                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-2-2005

Marshall v. Cathel
Precedential or Non-Precedential: Precedential

Docket No. 04-9007




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                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 04-9007


                 ROBERT O. MARSHALL

                             v.

                     RON CATHEL*,
           Administrator, New Jersey State Prison;
                  PETER C. HARVEY*,
           Attorney General, State of New Jersey,
                             Appellants

              *Pursuant to Rule 43(c), F.R.A.P.


      Appeal from the United States District Court
             for the District of New Jersey
             (D.C. Civil No. 97-cv-05618)
      District Judge: Honorable Joseph E. Irenas


                   Argued May 13, 2005

Before:    ROTH, RENDELL and BECKER, Circuit Judges
                  (Filed November 2, 2005)


Robert E. Bonpietro [ARGUED]
Office of Attorney General
of New Jersey
Department of Law & Public Safety
Division of Criminal Justice
Richard J. Hughes Justice Complex
Trenton, NJ 08625
   Counsel for Appellants

Stephen W. Kirsch [ARGUED]
Office of Public Defender
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
 Counsel for Appellee




                 OPINION OF THE COURT


RENDELL, Circuit Judge.

       On May 5, 1986, Robert O. Marshall (“Marshall” or
“Petitioner”) was convicted in New Jersey state court of
conspiring to murder and procuring the commission of the
murder of his wife, Maria Marshall. Almost twenty years after
being sentenced to death for these offenses, Marshall petitioned

                               2
for and was granted habeas corpus relief by the United States
District Court for the District of New Jersey, after we remanded
the case for an evidentiary hearing on Marshall’s claim that
counsel was ineffective during the penalty phase of his capital
trial. The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 2241 and 2254; our appellate jurisdiction arises under 28
U.S.C. §§ 1291 and 2253. Before us is Respondents’ appeal
challenging the District Court’s determination regarding
counsel’s ineffectiveness and Marshall’s entitlement to relief.
For the reasons set forth below, we will affirm the District
Court’s order granting Marshall’s habeas petition, vacating his
death sentence, and remanding to the state court for a new
sentencing hearing.




  I. F ACTUAL B ACKGROUND AND P ROCEDURAL H ISTORY

      As chronicled in no less than six published opinions, the
procedural history of this capital conviction is extensive.1


    1
     See State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991)
(“Marshall I”) (affirming sentence of death on direct appeal);
State v. Marshall, 130 N.J. 109, 613 A.2d 1059 (1992)
(“Marshall II”) (denying Marshall’s claim that a sentence of
death was not proportional to his crime of conviction); State v.
Marshall, 148 N.J. 89, 690 A.2d 1 (1997) (“Marshall III”)
(affirming denial of Marshall’s petition for post-conviction
relief); Marshall v. Hendricks, 103 F. Supp. 2d 749 (D. N.J.
2000) (“Marshall IV”) (denying Marshall’s application for writ

                               3
Because the issue before us is relatively narrow – as compared
to the universe of claims lodged over the years by Marshall in
his numerous appeals and petitions for post-conviction relief –
we will instead provide only the procedural history and facts
relevant to the instant issue concerning counsel’s effectiveness
at the penalty phase of trial.

       Maria Marshall was murdered on September 6, 1984.
The investigation into her death soon led police to Louisiana,
more specifically, to three men, all of whom were somehow
connected to Robert Marshall – Robert Cumber, Billy Wayne
McKinnon, and James “Jimmy” Davis. Evidence ultimately was
presented at trial establishing that Cumber had met Marshall at
a New Jersey party in May of 1984 and referred him to
McKinnon, a former sheriff’s officer, whom Marshall would




of habeas corpus on all grounds); Marshall v. Hendricks, 307
F.3d 36 (3d Cir. 2002) (“Marshall V”) (affirming district court’s
denial of habeas relief as to the guilt phase of Marshall’s trial
and remanding for further evidentiary development as to
ineffectiveness of counsel in the penalty phase); and, Marshall
v. Hendricks, 313 F. Supp. 2d 423 (D. N.J. 2004) (“Marshall
VI”) (granting Marshall’s petition for relief based on
ineffectiveness of counsel in the penalty phase).
        Throughout the course of this action, these opinions
sometimes have been referred to as “Marshall I,” “Marshall II,”
“Marshall III,” Marshall IV,” Marshall V,” and “Marshall VI.”
For purposes of clarity, we will preserve those designations
herein.

                               4
pay to carry out the murder of his wife.2 At trial, McKinnon
testified that he was hired by Marshall to kill Maria but that
another man unknown to Marshall, Larry Thompson, had
actually pulled the trigger, killing Maria Marshall at a rest stop
on the Garden State Parkway as she and her husband were
returning from an evening at an Atlantic City casino. On
September 21, 1984, investigators visited Robert Marshall in his
home and questioned him for the first time about his knowledge
of, and relationship with, McKinnon and Davis. The following
day, Marshall contacted attorney Glenn Zeitz, and the two had
an initial meeting in Zeitz’s office on September 25, 1984.
Within days of retaining Zeitz, Marshall checked himself into a
hotel where, once alone in his room, he telephoned each of his
sons – Robert, Chris, and John – and prepared five audio tapes:
one for each son; one for his brother-in-law and family attorney,
Joseph Dougherty; and lastly, one for his secretary. The calls
and tapes were suicide notes of sorts – after placing the calls and
recording the tapes, still in his hotel room, Marshall mixed a
large quantity of prescription sleeping pills into a soda, which he
later claimed that he had intended to drink. He fell asleep
before doing so.

       The tapes to his secretary and his sons did not contain any
incriminating statements as such. However, the Dougherty tape
discussed Marshall’s relationship with a paramour, including his


   2
    McKinnon used the alias James (or Jimmy) Davis when
dealing with Marshall. This same name was used on money
transfers from Marshall, although McKinnon enlisted someone
actually named James Davis to sign for the money.

                                5
plans to leave Maria, his escalating debt that had spiraled to
almost $200,000, and his concerns that the police suspected his
involvement in Maria’s murder because he had hired McKinnon
to find five or six thousand dollars that was missing.

       The trial against Marshall and co-defendant Thompson
began on January 27, 1986.3 As part of its case in chief, the
prosecution played for the jury the “suicide” tape Marshall had
recorded at the hotel for Dougherty.4 In presenting Marshall’s
defense, Zeitz also introduced certain of the tapes – those made
for his three sons,5 on which Marshall apologized for leaving



  3
     Co-defendant Robert Cumber, charged with conspiracy to
murder Maria Marshall and with purposely or knowingly
causing the death of Maria Marshall as an accomplice, was tried
separately, convicted on both counts, and sentenced to
thirty-years imprisonment without eligibility for parole.
Marshall I, 123 N.J. at 3-4. Co-defendant McKinnon, indicted
for the same offenses as Cumber, secured an extremely
favorable plea bargain – pleading guilty only to conspiracy to
commit murder, offering up Thompson as the person who
actually shot Maria Marshall, and agreeing to testify against
Marshall. He was sentenced to five-years imprisonment and
provided assistance with entry into the witness protection
program. Marshall V, 307 F.3d at 46.
  4
      Zeitz had unsuccessfully moved to suppress the tapes.
  5
   The tapes were admitted into evidence over the objection of
the prosecution.

                                6
them, expressed his love for the boys, and encouraged them to
pursue successful lives.6 Zeitz also introduced evidence
concerning Marshall’s civic and charitable activities, and
produced four character witnesses who testified to Marshall’s
general reputation for honesty and integrity. In addition,
Marshall took the stand in his own defense.

       Closing arguments were held on March 3, 1986. The
court instructed the jury on March 4th, and the jury returned
with its verdict late in the morning of March 5th, convicting
Marshall of murder and conspiracy to commit murder.7
Immediately thereafter, Marshall’s family members, including
his youngest son John, his sister Oakleigh De Carlo, and his
brother Paul, left the courthouse to return to their home in Toms


  6
    The tapes made for the boys were introduced during Robert
Marshall’s testimony. Each of Marshall’s sons, however, also
were called to testify – not only about the content of the audio
tapes, but about the phone calls their father had placed to them
from the hotel around the same time as the recordings were
made. John confirmed that when Marshall telephoned them on
September 27, he had sounded “upset and depressed.” Marshall
I, 123 N.J. at 54. Robbie testified that his father had sounded
“shaky.” And Chris, Marshall’s middle son, testified that
Marshall sounded as though he was saying goodbye.
      7
     Marshall’s co-defendant, Larry Thompson, the alleged
“shooter,” presented alibi evidence at trial resulting in his
acquittal. No one was, or since has been, convicted of actually
shooting Maria Marshall.

