                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-11-2002

Marshall v. Hendricks
Precedential or Non-Precedential: Precedential

Docket No. 00-9004




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Volume 1 of 3

PRECEDENTIAL

       Filed September 11, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-9004

ROBERT O. MARSHALL,
       Appellant

v.

ROY L. HENDRICKS*,
Administrator, New Jersey State Prison;
JOHN J. FARMER*, Attorney General,
State of New Jersey

*Caption amended per Court’s Order of 8/8/00

On 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 March 21, 2002

Before: BECKER, Chief Judge, ROTH and
RENDELL, Circuit Judges

(Filed: September 11, 2002)




       Stephen W. Kirsch, Esq. [ARGUED]
       Office of Public Defender
       P.O. Box 850
       Richard J. Hughes Justice Complex
       25 Market Street
       Trenton, NJ 08625
        Counsel for Appellant

       Robert E. Bonpietro, Esq. [ARGUED]
       Office of Attorney General of
        New Jersey
       Department of Law & Public Safety
       Division of Criminal Justice
       Richard J. Hughes Justice Complex
       P.O. Box 086
       Trenton, NJ 08625
        Counsel for Appellees

OPINION OF THE COURT

RENDELL, Circuit Judge.
Robert O. Marshall unsuccessfully appealed his sentence
of death in the New Jersey courts. He then sought habeas
corpus relief in the United States District Court for the
District of New Jersey, and having been denied relief there,
he has appealed to our court. For the reasons set forth
below, we will affirm the District Court’s orders as to all
claims regarding the guilt phase of Marshall’s trial, but we
will remand for further evidentiary development as to his
claim that his attorney was ineffective in the penalty phase.

I. Facts

Robert O. Marshall, a successful insurance salesman and
active member of the community in Toms River, New
Jersey, was convicted and sentenced to death in 1986 for
having hired someone to murder his wife, Maria, in order
that he might gain approximately $1.5 million in insurance
proceeds. During the months prior to his wife’s death,
Marshall had been involved in an affair with Sarann
Kraushaar, who, with her husband, belonged to the same

                                2


country club as the Marshalls. Their affair had advanced to
the point that they had made plans to leave their respective
spouses, establishing a safe deposit box for joint assets and
preparing to lease a cottage together.

Marshall frequented the casinos in Atlantic City and
found himself burdened by debt. Within a year of Maria’s
death, Marshall purchased increasing amounts of
insurance on Maria’s life. On September 6, 1984, Maria
and her husband both were examined by a physician to
qualify for an additional insurance policy. That night, while
driving home from dinner and gambling in Atlantic City,
Marshall allegedly experienced trouble with a tire while on
the Garden State Parkway. He pulled into a darkened rest
stop area, and, after he had exited the car to examine the
tire, Marshall was hit on the head and Maria was fatally
shot. We will reprise the facts at some length as they
provide a necessary background for understanding much of
our analysis.

As police investigated, they uncovered numerous
telephone calls from Marshall to Louisiana, primarily to a
hardware store in Caddo’s Parish. An employee at the
hardware store, Robert Cumber, had attended a party in
Toms River where he met Marshall. As Marshall told the
story, during the course of the evening, he and Cumber
discussed insurance and financial instruments, and, at
some point, Marshall mentioned that he was seeking an
out-of-town investigator to track missing casino winnings
that he had given to his wife. He expressed his reluctance
to hire a local investigator, since Toms River was a small
community where news traveled quickly. After Cumber’s
return to Louisiana, Marshall mailed information on
financial products to him. Cumber also put Marshall in
contact with Billy Wayne McKinnon -- although McKinnon
did not use his real name in his dealings with Marshall,
using the name James (or Jimmy) Davis instead -- who
agreed to conduct Marshall’s investigation. Initially,
Marshall’s only contact with McKinnon was through
telephoning Cumber -- both at home and at the hardware
store. Even after Marshall and McKinnon met in person,
Cumber remained Marshall’s primary contact in Louisiana.
Marshall wired money to McKinnon -- again as Jimmy

                                3


Davis -- on two occasions; McKinnon had a person whose
name really was Jimmy Davis sign for the money each time.
McKinnon traveled to Atlantic City to meet with Marshall
three separate times. The numerous telephone
conversations were, according to Marshall, following up on
the financial information sent to Cumber. According to
McKinnon, they were attempts to find out why it was taking
so long for McKinnon to murder Maria Marshall.

On September 21, 1984, investigators met with Marshall
in his home, and asked him whether he knew either James
Davis or Billy Wayne McKinnon from Shrevesport,
Louisiana. Marshall’s sister, Oakleigh DeCarlo and
Marshall’s son, Robert were present during this meeting,
which Marshall cut short by refusing to answer questions
on the advice of his attorney. On September 25, 1984,
Marshall admitted to Sarann Kraushaar that he had lied to
her about his Louisiana contacts -- he had previously told
her they were related to payments he had made on bets on
an NBA playoff game. Kraushaar then decided to end the
affair. Shortly thereafter, on September 27, 1984, Marshall
checked into a Best Western hotel, into the room that he
and Kraushaar had frequented. He telephoned each of his
sons, and he also prepared separate tapes for each son, his
secretary, and his brother-in-law, Joseph Dougherty, who
happened to be an attorney.1 He took the tapes addressed
_________________________________________________________________

1. Marshall played the tapes to his sons and his secretary during his
testimony; they contained no incriminating statements. The State played
the tape to his brother-in-law to the jury as part of its case, and, when
Marshall testified, he was cross-examined about the statements on the
tape.

In a rambling narrative, the Dougherty tape discussed Marshall’s
relationship with Kraushaar, including his 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. Marshall also explained that Maria had hired an investigator
who had disclosed his affair to others. At one point in the tape, Marshall
stated, "The . . . thought that comes to mind is that if . . . anybody, who
knew about it . . . the attorney who he told who is a friend of mine, or
any of the people who the attorney told . . . if they had said something
to me, this entire thing would not have happened . .. because we

                                4
to his secretary and his brother-in-law to the front desk,
where he placed them in a container for outgoing mail. He
then added a large quantity of prescription sleeping pills to
_________________________________________________________________

wouldn’t have been in Atlantic City that night . . .. Worse than that, if
Maria had confronted me when she either wanted to or. . . sooner,
again, none of this would have happened." PCR Appeal, State Appendix,
Vol. 4 at PA573. Marshall stated that he was convinced that he would be
indicted, found guilty, and sentenced to death. Id. at PA574. Marshall
asked his brother-in-law to communicate his love for Maria and tell the
authorities that Sarann "was not involved in any way." Id. He also
instructed Dougherty as to how he wished certain items distributed.
Marshall discussed his desire that the two older boys continue at their
colleges, and be given spending money, and he expressed a hope that
the youngest would be able to finish out the year at the same high
school, and that he not live with Marshall’s in-laws, unless the in-laws
moved to Toms River. He also expressed a desire that his oldest son have
a new Mustang convertible to replace the current one, and that a used
Porsche be purchased for the youngest son when he turned 17. He
discussed his desire that he be buried with Maria, preferably at Saint
Joseph’s. He asked Dougherty to convey his love to several people. If
possible, he wanted the boys to retain the house.

Marshall also said that his sons were not aware of the "latest
developments." Id. at PA585. He then discussed details of hiring
McKinnon through Cumber as an investigator. He stated that he met
Cumber at his neighbor’s party in May. He admitted paying him $6300,
including $800 the night of Maria’s murder. He also admitted to calling
Cumber several times attempting to contact McKinnon. Marshall had
learned that Cumber and McKinnon had been indicted, and was
convinced that the third sealed indictment was for him. He characterized
the evidence against him as circumstantial, and asked Dougherty to
communicate to his older sons as much as he felt comfortable telling.
Marshall said, "I just feel that . . . that, plus the . . . life insurance, the
debt and Siran [sic], that, uh . . . it just .. . looks so bleak." Id. at
PA587. He closed with "I hate doing what I ha-- . . .what I’m going to do
. . . because of the boys. I know . . . how it’s gonna hurt them. So please
help them . . . . I know I don’t have to ask, I know you will . . . . And
help them, Joe . . . they’re good boys . . . . They don’t deserve this . . .
just like Maria didn’t deserve what happened, either. . . . But Joe, I
want to be with her . . . and I pray that God will allow me to be . . .
‘cause I can’t go on like this. I love you all, .. . especially Robbie, Chris,
and John . . . . Please pray for me . . . and thanks, Joe. . . . Thanks for
everything . . . . I love you. . . ." Id. (Ellipses in original transcript of
tape; actual tape not submitted on appeal).

                                5


a soda, explaining later that he had intended to drink the
soda and commit suicide that night, but had fallen asleep
prior to consuming the drink.

Hotel personnel alerted the police that Marshall had
checked into the hotel. When Marshall did not respond to
a telephone call to his room, they forced entry and
transported him to a hospital. His counsel, Glenn Zeitz,
arranged for him to be transferred to a Philadelphia
psychiatric hospital for observation. Police also seized the
tapes, but did not play them until after they had secured a
search warrant.

The prosecutor entered into a plea bargain favorable to
McKinnon, offering him an extremely light sentence and
assistance with entry into the witness protection program
in return for testimony against Marshall and for naming
and implicating the person who actually shot Maria
Marshall. McKinnon named Larry Thompson as the
shooter. Larry Thompson was a person whom Marshall had
never met, who lived in Louisiana near McKinnon.

Marshall and Thompson were tried together. Opening
statements were made on January 27, 1986. McKinnon
testified at length, as did Kraushaar. Prior to and between
McKinnon and Kraushaar, and at the close of the State’s
case, the prosecutor interspersed the testimony of persons
who independently corroborated pieces of McKinnon’s
testimony with the testimony of the officers who responded
the night of the murder and those who investigated the
crime, including forensics experts. The State also elicited
testimony from Maria Marshall’s attorney and an
investigator she had hired prior to her death, so the jury
knew that Maria Marshall had been aware of Marshall’s
affair prior to her death. Other witnesses testified as to the
existence, timing, and amounts of the insurance policies
taken out against Maria’s life. The contents of the"suicide"
tape to Marshall’s brother-in-law were also played for the
jury.

McKinnon testified that on his first visit to New Jersey,
he had made reservations at the Islander Motel in Atlantic
City because Harrah’s was booked. Since the taxi driver
could not find the Islander, he had dropped him off at

                                6


Harrah’s, where McKinnon was able to get a room.
McKinnon further testified that Marshall had asked
McKinnon to kill Maria that night in the parking lot of a
local restaurant, the Ram’s Head Inn, but that, though he
did visit the parking lot that night, it was crowded, and he
simply returned to the hotel. A taxi driver then
independently testified that he had picked McKinnon up at
the airport on the date in question, could not find the
Islander, dropped him off at Harrah’s, and then, an hour
later, took him to the Ram’s Head Inn, where they drove
around the building and then returned to Harrah’s. Direct
Testimony of Tae Yeon, February 10, 1986, St. Ex. 18T at
22-25. Shortly before noon on February 20, 1986, the State
rested.

