TRENTON – In a state Supreme Court hearing Tuesday, Nov. 28, justices pushed back at prosecutors’ arguments that a man recently connected by DNA evidence to a 1990 Wildwood rape and homicide should be made to stand trial for sexual assault. The suspect was not charged with homicide.
During oral arguments, the justices asked Cape May County Senior Assistant Prosecutor Gretchen Pickering to explain why the case wouldn’t violate the ex post facto rights afforded to the defendant under the state and federal constitutions. Sexual assault had a five-year statute of limitations at the time, which expired in 1995 with no arrest made or suspect identified.
In April 2022, the Cape May County Prosecutor’s Office announced it had charged Jerry Rosado in the then-32-year-old Susan Negersmith cold case. The 20-year-old Negersmith was found dead behind a restaurant; she had been visiting Wildwood over Memorial Day weekend from her home in New York in 1990. Her jeans were pulled down around one ankle and her shirt was pushed up and bloodied with a handprint on the chest, according to a 1993 New York Times report.
Negersmith’s autopsy report contained a page and a half about the injuries she had suffered, including 26 separate wounds on her body, the Times report said. However, her cause of death was determined by the state medical examiner to be acute alcohol poisoning and exposure, not homicide. Records show her blood alcohol level was .285%, which is more than three times the legal limit to drive in New Jersey.
For years, Negersmith’s family pressed prosecutors to challenge the medical examiner’s findings, incensed that, based on the evidence from the scene, it was not ruled a homicide. Private investigators and attorneys working for the Negersmith family said the evidence from the scene did not prove her death was an accident, but that it was the result of a rape and murder.
In July 1993, they were successful in having the cause of death changed to homicide, with the state attorney general at the time saying Negersmith died as a result of being smothered.
For 30 more years, Negersmith’s family urged the Cape May County Prosecutor’s Office not to give up on a prosecution. With advancements in DNA technology, including genetic genealogy analysis, the family got their wish. Using the new technology, in 2021 a suspect was identified – Rosado – and in 2022, he was arrested.
Rosado, a Millville resident now in his 60s, was not charged with murder, and Pickering told the justices during the Supreme Court hearing that the state felt it had insufficient evidence to meet its burden of proof in regard to all elements of a homicide charge. Murder carries no statute of limitations in New Jersey, and charging the case as a homicide would have made the timing issue in charging the rape a moot point if Rosado were convicted for Negersmith’s murder.
Instead, prosecutors decided to go after Rosado for the sexual assault, alleging that DNA found inside Negersmith’s vagina and under her fingernails was a highly probable match to Rosado, and that a witness they reinterviewed, who was with Negersmith shortly before her death, said she was too intoxicated to consent to sex.
Prosecutors addressed the issue of the expired statute of limitations on the sexual assault charge by relying on a 2002 amendment passed by the state Legislature that created an exception to the limitations period for cases involving DNA or fingerprint analysis.
However, Rosado’s defense team argued that was never intended to be applied nor could it legally apply to cases in which the limitations period had already run. Legislation signed in 1996 eliminated the statute of limitations on sexual assault cases, as DNA technology began to significantly change the way crimes were being prosecuted across the United States. That 1996 amendment specifically states that it was to apply to offenses not yet barred by an expired statute of limitations period.
Rosado, who was represented in most stages of the case by Deputy Public Defender Eric Shenkus, argued the case should be dismissed based on the statute of limitations. But Bernard E. DeLury Jr., the trial court judge, didn’t buy the argument and ruled that the 2002 amendment did revive Rosado’s case, denying his motion to dismiss.
Shenkus appealed the decision and, in March, an appellate panel overturned the trial court’s ruling, dismissing the charges against Rosado with prejudice. After 11 months in the state’s custody, Rosado was ordered released.
However, Rosado’s legal troubles didn’t end there. The Cape May County Prosecutor’s Office appealed to the state Supreme Court, which agreed to hear the case and review the lower court’s ruling.
The Supreme Court Hearing
Briefs submitted to the court and reviewed by the justices in advance of the Nov. 28 oral arguments are sealed in this case, according to MaryAnn Spoto, a spokesperson for the state judiciary. But during oral argument, the justices peppered Pickering, representing the state, with questions about how the charges were constitutional.
