he regretted his crimes but that "I have never murdered anyone."

Mr. Harvey has always been that adamant. During the second trial he was offered a plea deal for 30 years without eligibility for parole, which would have added no time to the sentence he was already facing for other crimes, but he turned it down.

When Mr. Harvey stood trial in 1986, the defense had very little. If he had an alibi for the night of June 15, it never came to light. His lawyer did not call any expert witnesses. And Peter Stohwasser's name never came up.

Mr. Harvey was convicted and sentenced to death, but in 1990 the State Supreme Court granted him a new trial. The court held, among other things, that the confession was inadmissible because the detectives did not give adequate Miranda warnings.

The second trial was a battle of experts over the blood evidence, by this time tested for DNA. Mr. Harvey was again convicted and sentenced to death, and the Supreme Court upheld the conviction in 1997.

Mr. Kleiner's review of the 15-year prosecution began with the damning blood evidence. The samples are degraded now and probably cannot yield useful DNA results, but the defense says it has discredited the prosecution's reports.

Almost all the blood at the murder scene was Ms. Schnaps's, but a few spots on the box spring and on a cardboard box under the bed looked like a mixture of her blood and someone else's. Analyzing those samples for a blood enzyme known as CAII, the laboratory found a type that appears in about 15 percent of the African-American population and never in Caucasians. That was persuasive, apparently, to the first jury.

For the second trial, the prosecution maintained that the DNA testing of the box spring and cardboard box narrowed the universe of possible contributors to a tiny percentage of the African-American population. Even the defense expert testified that the blood would match at most 2 percent of people of African ancestry.

But years later, Mr. Kleiner obtained lab reports that the state had not released or that Mr. Harvey's previous lawyers had overlooked. Then, his two blood experts concluded that the earlier reports were erroneous, that the DNA sample was probably contaminated, and that the blood tests from Ms. Schnaps's apartment in 1985 had in fact eliminated Mr. Harvey as a possible source.

The defense also learned of the items found in the common laundry room - still unidentified and never tested. So far, Mr. Kleiner has been unsuccessful in his request to have them tested for blood.

As for the single "negroid hair," which linked Mr. Harvey to the crime scene but was not conclusively identified, Mr. Kleiner was told that all the hair evidence, along with technicians' notes and microfilm, was missing. The hair was gone before the first trial, it turned out - although Mr. Kleiner says he suspects it never existed - and Mr. Harvey had been convicted twice with evidence that no one ever produced in court.

Meanwhile, there was another possible suspect, Peter Stohwasser, to check out.

Mr. Harvey's first lawyer, Michael R. Justin, did not seem to be aware of any earlier suspect. (What Mr. Justin knew may never be clear; he committed suicide in 1989.) At the second trial, Mr. Harvey's public defenders, Lorraine Pullen and Al Glimis, named Mr. Stohwasser and suggested that he had been cleared too soon. But they were stymied by an investigator for the prosecutor's office, James T. O'Brien. Mr. O'Brien's testimony contained two inaccuracies, unnoticed at the time, that are now at the heart of Mr. Harvey's case.

The first came after Mr. O'Brien's cross-examination by the defense, when the prosecutor, Robert H. Corbin, stepped up to elicit a sharp response.

"Did Mr. Stohwasser to your knowledge ever submit to a polygraph?" the prosecutor asked.

"Yes," Mr. O'Brien answered.

"Did he pass?"

"Yes, he did."

The jurors were told to disregard the testimony, since polygraph evidence is not admissible in court, but they were not told that Mr. Stohwasser in fact had failed the polygraph. The defense lawyers did not know, either. After Mr. Kleiner obtained the polygrapher's charts in June 2003, two polygraph experts, Richard Arther and Catherine Arther, reported they had "no doubt" that Mr. Stohwasser lied on all the questions about the murder.

In a recent interview, Mr. Arther said that the polygrapher - whom he had trained, as it happened - had done an impressive job and that he was "appalled" that the prosecutor's office did not pursue Mr. Stohwasser. Catherine Arther, Mr. Arther's daughter, who works with him in teaching polygraph techniques, added: "We don't know why they shifted their attention over to Harvey. We feel strongly about this case."