Marshall’s case began with the testimony of the letter
carrier who collected the mail from the Best Western hotel,
seeking to establish that the tapes -- which the trial court
had refused to suppress -- had been taken from a closed
depository rather than an open container as the officers
who seized the tapes had contended. Other Best Western
employees were also called to testify as to the mail
container. One, Zillah Hahn, also testified that she notified
the authorities when Marshall checked in.

Marshall called an insurance salesman from Cranford,
New Jersey, who testified briefly that Marshall was viewed
as an "upstanding professional, insurance agent,
businessman and family man," and that the community
considered him to be "a law abiding citizen, that he has
integrity, that he has truthfulness." Direct Testimony of
Gerald Hughes, February 20, 1986, St. Ex. 26T at 144-46.
On cross-examination, Hughes admitted that he was not a
member of the Toms River community; rather his
acquaintance with Marshall was through the insurance
business and social occasions. Id. at 146-47. Other
insurance and financial services salesmen testified about
the company whose policies Marshall sold primarily, his
success at selling, and described in general the insurance
sales industry and its practices. Tamburin, the man who
taught Marshall a system of "comps" that he practiced at
the casinos, was, through confusion as to when he had
been placed on the witness list, allowed to testify only as to

                                7


his personal opinion that Marshall’s reputation for being a
law-abiding citizen and truthful and honest was"good."
Direct Testimony of Henry Tamburin, February 20, 1986,
St. Ex. 26T at 250-51.

One of Marshall’s sisters, Oakleigh DeCarlo, testified, but
only as to the events of September 21st, when the police
questioned Marshall at his home about the names they had
traced in Louisiana. Marshall then took the stand. He gave
a brief autobiographical sketch, recounted his version of
the affair with Kraushaar and his relationship with
McKinnon, and gave his account of the events leading up to
Maria’s death. Then, a couple who were acquaintances of
Marshall testified that he had a good reputation for being a
law-abiding citizen and truthful and honest man.
Marshall’s youngest son, John, testified briefly, recalling
that his father called him from the Best Western sounding
"depressed and kind of upset." Direct Testimony of John
Marshall, February 26, 1986, St. Ex. 29T at 186. His
middle son, Chris, testified that his father had called him
that afternoon, and sounded "nervous." On cross-
examination, Chris testified that his father had sounded as
though he were saying good-bye. Cross-Examination of
Chris Marshall, February 26, 1986, St. Ex. 29T at 190.
Marshall’s brother-in-law, Joseph Dougherty, an attorney,
testified that he had drafted powers of attorney, which
Marshall signed, appointing Dougherty guardian over John
and authorizing him to handle Marshall’s affairs. They were
executed shortly after Maria’s death, but before the episode
at the Best Western hotel. Dougherty characterized his role
in trial preparation as co-counsel in a limited capacity. The
tapes to Marshall’s sons and secretary were played as part
of Marshall’s testimony.

Dr. Elliot Atkins, a licensed clinical pyschologist, testified
that he drove with Glenn Zeitz, Marshall’s counsel, to see
Marshall the night of the Best Western episode, and that,
upon his recommendation, Marshall was transferred to the
Institute of Pennsylvania Hospital, a psychiatric hospital,
where Marshall remained as an in-patient for approximately
two weeks. Because Dr. Atkins was not qualified as an
expert witness, he was not allowed to testify as to any
opinion regarding Marshall’s condition at the time.

                                8


Marshall’s oldest son, Robert, testified that he, his
mother, and his father had had lunch at the country club
the day of his mother’s murder. This information
contradicted McKinnon’s testimony; McKinnon had testified
that he and Marshall were on the Garden State Parkway
looking for an appropriate site to stage the murder at the
time in question. Robert also discussed the events on
September 21, when the police questioned Marshall at their
house; he had let them in and sat with his father during
the questioning. He testified that his father had"warned
them before hand [sic] . . . that he was instructed not to
answer them, and it didn’t seem to matter to the two men,
they just asked them anyway. They seemed to bounce off
him." Direct Testimony of Robert Marshall, February 27,
1986, St. Ex. 31T at 163-64. When his father called him
from the Best Western, "it wasn’t the same dad that I’d
been used to talking to. He sounded shaky, like he’s been
through a lot, that type of thing." Id. at 164. Robert also
testified that the family wanted to bury his mother in
Florida, and had planned to travel there in December, but
his father’s arrest had caused them to postpone the
arrangements.

Marshall’s counsel had retained an investigator, Russell
Kolins, who testified as to his investigation in Louisiana
and his interviews with Billy Wayne McKinnon. Some of the
investigators originally called by the State were recalled.

McKinnon had testified that he and Thompson had
driven to New Jersey, and that he had met with Marshall
late in the morning of September 6. Thompson’s son, Brian,
testified that his father took him to the dentist on
September 6, which both Thompson and his wife
confirmed. One of the dentist’s employees produced a
receipt made out to Larry Thompson that day, although she
could not positively identify him as the person who had
accompanied Brian. A friend of Thompson’s, Garland
Giddings, testified that he called and talked with Thompson
at home on the evening of September 6. The phone call was
confirmed both by Thompson’s wife, Wanda, and Giddings’
wife. Both Brian and Wanda testified that Thompson was
with them throughout the weekend in question.
Thompson’s brother testified that he had seen Thompson

                                9


and his wife on the morning of September 8. Mike Gentry
testified that he had come to Atlantic City with McKinnon
in July, had signed the hotel register himself, and during
that trip never saw nor met either Rob or Maria Marshall.
He also testified that the trip had taken about 28 hours
each way.

Closing arguments were held on March 3, 1986. On
March 4, the jury was instructed, and spent most of the
day in deliberations. It resumed its deliberations on March
5, reaching a verdict shortly before noon.

Larry Thompson was acquitted, and no one was ever
convicted of actually shooting Maria. Marshall, however,
was convicted of murder as an accomplice by promising or
paying money, and of conspiracy to commit the murder of
his wife. After rendering the guilty verdict, the jury was
dismissed for lunch. Then both counsel met with the judge
to discuss the logistics of the penalty phase. As Marshall
was being led from the courtroom, he fainted. According to
the dispatch records, an ambulance was summoned at
11:36 a.m. An emergency room physician examined
Marshall at 12:30 p.m. He conducted an examination and
laboratory tests, and discharged Marshall approximately 50
minutes later. According to the sheriffs who transported
Marshall back to the courthouse, the drive took an
additional 15-20 minutes. After Marshall’s return, he and
counsel conferred. The penalty phase convened at 1:45
p.m. that same day.

After penalty phase statements by counsel and
instructions from the judge, the jury retired to deliberate.
One and a half hours later, it sentenced Marshall to death.
It unanimously found one statutory aggravating
circumstance, that Marshall "procured the commission of
the offense by payment or promise of payment of anything
of pecuniary value." N.J. Stat. Ann. S 2C:11-3c(4)e. The
parties had stipulated as to the existence of one mitigating
factor, Marshall’s lack of a prior criminal history, 2C:11-
3c(5)f, and the jury found unanimously the existence of a
second under the statutory "catchall" provision, 2C:11-
3c(5)h, on the basis of his "business, charitable, and
community activities." State v. Marshall, 586 A.2d 85, 114
(N.J. 1991) ("Marshall I").

                                10


The proceedings have been subject to extensive judicial
review. On direct appeal, the New Jersey Supreme Court
undertook a thorough and careful analysis of Marshall’s
claims. That analysis, and a more detailed recitation of the
facts, are reported in Marshall I, 586 A.2d 85 (N.J. 1991).
Justice Handler dissented from the Court’s opinion, and
Justice O’Hern concurred in part and dissented in part.
Justice O’Hern opined that constitutional trial errors
sufficiently undermined confidence in the sentencing and
that the imposition of the death penalty could not be
supported, even though he felt that the guilty verdict
should stand. See id. at 196-99 (O’Hern, J., concurring in
part and dissenting in part).
Approximately three years after trial, two documents were
discussed in an article in the New York Times that had not
been provided to defense counsel prior to trial. Upon
learning of the documents, Marshall moved the New Jersey
Supreme Court for a hearing to determine whether a Brady
violation had occurred. The New Jersey Supreme Court
ordered a limited remand hearing, discussed in detail in
Marshall I, 586 A.2d at 175-78. It also conducted a
proportionality review, reported at 613 A.2d 1059 (N.J.
1992). Marshall’s petition for certiorari was denied on
February 22, 1993. See 507 U.S. 929 (1993). Marshall’s
conviction became final as of the date of the denial of
certiorari. See Kapral v. United States, 166 F.3d 565, 570
(3d Cir. 1999).

Marshall then petitioned for state post-conviction relief,
which was denied. Marshall had requested a "complete
evidentiary hearing to support the claims raised in the
petition through the presentation of testimonial and
documentary evidence" and had "planned to amend the
petition based on the evidence adduced at the hearing."
State v. Marshall, 690 A.2d 1, 26 (N.J. 1997) ("Marshall II").
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. For the remainder of the
issues, the parties were required to submit documentary

                                11


evidence only. Marshall’s request for reconsideration of the
denial was also denied. Marshall v. Hendricks , 103 F. Supp.
2d 749, 771 (D.N.J. 2000) ("Marshall III"). He appealed the
denial to the New Jersey Supreme Court in his post-
conviction relief appeal. Marshall also appealed the Court’s
denial of each of his "548 grounds for reversal." Marshall II,
690 A.2d at 26. The New Jersey Supreme Court affirmed
the decision of the post-conviction relief ("PCR") court.
Again, Justice Handler dissented, and Justice O’Hern
concurred in part and dissented in part from the New
Jersey Supreme Court’s opinion, reported at Marshall II,
690 A.2d 1 (N.J. 1997).

Marshall then filed for habeas relief in federal court. The
District of New Jersey denied Marshall’s petition for a writ
of habeas corpus in Marshall III, 103 F. Supp. 2d 749
(D.N.J. 2000), and he has appealed that denial to us. In the
District Court, Marshall also moved for discovery, including
depositions, pursuant to Rule 6 of the federal rules that
govern cases arising under 28 U.S.C. S 2254, in order to
develop his Brady and ineffectiveness claims. The District
Court denied the requests. Marshall also sought evidentiary
hearings regarding his claims under Brady and Strickland,
as well as the search, seizure, and admission of the tape to
his brother-in-law, a spectator outburst, and judicial bias.
Id. at 767. Marshall alleged that the New Jersey Supreme
Court erroneously addressed the merits of his claims,
despite the "lack" of a record, and that, as a consequence,
the New Jersey Supreme Court’s opinion "contains little by
way of finding of fact, and much by way of conjecture and
unwarranted assumption." Id. at 771. The District Court
found that Marshall did not " ‘fail’ to develop the evidence
supporting his claims in state court," but determined that
"none of the Townsend factors requiring an evidentiary
hearing" were applicable, and "all of petitioner’s claims were
fully and fairly developed during the state court
proceedings;" accordingly, the District Court found that
Marshall was not entitled to an evidentiary hearing. Id. at
771-72. Marshall is also appealing those denials.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 28 U.S.C.
S 2241 and 28 U.S.C. S 2254. Our appellate jurisdiction

                                12


arises under 28 U.S.C. S 1291 and 28 U.S.C.S 2253. The
Certificate of Appealability ("COA") was granted on March
28, 2001 as to all issues raised by Marshall. Where, as
here, a district court dismisses a habeas petition based
solely on a review of the state court record without holding
its own evidentiary hearing, our standard of review of the
district court’s determination is plenary. Duncan v. Morton,
256 F.3d 189, 196 (3d Cir. 2001). Thus, we will review the
state courts’ decisions applying the same standard as the
District Court. Because Marshall’s petition for a writ of
habeas corpus was filed on October 30, 1997, the
provisions of the Antiterrorism and Effective Death Penalty
Act ("AEDPA") apply, and our standard of review of the
state courts is dictated by those provisions, codified at 28
U.S.C. S 2254. In pertinent part, those provisions are:

       (d) An application for a writ of habeas corpus on
       behalf of a person in custody pursuant to the judgment
       of a State court shall not be granted with respect to
       any claim that was adjudicated on the merits in State
       court proceedings unless the adjudication of the claim
       --

       (1) resulted in a decision that was contrary to, or
       involved an unreasonable application of, clearly
       established Federal law, as determined by the
       Supreme Court of the United States; or

       (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of
       the evidence presented in the State court proceeding.

