
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-2017                                   LLOYD MATTHEWS,                                 Plaintiff, Appellee,                                          v.                                PAUL RAKIEY, ET AL.,                             SUPERINTENDENT AT MCI-WALPOLE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Linda Nutting Murphy, Assistant Attorney General, with whom  Scott            ____________________                                         _____        Harshbarger, Attorney General, was on brief for appellant.        ___________            Stephen  Hrones,  orally;  Lloyd  Matthews  on  brief pro  se  for            _______________        appellee.                                _____________________                                     May 8, 1995                                _____________________                      STAHL,  Circuit Judge.   Petitioner  Lloyd Matthews                      STAHL,  Circuit Judge.                              _____________            was convicted in  August 1987 in a Massachusetts  trial court            of  rape, assault  in  a dwelling  with  intent to  commit  a            felony, and  indecent assault and battery.   After exhausting            his remedies in the  state courts, Matthews sought a  writ of            habeas corpus in the  district court pursuant to 28  U.S.C.              2254,  claiming that he was  denied his Sixth Amendment right            to  effective assistance  of  counsel.   After referring  the            matter to a magistrate-judge for a report and recommendation,            the  district court  granted  the petition,  and this  appeal            followed.  For the reasons discussed below, we reverse.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________            A.  Pretrial Events            ___________________                      On May  15, 1986, Brenda Barbosa,  who was fourteen            years old at the time, reported to Boston police that she had            been attacked in  her bedroom by a  man with a knife  earlier            that  morning.   Later that  same day, after  viewing several            hundred photographs in  police identification books,  Barbosa            identified  Matthews, who  wears  his hair  in a  distinctive            "dreadlocks" style and was so  depicted in the photograph, as            the man who had attacked her.   The police obtained an arrest            warrant but,  although they knew Matthews's  address, made no            immediate attempt to question him about the incident  or take            him into custody.   Matthews was  eventually arrested on  May                                         -2-                                          2            28,  1986,  when  a patrolling  officer  who  had stopped  to            question  Matthews  on  the  street  about unrelated  conduct            discovered the outstanding warrant.                      The  incident  report filed  by  the Boston  police            officer who first responded  to Barbosa's call (the "incident            report") contains  no  mention  of  a sexual  assault.    The            officer's account  of his  interview with  Barbosa, conducted            within two hours of the incident, is as follows:                      [T]he victim  . . . stated  while she was                      sleeping the suspect entered the victim's                      bedroom and  jumped on  top of her.   The                      victim stated  the suspect had  a kitchen                      knife  and told  her, "Be quiet,  I don't                      want  nothing from  you,  you  won't  get                      hurt."   The  victim  further stated  the                      suspect  then pulled the  victim from her                      bed and ordered the  victim to stand in a                      corner  then  the  suspect   ordered  the                      victim  to stand  against  a  wall.   The                      victim  then  stated the  suspect started                      looking  through the  rooms on  all three                      floors.   The  victim further  stated the                      suspect then told the victim to close the                      door behind  him when he left  and not to                      tell anyone about him.  The victim stated                      she complied and the suspect fled on foot                      to a  yellow m/v then fled  in an unknown                      direction.            The  incident report  includes a  description of  the alleged            assailant  as a black male, 5'10", black hair and brown eyes,            wearing  a black hat,  brown leather jacket  and black pants.            It does not indicate whether Barbosa mentioned to the officer            that her attacker had dreadlocks.                      Matthews  was initially charged  with armed assault            in  a dwelling  with  intent to  commit  a felony,  and  with                                         -3-                                          3            breaking  and  entering.     A  probable  cause  hearing  was            conducted in Roxbury District Court on August 4, 1986.  There            is no transcript of the hearing  in the record.  Although the            breaking  and  entering  charge  was  dropped  following  the            hearing, Matthews was bound over on the armed assault charge.            Subsequently, grand  jury proceedings were initiated  on that            charge  as  well as  two  new  charges  apparently  based  on            Barbosa's testimony at the probable cause hearing:  rape of a            child  with force,  and  indecent assault  and  battery on  a            person under 14.  At the grand jury proceeding, Boston Police            Detective  William  Ingersoll   --  who  oversaw   the  photo            identification procedure in which Barbosa picked out Matthews            -- testified as follows:                      A.  .  . . At the  probable cause hearing                      in the Roxbury Court  I was not present .                      . . and  I received  a message  following                      that hearing from  the District  Attorney                      who stated to me that during the probable                      cause  hearing  the  victim  --  who  was                      afraid to tell her mother and the  police                      -- that at the  time during this breaking                      and entering and  assault, the  defendant                      did  assault this  young girl,  again, 14                      years of age.                      Q.  In what manner?                      A.  I believe  it was placing the fingers                      to  her  vagina, more  or  less just  the                      fingers.  She did  not go to the hospital                      to be  examined.   Again, she is  a young                      Spanish girl and was ashamed even to tell                      the mother.                           There was no complaints at that time                      for  rape in  the Roxbury  District Court                      against him. I was unaware of this fact.                                          -4-                                          4                      Barbosa  also  testified  before  the  grand  jury.            Certain aspects  of her account of the May 15 events were not            entirely consistent with the second-hand version contained in            the incident report:                      A.  Well, I was  sleeping and I heard the                      bedroom door, and when I looked up I seen                      this  man and he jumped on  top of me and                      put me against the wall . . . .                      . . . .                      Q.  Did he take anything?                      A.  The only thing I found missing was my                      leather coat, and stuff was in the  first                      floor.                      Q.   Do  you  know whether  he took  that                      coat?                      A.  I don't really know, but he must have                      took  it because  I  couldn't find  it; I                      looked for  it; I asked my  sister if she                      let someone use it; she said, no.                      . . . .                      Q.  Now, when this man jumped on you, did                      he touch you in any way?                      A.  Yes.                      Q.  And  what part  of your  body did  he                      touch?                      A.  He touched me, all parts.                      Q.  You[r] chest and your vaginal area?                      A.  Yes, sir.                      Q.   Did  he  put his  fingers into  your                      vagina at some time?                      