                               7
River, New Jersey, located roughly forty-five minutes away,
apparently with no knowledge that the penalty phase was
imminent.

       While being escorted from the courtroom after the verdict
was read, Marshall fainted. An ambulance took Marshall to the
hospital where he was examined at 12:30 p.m., then discharged
approximately 50 minutes later. He was back in the courtroom
approximately 15-20 minutes later.

       During Marshall’s absence, Zeitz conferred with the
prosecution concerning the penalty phase, and they reached an
agreement as to how they would proceed. Of the three
aggravating factors charged by the prosecution – (1) that the
“defendant procured the commission of the murder by payment
or promise of payment of anything of pecuniary value,” N.J.
Stat. Ann. § 2C:11-3(c)(4)(c); (2) murder for pecuniary gain,
N.J. Stat. Ann. § 2C:11-3(c)(4)(d); and (3) the heinous nature of
the offense, N.J. Stat. Ann. § 2C:11-3(c)(4)(e) – the State agreed
to argue only the first of those factors, based on its case that
Marshall had hired someone to kill his wife. The prosecution
further agreed to stipulate to a single mitigating factor, that
Marshall had no prior criminal record, N.J. Stat. Ann. §
2C:11-3(c)(5)(f). Defense counsel would retain the right to
argue the second of its two filed mitigating factors – the
“catch-all” factor set forth in N.J. Stat. Ann. § 2C:11-3(c)(5)(h),
which provides that the jury may consider “any other factor
which is relevant to the defendant’s character or record or to the
circumstances of the offense” – but both the prosecution and
the defense would waive openings and limit themselves to a
single short closing statement to the jury.

                                8
        Upon Marshall’s return from the hospital, Zeitz briefly
conferred with his client. The penalty phase convened shortly
thereafter at 1:45 p.m. that same day. Outside the presence of
the jury but on the record, the parties explained their agreement
to the judge, who allowed them to go forward as agreed and
summarized as follows:

       COURT: As I understand it, what will now occur is that
       I will now make the usual opening statement to the jury
       that is made in this proceeding. I believe that the law
       now is I know that the law now is, expressly, that any
       evidence which was introduced in the trial can be
       considered as evidence for purposes of this proceeding.
       Given that, I understand that neither counsel intend[s] to
       introduce any further evidence in this proceeding.

       KELLY: That’s correct, Judge.

       ZEITZ: That’s correct, Judge. I would like, at least, to
       have the record reflect that I’ve had an opportunity to
       speak with my client, and discuss his right, if he desired,
       to call any witnesses with regard to the penalty phase of
       the proceedings, and it’s his desire, and it is also my
       feeling, that we do not need to call any witnesses at this
       stage of the proceedings. And we’ve had, I believe, an
       opportunity to discuss this, and this is his intention.

Marshall VI, 313 F. Supp. 2d at 435. Per the agreement, Zeitz
was first to address the jury; he offered the following statement,
repeated here in its entirety:


                                9
ZEITZ: Yes. Thank you, your Honor. It would be an
understatement for me to say that this is not a difficult
moment for me, and I’m sure it’s difficult for everyone
in terms of the proceedings that we now have to deal
with.

What, in essence, we are at right now at this stage is a
situation where the State has agreed that there is one
mitigating factor which you must find exists in the case,
and that that [sic] Rob Marshall has never had any type
of criminal record of any kind.

The reason why I believe, when you look to the
legislative history of the death penalty when it came into
New Jersey that that clearly is a mitigating factor, is
because, if you will, people feel, and I think quite rightly,
that if you live a law-abiding life, that at some point in
time you may be in a position where you may have to ask
people to allow you to draw, if you will, maybe a credit
because of the fact that you’ve led such a life. There are
people obviously who have not led law-abiding lives and
have been in situations where they’ve been in front of a
jury and the jury has convicted them of a capital offense,
and the jury will hear that this person has led a life, not
law-abiding, but in fact, has had a juvenile record, has
had a record of other offenses and, for the most part, has
lived a life that in all ways, shapes, and forms never
conformed to what our society at least requires.




                         10
In this particular case it’s been agreed that Rob Marshall
has led a law-abiding life, and that you must consider
that as a mitigating factor.

The State has one aggravating factor which they are
going to ask you to consider, and that is the fact, under
the statute, this offense as you have found - and at this
point, as a lawyer, I have to accept that you have found
that - was procured by the payment or the thought of
payment for some pecuniary gain.

The other mitigating factor that Judge Greenberg referred
to deals with other circumstances and factors which a
jury may consider in mitigation with regard to the death
penalty. In this particular case, in addition to the fact that
Rob Marshall has no prior criminal record, there's certain
things, at least with regard to his life, that he has done,
which he is entitled for you to consider.

He was involved in, among other things, with the Ocean
County Businessmen’s Association. You’ve heard that.
He was campaign chairman for United Way, and for a
number of years worked with them in community affairs,
raising money for United Way. In addition to that, he
served with his family on various social activities,
involving the swim leagues and certain other things of a
community nature.

I don’t want to stand here and go through the whole
litany of things that he’s done in forty-six years that -
either for other people or for his family or of a civic

                         11
       nature. Suffice it to say, the record is substantial in that
       area, and you have an absolute right to consider that as a
       mitigating factor.

       As the Judge told you, now, in terms of a defense, we do
       not have to prove to you that the mitigating factors in
       some way outweigh the aggravating factor. The State has
       to prove to you, beyond a reasonablbe [sic] doubt, and
       you certainly know what that standard is, because you've
       been told that and you’ve been explained that by counsel,
       you have to use that standard when you determine
       whether or not you feel he deserves the death penalty.

       One thing I have to tell you about this, which I think
       makes it an individual decision for each one of you, and
       that is that the only way that the death penalty can be
       imposed is if all twelve of you agree to do it
       unanimously. So that you, in essence, have a power in
       your hands that, quite candidly, I would never have in my
       hands, because, as a lawyer, we generally don’t serve as
       jurors. So I have no way of knowing what it must be like.

       All I can say is this, that I hope when you individually
       consider the death penalty, that you're each able to reach
       whatever opinion you find in your own heart, and that
       whatever you feel is the just thing to do, we can live with
       it.

Id. at 433-34. No documentary evidence or witnesses were
presented, nor did Zeitz plead for the jury to spare his client’s
life. Marshall chose not to make a statement on his own behalf.

                               12
After only ninety minutes of deliberation, the jury sentenced
Marshall to die by lethal injection. The jury unanimously found
beyond a reasonable doubt the existence of the aggravating
factor, and also found evidence of the existence of both
mitigating factors. However, it concluded unanimously beyond
a reasonable doubt that the aggravating factor outweighed the
mitigating factors.

       As noted above, the proceedings have been the subject of
extensive judicial review. Relevant here is Marshall’s claim that
Zeitz rendered ineffective assistance of counsel during the
penalty phase of the trial as described above. This claim was
rejected by the New Jersey Supreme Court in Marshall I, 123
N.J. at 166 (“We are unwilling to second-guess counsel’s
strategic decision on this issue, particularly in view of the jury’s
determination that both mitigating factors offered had been
established.”), and then revisited and rejected for a second time
in Marshall III, 148 N.J. at 254 (“[T]he contention that proper
investigation and preparation would have unearthed new
mitigating evidence that probably would have affected
substantially the penalty-phase deliberations is simply too
speculative to warrant an evidentiary hearing.”).