The Supreme Court elucidated in [Terry] Williams v.
Taylor how AEDPA has modified habeas review. 529 U.S.
362 (2000). We are to review the state court’s
determinations on the merits only to ascertain whether the
court reached a decision that was "contrary to" or an
"unreasonable application" of clearly established Supreme
Court law, or whether it made an "unreasonable
determination" of the facts. In order for a decision to be
contrary to Supreme Court precedent, the court must have
reached a "conclusion opposite to that reached by th[e]
[Supreme] Court on a question of law or if the state court
decides a case differently than th[e] [Supreme] Court has on

                                13


a set of materially indistinguishable facts." Id. at 413. An
application is unreasonable "if the state court identifies the
correct governing legal principle from th[e][Supreme]
Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case."2 Id. While the United
States Supreme Court’s focus in [Terry] Williams was
elucidating the provisions of S 2254(d)(1), a federal court
can also grant habeas relief if a state court unreasonably
determined the facts in light of the evidence presented to it.
See 28 U.S.C. S 2254(d)(2).

III. Discussion

Before us, Marshall alleges that there were eleven
categories of error that so impugned the trial as to meet the
stringent standard imposed by AEDPA and that would
compel a reversal of the District Court’s orders, and instead
require the issuance of the writ as well as the grant of
discovery and an evidentiary hearing.

       I. Penalty Phase Ineffectiveness of Counsel

       II. Denial of the Evidentiary Hearing

       III. Brady Violations

       IV. Guilt Phase Ineffectiveness of Counsel

       V. Violation of the Right to Counsel

       VI. Prosecutorial Misconduct

       VII. The Aggravating Factor was the Same as an
       Element of the Conviction

       VIII. Search and Seizure Violations
_________________________________________________________________

2. The Court also noted that the Court of Appeals whose decision it was
reviewing had determined that there was a second way in which an
application could be unreasonable: if it either unreasonably extended --
or refused to extend -- a legal principle to a new context in which it
should apply. Id. at 408. The Court specifically refused to endorse that
interpretation, however, noting both that though it may be correct, it was
not precise, and that "[t]oday’s case does not require us to decide how
such ‘extension of legal principle’ cases should be treated under
S 2254(d)(1)." Id. at 408-09.

                                14
       IX. Denial of Discovery

       X. Willful Nondisclosure of Brady Material

       XI. Cumulative Error

Although we will address each of Marshall’s claims,
several of the claims overlap in their issues of fact and law,
and will be addressed together.3 A roadmap is appropriate.

       A. We will address all of Marshall’s claims based on
       the State’s alleged failures to disclose (III, IX, and
       X) together.

       B. We will combine Marshall’s claims regarding his
       right to counsel and prosecutorial misconduct (V
       and VI) together, as they are related.

       C. We will discuss Marshall’s claims of Fourth
       Amendment and related statutory violations
       together.

       D. We will address separately the question raised by
       Marshall as to whether the aggravating factor upon
       which the jury relied in sentencing Marshall to
       death impermissibly duplicates elements of the
       crime of which he was convicted.

       E. We will examine Marshall’s complaints as to the
       ineffectiveness of his counsel in the guilt phase.

       F. We will then consider Marshall’s contention that
       the District Court erred in determining that the
       trial errors, taken together, were insufficient to
       constitute constitutional error.

       G. Lastly, we will address Marshall’s allegations that
       his counsel was ineffective at the penalty phase.
_________________________________________________________________

3. Although Marshall raised generalized claims for discovery and an
evidentiary hearing, the grant or denial of an evidentiary hearing or
discovery is constitutional only to the extent it implicates specific
constitutional claims; thus, we will address the denial of the evidentiary
hearing and discovery only within the context of the specific claims
sought to be developed.

                                 15


A. Government Failures to Disclose

Approximately one year prior to trial, Marshall’s counsel
requested that the prosecutor provide him with all
exculpatory materials, including records of all agreements
entered into with any witnesses.4 Of all the State’s
witnesses at trial, two were undeniably the most critical to
establishing the State’s case: Billy Wayne McKinnon and
Sarann Kraushaar. After the trial, it came to light that the
State had entered into an immunity agreement with Sarann
Kraushaar -- an agreement that first surfaced and came to
Marshall’s attention three years after trial by a report in a
newspaper article. Marshall I, 586 A.2d at 175. In addition,
although the prosecutor had disclosed the written plea
agreement entered into with Billy Wayne McKinnon, he had
not disclosed numerous additional favors that had been
provided to McKinnon and his family, which had also come
to light years after the trial. In the opinion issued on appeal
from the denial of post-conviction relief, the New Jersey
Supreme Court noted that these issues were "addressed
and resolved" in the opinion issued on direct appeal.
Marshall II, 690 A.2d at 57. Thus, we will limit our
consideration of the Court’s analysis to its reasoning on
direct appeal.

The principles enunciated in Brady v. Maryland , 373 U.S.
83 (1963), protect a defendant’s right to due process of law
under the Fifth Amendment by requiring that a prosecutor
disclose material exculpatory evidence to the defense.
Where the prosecutor fails to do so, regardless of whether
the omission was intentional or a product of bad faith, the
defendant is entitled to a new trial -- or, if pertinent, a new
penalty phase -- provided that the withheld materials were
material to guilt or innocence or to punishment. These core
teachings of Brady have been consistent throughout the
United States Supreme Court’s ensuing decisions; the
Court has in its later decisions clarified that the
"prosecutor’s" obligation to disclose extends to "any
favorable evidence known to the others acting on the
government’s behalf in the case, including the police,"5 and
_________________________________________________________________

4. The precise text is reproduced at Marshall I, 586 A.2d at 175.
5. Although Kyles v. Whitley, 514 U.S. 419, 438-39 (1995) (reasoning
from Giglio v. United States, 405 U.S. 150, 154 (1972)), was not decided
until after Marshall’s conviction became final, we think it clear that here
the prosecutor was responsible for disclosing the immunity agreement --
which his office negotiated -- and the authorization of payments on
behalf of McKinnon’s family.

                                16


that "exculpatory" materials include impeachment evidence.6
The standard for materiality is the same as that iterated in
Strickland v. Washington, 466 U.S. 668, 694 (1984). As the
United States Supreme Court summarized:

       [The] touchstone of materiality is a "reasonable
       probability" of a different result, and the adjective is
       important. The question is not whether the defendant
       would more likely than not have received a different
       verdict with the evidence, but whether in its absence
       he received a fair trial, understood as a trial resulting
       in a verdict worthy of confidence. A "reasonable
       probability" of a different result is accordingly shown
       when the government’s evidentiary suppression
       "undermines confidence in the outcome of the trial."
Kyles, 514 U.S. at 434 (quoting United States v. Bagley, 473
U.S. 667, 678 (1985)).

At trial, as noted before, Marshall did not dispute that he
hired McKinnon, nor that he wired money to him. What
was hotly disputed was the purpose of the contact and
payments: Marshall claimed he hired McKinnon to
investigate lost casino winnings, and McKinnon testified
that Marshall hired him to kill Maria. McKinnon’s elaborate
narrative provided a detailed account of the progression of
the plot from the time of the initial solicitation and meeting
to the unfolding of events on the day and night of the murder.7
In contrast, Sarann Kraushaar did not testify at all about
McKinnon’s relationship with Marshall or the details of the
murder. Instead, she narrated convincingly the story of her
relationship with Marshall, testifying that Marshall had told
her that he wanted to get rid of his wife and had also
confessed that he was burdened by extensive debt but that
the insurance on his wife would cover the debt. Thus,
_________________________________________________________________

6. Giglio, 405 U.S. at 154.

7. McKinnon’s narrative also detailed how Thompson allegedly agreed to
and executed the murder, but Thompson was acquitted. Marshall’s
account differed from McKinnon’s, not only as to the purpose of
McKinnon’s retention, but also as to the amount of money paid (and
promised), whether Marshall and McKinnon met together on the day of
the murder, or only that evening, and in numerous other details.

                                17


Kraushaar provided a tangible "why" to accompany
McKinnon’s "what" and "how."

Because Marshall is claiming that the New Jersey
Supreme Court unreasonably applied Brady and its
progeny in holding the withheld information immaterial, we
must test the undisclosed materials "when viewed
collectively" to see if the resultant verdict was"unworthy of
confidence." United States v. Pelullo, 105 F.3d 117, 123 (3d
Cir. 1997) (citing Kyles, 514 U.S. at 437). 8 Thus, we will
examine in more detail what was withheld as to each
witness, and ask then whether the New Jersey Supreme
Court erred in deciding that the combined nondisclosure
was immaterial.

1. Kraushaar

When Kraushaar’s immunity agreement came to light
through a newspaper article, the New Jersey Supreme
Court issued an order remanding the matter to decide
"whether correspondence in respect of a grant of immunity
for Sarann Kraushaar was disclosed to the defense; if it was
not, was the non-disclosure willful and was the information
improperly withheld from the defense." Marshall I, 586 A.2d
at 175. In a footnote, the Court explained that the
limitation of the scope was at the request of the defense,
and agreed to by the State. Id. at 175 n.3. The Court
acknowledged that the scope of the remand was not
consistent with Brady in that, under Brady, the
prosecution’s motives are immaterial to ascertaining
whether a violation occurred. Id. The Court concluded
nonetheless that its analysis was consonant with the
dictates of Brady in that it "reach[ed] and determine[d] the
ultimate issue under Brady -- whether the withheld
evidence is material either to guilt or to punishment." Id.9
_________________________________________________________________

8. Although Kyles was decided in 1995, after Marshall’s conviction
became final, the New Jersey Supreme Court stated in denying the
appeal from post-conviction relief that the evidence should be viewed
collectively, and cited to Kyles in support of that proposition. Marshall II,
690 A.2d at 33.

9. When the New Jersey Supreme Court considered Marshall’s direct
appeal, it applied the United States v. Agurs , 427 U.S. 97, 107 (1976),

                                18


Because we find that the New Jersey Supreme Court
reasonably concluded that the immunity agreement was
non-material, we will not disturb the Court’s conclusion.