A.  Yes.                                         -5-                                          5                      Q.   When the  police came that  day, did                      you tell the police that day?                      A.       I  told  them   everything  that                      happened, like in  a way I was  -- when I                      went to the police station to look at the                      pictures I told them what happened.            B.  The Trial            _____________                      On August  17, 1987, Matthews was  brought to trial            on the rape, armed assault and indecent assault charges.  The            prosecution called two witnesses, Barbosa and Ingersoll, with            Matthews  as  the  only defense  witness.    Because  we must            evaluate the alleged constitutional deficiencies of counsel's            performance in light  of his "overall  performance throughout            the  case,"  Strickland  v.  Washington, 466  U.S.  668,  689                         __________      __________            (1984), we provide an extensive summary of the trial record.                      1.  Opening Statements                      ______________________                      In his opening  statement, the prosecutor told  the            jury  that  immediately  after  Barbosa's  attacker left  her            apartment, Barbosa ran next  door "and told her sister-in-law            what  had happened."   Despite  strong evidence  that Barbosa            never told anyone  that she  had been  sexually assaulted  or            raped  until  she  testified  at  Matthews's  probable  cause            hearing,  81  days  after   the  incident,  Matthews's  trial            counsel, Kenneth D'Arcy,  did not challenge the  prosecutor's            assertions.  D'Arcy  made clear from the  outset that instead            of challenging  Barbosa's allegations,  he would try  to show            that she  had mistakenly  picked Matthews  out of the  police                                         -6-                                          6            photograph  books because  of  his  distinctive  "dreadlocks"            hairstyle.   D'Arcy told the jury that "[t]here's no question            in my mind  and Mr.  Matthews' mind that  Brenda Barbosa  was            attacked in her  bedroom on May  15th.  But  you're going  to            hear from Mr. Matthews that on May 15th he was working in his            father's garage."                      2.  Barbosa's Testimony                      _______________________                      Barbosa, who  had reached  sixteen years of  age by            the time of the  trial, testified on direct examination  that            she was  asleep in her bed  about 8:30 a.m. on  May 15, 1986,            when she was awakened by  a man entering her room.   When she            looked up,  she saw the man had a knife.   The man got on top            of her, put the knife to her throat and told her to be  quiet            or he would kill her.   The man touched Barbosa's breasts and            put his finger inside Barbosa's vagina.  Then, the man pulled            Barbosa  off the bed and  placed her against  a wall, telling            her to stay there while he walked  through other rooms of the            house.  Barbosa said  he took her leather coat,  although she            did not say whether she saw him carry the coat away.  Barbosa            identified Matthews  as  the  man  who  attacked  her.    The            following exchange then ensued:                      Q.  You went to your sister-in-law's; did                      you tell her what happened?                      A.  Yes.                      Q.  Did you call the police?                      A.  Yes, I did.                                         -7-                                          7                      Q.    You reported  this  to  the police,                      didn't you?                      A.  Yes.                      Q.  Now, at some point during the day did                      you  have an  opportunity  to  meet  with                      Detective Ingersoll of the Boston Police?                      A.  Yes, I did.                      Q.   Did you  go over what  happened with                      him?  Did you tell him about that?                      A.  Yes, I did.                      Barbosa  then  testified  as  to  how   she  picked            Matthews's photograph out of the police books.  She said that            she got a good look at her attacker's face; that her attacker            had long hair pinned up under a gray beret-like hat; and that            she had described the man to police as being about five-foot-            eleven with  dreadlocks and  a hat.   Barbosa  also testified            that a  few days after the  attack, the same man  came to her            door and rang the doorbell.   She said that she "went  crazy,            and . . . started crying, and he just left."                      In his cross-examination,  D'Arcy quickly began his            attempt to show that Barbosa had immediately zeroed in on the            fact that the assailant had dreadlocks:                      Q.   This  man  came in,  and what's  the                      first  thing  you   remember  about   his                      physical appearance when  you saw him  in                      your bedroom?                      A.   I don't  really understand  what you                      mean.                      Q.      What  was   the   first  physical                      characteristic that  you saw in  this man                                         -8-                                          8                      when you  saw him  in the bedroom  and he                      woke you up and  you were afraid;  what's                      the first thing you recognized about him?                      A.  The knife.                      Q.    And  then  what  about  a  physical                      characteristic?  After you saw the knife,                      and you saw this man with the knife, what                      physical characteristic did you remember?                      A.   I  still  don't understand  what you                      mean.                      Q.  When you describe people --                      A.  Yes.                      Q.  -- you describe people as short --                      A.  Oh, you want me to describe him, like                      when he first came in?                      Q.  Yes, when you first saw  this man and                      you saw  the knife, and you  got over the                      shock of the knife, and you saw that this                      man  was in  your bedroom  and he  didn't                      belong there --                      A.  Yes.                      Q.   --  what physical  characteristic of                      this man did you first remember --  first                      remember?                      A.  The way he  looked, his face, and the                      way he was like coming towards me.                      Q.  What about his hair style?                      A.  I recognized that too.                      Q.  The dreadlocks?                      A.  Yes.                      D'Arcy   then   questioned   Barbosa    about   her            identification of Matthews  as her attacker.  He elicited the                                         -9-                                          9            not-too-helpful testimony that she had seen other people with            dreadlocks  before encountering Matthews,  but that  they did            not  look like him; that she identified Matthews the same day            as  the  alleged attack;  that  she "could  never  forget his            face";  and that she had picked the picture out after viewing            it for just half a second.   Before he concluded this line of            questioning,  D'Arcy  inartfully  allowed  Barbosa  one  more            opportunity  to  tell the  jury how  certain  she was  of her            identification of Matthews:                      Q.  There's no question in your mind that                      this  is the  man  that  broke into  your                      house and had a knife in his hand?                      A.  That's the man.            At that point,  D'Arcy changed the  focus of his  examination            and began to question Barbosa's  account of what had happened            and her veracity:                      Q.  Then did you tell Detective Ingersoll                      at that  time, you know, that  he touched                      your private parts at all?                      A.  I told him what had happened.                      Q.  