       Initially, relying on the state court record, and without
holding an evidentiary hearing, the District Court also denied
this claim of ineffectiveness. See Marshall IV. Marshall
appealed to this Court, leveling the following claims of
ineffectiveness at the penalty phase: 1) The penalty phase should
not have commenced immediately upon Marshall’s return from
the hospital; 2) Zeitz presented no mitigation evidence (even
though the judge instructed the jury to decide the existence of

                                13
mitigating factors based on the evidence); 3) Zeitz failed to offer
evidence to humanize Marshall, such as describing his
childhood, his commitment to family, and his extensive
community service; 4) Zeitz’s statement to the jury was
extremely brief and contained no request for mercy; 5) Zeitz
never discussed the penalty phase with Marshall; and, 6) Zeitz
never prepared for the penalty phase and conducted no
investigation. We grouped these claims into two overarching
categories: (1) lack of consultation, preparation, and
investigation by counsel, and (2) lack of content or substance in
counsel’s representation at the penalty phase. In terms of
analyzing these claims, however, we lacked a sufficient record
to rule. “The difficulty we encounter here is that the picture is
less than complete. We cannot, and the courts before us did not,
evaluate Zeitz’s decisions in light of his stated strategy.”
Marshall V, 307 F.3d at 106. “[T]here is no record before us as
to what preparation or investigation, if any, was performed by
counsel in anticipation of the penalty phase, nor is there any
record of why counsel chose not to undertake investigation that
we know he did not – e.g., why he chose not even to contact
many of Marshall’s proffered mitigation witnesses.” Id. We
explained that, while we knew certain pieces of information,
such as that Zeitz’s usual practice was to take and date notes of
conversations with Marshall, Zeitz’s sparse testimony on these
issues had been offered in response to unrelated questions at an
evidentiary hearing held for a purpose other than to discern his
effectiveness.8


  8
   When Marshall petitioned for state post-conviction relief, he
requested a “complete evidentiary hearing to support the claims

                                14
       Because the only testimony from Zeitz was restricted to
       the two areas discussed above, we have no evidence from
       Zeitz himself regarding the scope or strategy of his
       preparation or investigation, or the choices he made in
       conducting the penalty phase as he did.

       To this date we have no information from counsel, or
       anyone else for that matter, that addresses the issues
       Marshall raises and from which we could make an
       informed assessment as to the reasonableness of
       counsel’s actions – and, even more important – as to
       what counsel’s decisions actually were at the time.

Id. at 108. Accordingly, we remanded the case to the District
Court in order that an evidentiary hearing be held regarding
these issues. The District Court held such a hearing and heard
final oral arguments from the parties, after which it concluded
that Zeitz’s penalty phase representation had been
constitutionally ineffective, granting Marshall a writ of habeas
corpus pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.


raised in the petition through the presentation of testimonial and
documentary evidence.” Marshall II, 690 A.2d at 26. However,
the Court granted a full evidentiary hearing as to only five of
Marshall’s claims, all of which related to defense counsel’s
promising, as part of his opening statement, that Marshall would
take the stand, and to whether Marshall was competent to
participate in the penalty phase, given his collapse following the
verdict.

                               15
              II. T HE E VIDENTIARY H EARING

        Pursuant to our remand order in Marshall V, the District
Court conducted an evidentiary hearing over the course of
September 2003, during which Zeitz testified at length
concerning his representation of Marshall. The testimony
elicited at the hearing bears directly upon the questions that
formed the basis for our remand, namely, what did Zeitz do to
prepare for the penalty phase, and why did he conduct himself
as he did during the penalty phase. Zeitz’s hearing testimony,
by itself, provides the answer to our inquiries – Zeitz did
nothing in preparation, leaving him with no options during the
penalty phase.

       At the outset of his representation of Marshall, in 1984,
Zeitz had defended clients who faced the death penalty. His
testimony at the evidentiary hearing establishes that, based on
his experience, he thought it probable, if not certain, that the
State’s case against Marshall would indeed implicate the death
penalty:

       RESPONDENTS’ COUNSEL: Mr. Zeitz . . . when you
       commenced representing Robert Marshall, were you
       mindful of the fact that there would be potentially a
       penalty phase or mitigation phase of this case?

       ZEITZ: Yes.

       RESPONDENTS’ COUNSEL: And what sensitized you
       to that realization that there could be a penalty phase of
       Marshall’s case?

                               16
       ZEITZ: Well, obviously it was a death penalty case, and
       obviously I knew if he was convicted in the guilt phase
       I’d be confronted with a penalty phase.

       RESPONDENTS’ COUNSEL: Did you know that from
       the first time you became involved with the Marshall
       case, sir?

       ZEITZ: I – the only way I can answer is as follows.
       When I first met him and interviewed him initially, and
       he told me what his version was of certain events, and
       answered certain specific questions that I had, I knew
       that at least in the first interview that this case clearly had
       the capacity of becoming a death case.

(Test. of Glenn Zeitz at A266.) Not only might it be a death
penalty case, it was fast becoming a difficult case. Zeitz
testified that he had, at that first meeting with Marshall,
admonished Marshall “to keep his mouth shut” about his role in
the ongoing investigation. (Id.) Notwithstanding this warning,
as described above, within a few days Marshall checked himself
into a hotel room, with the apparent plan of killing himself,
where he made a series of recordings for important people in his
life, including his brother-in-law, Joseph Dougherty. According
to Zeitz, the Dougherty tape was nothing short of “devastating”:
“[I]t was my client in his own words making statements that
later became consistent with, and almost in some ways, the
foundation of . . . the State’s case against him.” (Id. at A333.)


       Facing such “devastating” evidence of his client’s guilt,

                                 17
Zeitz testified that his focus became portraying Marshall to the
jury as a likeable man:

       ZEITZ: So the hope was that I could – in his direct I
       would humanize him, I could show him to the jury as
       being someone that loved his children, and create this
       image ... the perception, if you will, that he and the three
       sons still had, if you will, a close relationship, and he
       cared about them.

       ***

       And Mr. Marshall and I talked about it, because it was
       our opinion and our strategic decision that we had to
       figure out a way to rebut and confront the tape that he
       created for his brother-in-law. [It] also gave us a
       mechanism in the guilt phase of the case to accomplish
       what he wanted to accomplish. I wanted to have a denial
       defense, maintain his innocence, be able to demonstrate
       to the jury that he was a human being, loved his kids and
       they loved him.

(Test. of Glenn Zeitz at A336, A338.) Zeitz testified that, at the
close of evidence in the guilt phase of the trial, he was satisfied
with the extent and nature of the humanizing evidence he had
introduced on Marshall’s behalf.

        Although Zeitz had, in the time leading up to the
commencement of the trial, hired an investigator named Russell
Kolins to assist in gathering information relevant to Marshall’s
case, including the humanizing evidence referenced above, Zeitz

                                18
testified that at no time did either he or Kolins engage in pointed
discussions with individual family members, friends, neighbors,
or business associates to determine: (1) if any of those
individuals would be willing to testify at a penalty phase should
Marshall be found guilty; or (2) what those persons might say if
called to testify.9      Despite almost constant contact and
communication with immediate members of Marshall’s family,
including his sons and sister, even these critical potential
witnesses were never once interviewed or asked to testify in
contemplation of the penalty phase. Kolins was the sole
professional resource engaged by Zeitz to assist in gathering
evidence of the sort that might serve as mitigating – Zeitz did
not retain a mitigation specialist, social worker, or mental health
expert10 to evaluate Marshall, to interview potential witnesses,


   9
     As noted by the District Court, at the evidentiary hearing
Kolins testified that he had such conversations, “however, he
has no notes of such conversations, he cannot identify names of
the persons with which he spoke, nor can he identify the content
of these discussions.” Marshall VI, 313 F. Supp. 2d at 432 n.9.
“Zeitz’s files do not contain these notes either, even though
Kolins claims to have turned over his notes to Zeitz.” Id.
  10
    Again, as noted by the District Court, Marshall did undergo
a psychological evaluation prior to the start of trial, following
his suicide attempt. Marshall VI, 313 F. Supp. 2d at 432 n.10.
When Zeitz was notified about the incident and informed that
Marshall had been admitted to Point Pleasant Hospital, Zeitz
contacted Dr. Elliot Atkins and arranged for him to talk to
Marshall. Shortly thereafter, Marshall was transferred to the

                                19
to investigate his school or medical records, or to conduct an
investigation into the existence of any potentially mitigating
information.

       Therefore, when the jury rendered its verdict of guilty,
Zeitz had nothing additional to put forth in the penalty phase and
he knew it:

       RESPONDENTS’ COUNSEL: [Y]ou’ve now got your
       client convicted, had you prepared some additional list of
       mitigating factors to have available to you in the event
       that the jury convicted your client?

       ZEITZ: Are you talking about did I have a working list
       – not statutory, non-statutory mitigating factors? The
       answer to that question is no.