When the remand hearing began, the parties stipulated
that the documents in question had not been disclosed
prior to or during trial. Id. at 175. During the hearing, the
State conceded that at least some of the documents should
not have been withheld. Id. During the remand hearing, the
Court limited discovery to "documents closely related to the
scope of th[e] Court’s remand order." Id. at 179. Before us,
Marshall claims both that he should have been entitled to
broader discovery and an evidentiary hearing and that the
New Jersey Supreme Court improperly assessed the
materiality of the information under Brady and its progeny.
We are persuaded that the Court did not err in limiting
discovery because Marshall himself was responsible for the
limited scope of the remand. We also find no reason to
disturb the discretion of the District Court in its
determination that no further evidentiary development was
necessary.10 Further, we conclude that the non-disclosure
of the grant of immunity to Kraushaar was not material.

Kraushaar was first interviewed on September 7, 1984,
_________________________________________________________________

standard of materiality because Marshall had specifically requested the
materials at issue. On the appeal from the denial of post-conviction
relief, it instead applied the Bagley standard of materiality, basing its
decision on its reading of subsequent case law and noting that since
Agurs requires less of a showing of materiality, a finding of non-
materiality under Agurs will lead to a finding of non-materiality under
the less sympathetic standard. Marshall II, 690 A.2d at 33-34. We see no
reason to fault the New Jersey Supreme Court in this regard.

10. As the New Jersey Supreme Court noted, the New Jersey Court Rules
include a rule governing the ability of a criminal defendant to discover
materials in a prosecutor’s files. This Rule provides for "broad access"
and "operates independently of the prosecution’s absolute obligation to
reveal exculpatory material, documentary or otherwise, to the defense."
Marshall I, 586 A.2d at 182. We are concerned here only with the
narrower question of whether the New Jersey Supreme Court erred in
determining that Brady did not mandate that the New Jersey Supreme
Court upset the discretionary decision of the trial court to limit discovery
to the scope of the remand order. See id. at 183-84.

                                19


the day after Maria Marshall was killed. Marshall I, 586
A.2d at 101. She was stopped while driving and escorted to
the prosecutor’s office. Id. Her attorney was present at the
interview. Id. In that interview, she told prosecutors that
she and Marshall had had an affair since June 1983, that
Maria had suspected that they were having an affair, and
that Kraushaar and Marshall had made plans to leave their
spouses. Id. They shared a post office box, and he had
given her silver ingots that she kept in a safe deposit box.
Id. Additionally, she stated that Marshall had told her that
the insurance on Maria would cover his debts, and that he
had at one point said of Maria that he "wished she wasn’t
around." Id. He had asked Kraushaar if she knew of
"anyone who could take care of it," and she had replied
with the name of a person who had been in trouble with
the law, but that she "never wanted to be involved with him
if he could do anything like that to his wife." Id.

Marshall and Kraushaar continued to see each other
until September 25, when she ended the relationship. Two
days later, Kraushaar again met with investigators, on her
initiative, and, at her counsel’s insistence, the prosecutor’s
office drew up a letter agreeing "neither to charge nor to
prosecute Kraushaar in connection with the death of Maria
Marshall, in return for her ‘truthful cooperation.’ " Id. at
109. Marshall alleges that in this second interview, both the
content and the tone of Kraushaar’s statements were
"progressively more damaging." App. Br. at 72. He lists
specifically three differences between the testimony at the
first interview and the second, after the grant of immunity:
"Kraushaar told the authorities that the debt had doubled
to $200,000 and that she assumed it was a gambling debt."
Id. at 73. Instead of reporting Marshall’s having said he
wished Maria wasn’t around, she described his statement
as "I swear if I thought there was a way of getting rid of her
I would," and added that she did not doubt Marshall was
referring to murdering his wife. Id. As to the first comment,
we note parenthetically that on the same evening
Kraushaar provided her statement, Marshall checked into
the Best Western and made preparations to commit suicide.
On one of the tapes he recorded, he acknowledged that his
debt had "accelerated to almost two hundred thousand
dollars." Marshall I, 586 A.2d at 103. We question whether

                                20


her reporting of the same amount of debt as Marshall
himself reported on the same date was attributable at all to
the existence of the immunity agreement or was mere
repetition of what Marshall may have said to her.

At trial, Kraushaar recounted these events in arguably
stronger terms, accentuating Marshall’s "dire financial
straits" and "constant" discussion of the debt, and
replacing the idea of "getting rid" of Maria Marshall with
"doing away with her." App. Br. at 73. Kraushaar also
repeated that Marshall had indicated that the insurance on
Maria would take care of his debts. Id. at 73-74. Marshall
also raises several other areas as to which Kraushaar
testified at trial, but had not included as part of her initial
statement. Id. at 74-76.

Marshall contends that he was prejudiced at both the
guilt and sentencing phases by the fact that the jury could
not weigh Kraushaar’s testimony against the immunity
agreement. Id. at 77. He finds fault with the New Jersey
Supreme Court’s determination that the agreement was not
material -- a conclusion with which the District Court
agreed (see Marshall III, 103 F. Supp. 2d at 775) -- arguing
that it underestimated Kraushaar’s importance to the
prosecution,11 and overgeneralized in its conclusion that
her testimony at the two interviews and trial was
consistent. App. Br. at 77, 79-80. We disagree with his
characterizations of the New Jersey Supreme Court’s
reasoning.

The New Jersey Supreme Court did state that "none of
[Kraushaar’s] testimony directly implicated defendant in a
homicide conspiracy" and that "[i]t is evident that the most
damaging evidence against defendant came from
McKinnon’s testimony and defendant’s tape to his brother-
in-law, in which he admitted paying money to McKinnon
the night of the murder." Marshall I, 586 A.2d at 194. We
think those statements were not a sign of denigration of
_________________________________________________________________

11. Even were we to agree with Marshall’s characterization, the New
Jersey Supreme Court would not have been at fault if it determined that
her testimony "was by no means as important to the prosecution as was
the more direct incriminating testimony of other witnesses." United
States v. Pflaumer, 774 F.2d 1224, 1230 (3d Cir. 1985).

                                21


Kraushaar’s significance to the case, but were, instead,
recognition that she was not an informant or co-conspirator
actually implicated in the crime, who received immunity.

Under these facts, we cannot attribute the point that
Marshall stresses -- that the tenor of the remarks and their
detail was heightened as the time toward trial progressed --
to the existence of the immunity agreement. Where, as
here, a former lover has had to confront publicly her
previously private relationship, and has broken off the
relationship in the face of mounting doubts as to her lover’s
veracity, we see nothing remarkable in the tone and details
post-separation differing from those offered while the
relationship was still extant. Further, the differences in
tone and detail were available to the defense to use for
impeachment purposes at trial. The existence of an
immunity agreement would not alter the challenge counsel
could raise as to the apparent or actual inconsistencies.

Further, the purpose of an immunity agreement is to put
a person in the same position she would have been had she
invoked her Fifth Amendment privilege against self-
incrimination instead of testifying. Kastigar v. United
States, 406 U.S. 441, 459 (1972) ("[A]n analysis of prior
decisions and the purpose of the Fifth Amendment privilege
indicates that use and derivative-use immunity is
coextensive with the privilege."). Thus, the impeachment
value of the immunity agreement is inextricably tied to the
self-incriminating evidence that was provided after the
immunity agreement was executed. Put another way, its
value lies principally in absolving the recipient of her
admitted involvement. Here, the New Jersey Supreme Court
noted that following the execution of the immunity
agreement, Kraushaar provided no "significant,
incriminating evidence that she had not already given
before the prosecutor’s agreement not to prosecute."
Marshall I, 586 A.2d at 194. Instead, as the Court also
found, her testimony prior to and following the immunity
agreement was consistent. Id. Hence, we conclude that the
nondisclosure of Kraushaar’s immunity agreement was
immaterial.

As the State points out, there is no evidence in the record
that on September 7, 1984, just hours after Maria

                                22


Marshall’s death, when Kraushaar was stopped in her car
and taken in for questioning, she was contemplating an
immunity agreement and tailored her first statement-- or
her retention of counsel -- accordingly. Appee. Br. at 58-
59. No additional self-incriminating details emerged in the
second statement. Indeed, as acknowledged by Marshall,
McKinnon had the "essential knowledge of the details of the
alleged deal" but Kraushaar "gave the State’s case . . .
credibility." App. Br. at 66. That credibility would be
undermined only if the existence of the immunity
agreement "if disclosed and used effectively,[ ] may make
the difference between conviction and acquittal." United
States v. Bagley, 473 U.S. 667, 676 (1985).

Here, where we can posit no self-incriminating evidence
that could have been accorded additional credibility by the
jury in light of the undisclosed immunity agreement, the
concerns that normally animate the Bagley analysis are
absent. Thus, it was reasonable for the New Jersey
Supreme Court to conclude that the non-disclosure was not
material.12 Further, it did not contradict or otherwise
undermine any of her testimony. In fact, it is difficult to
articulate or imagine exactly how a jury could use its
existence as a reasonable basis to undermine the detailed
version of events to which Kraushaar testified.
2. McKinnon

McKinnon received a very favorable plea agreement in
return for his testimony, an agreement which the defense
attacked vigorously at trial. After the trial, two additional --
but related -- pieces of information came to light. First,
during the remand hearing to investigate the failure to
produce the Kraushaar immunity agreement, documents
were produced that indicated that McKinnon’s family had
been relocated and was being given monetary support by
the government prior to trial. Second, in a television
appearance, one of the investigators made a comment
_________________________________________________________________

12. At least one court would not even reach the question of materiality
under these facts; the Ninth Circuit Court of Appeals has stated that
where the undisclosed item in question does not have impeachment or
exculpatory value, "it is not Brady material." United States v. Marashi,
913 F.2d 724, 733 (9th Cir. 1990).

                                23


about the witness protection program that suggested
McKinnon’s participation was the result of his cooperation
with federal authorities in other criminal investigations.

On December 15, 1984, McKinnon entered into a plea
agreement with the State after reviewing the evidence that
the State had compiled implicating him in the murder.
During cross-examination, Marshall’s counsel meticulously
reviewed the extent to which the prosecutors had shown
McKinnon evidence of the crime gathered prior to his
formal statement, and, in some cases, prior to the plea
agreement. See generally Cross-Examination of Billy Wayne
McKinnon, February 4, 1986, St. Ex. 14T at 6-18, 20-25,
34-56, 211-13.

During McKinnon’s direct testimony, the text of the plea
agreement was read into the record.