Well, did you tell  him, you know, as                      you told  the  jury today,  that the  man                      grabbed your private parts?                      A.   I only told  him what he  was asking                      me.                      Q.  Is it  fair to say, Brenda, that  you                      really  didn't  tell Detective  Ingersoll                      everything  that  happened when  you were                      going over the pictures?                      A.   I  told  him  most  everything  that                      happened.                                         -10-                                          10                      Q.   But  you didn't  tell him  about the                      fact that  this man touched  your private                      parts?                      A.   No, but I  told the other  cops when                      they came.                      Q.  When?                      A.  When it first happened, the cops that                      came over  to the  house.  It's  right in                      the report.                      Q.   You  told them  that he  had grabbed                      you?                      A.  Yes.                      Q.    And  touched  your  private  parts,                      right?                      A.  Yes.            Although these  last  four answers  were  apparently  untrue,            D'Arcy  did  not directly  confront  Barbosa  with any  prior            statements or other evidence contradicting her testimony.                      3.  Ingersoll's Testimony                      _________________________                      Ingersoll testified that Barbosa and her sister-in-            law, Carmen Barbosa, came  to his office on the  afternoon of            May  15 to  view photographs.   Ingersoll  said he  "tried to            determine what  exactly had happened" and  then began showing            Barbosa books  containing   photographs of  black men of  the            approximate   age  that  Barbosa   had  described.  Ingersoll            testified that, in his estimation, Barbosa viewed "about 600,            700  photographs."   When  she  turned to  the  photograph of            Matthews,  Ingersoll  said,  Barbosa  "became  very  excited.            `That's  him.'  She  got up  from the  table, jumping  up and                                         -11-                                          11            down.   `That's him, that's  him.'"  Ingersoll  said that the            picture of Matthews matched the general description contained            in  the  original  incident   report,  and  that  during  her            conversation with Ingersoll prior to viewing the photographs,            Barbosa had mentioned that the attacker had dreadlocks.                      On cross-examination, D'Arcy  resumed his  strategy            of  trying to  show that  Barbosa had  picked  out Matthews's            picture because of his dreadlocks:                      Q.  Now, when  Brenda Barbosa came in the                      station,  she gave  you a  description of                      the man that was in her home earlier, had                      dreadlocks; do you remember?                      A.  That's correct.                      Q.   You  don't  have any  books or  just                      males with dreadlocks, though; right?                      A.   No,  sir.   The  space just  doesn't                      allow it.                      . . . .                      Q.   Did you  look at  any of  the photos                      that she looked at, looking for men  with                      dreadlocks?                      A.  Not at that particular time, no, sir.                      I basically  put a lot of the photographs                      in the  books  when we  receive them  for                      identification.   I don't  make a special                      notice of dreadlocks.                      Q.    Do  you   know  how  many  men  had                      dreadlocks  in  the  photos  before  Miss                      Barbosa picked Lloyd Matthews' picture?                      A.  I have no idea.                      Q.  It could have been any of them?                                         -12-                                          12                      A.   It could  have been any,  could have                      been a few, could have been one.  I don't                      know.                      Q.  Could have been one, right?                      A.   The  books are  set up,  Mr. D'Arcy,                      only by age, sex and race; that's it.                      Q.   So you're  testifying today that Mr.                      Matthews could  have been the  first male                      that had dreadlocks in those photo books;                      correct, Detective?                      A.  Could have been.            Upon further questioning by D'Arcy, Ingersoll  testified that            he  "kn[e]w for a fact that there are many dreadlocks" in the            photograph  books, and that  he had "had  every confidence in            the  world  that she  would run  into  dreadlocks."   He also            testified that he did not personally arrest Matthews, nor did            he immediately have police officers  go to Matthews's home to            arrest him once an arrest warrant issued.  Instead, Ingersoll            said, he told  another police officer with duty in Matthews's            neighborhood of the warrant,  and that officer told Ingersoll            "that he would  lock him up when he sees  him."  Matthews was            ultimately arrested when police stopped to  question him on a            Roxbury street on  May 28,  nine days after  the warrant  had            issued  and thirteen  days  after the  crimes allegedly  took            place.                      4.  The Defense                      _______________                      After the  prosecution rested, D'Arcy  notified the            court  that Matthews  was "very  upset" with  D'Arcy  for not                                         -13-                                          13            wanting  to recall Barbosa to the stand to question her about            discrepancies  between   her   trial  testimony   and   prior            statements.  D'Arcy told the court:                      But in  my  perusal  of  the  grand  jury                      minutes, I  mean -- you know,  this is an                      identity  type of  case, your  Honor.   I                      know  what the  girl  has  been  through.                      It's obvious that  a crime was committed.                      My  client's  defense  is  that   it's  a                      misidentity.   She testified there was no                      question in her mind it was him.                           Whether she came downstairs with him                      or looked out the window, there's sort of                      minor   discrepancies   as  far   as  I'm                      concerned.                           It's  a disadvantage when you try to                      examine young ladies  because of the fact                      that she's highly emotional.  I just feel                      -- I disagree with my client.  I told him                      I didn't  want to recall  Brenda Barbosa.                      You know,  the  bottom line  is that  I'm                      trying the case and he isn't.                           But  I  just   want  the  record  to                      reflect  that, you  know, he's  been more                      than  vociferous  that  he doesn't  agree                      with my strategy, shall we say.                      D'Arcy then called Matthews to the stand.  Matthews            testified that he had worked  at his "father" John  Wornum's1            auto body shop  in Roxbury on and off for  years.  From April            until  July  of 1986,  Matthews testified,  he and  a friend,            Chris  Cross,   were  rebuilding  a  junked   car  that  they            eventually  sold to a friend  of Wornum.   Matthews could not            say  specifically  that he  was working  at  the shop  on the                                            ____________________            1.  Wornum explained in a  post-trial affidavit that he  is a            long-time friend of Matthews's family and that Matthews would            sometimes  call him his  "uncle" or "father"  even though the            two are not related.                                         -14-                                          14            morning of  May 15, 1986, but  he said that it  was his usual            practice to open up the shop each morning at 7:30 a.m.                        On  cross-examination,  Matthews explained  that he            was paid in cash and had no records or pay stubs proving that            he worked at the body shop.  