Institute of Pennsylvania Hospital, a psychiatric facility, where
he was treated by Dr. David Walzer. Although Zeitz recognized
that “what the dynamics are in someone’s mind . . . could affect
a substantive defense, or how you handle a mitigation aspect of
a case,” he conceded that he never asked Dr. Atkins or Dr.
Walzer for a report or diagnosis of Marshall’s mental state, nor
was he aware if a diagnosis was ever made. Zeitz testified that
“he wanted to put a lid on” what he learned anecdotally from Dr.
Walzer – that Marshall was narcissistic and manipulative, that
he was behaving in a sexually provocative way with staff
members and seemed to exhibit no remorse over the death of his
wife. (Test. of Glenn Zeitz at A293.)

                               20
***

 RESPONDENTS’ COUNSEL: You knew that the
defense attorney’s discovery obligation in a capital case,
with respect to evidence used in mitigation in the penalty
phase, kicks in at the moment the defendant is convicted
of capital murder?

ZEITZ: You don’t have to give it to them before ...

RESPONDENTS’ COUNSEL: Exactly.

ZEITZ: Of course.

RESPONDENTS’ COUNSEL: So, my question was then
he was convicted on March 5th, 1986, did you have any
documents, discovery of any kind, that you were
considering to turn over as part of what you were going
to present in the penalty phase?

ZEITZ: No.

***

RESPONDENTS’ COUNSEL: [D]id you have any other
witnesses lined up as potential mitigation witnesses for
the penalty phase, prior to reaching this agreement about
not calling witnesses?

ZEITZ: No.


                        21
(Test. of Glenn Zeitz at A144-146.) This “agreement,” whereby
the prosecution stipulated to a single aggravating and single
mitigating factor, and both parties consented to waive openings
and limit themselves to a single short closing statement to the
jury, was arrived at within an hour or so of the guilty verdict.
Essentially, as Zeitz testified before the District Court, “There
wasn’t going to be any evidence produced by either side in the
penalty phase of the case.” (Id. at A100.)

        As recounted by the prosecutor in the case, Kevin Kelly,
whom Zeitz approached after the guilty verdict to discuss the
penalty phase: Zeitz “asked me if I was going to produce any
evidence [in the penalty phase.] I said, well, that’s going to be
up to you in terms of what you’re going to do. And he said,
well, I’ve already, in terms of mitigating factors, I’ve already
presented everything during the course of my case in chief and
during the trial and there is really nothing I can add to it.” (Test.
of Kevin Kelly at A633.) Kelly continued, “Mr. Zeitz felt, and
he expressed to the Judge in chambers, that he had presented
everything about Marshall’s character, his reputation in the
community, his standing in the community, his relationship with
his family, a good father, so forth and so on, it’s already been
said and done during the case, and he said to the effect ‘I have
nothing else to add to that.’” (Id. at A640.) While Zeitz
testified that his and Marshall’s overall strategy for the trial
contemplated being able to “take the position that the jury could
incorporate into the penalty phase whatever they heard in the
guilt phase of the case,” (Test. of Glenn Zeitz at A341) he
conceded that, during closing, he never stated so explicitly or
alluded to the Marshall boys’ guilt phase testimony. Zeitz had
thought the sons’ testimony during the trial was powerful:

                                 22
“[T]he impact in the courtroom was there.” (Test. of Glenn
Zeitz at A341.) Clearly, Zeitz misjudged the effect of the
testimony as a weapon against conviction, as the jury deliberated
for only ninety minutes before returning with a guilty verdict.
Its use as a weapon later in a plea for life remains untested.

       Zeitz recalled having had two conversations with
Marshall following the verdict regarding how to proceed in the
penalty phase. These conversations were, of course, after
Marshall had fainted, been examined at the hospital and returned
to the courtroom. The first conversation focused on the
agreement Zeitz had struck with the prosecution and whether
Marshall’s sons should testify in the penalty phase. Marshall
stated that he did not want his sons to testify and that he
approved the agreement. The second conversation confirmed
with Marshall that, after discussing the proposed course of
action with the judge, counsel would proceed per the agreement.
Zeitz also testified that he informed Marshall that they could ask
the judge for a postponement if that was what Marshall wanted:
“And if I thought at that point in time that that was what we
should do, and if he said to me that’s what he would have
wanted, we would have done that. But that wasn’t what we
wanted to do.” (Test. of Glenn Zeitz at A106.)




                 III. R ELEVANT S TANDARDS

      In analyzing the merits of a habeas petitioner’s claims,
considerations under the AEDPA are divided; a federal court
considers separately the state court’s legal analysis and factual

                               23
determinations. See 28 U.S.C. § 2254(d)(1)-(2). When
according deference under the AEDPA, federal courts are to
review a state court’s determinations on the merits only to
ascertain whether the state court had reached a decision that was
“contrary to” or an “unreasonable application” of clearly
established Supreme Court law, or if a decision was based on an
“unreasonable determination” of the facts. Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)
(section 2254(d)(1) is a command that a federal court not issue
the habeas writ unless the state court was wrong as a matter of
law or unreasonable in its application of law). To label a state
court decision “contrary to” Supreme Court precedent, the state
court must have reached a “conclusion opposite to that reached
by the [Supreme] Court on a question of law or if the state court
decides a case differently than the [Supreme] Court has on a set
of materially indistinguishable facts.” Id. at 413.

        An “unreasonable application” results where “the state
court identifies the correct governing legal principle from the
[Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. “In other
words, a federal court may grant relief when a state court has
misapplied a ‘governing legal principle’ to ‘a set of facts
different from those of the case in which the principle was
announced.’” Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct.
2527, 156 L. Ed. 2d 471 (2003) (quoting Lockyer v. Andrade,
538 U.S. 63, 155 L. Ed.2d 144, 123 S. Ct. 1166 (2003) (other
citations omitted)). In order for a reviewing federal court to find
a state court’s application of Supreme Court precedent
“unreasonable,” the state court decision must be “more than
incorrect or erroneous”; it must have been “objectively

                                24
unreasonable.” Id. at 520 (citations omitted).

       Here, the relevant “clearly established Supreme Court
law” or “governing legal principle” concerning ineffective
assistance of counsel is that honed by Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and
its progeny, under which a petitioner must demonstrate
counsel’s performance was deficient, that is, it “fell below an
objective standard of reasonableness.” 466 U.S. at 688. As
explained by the Court in Strickland:

       Judicial scrutiny of counsel’s performance must be
       highly deferential. It is all too tempting for a defendant
       to second-guess counsel’s assistance after conviction or
       adverse sentence, and it is all too easy for a court,
       examining counsel’s defense after it has proved
       unsuccessful, to conclude that a particular act or
       omission of counsel’s was unreasonable. . . . [A] court
       must indulge a strong presumption that counsel’s conduct
       falls within the wide range of reasonable professional
       assistance; that is, the defendant must overcome the
       presumption that, under the circumstances, the
       challenged action might be considered sound trial
       strategy.

Id. at 689. Where an attorney’s actions are the result of
“strategic choices” this presumption of reasonableness is even
stronger. If the strategic choice is “made after thorough
investigation of the law and facts relevant to plausible options,”
the Supreme Court has held that the presumption of
reasonableness is essentially irrebuttable. Id. at 690. Even if an

                               25
attorney’s strategic choice is made “after less than complete
investigation,” those choices are still considered “reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation . . . . In any
ineffectiveness case, a particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s judgments.”
Id. at 690-91. An attorney’s duty to investigate is itself judged
under a reasonableness standard based on “prevailing
professional norms” such as those found in the ABA Standards
for Criminal Justice. See Wiggins, 539 U.S. at 522-23.

       Under Strickland, a petitioner also must demonstrate that
he was prejudiced by the deficient performance. 466 U.S. at
688. “This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.” Id. at 687. To establish prejudice, the
petitioner “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. Therefore, “An error by counsel, even if
professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on
the judgment.” Id. at 691.




             IV. T HE D ISTRICT C OURT O PINION

       In its comprehensive and incisive opinion, the District

                                26
Court addressed several aspects of Zeitz’s penalty phase
assistance and, following the lead of this Court, see Marshall V,
307 F.3d at 98-99, grouped six individual allegations of
deficient performance into two overarching categories:

       (1) Lack of consultation, preparation,                   and
       investigation by counsel (“pre-penalty”):

       1. Zeitz failed to prepare for or investigate a case for life;

       2. Zeitz failed to discuss the penalty phase with Marshall;
       and

       3. Zeitz failed to request an adjournment and permitted
       the penalty phase to commence immediately after
       Marshall’s return from the hospital.