        Whereas Billy Wayne McKinnon is presently indicted
       by the Ocean County Grand Jury along with Robert
       Cumber and James Davis in indictment number I-62-
       01084 and is charged in count one of said indictment
       with conspiracy to murder Maria Marshall, the co-
       conspirators being Robert Cumber, James Davis and
       others both known and unknown; and whereas Billy
       Wayne McKinnon is charged in count three of said
       indictment as a principal in the murder of Maria
       Marshall, but not as the actual perpetrator of the
       murder, that is not to shoot her [sic]; and whereas the
       State of New Jersey would like to obtain the truthful
       cooperation of Billy Wayne McKinnon in identifying all
       others involved in the murder of Maria Marshall and
       the truthful testimony of Billy Wayne McKinnon in the
       prosecution of all of said individuals and whereas Billy
       Wayne McKinnon has indicated through his attorney,
       Maurice Loridans, that he is willing to truthfully
       cooperate with the State of New Jersey in exchange for
       certain concessions and assistance by the State of New
       Jersey. [sic] Now, therefore, it is hereby agreed by and
       between and among Billy Wayne McKinnon, Maurice
       Loridans and the State of New Jersey as follows:

        (1) Billy Wayne McKinnon will give a complete and
       truthful statement to the State of New Jersey

                                24


       identifying everyone involved in the conspiracy to
       murder and the murder of Maria Marshall and the role
       which they played thereon;

        (2) Billy Wayne McKinnon will sign a waiver of
       immunity and testify truthfully before the Ocean
       County Grand Jury with regard to all of the facts of
       which he has knowledge concerning the crime;

        (3) if the Grand Jury returns an indictment, Billy
       Wayne McKinnon will appear as a witness and testify
       truthfully in the prosecution of said indictment;

        (4) Billy Wayne McKinnon will be permitted to plead
       guilty to the crime of conspiracy to murder Maria
       Marshall. And it is understood and agreed by and
       between the parties that this crime does not fall within
       the purview of the so-called Graves Act;

        (5) the State of New Jersey will recommend that if the
       Court decides to impose a custodial sentence on Billy
       Wayne McKinnon, that said sentence not exceed five
       years and that there be no period of parole ineligibility;

        (6) the Ocean County Prosecutor’s office will
       recommend to the State Department of Corrections
       that any custodial sentence be served in the Clinton
       Institution for security purposes;

        (7) the Ocean County Prosecutor’s office will
       recommend in writing to the New Jersey State Parole
       Board that Billy Wayne McKinnon be granted parole at
       the earliest eligible date;

        (8) the State of New Jersey will immediately re-locate
       the family of Billy Wayne McKinnon for their protection
       to a safe location; and the Ocean County Prosecutor’s
       office and the New Jersey State Police will recommend
       and support their entry into the witness protection
       program.

        Witnesses whereof the parties to this agreement have
       affixed their signatures hereon this 15th day of
       December, 1984.

Direct Testimony of Billy Wayne McKinnon, February 3,
1986, St. Ex. 13T at 100-03.
                                25


The agreement was signed by McKinnon, his attorneys,
and the Ocean County Prosecutor. Id. at 103. During his
cross-examination, Marshall’s counsel asked McKinnon
about the witness protection program. Id. at 203-05.
McKinnon admitted to having general knowledge about the
program, but denied having specific knowledge of it, or
whether or how his participation would take place. Id.
Thompson’s counsel questioned McKinnon extensively
about the plea agreement, eliciting from McKinnon that he
had a "very substantial motive to lie." Cross-Examination of
Billy Wayne McKinnon, February 4, 2002, St. Ex. 14T at
135-36, 180. He also brought out that McKinnon
understood the potential sentence for the crimes for which
he was indicted -- murder and conspiracy to commit
murder -- and how minimal his sentence was. Id . at 138-
40. In the course of the cross-examination, McKinnon
admitted that if he had stated that he was the shooter, he
would not have gotten the "wonderful deal" that he did, and
that he had to say that he did not shoot Maria Marshall in
order to reap the benefits of the acknowledged plea
agreement. Id. at 144. McKinnon also acknowledged that in
his testimony he had admitted to lying about "some things,"
including his identity and the purpose of the money he
received from Marshall. Id. at 145, 184-86, 192-95.
McKinnon further conceded that under the terms of the
plea agreement he would be allowed, following the trial, to
plead to the second degree crime, and would not be charged
with the murder, and that by securing the statement that
the crime committed did not fall within the purview of the
Graves Act, McKinnon avoided the three year mandatory
imprisonment that was supposed to result when a gun was
used in the commission of certain crimes, including
murder. Id. at 164-66. He also admitted that the judge
might not send him to jail at all, but that in any event the
maximum sentence would be five years, with no period of
parole ineligibility. Id. at 169-70.

Thompson’s counsel also brought out the fact that the
Clinton Institution is primarily a women’s prison, and that
McKinnon would be assigned there to protect him from
abuse by other inmates. Id. at 171-72. He also elicited
McKinnon’s acknowledgement that, although not stated in
the plea agreement, McKinnon was told that he would get

                                26


credit for the time already served in jail, and, since that
time was more than the standard period of parole
ineligibility, McKinnon would be immediately eligible for
parole, and the prosecutor’s office would encourage the
parole board to parole him immediately. Id. at 175-77.
McKinnon also admitted that his family had been relocated
pursuant to the terms of the agreement. Id. at 178. He
denied having seen a recommendation supporting his entry
into the witness protection program, but was questioned
about some aspects of the program:
        Q. Now, as part of relocating your family under the
       Witness Protection Act has their moving expenses been
       paid by the federal government?

        A. No, sir.

        Q. Have any moneys been paid to support your
       family by the federal government under the Witness
       Protection Act?

        A. No, sir.

        Q. Has any money been paid to you, even one
       dollar, in way of services, rent, electric, heat,
       telephone, or anything else, under the Witness
       Protection Act?

        A. No.

        Q. Do you know--strike that. Were you told by your
       attorneys that such benefits were available to persons
       under the Witness Protection Act?

        A. No.

        Q. Did you have an understanding on your own,
       regardless of what your attorneys told you, that you
       might be eligible for certain payments in money or in
       kind --

        A. I didn’t know --

        Q. -- by reason of your admission to the Witness
       Protection Act?

        A. I didn’t know exactly what that entailed.

                                27


        Q. Didn’t you inquire, since you were getting that
       as one of your concessions or assistance from the
       State?

        A. I haven’t been able to meet with the marshall
       and he has not contacted me in reference to that.

Id. at 179-80.

Counsel did not inquire as to whether the State had
borne expenses on McKinnon’s behalf aside from the aegis
of the federal witness protection program. During the
remand hearing, the State produced a correspondence file
that contained two letters from the Office of the County
Prosecutor of Ocean County New Jersey to the Criminal
Investigation Division of the New Jersey State Police. The
first was dated February 4, 1985, a year to the day prior to
McKinnon’s testimony on cross-examination. It detailed
expenses of the investigation, and included the following
paragraphs:

        In addition, we have been required to incur
       substantial expenses in transporting the family of Billy
       Wayne McKinnen [sic] to the State of New Jersey and
       providing security for them until such time as
       McKinnen [sic] is accepted in the federal witness
       protection program. Expenses incurred for
       transportation of the family to New Jersey, obtaining
       temporary housing, doctors bills, food, heat and
       utilities thus far are in the amount of $6921.10.

        We are requesting that the New Jersey State Police
       and/or the Garden State Parkway Authority reimburse
       this office for one-half of these expenses or $3,460.55.

        In addition to the already incurred expenses, we
       must anticipate further expenses prior to trial of this
       matter. These expenses consist of maintenance and
       housing for the family of the defendant/witness, Billy
       Wayne McKinnen [sic]. The expenses appear to be as
       follows: monthly rent $500; heat $75; telephone $50;
       food, clothing and miscellaneous $750; or a total of
       $1300 per month expenses. We are requesting a
       commitment from the New Jersey State Police and /or
       the Garden State Parkway Authority that they will pay

                                28


       50% of these anticipated costs for the next several
       months.

PCR Appeal, Defendant-Appellant Appendix, Vol. 20,
Exhibit 36 at 2594a. The second letter was dated May 1,
1985, and stated in relevant part:

        The family of Billy Wayne McKinnon (a key state’s
       witness) has been relocated to New Jersey to assure
       their safety, in view of the violent propensities of other
       associates of McKinnon and co-defendant, Larry
       Thompson.

        We have thus far expended $9,456.45 to maintain
       this family while awaiting trial of the matter and will be
       faced with continuing costs approximately $1,000 per
       month until trial of the matter, which is scheduled for
       September 1985.

Id. at 2596a.

       a. The Expense Letters

Marshall claimed that the expense letters were evidence
of additional favors received by McKinnon, and, as such,
were Brady material that could have been used to impeach
McKinnon’s credibility. The New Jersey Supreme Court
considered the merits of the claim, despite noting that the
letters were outside the scope of the remand hearing.
Marshall I, 586 A.2d at 195. The Court rejected Marshall’s
argument that the non-disclosure was material, in part
because of the extent of the cross-examination on the terms
of the plea agreement, and in part because the Court
deemed the evidence "merely cumulative." Id. at 195-96.
The District Court agreed. See Marshall III, 103 F. Supp. 2d
at 762.

Under the AEDPA standard, we ask only whether the
New Jersey Supreme Court reasonably applied Brady and
its progeny in concluding that the non-disclosure was
immaterial as a matter of law. We conclude that it did.
There is no question that McKinnon was a critical witness
to the prosecution, and that the information as to the
benefits received by his family was favorable to the defense
and could have been used in cross-examination. But there

                                29


is also no dispute that counsel’s cross-examination did
disclose some special favors from the government, and did
cause McKinnon to admit to lying on several occasions. In
his testimony McKinnon portrayed himself as a man who
was stringing Marshall along, intending to get from him as
much money as possible to murder Maria Marshall, and
then simply to walk away with the money. He testified that
he had never intended to allow Maria Marshall to be killed,
but that Thompson had confronted him, claiming that there
was a contract on McKinnon’s life because of an
"unfinished job." According to McKinnon’s testimony, he
thought Marshall had taken out the contract; it was on the
basis of that conversation that McKinnon "agreed" to let
Thompson murder Maria Marshall for him.

McKinnon provided many details of the trips to Atlantic
City that were independently corroborated by investigators,
and that he could not have known had he not met with
Marshall. Marshall complains that the information links
Marshall to McKinnon, but not Marshall to the crime. We
disagree. While Marshall admitted that he had hired
McKinnon, he had offered only that he was trying to trace
the missing winnings that he had given to Maria. Between
McKinnon’s testimony and the corroborating evidence, the
State was able to demonstrate that McKinnon had received
much more than the value of the purportedly missing
funds. Further, McKinnon’s testimony and the
corroborating evidence established that McKinnon was in
Atlantic City the day of Maria’s death, and that he received
money from Marshall on that day. Both of those pieces of
information were critical -- albeit circumstantial--
elements in challenging Marshall’s benign explanation for
his association with McKinnon, and they provided a basis
for inferring that Marshall’s motive for hiring McKinnon,
paying him large sums of money, and meeting with him
and paying him on the day of Maria’s death was, as
McKinnon testified, to arrange for Maria’s murder.

Marshall also claims that, since the evidence was not
merely repetitive of what was before the jury, the New
Jersey Supreme Court erred in concluding that it was
cumulative. He cites to Perdomo, where we stated:

                                30


        The district court did not apply the correct standard
       for measuring materiality at the sentencing hearing.
       The court reasoned that the undisclosed information
       was not material because the jury had ample
       opportunity to evaluate [the witness’s] credibility due to
       other damaging testimony that had been elicited
       concerning the government payments to [the witness]
       and his prior drug usage. Whether or not the jury has
       had an opportunity to consider other impeachment
       evidence is not the correct standard for determining
       materiality of undisclosed information.