John Wornum, Matthews testified,            had  been in Georgia for several  months; Wornum's son, Rufus            Wornum, was busy running the shop, and Chris Cross had agreed            to  testify on his behalf  but had since  joined the Marines.            Matthews also  testified that he had no records pertaining to            the  rebuilt car,  and that  he did not  know the  person who            bought it  other than that  he was  a friend of  John Wornum.            The prosecutor's final exchange with Matthews was as follows:                      Q.  You're not specifically testifying as                      to where  you were on the  morning of May                      15th, 1986; are you?                      A.  No, sir.                      5.  Closing Arguments                      _____________________                      Unlike his opening, D'Arcy's summation contained at            least  some hints to the jury that perhaps Barbosa's story of            what  happened  to  her was  not  entirely  truthful.   After            incorrectly telling  the  jury that  they  had "seen  a  girl            fourteen years old," D'Arcy urged the jurors not to let their            emotions affect their deliberations about                      what happened to this girl, if in fact it                      did happen. . . .                           . . . .                           You  have  to   decide  did   Brenda                      Barbosa   really   tell   the  truth   of                      everything that  happened.  Did  she wake                                         -15-                                          15                      up and  see a fellow there  with a knife?                      Was it somebody maybe  she -- she  didn't                      go  to school  that day  -- that  maybe a                      fellow that she was going to go to school                      with  -- maybe  something got  carried on                      that she didn't expect and  she panicked,                      because  she  lived right  --  a relative                      lived right around the corner.                           Did it happen to  her?  Did she tell                      Officer  Ingersoll  that  she   had  been                      sexually assaulted?            D'Arcy  did  not, however,  point  to any  evidence  or prior            statements   suggesting  that   Barbosa  was   not  truthful.            Instead, he  discussed at  length how a  "hysterical" Barbosa            had  zeroed in on Matthews's photograph "[a]s soon as she saw            the  dreadlocks," and how the failure of the police to arrest            Matthews  as soon as Barbosa had identified him was not "fair            play."   The  near-two-week delay  in Matthews's  arrest left            Matthews virtually no chance to prove that he was at the body            shop while Barbosa allegedly was attacked, D'Arcy argued.                      Toward  the  end  of  his  argument,  D'Arcy  again            suggested that this was not just a case of mistaken identity,            but also of truthfulness:                           Did you hear any  hospital testimony                      regarding  any  physical disability  with                      Brenda  Barbosa?   Because I  suggest she                      didn't  tell anybody  the day  she picked                      out Mr. Matthews' picture.                           Did  you hear any evidence of a lock                      being  broken  or of  any  damage  to her                      house that allowed  this stranger to come                      in?  No.            And again:                           Ladies and gentlemen, I suggest that                      all of these gaps create  some doubt, and                                         -16-                                          16                      that's  the magic word, "doubt", beyond a                      reasonable doubt.   That's what  you have                      to be convinced, that Lloyd  Matthews was                      the individual that came into a room, and                      if  in  fact  there  was  a  breaking and                      entering, and indecently assaulted Brenda                      Barbosa,  if in  fact she was,  and stuck                      his finger in her vagina, if in fact that                      was done.                           Because  I  suggest a  fourteen year                      old  that this  has  really happened  to,                      when   she  went   running  out   to  her                      relation, she would have said, "I've been                      violated,"  and  she   would  have   been                      brought   right   to  the   hospital  for                      examination.                           You  know,  fourteen  years old,  if                      this  is what  happened.   Then from  the                      hospital  the  police would  have  got up                      there, and then maybe if she had told all                      the  truth  right  away  they  would have                      picked up or investigated  Lloyd Matthews                      that day.            Had that occurred, D'Arcy  argued, Matthews could have proved            where he  was the morning  of May  15 and refuted  the notion            that he was the dreadlocked man who had attacked Barbosa.                 __                      The prosecutor recounted how certain Barbosa was of            her identification  and the substantial  opportunity she  had            had to see  him when he  entered her room  and was on top  of            her.   He told  the jury  to consider  "the sincerity of  her            emotions" in testifying:                           Keep  that picture  of  her in  your                      mind.   Those  were not  crocodile  tears                      that came  out of  her eyes.   Those were                      genuine  tears  based   on  honesty   and                      certainty.                           Brenda Barbosa came to this court to                      seek  justice,  and   you  can  give  her                      justice.  She is the victim.                                         -17-                                          17            In contrast to Barbosa's sincerity, the prosecutor pointed to            the  "vague" nature of Matthews's testimony:  "That he worked            at a vague garage,  working on a vague Lincoln,  making vague            repairs.  Nothing to back it up."  In the end, the prosecutor            said, the issue  for the jury was  one of credibility:   "You            have  to  make a  determination of  who  to believe;  who was            honest; who was sincere; who was certain; and who was vague."                      The  jury  deliberated for  about four-and-one-half            hours  before  returning  verdicts  of guilty  on  all  three            counts.   Matthews was  sentenced to concurrent  state prison            terms of 12 to 20 years, 10 to 15 years, and 4 to 5 years.            C.  Post-Conviction Proceedings            _______________________________                      Matthews  moved  for a  new  trial on  a  number of            grounds,  including  ineffective  assistance  of  counsel and            newly discovered  evidence -- namely, an  affidavit from John            Wornum  to the  effect that  he would  corroborate Matthews's            testimony  that in May 1986, he normally opened the body shop            at 7:30 in the  morning, and that  on May 15, 1986,  Matthews            "would  have  been  working" at  the  shop  when Barbosa  was            allegedly  attacked.  The trial court denied the motion.  The            Massachusetts Appeals Court affirmed  the conviction, and the            Supreme Judicial Court  denied Matthews's petition to  obtain            further appellate review.                      Having exhausted his state remedies, Matthews filed            his  petition  for habeas  corpus  in the  district  court on                                         -18-                                          18            August  30,  1990.   Matthews  argued  that D'Arcy  committed            numerous errors that deprived  him of effective assistance of            counsel:  1) failure to impeach Brenda Barbosa with her prior            inconsistent  statements;  2) failure  to  make an  effective            closing argument;  3) failure  to have Matthews's  only alibi            witness, John  Wornum, appear and  testify at  trial; and  4)            failure  to prepare  adequately for  trial and  to  object to            improper leading questions  and to  the prosecutor's  closing            argument.    