       (2) Lack of content or substance in counsel’s
       representation at the penalty phase:

       1. Zeitz failed to present mitigating evidence during the
       penalty phase;

       2. Zeitz failed to humanize Marshall; and

       3. Zeitz failed to make a plea for his client’s life.

Marshall VI, 313 F. Supp. 2d at 441. The District Court
concluded that, although the state court had identified the
correct legal principles governing Marshall’s claims of
ineffectiveness, namely Strickland, and thus its decision to deny

                                27
Marshall relief was not “contrary to” established Supreme Court
precedent, the state court’s application of that precedent so as to
find that Zeitz’s representation had been effective was
“objectively unreasonable.” Marshall VI, 313 F. Supp. 2d at
455. Therefore, the District Court concluded, Marshall was
entitled to relief under the AEDPA.

        With respect to the adequacy of investigation, preparation
and consultation, the District Court found that neither
Marshall’s obstreperousness as a client, nor Zeitz’s protestations
that he had gathered sufficient mitigation evidence even though
not as part of a penalty phase investigation, rendered Zeitz
effective or his conduct reasonable. Id. at 452-53. The Court
concluded that, “at a bare minimum, Zeitz was required to have
specific discussions with Marshall and his family members
about the possibility of a penalty phase, what a penalty phase
entails and a discussion with each person individually as to
whether he or she would have been willing to testify and what
he or she would have said.” Id. To this end, in its opinion, the
District Court painstakingly detailed the “apparent plethora of
potentially useful mitigation witnesses available to the defense
at the time of the trial,” id. at 444, discussing the substance of
what more than fifteen witnesses had testified they would have
said about Marshall had they been asked to take the stand on his
behalf during the 1986 penalty phase. The list of would-be
mitigation witnesses includes family members, childhood
friends, neighbors and business associates. Id. at 444-45 n.29-
44. “Here, Zeitz’s representation fell below the professional
standard because he failed to conduct any investigation into
possible mitigating factors and provides no objectively
reasonable justification for failing to do so.” Marshall VI, 313

                                28
F. Supp. 2d at 444 (citing, e.g., Dobbs v. Turpin, 142 F.3d 1383,
1387 (11th Cir. 1998) (affirming the district court’s finding that
defense counsel’s representation was ineffective where counsel
had failed to conduct a reasonable investigation of defendant’s
background and produced no mitigating evidence at the penalty
phase) (other citations omitted)). Moreover, in light of this utter
lack of preparation, the District Court found Zeitz’s decision not
to ask the trial court for a continuance before commencement of
the penalty phase even more incredible:

       We are convinced that no reasonable attorney in Zeitz’s
       position would have gone forward without an
       adjournment. Zeitz did not have a single witness ready to
       testify, nor was he aware of any useful mitigating
       evidence aside from a cursory understanding of
       Marshall’s charitable work and the fact that he had no
       prior criminal record. Zeitz’s decision to move forward
       also ensured that Marshall’s family would not be present
       during the proceedings because Marshall’s sister
       Oakleigh had taken John and other family members
       home earlier in the day, mistakenly believing that the
       penalty phase would not start that afternoon.

Id. at 449-50 (internal footnote omitted).11


  11
   One aspect of Zeitz’s pre-penalty performance the District
Court found not to have fallen below constitutional standards
was the failure to obtain records or documentary evidence of
Marshall’s charitable activities. On this point, the District Court
concluded, “we are satisfied that Zeitz acted reasonably.”

                                29
       As to those claims relating to the substance, or lack
thereof, of Zeitz’s penalty phase presentation, the District Court
properly noted as a threshold matter that its analysis was colored
by Zeitz’s failings up to that time: “Because Zeitz did not
engage in a reasonable investigation prior to the penalty phase,
his subsequent decisions do not enjoy the same deference as
decisions made after proper investigation and preparation.”
Marshall VI, 313 F. Supp. 2d at 453 (citing Strickland, 466 U.S.
at 690-91, and Wiggins, 123 S. Ct. at 2535-39). Again, the
District Court found that Zeitz’s representation had been
substandard and that Marshall was prejudiced by the inadequate
performance, and had thus violated Strickland’s dictates. The
District Court correctly noted that “no absolute duty exists to
introduce mitigating or character evidence,” Chandler v. United
States, 218 F.3d 1305, 1319 (11th Cir. 2000), but concluded
that:

       [t]his is not a case where, after reasonable investigation,
       Zeitz determined that it was tactically a better choice not
       to put on a mitigation case. Rather, it is a situation where
       Zeitz inadequately prepared for the penalty phase and put
       on no mitigating evidence because he had none to
       present. Zeitz only provided the jury with a stipulation
       that Marshall had no prior criminal record and an
       embarrassingly superficial mention of Marshall’s charity
       work. Therefore, Zeitz’s decision was not a reasonable
       strategic choice, but an abdication of his constitutional
       duty. Nothing in the record provides a reasonable


Marshall VI, 313 F. Supp. 2d at 448.

                               30
       professional justification to support a decision not to
       present a case for life.

Id. at 453-54. Consonantly, the District Court noted, there exists
no per se rule requiring counsel to plead for his client’s life, Bell
v. Cone, 535 U.S. 685, 701, 122 S. Ct. 1843, 152 L. Ed. 2d 914
(2002), but, “given the complete lack of investigation prior to
the penalty phase and Zeitz’s limited and cursory closing
statement, Zeitz’s decision not to ask the jury to spare his
client’s life seems incomprehensible.” Marshall VI, 313 F.
Supp. 2d at 454. Having described in detail all aspects of
Zeitz’s challenged penalty phase representation, the District
Court succinctly summarized, stating that it had “no confidence
that the penalty phase of Marshall’s trial was a genuine
adversarial proceeding, the assurance of which is at the very
heart of the right to counsel under the Sixth Amendment.” Id. at
457.




                        IV. D ISCUSSION12

       Like the District Court, we have little confidence that
Marshall was afforded the guarantees to which he is entitled
under the Sixth Amendment and, therefore, we concur with its


 12
   Where the district court conducts an independent evidentiary
hearing, we exercise plenary review over matters of law; we
review the district court’s findings of fact for clear error.
Whitney v. Horn, 280 F.3d 240, 249 (3d Cir. 2002).

                                 31
findings and legal conclusions. As the District Court detailed,
the several categories of Zeitz’s failures correspond closely with
familiar principles of substandard attorney conduct often alleged
in connection with penalty phases or capital cases. Before us we
have, at the same time, and intersecting often, claims of failure
to investigate, failure to present mitigating evidence, failure to
make a plea for life, and failure to humanize (and recognize the
distinct nature of the penalty phase separate and apart from the
guilt phase).

        Much has been written, and opined, about each of these
separate types of claims, and the bounds of attorneys’ duties
with respect thereto.       Very often claims of inadequate
investigation and failure to present mitigating evidence involve
the existence of actual facts that were either known or unknown,
or were later discovered, that may well have altered the jury’s
view of the balance struck between aggravating and mitigating
evidence. See, e.g., Rompilla v. Beard, __ U.S. __, 125 S. Ct.
2456, 2467, 162 L. Ed. 2d 360 (2005) (“It flouts prudence to
deny that a defense lawyer should try to look at a file he knows
the prosecution will cull for aggravating evidence, let alone
when the file is sitting in the trial courthouse, open for the
asking.”); Wiggins, 123 S. Ct. at 2542 (“[P]ostconviction
interviews with Wiggins himself and with members of his
family produced evidence of severe abuse.”); Jermyn v. Horn,
266 F.3d 257, 306 (3d Cir. 2001) (“Counsel failed to investigate
the circumstances surrounding Jermyn’s childhood, even though
counsel admitted at the PCRA hearing that he was aware that
Jermyn had claimed that he was abused as a child.”). However,
we have, presented here, a very different case. We have
significant failings in several specific areas coupled with the

                               32
most elementary misstep of all – a total failure of Zeitz to
prepare for the penalty phase of the trial.