The testimony of Mr. O'Brien, who has retired and could not be reached for comment, remains unexplained. Mr. Corbin, now in private practice, said he could not remember the testimony or the polygraph results, although he recalled that some other allegations against Mr. Stohwasser "did not jibe."

Mr. Kapsak, the prosecutor who handled Mr. Harvey's first trial, said: "Why O'Brien made that mistake I don't know. I guess because they excluded him, they assumed that he passed the test."

In the old records Mr. Kleiner says he also found, in fragments, the story of Mr. Stohwasser's quilt.

The hairs from the quilt, initially identified as Ms. Schnaps's, are missing. The bloodstained swatches from the quilt are gone, too. Mr. O'Brien testified that the quilt and Mr. Stohwasser's other belongings "came back negative for blood."

But Mr. Kleiner's serologist concluded that the testing did show blood and identified an enzyme carried by no more than one-third of the population, including Ms. Schnaps.

The blood on the quilt, like the polygraph results, never came to the attention of the Supreme Court. Yet the inaccurate testimony went unchallenged, and on appeal the state did not correct it, and it became the official version - the Supreme Court's version - of the murder story.

Another Murder Victim

Mr. Kleiner also found out about a cold case in East Windsor - a murder that occurred 16 months before Irene Schnaps was killed. Nathaniel Harvey was a suspect at one point, and Mr. Kleiner would decide that Peter Stohwasser should have been a suspect, too.

The victim, Donna Macho, 19, was attacked in the early morning of Feb. 26, 1984, in her apartment in the basement of her mother's and stepfather's house. No one heard screams and there was no sign of forced entry, but the room was bloody. Her body was not discovered until 1995, in a field less than a mile from Hunter's Glen.

Mr. Kleiner and his investigator uncovered what he said was a stunning coincidence: Ms. Macho and Mr. Stohwasser both took evening classes at Mercer County Community College in the fall of 1983, according to college records that Mr. Kleiner filed with the court. After Ms. Macho's disappearance, Mr. Stohwasser did not report for spring classes he had signed up for.

Mr. Kleiner also found a psychic, John Monti, who had been hired by the East Windsor police and interviewed Donna's mother before she died in 1990. In Mr. Monti's notes, which are also in court files, was her disjointed recollection of a man in his 30's: "Peter Stow? Show?" The notes continued: "Peter - college - crazy over Donna, jealous over her. If I don't get her, nobody will, mother said."

Mr. Stohwasser says he never met Ms. Macho and he never heard of the case until a reporter asked him about it recently.

Ms. Macho's sister, Jeana Macho Savage, who lives in Texas, says she has no knowledge of Mr. Stohwasser but believes Donna's killer knew her, and knew of the basement apartment. An intruder "wouldn't normally go down there looking unless you knew there was somebody there," Mrs. Savage said in a recent interview.

East Windsor Police Chief William Spain would not comment except to say the Macho case was "an active, continuing investigation." But Mrs. Savage said the police did not even interview any family members when her sister's body was found. "I don't feel that they've done my sister any justice whatsoever," she said.

*****

When Judge John F. Malone of Superior Court in Elizabeth ruled against Mr. Harvey last month, he said a habeas petition "is not a device for investigating possible claims nor an opportunity to second-guess trial counsel's tactical decisions." The prosecutors said they were confident that the Supreme Court would uphold Judge Malone.

"This case never was, and never will be, one about innocence," Assistant Prosecutor Nancy Hulett, who has represented the state on Mr. Harvey's appeals, said in an e-mail message after Judge Malone's decision.

In a brief interview, Ms. Hulett returned to the confession and the DNA evidence. "This is a case where the defendant confessed," she said. "He's been convicted twice. He was convicted on two bodies of evidence."

New Jersey has not executed anyone since 1963, and Mr. Harvey, if turned down by the State Supreme Court, can bring a habeas case in federal court. Mr. Kleiner is still looking for more evidence.

"It would be nice if we knew we were right," he said, "before we execute someone."

Nathaniel Harvey

Nathaniel Harvey

Nathaniel Harvey

The victim