The  respondent  argued  that  D'Arcy's  alleged            "errors" were tactical or strategic choices made so as not to            undermine  D'Arcy's  strategy  of  pursuing  the "dreadlocks"            defense.                      An evidentiary hearing was  convened on January 15,            1993, but neither party chose to present evidence beyond that            already contained in the record.  On March 17, 1993, a United            States   Magistrate  Judge  agreed   with  virtually  all  of            Matthews's assertions  and, finding that  "the culmination of            errors taken as  a whole  . . .  establishes trial  counsel's            ineffective assistance  in this  case," recommended that  the            writ be allowed.                      The district court  adopted the  magistrate-judge's            recommended result but  not her reasoning.   The court  found            that D'Arcy had adopted a professionally responsible strategy            by not  contesting that Barbosa  was sexually assaulted  by a            black  man with dreadlocks and  by seeking instead to suggest                                         -19-                                          19            that,  in  her subsequent  hysteria, she  mistakenly selected            Matthews's  photograph because his was the first picture of a            man  with dreadlocks.   The  court held  that because  D'Arcy            relied on the mistaken-identity defense, however, his failure            to investigate Matthews's only alibi witness, John Wornum, or            to seek a continuance  in order to do so, was  not ascribable            to   any   strategic   reason   and   therefore   constituted            constitutionally   deficient   assistance  of   counsel  that            prejudiced Matthews.                      The  respondent  appealed,  arguing  that  Wornum's            affidavit  contained no  indication that his  testimony would            provide an alibi for Matthews.  Matthews filed two briefs pro            se,  one as  appellee  urging  that  we affirm  the  district            court's order, and another as  appellant asking that we grant            the petition  on the  grounds recommended by  the magistrate-            judge but rejected by the district court.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Governing Principles            ________________________                      To  establish a  Sixth Amendment  violation of  the            right to  effective assistance  of counsel, a  defendant must            show: (1) that counsel's  performance fell below an objective            standard of reasonableness; and (2) that  prejudice resulted.            Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Scarpa            __________    __________                               ______            v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994), cert. denied, 115 S.               ______                                _____ ______                                         -20-                                          20            Ct. 940 (1995).  Among the basic duties of an attorney is "to            bring to bear  such skill  and knowledge as  will render  the            trial a  reliable adversarial testing  process."  Strickland,                                                              __________            466 U.S. at 688.                      In  evaluating the reasonableness  of an attorney's            performance, we "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  (quoting Michel v. Louisiana, 350 U.S.  91, 101 (1955)).                          ______    _________            We must make "every effort . . . to  eliminate the distorting            effects of hindsight" and  to evaluate counsel's conduct from            his  or  her  perspective  under the  circumstances  as  they            existed at that time.  Id.                                   ___                      We  say  that a  defendant  was  prejudiced by  his            lawyer's substandard performance if he can show that, but for            counsel's errors,  "there is a  reasonable probability .  . .            that the result of the proceeding  would have been different.            A  reasonable  probability  is a  probability  sufficient  to            undermine  confidence in  the outcome."2   Id.  at 694.   See                                                       ___            ___                                            ____________________            2.  Counsel for the respondent, an assistant attorney general            for   the   Commonwealth   of  Massachusetts,   dropped   the            "reasonable  probability"  language  from  this  standard and            misleadingly suggested  to  us that  Strickland requires  the                                                 __________            defendant to prove that "but for" counsel's inadequacies, the            verdict   would  have   been  different.     Brief   for  the                                                         ________________            Respondent/Appellant at  9.  Strickland expressly  rejected a            ____________________         __________                                         -21-                                          21            also Scarpa, 38 F.3d at 8.  "In making  this determination, a            ____ ______            court . . . must consider the totality of the evidence before            the judge or jury."  Strickland, 466 U.S. at 695.  As   "both                                 __________            the   performance   and    prejudice   components   of    the            ineffectiveness inquiry are mixed questions of law and fact,"            id. at 698, we review these  issues de novo.  Scarpa, 38 F.3d            ___                                 __ ____   ______            at 9.            B.  D'Arcy's Performance            ________________________                      Matthews concedes  that  the central  issue in  the            case was the identity of the attacker.  What he challenges is            D'Arcy's decision to use  the "dreadlocks" defense to attempt            to persuade the jury that Barbosa had misidentified Matthews,            rather than  focusing on the apparent  inconsistencies of her            prior statements and  her failure to report  the alleged rape            immediately.    D'Arcy's decision  to  employ  the dreadlocks            strategy was not a professionally reasonable choice, Matthews            claims, because D'Arcy possessed no evidence that Barbosa had            picked  Matthews's photograph  out because of  his hairstyle.            D'Arcy  had no  knowledge of  how many  pictures of  men with            dreadlocks Barbosa had seen  before identifying Matthews, and            the  police report  contains no  indication that  Barbosa had            mentioned  dreadlocks  in  her  initial  description  of  the            attacker,  thus undermining the  argument that  the hairstyle                                            ____________________            more-likely-than-not  outcome-determinative  standard.    466            U.S. at 693.                                         -22-                                          22            was  the  predominant feature.   Therefore,  Matthews argues,            instead of concealing  the fact that Barbosa did  not mention            dreadlocks initially,  D'Arcy should have  driven this  point            home to the jury and called into question Barbosa's powers of            observation.  Furthermore, Matthews maintains,  D'Arcy should            have  questioned Barbosa  about the  discrepancy between  the            police  report's  version  of  when  she  initially  saw  her            attacker, and  her  own testimony  -- i.e.,  whether she  was            awakened by a man entering her bedroom and  jumping on top of            her, or  whether she heard  the door, and  thus had a  longer            time to view  her attacker -- and he should  have called into            question Barbosa's  truthfulness generally by  impeaching her            regarding her delay in reporting the alleged rape.   Finally,            Matthews argues,  D'Arcy should have marshalled  an effective            closing   argument   underscoring   the  inconsistencies   in            Barbosa's   prior  statements,   rather  than   delivering  a            disjointed  speech  that,  Matthews  claims,  bordered  on an            invitation to convict.                      We  disagree  that  D'Arcy's  strategic  choice  to            employ   the   "dreadlocks   defense"    was   professionally            unreasonable.  That it was  not ultimately a winning strategy            is  of no moment in assessing its reasonableness at the time,            see United States  v. Natanel,  938 F.2d 302,  310 (1st  Cir.            ___ _____________     _______            1991), cert. denied, 502 U.S. 1079 (1992).  D'Arcy had little                   _____ ______            to  work  with,  given  the  persuasive  power  of  Barbosa's                                         -23-                                          23            identification  testimony  and   the  inherent  weakness   of            Matthews's  alibi,  and  he  chose  what  he  thought  was  a            reasonable line of argument that  carried with it little risk            of alienating the jury.   A strategic choice that  would have            included more  direct attacks  on Barbosa's credibility  and,            inevitably,  her character, would have carried  with it a far            greater risk of  offending the jury.  Thus,  we hold that, in            choosing  to  emphasize Matthews's  dreadlocks as  the reason            that  Barbosa identified  him  as her  attacker, rather  than            highlighting  alleged  inconsistencies  in   Barbosa's  trial            testimony   and  her  prior  statements,  D'Arcy  employed  a            professionally reasonable strategy and  did not, by virtue of            that choice  alone, deprive Matthews of  effective assistance            of counsel.                      Matthews also argues,  however, that D'Arcy did  in            fact  challenge Barbosa's credibility  -- by  questioning her            about her apparent failure to report immediately that she was            raped, and  by arguing  this point to  the jury  -- and  that            therefore D'Arcy's  failure to impeach Barbosa more directly,            or  at least  to  introduce the  impeaching evidence  through            another witness,  cannot be  deemed a  strategic choice.   We            agree  that the record makes clear that D'Arcy did attempt to            elicit from Barbosa an admission that she did not immediately            report the rape.   Indeed, D'Arcy successfully forced Barbosa            to change her testimony and admit  that she had not, in fact,                                         -24-                                          24            told Detective Ingersoll  about the  rape.   The question  we            must  address, however, is  whether, once Barbosa  went on to            testify  that  she had  told  the  police who  had  initially            responded  to her  call that  she was  raped, and  that "it's            right in the report," D'Arcy's  failure to demonstrate to the            jury that these statements were apparently untrue constitutes            ineffective  assistance of  counsel.   Put  another way,  the            issue  is  whether  it  may be  considered  acceptable  trial            strategy  to  have  questioned  Barbosa about  her  delay  in            reporting the  rape without  impeaching her when  the answers            she gave were not favorable to Matthews.                      Bearing in mind that the defendant must overcome "a            strong presumption"  that D'Arcy's conduct "falls  within the            wide   range   of   reasonable    professional   assistance,"            Strickland, 466 U.S.  at 689, we  are unable to  come to  any            __________            conclusion other than that Matthews has not done so here.  To            be  sure, there were  points to  be scored  against Barbosa's            credibility  after   she  insisted  that  she   had  in  fact            immediately  told  police that  she had  been raped.   D'Arcy            could have confronted her with the incident report containing            no mention  of a rape, or  he could have asked  her about her            testimony  at the probable cause hearing.  He also could have            questioned Ingersoll about when he first learned that Barbosa            claimed to have been raped.  But, as D'Arcy made clear to the            trial judge at  a sidebar conference  following the close  of                                         -25-                                          25            the prosecution's case,  Matthews's primary defense  remained                                                _______            that Barbosa had picked out the wrong assailant, and not that                                            _____            she had not  been attacked at all.  While  Barbosa's delay in            reporting that  she was raped might have  affected the jury's                                          _____            assessment of her overall credibility  as a witness, we think            this would be much more likely if  the primary issue had been            consent.    Here, the  primary issue,  and  the heart  of the            defense's theory, was not whether a crime occurred but rather                                      _______            who committed it.   Moreover, the record makes apparent  that            Barbosa was quite obviously upset on the witness stand as she            retold   her  experience;   this  circumstance,   along  with            Barbosa's  youth  (rendering her  failure  to  report a  rape            immediately   all  the   more  explicable),   diminishes  the            likelihood  that the  jury would  doubt that  such an  attack            occurred  simply  because Barbosa  delayed  in  reporting it.            D'Arcy  had  to  balance  the limited  evidentiary  value  of            Barbosa's delay against the  danger of the jury misperceiving            an impeachment attempt  as badgering or  callously tarnishing            Barbosa.    Another  lawyer  might have  struck  a  different            balance,  but  we  do  not  find  that  D'Arcy's  on-the-spot            decision  to  let  Barbosa's   answer  stand  and  argue  the            inference  he had  raised to  the jury  was "beyond  the wide            range of reasonable professional assistance."3                                            ____________________            3.  Our dissenting  brother conveniently overlooks  that part            of Barbosa's  identification testimony in  which she  claimed            that  Matthews made  a second  trip to  her home, only  to be                                         -26-                                          26                      The  other  alleged  inconsistencies  in  Barbosa's            statements that Matthews claims D'Arcy should have raised are            trivial, and  thus D'Arcy's decision not  to question Barbosa            about  them was a sound  tactical choice.   That the incident            report, prepared  immediately after  the attack, contains  no            mention  of dreadlocks,  is inconsequential  in light  of the            fact  that   Barbosa  told   Ingersoll  before   viewing  any            photographs that her  attacker had dreadlocks.   Furthermore,                                            ____________________            dissuaded  from entering  by her  frightened response  to his            appearance  at  her  door.     Given  the  strength   of  her            identification of him as her assailant, it was essential that            counsel try  to deflate  this aspect of  Barbosa's testimony.            Moreover,  it  is  a  misstatement  to  say  that  there  was            "irrefutable evidence" that Barbosa failed to report the rape            for an  eighty-one  day period.    While the  initial  police            record does not indicate that a rape was part of the physical            attack,  and Ingersoll's  grand jury  testimony was  that his                                                                      ___            first knowledge of that part of  the attack came as a  result            of the probable cause hearing, there is nothing in the record            stating   unequivocally  that  Barbosa  had  not  told  other            authorities of the  alleged rape prior to the  probable cause            hearing.                      Finally, we respond to our brother's assertion that            we give  "too  much credence  to  certain ageist  and  sexist            assumptions -- that it would be improper to question  closely            (and  risk arousing  the emotions  of) a young  female sexual            assault  victim  . .  .  ."   First,  our  assessment of  the            reasonableness of D'Arcy's strategy would be no different had            the  victim been  a fourteen-year-old  boy.   Second, lawyers            must  devise their  strategies in  light  of how  real jurors                                                              ____            might react -- not necessarily politically correct ones.  The            dissent   suggests   that   a   lawyer   who   considers  the            unfashionable assumptions and reactions of jurors in crafting            a  strategy deserves  less deference than  does a  lawyer who            ignores them or decides  that the jury will rise  above them.            