       Zeitz’s testimony before the District Court at times seeks
to explain this abdication, but when viewed in perspective, the
lack of preparation is striking and inexplicable. Moreover, it
clearly doomed Marshall:

       •      The testimony is crystal clear that up until the
              moment the verdict was announced, Zeitz had
              performed no preparation for the penalty phase,
              failing to interview witnesses, accumulate
              documentary evidence, or engage experts of any
              kind to aid in the development of mitigation
              material;

       •      Zeitz then proceeded not to request a continuance
              in order to investigate and perhaps develop such
              evidence but, instead, chose to strike an
              “agreement” whereby he simply agreed not to do
              what he was already unable to do – mount a case
              for life.

       •      Despite testimony from Zeitz alluding to his
              strategy of incorporating at the penalty phase the
              strong humanizing evidence from the guilt phase,
              at the penalty phase Zeitz merely made a brief
              statement, recalling only a few bits of evidence
              from the trial – superficial charitable and family
              events which seemed almost bizarre in retrospect
              – omitting reference to Marshall’s sons, and

                               33
               making no plea for Marshall’s life.

       •       The rationale for “choosing” this route range from
               weak to nonexistent. As the District Court
               concluded, and we noted above: “This is not a
               case where, after reasonable investigation, Zeitz
               determined that it was tactically a better choice
               not to put on a mitigation case. Rather, it is a
               situation where Zeitz inadequately prepared for
               the penalty phase and put on no mitigating
               evidence because he had none to present.”
               Marshall VI, 313 F. Supp. 2d at 453.

        As recounted above, from the time of his very first
meeting with Marshall in September of 1984, Zeitz was aware,
if not convinced, that Marshall’s case would implicate the death
penalty. “I knew that at least in the first interview that this case
clearly had the capacity of becoming a death case.” (Test. of
Glenn Zeitz at A266.) By December of 1984, Marshall had
been arrested and he was indicted early the following year.
 Zeitz testified that, following these developments, in a meeting
with Marshall, he again alluded to the then-certain capital nature
of the case facing his client:

       ZEITZ: I went to see him in January when he was
       indicted and I delivered at that time the notice of
       aggravating factors to him, and I also delivered the notice
       of mitigating factors which I had filed, and I sat and
       talked with him in the jail and explained to him these are
       the aggravating factors, these are the mitigating factors,
       the state filed this, we filed this, and we had discussions

                                34
         then and thereafter with regard to what would happen if
         we got to the penalty phase.

(Id. at A141.) Marshall, however, testified that he did not recall
ever receiving anything referencing aggravating factors, nor did
Zeitz discuss with him the procedures employed in a capital case
should they face a conviction. “We didn’t have any discussions
about my being convicted.” (Test. of Robert Marshall at A704.)
Whether or not Zeitz discussed with Marshall what would
happen should they find themselves confronted with a penalty
phase, Marshall’s trial did not begin for roughly one year after
the indictment, and, all the while, no preparation pertaining
exclusively to the penalty phase of trial was undertaken by Zeitz
or his investigator Russell Kolins.13 Zeitz testified both that,
over the course of that year, Marshall became an increasingly
difficult client to control (he had, from the start been a client
who was adamant about charting his own defense), and the
community, perhaps even his sons, had progressively turned
against Marshall, disbelieving his protestations of innocence.
But neither circumstance excuses counsel’s failure to conduct
any investigation into possible mitigating factors or prepare a
case for life. See United States v. Gray, 878 F.2d 702 (3d Cir.
1989) (“[Defendant’s] reluctance to subpoena witnesses . . . did


    13
     According to Zeitz, “[Kolins] knew based on our prior
experience that his responsibilities included not only [going to
Louisiana to gather information about McKinnon], but if he
found something at any point in time that could relate to either
part of the case, [guilt or penalty phase,] that was his job.”
(A278.)

                               35
not absolve [his counsel] of his independent professional
responsibility to investigate what information . . . potential
witnesses possessed.”); Dobbs, 142 F.3d at 1388 (stating that
lawyers may not “blindly follow” a client’s commands without
independently evaluating potential avenues and properly
advising the client).

       Although recognizing the fact that Marshall was tried
almost twenty years ago, even then Zeitz well knew that “the
unique nature of modern capital sentencing proceedings . . .
derives from the fundamental principle that death is different.”
Schiro v. Farley, 510 U.S. 222, 238, 114 S. Ct. 783, 127 L. Ed.
2d 47 (1994) (citations omitted). Widely accepted national
guidelines, state specific standards, and Zeitz’s own testimony
regarding his previous capital experience – all of which aid in
our evaluation of the reasonableness of Zeitz’s preparation –
make clear that Zeitz understood but abdicated his responsibility
as counsel to a client facing a possible death sentence.

       First, in 1986, among the “prevailing professional
norms” set forth in the ABA Standards for Criminal Justice, a
source recommended as a useful guide by the Supreme Court in
Strickland, 466 U.S. at 688-89, and, more recently, Rompilla,
125 S. Ct. at 2466 (“We long have referred to these ABA
Standards as ‘guides to determining what is reasonable.’”)
(quoting Wiggins, 539 U.S. at 524), was the following relevant
Standard:

       It is the duty of the lawyer to conduct a prompt
       investigation of the circumstances of the case and to
       explore all avenues leading to facts relevant to the merits

                               36
       of the case and the penalty in the event of conviction.
       The investigation should always include efforts to secure
       information in the possession of the prosecution and law
       enforcement authorities. The duty to investigate exists
       regardless of the accused’s admissions or statements to
       the lawyer of facts constituting guilt or the accused’s
       stated desire to plead guilty.

Standard for Criminal Justice, 4-4.1 (2d ed. 1982 Supp.). The
District Court found that this ABA provision, “coupled with
Strickland’s explicit language requiring a thorough investigation
into facts relevant to both guilt and sentencing clearly show that
a separate penalty phase investigation was the very foundation
of reasonable representation in 1986.” 313 F. Supp. 2d at 441.
We agree. As we opined in Marshall V:

       The existence of a penalty phase in capital trials makes
       such trials radically different from ordinary criminal
       trials. A full capital trial is in fact two separate but
       intimately related trials: a preliminary guilt trial focusing
       on issues pertaining to the commission of a capital
       offense, and a subsequent penalty trial about the
       convicted defendant’s worthiness to live. The guilt trial
       establishes the elements of the capital crime. The penalty
       trial is a trial for life. It is a trial for life in the sense that
       the defendant’s life is at stake, and it is a trial about life,
       because a central issue is the meaning and value of the
       defendant’s life.




                                  37
307 F.3d at 99 (quoting Gary Goodpaster, The Trial for Life:
Effective Assistance of Counsel in Death Penalty Cases, 58
N.Y.U. L. Rev. 299, 303 (1983)). “The penalty phase focuses
not on absolving the defendant from guilt, but rather on the
production of evidence to make the case for life. The purpose
of the investigation is to find witnesses to help humanize the
defendant, given that the jury has found him guilty of a capital
offense.” Id. at 103 (emphasis in original). The latter point
bears emphasis: by all accounts, Zeitz seems not to grasp that,
whatever his strategy was in terms of humanizing Marshall
during the trial itself, it was unreasonable for him to have placed
so much stock in that evidence once the jury rendered its
verdict. Zeitz maintains that “the guilt phase of the case has to
be looked at to understand what we did in the penalty phase
[because] if you just look at the penalty phase in a vacuum, it
looks like there was nothing that was done, no strategy, et
cetera, but that wasn’t the case.” (Test. of Glenn Zeitz at A143.)
But, as summarized in the excerpt above, the penalty phase is a
different animal, where the stakes are completely different from
those encountered in the guilt phase. With the outright rejection
of Marshall’s defense, which is the only way the guilty verdict
can be interpreted, Zeitz knew that the jury also had rejected the
character evidence submitted in support of that defense. Indeed,
it would only be fair to assume that they had found Marshall to
be a liar and a despicable person for paying someone to have his
wife killed. Zeitz’s clear duty at that point was to shift his focus
away from absolving Marshall of involvement in his wife’s
murder – certainly, the evidence for the guilt phase had not
worked for that purpose – to saving his life. While counsel can
harken back to evidence from the guilt phase during the penalty
phase, here, Zeitz failed to allude to any of what he thought to

                                38
be compelling character testimony from the guilt phase. He
seemed to assume the jury would consider it anew during the
penalty phase. We can only reason that Zeitz hoped this would
suffice for the simple reason that he had no additional evidence
or witnesses, and, he had none because he failed to prepare any
witnesses or conduct any investigation into potential penalty
phase mitigating evidence or testimony. This omission flies in
the face of the “prevailing professional norms” in 1986, which
were well-established not only by national ABA standards but
in the relevant jurisdiction, as well.