United States v. Perdomo, 929 F.2d 967, 972 (3d Cir. 1991).
In Perdomo, the impeachment evidence of former
convictions and a psychiatric examination was so
compelling that we concluded, "Seldom have appellate
judges seen such persuasive evidence that the availability
of information on a prior conviction could have made a
difference." Id. Here the evidence tends to indicate a
motivation for McKinnon to provide testimony, and to
provide testimony that the State finds satisfactory. But
those precise motivations were brought out graphically at
trial; it was clear after cross-examination that McKinnon’s
change of plea would not occur until after he had testified
and that at his change of plea the State would withdraw the
murder charge. Further, the jury was made aware that,
pursuant to his plea agreement, McKinnon’s sentence
would be no more than five years for this terrible murder;
in practical terms this meant that he either would serve no
more jail time, or would serve what little post-plea time he
did in a women’s institution, a place that counsel implied
offered McKinnon very favorable residential conditions.
From the face of the plea agreement and the cross-
examination, it was also clear that the prosecutor would
assist McKinnon’s entry into the federal witness protection
program. It could not help but be evident to the jury that
McKinnon’s testifying to the satisfaction of the State was
critical in determining McKinnon’s future. Indeed, the jury
apparently found McKinnon’s testimony about Thompson
incredible, since it acquitted him. Unlike in Perdomo, the
ongoing support to McKinnon’s family would not provide an
alternative or stronger incentive for his testimony. Marshall
also cites to two cases that he argues demonstrate that the

                                31


evidence could not have been cumulative because it was
not repetitive. We find those cases to be inapposite,
because they were discussing the admissibility of evidence,
not its materiality. See Elwood v. Pina, 815 F.2d 173, 178
(1st Cir. 1987); United States v. Ives, 609 F.2d 930, 933
(9th Cir. 1979).

       b. The Witness Protection Program
Marshall further complains that it was unreasonable for
the New Jersey Supreme Court, on appeal from the denial
of post-conviction relief, to conclude that the prosecutor’s
failure to disclose information about McKinnon’s possible
cooperation with federal law enforcement agents was
immaterial. App. Br. at 90. We note first that the New
Jersey Supreme Court was skeptical about whether such
information existed, and particularly whether it existed
within the control of the prosecutorial team, reasoning only
that if the information existed, it would have been
immaterial. Marshall II, 690 A.2d at 38. The District Court
characterized Marshall’s request to develop the limited
information he has about the connection further as a
"fishing expedition." Marshall III, 103 F. Supp. 2d at 762.

In order to agree with Marshall, we would need to hold
the State accountable for knowledge possibly possessed by
the F.B.I. or other federal agents. There is no indication in
the record that the federal agents who might have
possessed such information were working together with
state agents investigating Maria Marshall’s death. Thus,
such a holding would require a further expansion of Brady,
possibly beyond what we would consider "clearly
established law" even now, and certainly beyond"clearly
established law" as of the time Marshall’s conviction
became final.13 Thus, we decline to hold that there was
_________________________________________________________________

13. The controlling case in this area, Kyles , was not decided until 1995.
In earlier cases, such as United States v. Antone, 603 F.2d 566 (5th Cir.
1979), federal and state authorities had pooled their efforts, such that
the Fifth Circuit Court of Appeals deemed it appropriate to consider both
part of a single prosecutorial team. Id . at 569-70. See also United States
v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991) (following Antone). In
contrast, where there was no pooling, even within a single jurisdictional

                                32


clearly established law requiring Brady disclosures in this
situation; consequently, we do not reach the question
whether the New Jersey Supreme Court’s determinations
were reasonable.

3. Combined Impact

While the New Jersey Supreme Court evaluated the
Brady claims individually on direct appeal, on appeal from
the denial of post-conviction relief, the Court recognized
that it was required to "consider the State’s non-disclosures
collectively, not item-by-item." Marshall II , 690 A.2d at 33.
Further, the "best objective test derives from an assessment
of the merits of the individual claims, combined with a
part-subjective, part-objective effort to extrapolate those
individualized assessments into an aggregate one." Id. at 90
(quoted in Appee. Br. at 65). The District Court also
employed a collective approach. Marshall III, 103 F. Supp.
2d at 775. We agree with the New Jersey Supreme Court
that a cumulative analysis begins at an analysis of the
individual claims, and then requires a court to view the
violations in the aggregate. We further agree that under
these facts, our confidence in the verdict is not shaken
when we weigh the impact of the jury’s properly considering
both the existence of the Kraushaar immunity agreement
and the payments to McKinnon’s family. In so concluding,
however, we do not in any way condone the actions of the
prosecutor in failing to provide the information in a timely
manner.

B. Prosecutorial Misconduct

Unlike cases in which a defendant alleges prosecutorial
misconduct with regard to an opening or closing statement,
or the questioning of one witness, on direct appeal Marshall
_________________________________________________________________

umbrella courts at least as recently as 1997 have noted that the "extent
to which knowledge may be imputed from one federal investigative
agency to another for Brady purposes is as yet unclear." United States
v. Zagari, 111 F.3d 307, 320 n.13 (2d Cir. 1997). While some courts do
impute the responsibility to disclose state documents to federal
prosecutors and vice versa, they do so in reliance on Kyles. E.g., United
States v. Wilson, 237 F.3d 827, 832 (7th Cir. 2001); In re Sealed Case
No. 99-3096 (Brady Obligations), 185 F.3d 887, 896 (D.C. Cir. 1999).

                                33


alleged "116 instances of prosecutorial misconduct in the
course of his trial," Marshall I, 586 A.2d at 164, instances
that Justice Handler, in his dissent, characterized as
"clearly deliberate" and "incurable." Id. at 212 (Handler, J.,
dissenting). These incidents span the course of both the
guilt and sentencing phases of Marshall’s trial. Marshall
has asked us to weigh both the number of instances of
misconduct and the alleged deliberate nature of the
misconduct, and to grant him a new trial on the basis of
the prosecutor’s actions.

It is beyond peradventure that all of the salient caselaw
argued to us by Marshall existed in February 1993 when
Marshall’s conviction became final. Berger v. United States
was decided in 1935, Griffin v. California in 1965, Donnelly
v. DeChristoforo in 1974, Doyle v. Ohio in 1976, Smith v.
Phillips in 1982, United States v. Young in 1985 and Darden
v. Wainwright in 1986.

In our analysis, we recognize that the United States
Supreme Court has drawn a distinction between
misconduct that, because of its capacity to divert the trier
of fact from the task before it, so undermines the reliability
of a verdict that it constitutes a due process violation (such
as the conduct at issue in Berger v. United States), and
misconduct that implicates a specific right guaranteed by
the constitution (such as that addressed by the Court in
Doyle v. Ohio). Marshall alleges both types. We will
accordingly discuss the alleged prosecutorial misconduct
from three vantage points. First, we shall ask whether the
alleged improprieties, other than those that implicated a
specific constitutional right, gave rise to a due process
violation (1., below). Second, we shall examine the alleged
violations of specific constitutional rights to determine
whether habeas relief is warranted (2., below). Third, we
will determine whether all of the foregoing, taken together,
amount to cumulative error such that Marshall is entitled
to habeas relief (3., below).

We note that, under AEDPA, our review is restricted. We
are assessing not whether we independently would
determine the misconduct to have been inappropriate, but
whether the New Jersey Supreme Court’s review applied the
appropriate United States Supreme Court precedent

                                34


reasonably. In order to make that assessment, we must
look at the conclusions and the analysis of the New Jersey
Supreme Court, and compare them to established United
States Supreme Court jurisprudence.

1. Misconduct Alleged to Violate Due Process but not
Implicating a Specific Constitutional Right

       a. The Improprieties

In assessing Marshall’s charges that the prosecutor’s
actions rendered his trial unfair, we are guided by the
United Supreme Court’s instructions in Smith v. Phillips,
455 U.S. 209 (1982), where the Court reiterated the
perspective initially set forth in Cupp v. Naughten, 414 U.S.
141, 146 (1973):

        Before a federal court may overturn a conviction
       resulting from a state trial . . . it must be established
       not merely that the [State’s action] is undesirable,
       erroneous, or even "universally condemned," but that it
       violated some right which was guaranteed to the
       defendant by the Fourteenth Amendment.

Smith, 455 U.S. at 221. In Smith, the Court employed the
principles set forth in Brady v. Maryland and United States
v. Agurs, both of which involved a prosecutor’s non-
production of evidence, to elucidate the standard by which
prosecutorial misconduct must be measured, stressing that
"the touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the
culpability of the prosecutor." Smith, 455 U.S. at 219. The
test is whether the conduct "so infected the trial with
unfairness as to make the resulting conviction a denial of
due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974). In examining what was done and its impact, we are
to look at the entire proceeding. See id.

On direct appeal, the New Jersey Supreme Court
evaluated the 116 alleged instances of misconduct, but
found only nine to be of arguable merit, of which seven
have been specifically raised before us on appeal. 14 We
_________________________________________________________________
14. Two instances of the prosecutor’s conduct that the New Jersey
Supreme Court found to be improper were not specifically raised and

                                35


agree with the New Jersey Supreme Court’s assessment.
The seven are:

i. Defense counsel questioned Marshall’s sister,
Oakleigh deCarlo, about the investigators’ visit to
Marshall’s home on September 21, 1984. On cross-
examination, the prosecutor repeatedly discussed with her
the fact that Marshall had not answered the investigators
because he had retained counsel. At one point, he went so
far as to say, "Especially when your wife has been killed
and you haven’t -- you didn’t have anything to do with it,
you still run out and hire an attorney?" Marshall I, 586
A.2d at 148. The New Jersey Supreme Court characterized
the prosecutor’s questioning as "the offensive and
impermissible suggestion that the retention of counsel is
incompatible with innocence." Id. The trial court sustained
counsel’s objection to the question, but Marshall contends
that the questioning required curative action by the court.15
This is argued in Marshall’s brief at 123-127, 128, 131.

ii. The prosecutor began his cross-examination of
Marshall by asking him whether he had heard the reference
_________________________________________________________________

argued in Marshall’s brief, and we decline to examine these on appeal.
One of these instances occurred in the prosecutor’s summation, when
the prosecutor referred to September 21, when investigators came to
Marshall’s home to question him about Davis and McKinnon. The
prosecutor’s comments, according to the New Jersey Supreme Court,
violated Marshall’s privilege against self-incrimination, but were
harmless beyond a reasonable doubt. Marshall I , 586 A.2d at 147. The
other occurred when the prosecutor was cross-examining Marshall and
intimated that his father-in-law was senile. The New Jersey Supreme
Court found the "implication . . . unsupported by any evidence in the
record . . . clearly improper," and that "[a] strong curative instruction by
the trial court would have been appropriate." Id. at 166.

We note as well that some of Marshall’s claims are stated only in
general terms, and others are peppered with references to more extensive
discussions in the Petition. See, e.g., App. Br. at 128, 130-31.
Arguments in passing and "casual statements" of issues are insufficient
to preserve them for consideration before us. See Interface Group-Nevada,
Inc. v. Trans World Airlines, Inc. (In re Trans World Airlines, Inc.), 145
F.3d 124, 133 (3d Cir. 1998) (listing cases).