We  disagree.  We do not dispute that D'Arcy could reasonably                                                         _____            have chosen a strategy involving more aggressive and complete            impeachment;  not doing so, in this case, was also within the                          ___            "wide range" of reasonable professional choices recognized by            the Strickland Court.                __________                                         -27-                                          27            to point  out this  "inconsistency" would have  only weakened            D'Arcy's argument that it was the dreadlocks that had in fact            caused  Barbosa  to  pick   Matthews's  picture  out  of  the            photograph books.   As  for the "inconsistency"  between when            Barbosa  initially  told  police  she was  awakened  and  her            testimony  in  court,  we  note that  the  incident  report's            statement  that "while  [Barbosa]  was  sleeping the  suspect            entered  the victim's bedroom and jumped on  top of her" is a            hearsay account  of what  Barbosa said immediately  after the            _______            attack,  and, even if true, would only have deprived her of a            few  seconds of  the  time she  claimed  to have  viewed  her            attacker.  She still was able to view him while he was on top            of her; at various times while he searched the apartment; and            when he returned  to Barbosa's  home on the  weekend.   Thus,            D'Arcy's decision to eschew  questioning on these matters was            a sound trial tactic.                      Finally,  we  address  the  grounds  on  which  the            district court  actually granted the writ:   D'Arcy's failure            to  call John Wornum, or to request  a continuance so that he            could do so.   Here,  we disagree with  the district  court's            conclusion;  we  cannot  see  how  Matthews  was  prejudiced.            Wornum's   testimony   would  have   corroborated  Matthews's            testimony  in general  --  i.e., that  there  actually was  a            Crossing Auto  Body Shop,  and that Matthews  actually worked            there, and  perhaps even  that he  generally opened the  shop                                         -28-                                          28            early in  the morning --  which would have taken  some of the            wind out of  the sails of the prosecutor's  closing argument,            in  which  he  cast  doubt  on  the  entirety  of  Matthews's            testimony.  Wornum's affidavit  makes clear, however, that he            could not provide an alibi for Matthews on the particular day                  ___            of the crime.  Matthews argues that Wornum's testimony is all            the more credible  because he does not pretend  to be able to            say for  sure  where Matthews  was  on a  particular  morning            several years  ago.   That may  be true, but  it is  far less                                       ___            probative of  Matthews's innocence.   Moreover, a  jury might            have drawn a negative inference from the things that Wornum's            affidavit  does not  indicate he  is willing  to testify  to:                            ___            namely,  the identity  of the purchaser  of the  car Matthews            says he was  rebuilding around the time of the  crime, or any            other  information  regarding the  car's  purchase  and sale.            Thus, while  Wornum's testimony might have  been, on balance,            of  marginal  utility to  Matthews,  his  affidavit does  not            create  in  us  any   belief  that  there  is  a   reasonable            probability that the outcome would have been different had he            testified.4                                            ____________________            4.  We  have also  considered Matthews's  claims that  he was            deprived  of  effective  assistance of  counsel  by  D'Arcy's            "incoherent"  closing argument,  his lack of  preparation and            his overall  performance throughout the course  of the trial.            Even  if Matthews  is  correct that  D'Arcy's performance  in            these areas was deficient, Matthews has not demonstrated, and            the  record  does not  lead  us to  believe,  that the  was a            reasonable probability  of a different outcome  if D'Arcy had            performed differently.                                         -29-                                          29                                         IV.                                         IV.                                         ___                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the   foregoing  reasons,  we   conclude  that            Matthews  was not  deprived of his  Sixth Amendment  right to            effective  assistance of  counsel,  and the  decision of  the            district court is                      Reversed.                      Reversed.                      _________                                          Dissent follows.                                          _______________                                         -30-                                          30                      BOWNES, Senior Circuit Judge, dissenting.   I agree                      BOWNES, Senior Circuit Judge                              ____________________            with  the majority that D'Arcy's failure to call John Wornum,            when  examined  in  isolation,  did  not  violate  the  Sixth            Amendment.     I  strongly   disagree,   however,  that   the            complained-of acts  and decisions  of D'Arcy, when  viewed in            the aggregate,  "f[ell] within  the wide range  of reasonable            professional   assistance"   and  constituted   "sound  trial            strategy."  See Strickland v.  Washington, 466 U.S. 668,  689                        ___ __________     __________            (1984).  Furthermore, I  am convinced that, but for  D'Arcy's            unsound performance, "there is a reasonable probability  that            the result of the proceeding would have been different."  Id.                                                                      ___            at  694.  I therefore dissent  from the majority opinion.  In            explaining my  dissent, I shall limit myself  to three points            not made  in the extremely thorough  and well-reasoned report            and recommendation of  Magistrate Judge Bowler, the  relevant            portion of which I attach as an appendix to my  dissent.  See                                                                      ___            Matthews v.  Rakiey, Civil  Action No. 90-12111-WF  (D. Mass.            ________     ______            filed  March 17,  1993).   Magistrate Judge  Bowler's opinion            combines an accurate exposition  of the facts with  a correct            statement of the applicable legal principles.                                          I.                                          I.                                          __                      The   majority  opinion  makes  clear  that  D'Arcy            declined to submit irrefutable evidence, readily available to            him,  that Barbosa waited eighty-one days  to report the rape            and that Barbosa  testified untruthfully as to when she first                                         -31-                                          31            informed the police and  her sister-in-law that she  had been            raped.     In  considering   whether  D'Arcy's  inaction  was            substandard  under  Strickland's  first prong,  the  majority                                __________            employs a  false assumption.   The majority  excuses D'Arcy's            tactics  in   part  by  pointing   out  that  he   pursued  a            misidentification defense (the  "dreadlocks defense") and did            not really challenge  Barbosa's rape allegation.  See ante at                                                              ___ ____            25  ("Matthew's  primary defense  remained  that  Barbosa had            picked out the wrong assailant, and not that she had not been                           _____            attacked at all.  While Barbosa's delay in reporting that she            was  raped might have  affected the jury's  assessment of her                       _____            overall credibility as a witness, we think this would be much            more likely if the primary issue had been consent.  