        As detailed by the District Court, actual courtroom
practice of capital defenders in New Jersey in 1986 reflected an
understanding of the obligation to investigate and prepare a case
for life. Between 1982, the year the New Jersey state legislature
reinstated the death penalty in New Jersey after a ten year hiatus,
see N.J. Stat. Ann. § 2C:11-3 (West 1982), and the time of
Marshall’s trial in 1986, there were 55 capital cases tried in New
Jersey state court. In each and every one of those cases, counsel
presented at least some type of penalty phase mitigation
evidence, demonstrating some sort of underlying penalty phase
preparation. In 51 of those cases, counsel called at least one
witness on behalf of the defendant, and in 47 of those cases
called at least one family member. Marshall VI, 313 F. Supp. 2d
at 441. As explained by Petitioner’s expert at the evidentiary
hearing before the District Court, this makes sense because the
“penalty phase is more about emotions than fact.” (Test. of Carl
Herman at A875.)

      As noted above, the District Court details in its opinion
more than a dozen witnesses who would have testified on

                                39
Marshall’s behalf during the penalty phase of the trial. We
agree with the District Court that the mere fact of people willing
to testify on Marshall’s behalf does not demand a finding of
ineffectiveness, but it is Zeitz’s failure to have discovered and/or
spoken to those people in preparation for the penalty phase that
constitutes fundamentally inadequate representation. Testimony
offered by the State’s own expert confirms this view:

       THE COURT: [W]ould you agree that unless [Zeitz has]
       made an adequate investigation, he’s not in a position to
       determine what he should put on and what he should not
       put on?

       GRAVES: Well, that the – the U.S. Supreme Court has
       said that, so absolutely.

(Test. of William Graves at A1197.) In other words, the “right
to present, and to have the sentencer consider, any and all
mitigating evidence means little if defense counsel fails to look
for mitigating evidence.” Strickland, 466 U.S. at 706 (Brennan,
J., concurring in part and dissenting in part) (internal citations
omitted).

        Zeitz’s own testimony confirms that he was not ignorant
of his obligations as counsel to a capital defendant:

       PETITIONER’S COUNSEL: What was your
       understanding of the role of the capital defense lawyer at
       the time [you represented Marshall], is it your
       understanding that your obligation was to prepare and
       presumably present a case in mitigation of punishment,

                                40
       notwithstanding your client’s wishes?

       ZEITZ: Yes, you are – your job ...

       PETITIONER’S COUNSEL: Okay.

       ZEITZ: Your job is to present a case for life.

(Test. of Glenn Zeitz at A132.) But yet Zeitz had not prepared
and thus presented no such case, instead choosing to rest on
evidence submitted at trial and obviously, or at least ostensibly,
rejected by the jury charged with deciding Marshall’s fate.
Again, Zeitz has claimed that he was abiding by his client’s
wishes; however, he testified clearly before the District Court
that he knew of his obligation to put on a case in mitigation
notwithstanding Marshall’s wishes:

       THE COURT: [E]ven if a client says I want to get a
       death sentence, you would have an obligation to do that
       ...

       ZEITZ: Yes, that’s your ethical obligation.

(Id. at A135.) Yet Zeitz testified clearly that he had nothing and
no one prepared for a penalty phase hearing.

       RESPONDENTS’ COUNSEL: So, my question was then
       he was convicted on March 5th, 1986, did you have any
       documents, discovery of any kind, that you were
       considering to turn over as part of what you were going
       to present in the penalty phase?

                               41
       ZEITZ: No.

       ***

       RESPONDENTS’ COUNSEL: [D]id you have any other
       witnesses lined up as potential mitigation witnesses for
       the penalty phase, prior to reaching this agreement about
       not calling witnesses?

       ZEITZ: No.

(Id. at A144-146.)

       Perhaps the most glaring of Zeitz’s omissions, and what
strongly contributes to our rendering the state court’s application
of Strickland to this case “unreasonable,” was the failure to
interview Marshall’s sons, with respect to the penalty phase
specifically. Concerning the impact of mitigation witnesses
during the penalty phase generally, Petitioner’s expert Carl
Herman testified:

       Typically what you get are family members, you know,
       brothers, sisters, children, in the most horrible cases who
       get on the stand and ... say to the jury, I know that you
       found my brother, my father, guilty of this crime [and]
       he’s going to have to pay for that for the rest of his life,
       but he’s my father and I love him, and I’m going to visit
       him in jail, please don’t execute him; he can do some
       good; I need him as a father. It could be two minutes of
       testimony. [B]ut frequently it’s very moving, very
       emotional.

                                42
(Test. of Carl Herman at A875.) Regarding the instant case, the
State’s own expert testified before the District Court without
ambiguity: “I think he should have interviewed all three of the
children.” (Test. of William Graves at A1194.) But, as
Marshall’s youngest son John testified, at no time leading up to
or during the trial did Zeitz speak to him about what a penalty
phase was or what would happen if his father was found guilty.
When asked by Petitioner’s counsel, “At any point did you have
an understanding . . . [w]hat would happen in the event your
father was found guilty?” John Marshall responded, “No, I
didn’t.” (Test. of John Marshall at A379.) Had Zeitz
interviewed Marshall’s sons he would have discovered,
according to John Marshall’s testimony, that each of the boys
would have willingly taken the stand and pleaded for the jury to
spare his father’s life.

       PETITIONER’S COUNSEL: Assuming that you had
       been asked to [testify] after your father had been found
       guilty, would you have been willing to do so back in
       1986?

       JOHN MARSHALL: Most definitely.

       PETITIONER’S COUNSEL: And that would have
       involved the willingness on your part to ask the jury to
       spare your father’s life?

       JOHN MARSHALL: Yes, it would have.

       PETITIONER’S COUNSEL: How about your brothers,
       do you believe that your brothers would have been – let’s

                              43
       start with Chris first. (A: Okay.) Would he have been
       willing to testify?

       JOHN MARSHALL: Most definitely, yes.

       PETITIONER’S COUNSEL: And how about Rob?

       JOHN MARSHALL: Yes, most definitely.

       ***

       PETITIONER’S COUNSEL: Is there any doubt in your
       mind that both of your brothers would have been willing
       to testify in front of the jury back in 1986, and ask the
       jurors to spare your father’s life?

       JOHN MARSHALL: There is no doubt in my mind.

(Id. at A381-383.) Zeitz also would have discovered that not
only were Marshall’s boys willing to testify, but that the sort of
things to which they were prepared to testify could have served
as powerful mitigation evidence.

       PETITIONER’S COUNSEL: [W]hat would you have
       wanted the jury to know about your father and your
       relationship with him before they decided whether he
       should be put to death?

       JOHN MARSHALL: I think I would have told them that
       my father was a loving father, and devoted to my
       brothers and I; and he was at every swim meet of ours, at

                               44
       every baseball game that I had, every soccer match that
       I had; went back to school at nights; playing catch out in
       the driveway; you know, took us skiing, took us ice
       boating. He was a very devoted and loving father and
       still is to this day.

       ***

       PETITIONER’S COUNSEL: Now obviously by that
       point, had you been asked [to testify], you would have
       been in a position of your father [having] been found
       guilty of the killing of your mom. How does that figure
       into your wanting – you would have wanted the jury not
       to go for the death penalty for your dad?

       JOHN MARSHALL: Again, it was one of the hardest
       things to go through losing a mother at that age,
       especially in that manner. And I just – I just don’t
       understand to this day why the State of New Jersey
       would want to take my father away from me.

(Id. at A384-386.) Zeitz testified that it was his “belief” that
Christopher Marshall would not plead for his father’s life if
called during the penalty phase. He added that he felt that same
way about Robbie Marshall. Zeitz’s beliefs stemmed from
conversations, he testified, that he had had with Robert
Marshall. But counsel’s “beliefs” are not a substitute for
informed strategy, and even if Zeitz’s intuitions had proved
correct at the time, his failure to at least approach Marshall’s
sons to ask what they might say belies comprehension and
renders nugatory any purported strategy on his part.