15. This instance is also the subject of a separate attack as violative of
Marshall’s right to counsel.

                                36


in his opening statement to Marshall’s owing over
$300,000. When Marshall replied in the affirmative, the
prosecutor stated that he was "going to put some figures up
here and, if you disagree, I’d appreciate it if you let me
know so we can bring in the people from the banks who
gave me the figures to testify." Id. at 165. The New Jersey
Supreme Court found the remark improper, but harmless.
"The prosecutor’s statement that he would ‘bring in people
from the banks to testify’ was clearly improper. It implied
that the prosecutor’s characterization of defendant’s
finances was accurate, and would be supported by other
unidentified witnesses if contested by defendant." Id. at
165. This is raised in Marshall’s brief at 131-32.

iii. Again in summation, the prosecutor vouched for
McKinnon’s testimony. As the New Jersey Supreme Court
said, "The most critical issue at trial was the credibility of
Billy Wayne McKinnon." Id. at 166. The prosecutor said:

       Ladies and gentlemen of the jury, in order to save
       himself, Billy Wayne McKinnon had to tell the truth.
       That was the deal. Because when he gave that
       statement, we checked it out up and down and
       sideways, and if we caught him in one lie -- and you
       heard the testimony. He waived immunity. Everything
       he said could be held against him. If we caught him in
       one lie, then he would be facing a murder charge.

Id. at 167. In reviewing this statement, the New Jersey
Supreme Court noted: "Although the prosecutor was free to
argue that McKinnon’s testimony was credible, it was
improper for the prosecutor personally to vouch for his
credibility or to suggest that the truthfulness of his
testimony had been ‘checked out up and down and
sideways,’ obviously referring to matters outside the
record." Id. at 167. This is mentioned in Marshall’s brief at
131.

iv. Also during his summation, the prosecutor informed
the jury,

       The bulk of that insurance was taken out in   twelve-
       month period before Maria Marshall’s death.   I don’t
       care if it’s accidental; I don’t care if it   pertains to
       getting killed in a car on a Thursday only.   That

                                37


       insurance was in effect, and he has the audacity to get
       up here and talk about contestability clauses, to give
       you the impression that he’s not going to get any of
       that money. He’s already received six hundred
       thousand dollars, and I can guarantee you, ladies and
       gentlemen, if you acquit this defendant, the checks will
       be in the mail within a week. Make no mistake about
       it.

Id. Counsel objected, and after the prosecutor finished,
moved for a mistrial in part on the basis of the prosecutor’s
representation. The court denied the motion, but did issue
a curative instruction. "[T]he prosecutor’s assertions that
defendant had ‘already received six hundred thousand
dollars’ and that ‘I can guarantee you if you acquit this
defendant, the checks will be in the mail within a week,’
were obviously mischaracterizations of the testimony, and,
as such, highly improper." Id. at 168. This is discussed in
Marshall’s brief at 132.

v. The New   Jersey Supreme Court characterized as
"among the   most inflammatory portions of the prosecutor’s
summation"   the prosecutor’s reference to the testimony of
Marshall’s   sons:

       And he has the audacity to bring in his three boys to
       testify. That’s obscene. And I’m not being critical of
       them, because I would probably do the same thing. To
       put his boys on that witness stand is obscene, and for
       that there’s a place in hell for him. He will use
       anybody, he will say anything and he will do anything,
       including his own family, to get out from under. And
       that’s Robert Oakley Marshall. Make no mistake about
       it.

Id. at 169. The trial court refused to grant a mistrial in
response to these comments, but did give a curative
instruction, which the New Jersey Supreme Court noted
"could have been more forceful, but . . . was adequate to
ameliorate any significant prejudice to defendant." Id. "The
prosecutor’s comments [about Marshall’s having his sons
testify on his behalf] were not merely ‘forceful and graphic,’
they were inflammatory and highly emotional, possessing
the capacity to anger and arouse the jury and thereby

                                  38


divert them from their solemn responsibility to render a
verdict based on the evidence." Id. This is discussed in
Marshall’s Brief at 128-29.

vi-vii. In reviewing both the guilt and penalty phase, the
New Jersey Supreme Court noted that "[w]here . . . the
victim’s character has no bearing on the substantive issue
of guilt or the penalty to be imposed, the prosecution may
not comment on the evidence in a manner that serves only
to highlight the victim’s virtues in order to inflame the
jury." Id. at 170 (quoting State v. Williams, 550 A.2d 1172,
1203 (N.J. 1988). Two of the prosecutor’s statements-- one
in his guilt phase closing, and one in his penalty phase
statement -- crossed that line.

       I didn’t know Maria Marshall, but I know and you
       know that she loved her boys. I know and you know
       that she loved her husband. For eight months that lady
       knew that his afternoons were spent in the arms of
       another woman. She continued to cook for him, she
       continued to clean his clothes, she continued to keep
       the house clean, she continued to make love with him,
       because she loved him. She wanted to start all over.
       She wanted to give him a second chance. She had a
       right to live her life in full, to watch her boys continue
       to grow, to   watch them graduate from school, to get
       married and   have families of their own, but he tossed
       it all away   because of his desperation and his greed.
       And that is   Robert Oakley Marshall.

Id. at 169-70.

       I really cannot think of anything more heinous in our
       society than to, you know, hire somebody to kill
       somebody else, let alone a family member; in this case,
       your wife.

       . . . .

       Maria Marshall had no prior criminal history. Maria
       Marshall was civic-minded, and this defendant did not
       give her the option of thirty years.

Id. at 171.

The New Jersey Supreme Court found the guilt phase
argument within the category of inappropriate argument

                                  39


but "much more circumscribed and far less emotional" than
those it had found improperly diversionary. Id . It thus
concluded that the remarks were harmless. As to the
penalty phase comments, the Court concluded:

       Although the prosecutor was free to depreciate the
       significance of defendant’s mitigating evidence, the
       argument that the victim could claim the same
       qualities relied on by the defendant is diversionary,
       focusing attention away from the mitigating evidence
       and emphasizing the lack of justification for the
       homicide. We find the argument inappropriate, but
       have no doubt that this isolated statement in the
       prosecutor’s brief closing argument did not have the
       capacity to affect the jury’s deliberative process.

Id. This is discussed in Marshall’s brief at 133-34.

In reviewing the claims of prosecutorial misconduct on
appeal for post-conviction relief, the New Jersey Supreme
Court noted that Marshall had characterized two additional
comments in the prosecutor’s opening statement as
misconduct. The Court concluded that, after review, all of
the claims were:

       entirely without merit and do not warrant extended
       discussion. Indeed, many of defendant’s claims are
       mere restatements of claims rejected by this Court on
       defendant’s direct appeal. In respect of most of the
       claims in this category, defendant has failed to
       demonstrate that the prosecutorial conduct in question
       was improper. In the remaining instances, defendant
       has not established that the State’s misconduct was
       "so egregious that it deprived defendant of a fair trial."
Marshall II, 690 A.2d at 73 (internal citations omitted). The
District Court found that -- with regard to each of the
claims of prosecutorial misconduct Marshall raised before it
-- the conclusions of the New Jersey Supreme Court were
neither contrary to nor an unreasonable application of
United States Supreme Court precedent. See Marshall III,
103 F. Supp. 2d at 779-82.

                                40


       b. Did the Misconduct Amount to a Due Process
       Violation?

Marshall urges that the New Jersey Supreme Court
misapplied the United States Supreme Court’s precedent in
Berger v. United States, 295 U.S. 78 (1935), by determining
either that "no error" occurred, or that any error that did
occur was harmless. App. Br. at 134. In Berger , the United
States Supreme Court condemned the prosecutor’s
argument as "undignified and intemperate, containing
improper insinuations and assertions calculated to mislead
the jury." Id. at 85. The Court then enunciated the often-
cited standard by which prosecutors must abide:

        The United States Attorney is the representative not
       of an ordinary party to a controversy, but of a
       sovereignty whose obligation to govern impartially is as
       compelling as its obligation to govern at all; and whose
       interest, therefore, in a criminal prosecution is not that
       it shall win a case, but that justice shall be done. As
       such, he is in a peculiar and very definite sense the
       servant of the law, the twofold aim of which is that
       guilt shall not escape or innocence suffer. He may
       prosecute with earnestness and vigor -- indeed, he
       should do so. But, while he may strike hard blows, he
       is not at liberty to strike foul ones. It is as much his
       duty to refrain from improper methods calculated to
       produce a wrongful conviction as it is to use every
       legitimate means to bring about a just one.

Id. at 88. But improper conduct is not, in itself, sufficient
to constitute constitutional error, even when -- as here --
that conduct is alleged to be both deliberate and pervasive.
Improper conduct only becomes constitutional error when
the impact of the misconduct is to distract the trier of fact
and thus raise doubts as to the fairness of the trial.16

Under these facts, the two dissenting justices on the New
Jersey Supreme Court would have held that the
_________________________________________________________________

16. We note that we only conduct a harmless error inquiry once we
decide that constitutional error did occur. Thus, we first examine
whether the misconduct so infected the trial as to render it unfair. See,
e.g., Darden v. Wainwright, 477 U.S. 168, 182 n.15 (1986).

                                41
prosecutor’s actions were so deliberate and so pervasive,
and that at least some of the actions were either not cured,
inadequately cured, or incurable by subsequent
instructions from the court, that the fairness of the
proceeding was threatened. For Justice Handler, the trial
itself was rendered suspect, while for Justice O’Hern, the
misconduct at the trial threatened the integrity of the
penalty proceeding. Marshall I, 586 A.2d at 212 (Handler,
J., dissenting); id. at 198-99 (O’Hern, J., concurring in part
and dissenting in part).17 Marshall relies heavily on the
reasoning of these two justices in his argument that we,
likewise, should deem the misconduct to have rendered his
trial unfair. App. Br. at 134. We cannot condone the
prosecutor’s conduct here, which amounted to repeated,
deliberate misconduct. But we believe that the majority of
the New Jersey Supreme Court was reasonable in analyzing
the impact that the conduct that amounted to
constitutional error might have had upon the proceedings,
thus looking at the "totality of the trial" in assessing
whether his trial was rendered unfair. Indeed, we would be
concerned if a court placed undue emphasis on the
deliberateness of a prosecutor’s actions, because the focus
on the prosecutor might distract a reviewing court from its
_________________________________________________________________

17. We note in addition that Justice O’Hern did not say that the
misconduct alone constituted constitutional error, but rather that the
misconduct, when weighed with the other errors at trial, was sufficient to
undermine his confidence in the outcome.

       The dry curative instructions given by the trial court hardly sufficed
       to dispel the visual image of a place in hell for defendant that the
       prosecutor planted in the jurors’ minds. Those remarks were neither
       accidental nor the result of the passion of a heated trial. They were
       planned. Contemporary statements by the prosecution to the press
       set forth in the record demonstrate that. I cannot conclude that
       those instances of prosecutorial misconduct, weighed cumulatively
       with the other instances of trial error and with the constitutional
       error of non-disclosure of the promise of immunity made to Sarann
       Kraushaar and the special expenses paid by the State for the
       support of the McKinnon family, could not present at least a "real
       possibility" that there would have been a sentence other than death.

Marshall I, 586 A.2d at 198-99 (O’Hern, J., concurring in part and
dissenting in part).