Here, the            primary issue, and the heart of the defense's theory, was not            whether  a crime occurred but rather who committed it.").  It            _______            then   concludes    that,    in   the    context    of    the            misidentification/dreadlocks  defense,  D'Arcy's  failure  to            expose the glaring inconsistencies in Barbosa's testimony and            prior statements was not "beyond the wide range of reasonable            professional assistance."  Id. at 25-26.                                       ___                      Obviously, this  line of reasoning  tacitly assumes            the soundness  of D'Arcy's  decision not to  question whether            Barbosa had  in fact been  raped.  Such an  assumption is not            warranted in this case for the following reasons.  First, the            two  defenses would not have  been inconsistent.  There would                                         -32-                                          32            have  been  nothing  inherently  suspect about  arguing  that            Barbosa had identified  the wrong  man and that  she had  not                                                   ___            been,  or  may  not have  been,  raped.    Second, there  was            significant evidence tending  to undermine Barbosa's  account            of the sexual assault.  Had  the jury been fully apprised  of            the  irregularities surrounding  the  reporting  of the  rape            charge,  it may well have concluded that it could not convict            Matthews  of rape beyond  a reasonable doubt.   Third, D'Arcy            did  argue  to  the jury,  albeit  as  an  afterthought, that            ___            Barbosa   may  not  have  been  raped.    See  id.  at  15-16                                                      ___  ___            (excerpting  portions of  closing argument where  D'Arcy asks            the jury to consider whether a  rape took place).  In view of            this  last  fact  alone,  I  am  puzzled  by  the  majority's            conclusion  that D'Arcy's  refusal to  buttress his  argument            with significant supporting evidence constituted "sound trial            tactics."   D'Arcy ultimately thought  the "rape may not have            happened"  theory worth arguing;  how then could  it not have            been worth supporting with evidence that was available?                      I do not think that the existence of one reasonable            defense strategy, without more,  establishes constitutionally            effective representation.                                         II.                                         II.                                         ___                      I  also  disagree  with  the  majority's conclusion            that, within the  confines of the misidentification/dreadlock            defense,   D'Arcy's   failure  to   impeach   Barbosa  passed                                         -33-                                          33            constitutional  muster.     The  case  hinged  on   Barbosa's            credibility as  a witness,  and I  simply do not  see how  it            could  have been "sound" for D'Arcy to fail to demonstrate to            the jury  that Barbosa had testified  untruthfully on several            very important matters (including when she first informed the            police  and her sister-in-law that  she had been  raped).  He            certainly  could   have  done  so  sensitively   and  without            suggesting improper  motive on  Barbosa's part.   The omitted            impeachment evidence  could  have been  easily introduced  as            further  confirmation  of  that  which  D'Arcy  had   already            suggested to  the jury:  the  trauma of awakening to  find an            intruder  in  the  room  quite  reasonably  rendered  suspect            Barbosa's powers of perception and recall.                      This  leads to a second point.  The majority, in my            opinion, gives too much credence to certain ageist and sexist            assumptions -- that  it would be improper to question closely            (and  risk arousing the  emotions of)  a young  female sexual            assault  victim, and  that  the jury  cannot  rise above  its            sympathy for young female  sexual assault victims and  do its            assigned job  -- that  heavily informed  D'Arcy's performance            and  decision-making.     Along  these  lines,   I  note  the            majority's  conclusion  that  Barbosa's  age  "render[s]  her            failure  to   report  the  rape  immediately   all  the  more            explicable."   Id.  at  25.   The  explicability vel  non  of                           ___                               ___  ___            Barbosa's  failure to report the  rape immediately -- as well                                         -34-                                          34            as  Barbosa's failure  to testify  truthfully about  when she            first reported  the rape  -- had vital  bearing on  Barbosa's            credibility.    It  should  have  been  left  to  the  jury's            consideration after argument  by counsel.   In my opinion,  a            reviewing court has no business explaining this failure away,            without   citation    to   supporting   authority,    as   an            understandable by-product of youth.                      While  counsel must tread  carefully in questioning            the alleged  victim in  cases such  as  this, counsel  cannot            abdicate  the  constitutional responsibilities  of  a defense            attorney.  The record amply demonstrates that D'Arcy was more            concerned  with  the  young  victim's  emotional  state  than            providing his client  with a vigorous  defense, and that  his            hands-off  approach to  the case  led to  a constitutionally-            defective performance.  The sentiments that prompted D'Arcy's            ineffectiveness may be understandable.  They cannot, however,            be tolerated in our criminal justice system.                                         III.                                         III.                                         ____                      The  majority opinion  does  not  discuss  D'Arcy's            failure to  object to the prosecutor's  closing argument, and            Magistrate Judge  Bowler evaluates this failure  only insofar            as the argument  mischaracterized the evidence.   I think  it            important to note that the closing contained both an improper            appeal  to  the jury  to act  other  than as  a dispassionate            arbiter of the  facts and an improper and inflammatory appeal                                         -35-                                          35            to  the  jury's  emotions.    Neither  type  of  argument  is            permissible.   See, e.g.,  United States v.  Manning, 23 F.3d                           ___  ____   _____________     _______            570, 573 (1st Cir. 1994) (prosecutor  may not ask jury to act            other than as a dispassionate arbiter of the facts); Arrieta-                                                                 ________            Agressot  v. United States, 3  F.3d 525, 527  (1st Cir. 1993)            ________     _____________            (prosecutor may  not inflame  the prejudices and  passions of            the jury).                      Here,  the prosecutor  told the  jury:   "Keep that            picture  of [Barbosa] in your mind.  Those were not crocodile            tears  that came out of  her eyes.   Those were genuine tears            based  on honesty and certainty.  Brenda Barbosa came to this            court to seek justice, and you  can give her justice.  She is            the victim."  See ante at 17.  Perhaps because the concept of                          ___ ____            "tears of certainty"  is new to me, I regard  the first three            sentences   of   the  quotation   as  an   ill-concealed  and            inflammatory entreaty for  jury sympathy.   And the last  two            sentences  of  the  quotation  are  at  worst an  appeal  for            vengeance  and at best a  request that the  jury do something            other than dispassionately judge the facts for itself.                      In  a case  as close  as  this one,  these improper            arguments  could  have  made  a real  difference.    D'Arcy's            failure to object to them was  another error in the long line            of trial mistakes that show his incompetency beyond cavil.                                   Appendix Follows                                   Appendix Follows                                         -36-                                          36