                               45
        The Supreme Court repeatedly has emphasized that a
“fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689. It is for this reason that
courts “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. (citation omitted). While
these precepts wisely caution against relying too heavily on the
clarity often afforded by hindsight, such a concern is absent
here. In this case, retrospect affords us the only view of what
might have been, since Zeitz did nothing at the time; in other
words, we are not looking back to evaluate whether Zeitz might
have altered in some nuanced way his strategy concerning the
Marshall boys but, rather, we are searching for some plausible
reason for why he employed no strategy at all. We can find
none. Furthermore, as powerful as Zeitz viewed the sons’
testimony during the trial to have been, the substance of that
testimony gave no clue as to the sons’ feelings for their father.
It was used instead to establish Marshall’s state of mind at the
time he placed the phone calls from the hotel. See supra note 6.
Surely the jury was left wondering why the sons would not have
pled for their father’s life and could have reasonably drawn a
negative inference from their absence from the courtroom
during the penalty phase, as well.

      To be clear, this is not a case that calls upon us to define
the contours of the “few hard edged rules” spawned by

                                46
evaluations of counsel’s effectiveness. Rompilla, 125 S. Ct. at
2462 (noting that the merits of counsel’s choices in that case
were subject to debate). The Court in Rompilla took pains to
distinguish the case with which it was presented, where counsel
pursued several leads to gather mitigation material but failed to
examine a single crucial file, id. at 2463-64, from a case such as
Marshall’s “in which defense counsel simply ignored [his]
obligation to find mitigating evidence,” id. at 2462. See also
White v. Singletary, 972 F.2d 1218, 1224 (11th Cir. 1992)
(stating that “it should be beyond cavil that an attorney who fails
altogether to make any preparations for the penalty phase of a
capital murder trial deprives his client of reasonably effective
assistance of counsel by any objective standard of
reasonableness”).

        In addition, we view the “agreement” that Zeitz struck
with the prosecutor as additional evidence of the abdication of
his role. Zeitz did not so much agree to a non-adversarial
penalty phase, as he brought it on himself as a result of his own
failure to have prepared for that phase of trial. Zeitz was not
merely agreeing to hold back on the production of evidence – he
had no evidence to introduce. Whether or not the prosecution
consented to the “agreement,” Zeitz had no witnesses or
evidence of any kind prepared to present in mitigation to the
jury. Far from a strategic, bargained-for exchange, the
agreement appears to have been the only option. Although Zeitz
had, in the time leading up to the commencement of the trial,
hired investigator Kolins to assist in gathering information
relevant to Marshall’s case, again, Zeitz testified that at no time
did either he or Kolins engage in pointed discussions with
individual family members, friends, neighbors, or business

                                47
associates to determine whether those individuals would be
willing to testify at a penalty phase and, if so, what they might
say if called to testify. Agreement or not, Zeitz simply had no
penalty phase evidence to present.

      As discussed throughout, Zeitz’s lack of preparation for
the penalty phase is all the more incredible in light of his
knowledge from the inception that the case would be a capital
one and that his client faced powerful State’s evidence.

       PETITIONER’S COUNSEL: My question is, do you
       agree with the proposition that where your assessment as
       a capital defense attorney is that the proof of guilt is
       overwhelming, would you agree with the proposition that
       that simply highlights or underscores the need for
       exhaustive preparation for the penalty phase? Do you
       agree with that?

       ZEITZ: I’m saying to you the following – I don’t
       disagree with the proposition.

(Test. of Glenn Zeitz at A447.) Because we affirmatively agree
with the proposition offered by Petitioner’s counsel, we must
find that under the prevailing professional norms applicable in
1986, Zeitz’s representation, insofar as his failure to investigate
or prepare a case for life, was objectively unreasonable.

       As to whether Marshall suffered prejudice as a result of
Zeitz’s actions or inactions, which we must determine under
Strickland, we explained in Marshall V that the prejudice prong
is particularly subtle in a “weighing” state like New Jersey:

                                48
“Given the unanimity requirement, the ‘reasonable probability
of a different outcome’ would mean that only one juror need
weigh the factors differently and find that the aggravating factor
did not outweigh the two mitigating factors.” 307 F.3d at 103.
In other words, “even if the aggravating and mitigating factors
were of equal weight, under New Jersey’s sentencing scheme,
the sentence would be life in prison, not death.” Id. at 103-04.
The New Jersey Supreme Court has thus emphasized, “The
importance of the jury’s determination cannot be overstated, as
the entire system of capital punishment depends on the belief
that a jury representing the conscience of the community will
responsibly exercise its guided discretion in deciding who shall
live and who shall die.” State v. Koskovich, 168 N.J. 448, 776
A.2d 144, 192 (2001) (internal citations omitted). We found in
Marshall V that:

       Zeitz did not mention, let alone focus on, the intricacies
       of the weighing process the jury must go through in
       considering the various factors, telling the jurors instead
       that the death penalty can be imposed “if all twelve of
       you agree to do it unanimously.” His last words were not
       a plea for mercy, but, rather, more akin to a verbal shrug
       of the shoulders: “whatever you feel is the just thing to
       do, we can live with it.”

307 F.3d at 101. Based on the state court record before us at the
time, we determined that it was “impossible for us to conclude
that there is not a reasonable probability that the outcome would
have been different had counsel done what Marshall urges he
should have done.” Id. at 107. However, given the unknowns
at the time of our previous decision, we also were unable to

                               49
conclude that Marshall had indeed suffered prejudice as a result
of Zeitz’s then-alleged ineffectiveness. Id. We now have the
benefit of copious testimony adduced at the evidentiary hearing
as well as the District Court’s comprehensive analysis of the
issues.

        Looking at Zeitz’s appeal to the jury, one would think
that the only two mitigating aspects worthy of consideration by
the jury were the two he briefly mentioned – the fact that
Marshall was a law abiding citizen, and that he had no
significant history of prior criminal activity. But that is not the
case. The “catch all” provision of the death penalty statute –
which empowers the jury to consider “[a]ny other factor which
is relevant to the defendant’s character or record or to the
circumstances of the offense,” N.J. Stat. Ann. §
2C:11-3(c)(5)(h) – is an invitation, and an opportunity, to offer
other reasons why life should be spared. Those other reasons
were in the minds and voices of the witnesses not interviewed
and thus never called, including Marshall’s sons. Absent those
witnesses, Zeitz had no choice but to argue only those relatively
insignificant aspects – essentially applicable to any and every
first time offender of a brutal crime – that are anything but
“humanizing.” And, while the judge no doubt instructed as to
the “catch-all” factor, if Zeitz could not even suggest to the jury
what those other relevant factors might be, how are the members
of the jury to know why they should spare Marshall’s life?
Zeitz’s attempt to point to certain other things – passing
references to civic endeavors and attendance at swim meets –
without people to vouch for these things as a reason to vote for
life, seemed more de-humanizing than humanizing. While the
jury did find the “catch-all” mitigating factor to be present, the

                                50
finding alone is meaningless; it is the “weight” attributed to the
factor that is significant. And that weight was clearly affected
by the bland emotionless argument and lack of evidence offered
by Zeitz.

        Strickland admonishes us to focus on “on the
fundamental fairness of the proceeding whose result is being
challenged” and on whether “the result of the particular
proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to produce just
results.” 466 U.S. at 696. In this case, the District Court had
“no confidence that the penalty phase of Marshall’s trial was a
genuine adversarial proceeding.” 313 F. Supp. 2d at 457. By
virtue of the evidentiary hearing, Marshall was able to confirm
his allegations of ineffectiveness and establish the reasonable
probability that the outcome of the penalty phase of his trial
would have been different. See Strickland, 466 U.S. at 697. We
are confident that Zeitz’s numerous failures in investigating and
preparing for the penalty phase of the case, and in putting on and
arguing a case for life, prejudiced Marshall. He has thereby
satisfied the Strickland test. The state court’s denial of relief to
Marshall based on Zeitz’s ineffective assistance during the
penalty phase was an “unreasonable application” of this clearly
established Supreme Court law and thus Marshall is entitled to
relief under the AEDPA. Williams, 529 U.S. at 379.




                        V. C ONCLUSION

       For the reasons set forth above, we find that the New

                                51
Jersey Supreme Court’s decision “involved an unreasonable
application” of the principles announced in Strickland, and
Marshall is entitled to habeas relief under § 2254(d)(1). We will
therefore AFFIRM the District Court’s Order in all respects.
New Jersey must either retry the case on penalty within 120 days
or stipulate to a life sentence.




                               52