“The  statute is clearly retrospective in application and should not be read to be prospective only. While the language ‘take effect immediately’ typically directs prospective application, this presumption may be overcome where the legislature clearly intended a retroactive application,” Pickering argued to the court.
To toll the statute of limitations – meaning to pause or delay it – after it had run, the defense argued, would be a plain violation of Rosado’s constitutional ex post facto rights. The ex post facto clause in the state and federal constitutions protects against legislators criminalizing acts retroactively.
Even if the Legislature had intended for the 2002 amendment to reopen all old cases where new technology produces DNA evidence not available to law enforcement at the time of the crime, it would be unconstitutional, Rosado’s defense argued.
“A law enacted after expiration of a previously applicable limitations violates the ex post facto clause, when it is applied to revive a previously time-barred prosecution. That is exactly what is happening here,” Morgan Birck, a public defender representing Rosado on appeal, argued. “No court has ever held that there is a DNA exception to the ex post facto clause.”
Asked by the panel of justices if the statute of limitations could be tolled after it had already expired, Pickering, the prosecutor, acknowledged the case rests on that question.
“That is a very good question, your honor. And that is the crux of this case,” she responded.
The state argued that the 2002 amendment created a “new triggering event,” and that because the previously unavailable DNA identification now connected a previously unknown suspect to the crime, the statute of limitations in place at the time of the crime should not be considered.
“It’s a very small circumstance, and because of that small circumstance and because we are not dealing with anything that changes the act that occurred at the time or changes the punishment that could be inflicted at the time, we’re looking at a different animal,” Pickering argued.
The state also expressed frustration with the fact that it had trouble bringing what it believes to be a case based on very convincing evidence and raised concerns with fairness to the victim.
“We finally have the information available to prosecute someone and are in a position where we struggle to do that,” Pickering told the court. “It may fall flat, but it is still a tremendous frustration that this is a matter of timing in a lot of respects.”
One justice responded: “Statutes of limitations are sometimes cited as an example when people make arguments based on arbitrariness and the unfairness that necessarily results from arbitrariness.
“And there’s a lot of law obviously, here and elsewhere, that says the Legislature can make a call on a statute of limitations, and there are going to be people and cases that fall on one side or the other of that. And that’s simply a legislative determination.”
Alexander Shalom, an attorney with the American Civil Liberties Union – New Jersey, said the evidence in the case is questionable and potential defenses, such as producing alibi witnesses, may no longer be available for a defendant in a case where so much time has elapsed since the limitations period ran out.
“DNA evidence is undoubtedly powerful, but it also has limitations,” Shalom said. “And I think the limitations are painfully obvious in a case like this, because what DNA tells us is that two people’s genetic material mixed at some point. It doesn’t provide dates, it doesn’t provide context, it doesn’t provide information on timing.
“And in a prosecution like this, where the allegation is that Mr. Rosado sexually assaulted someone who was sufficiently intoxicated, the timing matters. That they had sex doesn’t end the inquiry in the case. We would need to know when and the condition that Ms. Negersmith was in at the time, and those things DNA doesn’t talk about.”
Jhanice V. Domingo, an attorney appearing on behalf of the Association of Criminal Defense Lawyers of New Jersey, urged the justices to uphold the appellate court’s ruling. The decision is not just a legal technicality, she argued, but would remove “a vital safeguard within our criminal justice system.”
“If this court does not affirm the appellate division, fairness and predictability of legal consequences goes out the door,” Domingo said. “So does the protection against potential abuse or overreach by the legislative branch.”
Also appearing before the court was attorney Richard Pompelio, who established the New Jersey Crime Victims Law Center, an organization dedicated to the pro bono representation of crime victims in the criminal justice system.
Pompelio said he was involved when the 2002 amendment was written, and it was done, he said, with the Negersmith case specifically in mind. He said Negersmith’s father was “relentless” in his efforts to get justice for his daughter.
“It’s always an honor to have the voice of crime victims be presented to this court. It means so much to the victims community throughout the state, and I truly believe that it has enhanced the quality of justice,” Pompelio told the justices.
A written decision on the matter will be issued by the court at an undetermined future date.
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