                                42


rightful focus upon the fairness of the trial itself. The
critical question in assessing constitutional error is to what
extent a defendant’s rights were violated, not the culpability
of the prosecutor. Smith, 455 U.S. at 219. Such an inquiry
requires a focus upon the reliability of the verdict and
whether the trial as a whole was rendered unfair. A
prosecutor’s deliberate acts might have no effect at all upon
the trier of fact, while acts that might be inadvertent could
serve to distract the jury from its proper task and thus
render a defendant’s trial fundamentally unfair.
A similar concern informs our reluctance to be swayed by
the "extensive" nature of the misconduct. In Berger, the
case that Marshall relies on, the United States Supreme
Court addressed the interaction of the evidence of guilt and
the impact on the jury of persistent misconduct:

        In these circumstances prejudice to the cause of the
       accused is so highly probable that we are not justified
       in assuming its non-existence. If the case against
       Berger had been strong, or, as some courts have said,
       the evidence of his guilt "overwhelming," a different
       conclusion might be reached. Moreover, we have not
       here a case where the misconduct of the prosecuting
       attorney was slight or confined to a single instance, but
       one where such misconduct was pronounced and
       persistent, with a probable cumulative effect upon the
       jury which cannot be disregarded as inconsequential.

Berger, 295 U.S. at 89 (internal citations omitted). Here, the
New Jersey Supreme Court’s opinions are replete with
references to the overwhelming evidence of Marshall’s guilt.
In Moore v. Morton, 255 F.3d 95, 119 (3d Cir. 2001), we
read United States Supreme Court precedent as
establishing the principle that the stronger the evidence
against the defendant, the more likely that improper
arguments or conduct have not rendered the trial unfair,
whereas prosecutorial misconduct is more likely to violate
due process when evidence is weaker.

When evaluating Marshall’s claims, the New Jersey
Supreme Court cited not to federal law, but to New Jersey
precedent, State v. Ramseur, 524 A.2d 188, 290 (N.J.
1987), for its standard of constitutional error. Ramseur

                                43


itself cites to earlier New Jersey law, rather than the
applicable United States Supreme Court jurisprudence.
Rather than dwell on the New Jersey Supreme Court’s error
in applying its own precedent, however, we believe AEDPA
review requires a more nuanced approach in this situation.
Because we are examining to see whether the New Jersey
Supreme Court’s analysis "resulted in a decision" that was
either "contrary to, or involved an unreasonable application
of, clearly established Federal law," we believe that any
error that we find in the approach or specific analysis of the
Court must be tempered by our overall assessment as to
whether the result it reached is in fact consistent with
Supreme Court precedent.18 See 28 U.S.C. S 2254(d).

The New Jersey Supreme Court did inquire whether the
misconduct was such that it deprived the defendant of a
fair trial, which is consonant with the dictates of the United
States Supreme Court enunciated above. It also
consistently examined the statements to determine whether
_________________________________________________________________

18. The District Court, applying Darden, concurred with the New Jersey
Supreme Court, concluding that "the few improper comments made by
the prosecutor during his closing argument were not enough to have had
a substantial or injurious affect [sic] on the jury’s decision." Marshall III,
103 F. Supp. 2d at 781; see also id. at 776. It did not address the New
Jersey Supreme Court’s application of state law, but performed an
independent examination using federal law that arrived at the same
conclusion. We note that this situation is distinguishable from our
recent case of Everett v. Beard, 290 F.3d 500, 507-08 (3d Cir. 2002), in
which we held that the state court’s ruling should not be analyzed under
the AEDPA standard of review because it was not"clear from the face of
the state court decision that the merits of the petitioner’s constitutional
claims were examined in light of federal law as established by the
Supreme Court of the United States." Id. (emphasis omitted). In Everett,
the Pennsylvania courts did not address the petitioner’s due process
claim at all, and analyzed his ineffectiveness claim not under a
Strickland analysis, but under standards set by its own precedent,
different from those enunciated in Strickland . Rather than asking
whether counsel’s performance was objectively reasonable, the court
inquired whether the underlying claim was meritorious, then whether
"the course of action chosen by his counsel had no reasonable basis
designed to effectuate the client’s interests," and, finally, whether the
defendant was prejudiced. Id. at 506-07. By contrast, here the New
Jersey Supreme Court examined the merits of Marshall’s claims and
measured them against a standard that was consistent with federal law.

                                44


they challenged the core of Marshall’s defense, and
repeatedly evaluated the comments within the larger
context of the trial as a whole, asking whether prior
testimony, curative instructions, or the collateral nature of
the comments served to mitigate their impropriety,
particularly in the face of what it viewed as overwhelming
evidence produced by the State. This also is in keeping with
the teachings of the Supreme Court -- and our precedent
-- recited above.

The majority of the New Jersey Supreme Court found
that, for the most part, the misconduct either impacted a
collateral issue in the case, Marshall I, 586 A.2d at 166,
169, 171,19 was sufficiently remedied by the court’s curative
instructions, id. at 168, 169,20 was "of limited significance"
because it was adequately challenged by the defense, id. at
167, or was an isolated reference that did not "have the
capacity to affect the jury’s deliberative process," id. at 171.21
We agree that those conclusions are reasonable under
Berger and its progeny.
_________________________________________________________________

19. In one instance, the New Jersey Supreme Court appeared to collapse
the constitutional error and harmless error analysis: "Based on our
review of the prosecutor’s entire guilt-phase summation, we are satisfied
that those references to the victim that were unrelated to any
substantive issues were neither extensive nor inflammatory, and we find
them harmless beyond a reasonable doubt." Marshall I, 586 A.2d at 171.

20. "To the extent that we may discern, therefore, Supreme Court
precedent counsels that the reviewing court must examine the
prosecutor’s offensive actions in context and in light of the entire trial,
assessing the severity of the conduct, the effect of the curative
instructions, and the quantum of evidence against the defendant. There
are ‘some occurrences at trial [that] may be too clearly prejudicial for . . .
a curative instruction to mitigate their effect.’ In making this
determination, Supreme Court precedent requires the reviewing court to
weigh the prosecutor’s conduct, the effect of the curative instructions
and the strength of the evidence." Moore v. Morton, 255 F.3d 95, 107 (3d
Cir. 2001) (internal citations omitted).

21. In other words, it is not enough for the"concerns underlying our
reactions against improper prosecutorial arguments to the jury" to be
implicated; they must be implicated to the extent that "we conclude that
the jury’s deliberations were compromised." United States v. Young, 470
U.S. 1, 18 (1985).

                                45


Thus, the majority of the misconduct that we have
reviewed did not deprive Marshall of his right to a fair trial,
and we agree with the New Jersey Supreme Court’s
conclusions that no constitutional right was implicated;
accordingly, for those instances we do not reach the
question of whether the error was harmless. Two instances
of misconduct, however, implicated specific constitutional
guarantees and require further examination.22

2. Violations of Specific Constitutional Rights

Marshall claims the prosecutor’s misconduct violated two
specific rights -- his right to counsel and his right to call
witnesses -- both of which are rights that are specifically
guaranteed by the Sixth Amendment. The United States
Supreme Court has presumed that a due process violation
has occurred when prosecutorial misconduct implicates
specific rights guaranteed by the Bill of Rights. See Griffin
v. California, 380 U.S. 609 (1965); Doyle v. Ohio, 426 U.S.
610 (1976); see also Hassine v. Zimmerman, 160 F.3d 941
(3d Cir. 1998).23

The Supreme Court has only evaluated a presumptive
due process violation where a prosecutor misused a
defendant’s exercise of his Fifth Amendment right to remain
silent as evidence of guilt. See Griffin v. California, 380 U.S.
609 (1965); Doyle v. Ohio, 426 U.S. 610 (1976). However,
we think it clear that the same presumption applies when
other enumerated rights are implicated. See United States
v. Thame, 846 F.2d 200 (3d Cir. 1988); United States ex rel.
Macon v. Yeager, 476 F.2d 613 (3d Cir.), cert. denied, 414
U.S. 855 (1973).24 We analyze whether the constitutional
_________________________________________________________________

22. While the New Jersey Supreme Court found that one comment in the
prosecutor’s summation implicated Marshall’s privilege against self-
incrimination, Marshall has not specifically raised that ruling before us,
and we will not address it here.

23. As discussed in more detail later, though such misconduct
presumptively violates due process, there are exceptions. See Greer v.
Miller, 483 U.S. 756 (1987).
24. Some circuit courts of appeals have restricted their review under
AEDPA to United States Supreme Court decisions alone. See, e.g.,
Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998) (considering itself

                                46


right was violated, and if so, whether the error was
harmless. Marshall alleges two such violations: the
exchange by the prosecutor with DeCarlo about Marshall’s
retention of counsel and the prosecutor’s remarks about
Marshall’s calling of his sons as witnesses. We will examine
each in turn.

       a. Right to Counsel

       i. Did the New Jersey Supreme Court Properly
       Conclude that the Error was of the Type Condemned
       in Macon?

Oakleigh DeCarlo, Marshall’s sister, was questioned on
cross-examination about the visit police investigators made
to the Marshall home on September 21, 1984, to inquire
about the then newly discovered Louisiana contacts. Ms.
_________________________________________________________________

barred from examining "lower federal court decisions in deciding whether
the state decision is contrary to, or an unreasonable application of,
clearly established federal law"). We have concluded, however, that
decisions of federal courts below the level of the United States Supreme
Court may be helpful to us in ascertaining the reasonableness of state
courts’ application of clearly established United States Supreme Court
precedent, as well as "helpful amplifications" of that precedent. Moore v.
Morton, 255 F.3d 95, 105 (3d Cir. 2001) (quoting Matteo v.
Superintendent, SCI Albion, 171 F. 3d 877, 890 (3d Cir.) (en banc), cert.
denied, 528 U.S. 824 (1999)). We view our reliance on Thame and Macon
as such a "helpful amplification." And we think that other United States
Supreme Court precedent implicitly recognized the principle we iterated
in those cases.

In Donnelly, for example, the United States Supreme Court contrasted
the alleged error before it with the denial of the"benefit of a specific
provision of the Bill of Rights, such as the right to counsel" or the
constructive denial of such a right, citing to Griffin. Donnelly, 416 U.S.
at 643. Thus, while the United States Supreme Court has not had the
opportunity specifically to extend Griffin’s holding, it has recognized the
basis for our holding in Macon. Further, the New Jersey Supreme Court
itself stated that "we are fully in accord with the decisions of the federal
Courts of Appeals holding that a prosecutor’s statement suggesting that
retention of counsel is inconsistent with innocence impermissibly
infringes on a defendant’s constitutional right to counsel." Marshall I,
586 A.2d at 148.

                                47


DeCarlo was present. At trial, there was conflicting
testimony as to whether Marshall was asked whether he
knew certain names or was also shown photographs of the
Louisiana contacts. Defense counsel had sought -- and
received -- a ruling that the prosecutor could inquire as to
Marshall’s reaction to the photographs shown to him, but
not as to Marshall’s refusal to answer based on counsel’s
advice. App. Br. at 123-24. The prosecutor inquired of Ms.
DeCarlo whether the interview ended after Marshall was
shown the photographs.

       PROSECUTOR: You didn’t hear him answer any
       questions, did you, when they said --

       DECARLO: Yes, I did.

       PROSECUTOR: You did?

       DECARLO: Yes.

       PROSECUTOR: Answer their questions?

       DECARLO: He answered a question.

       PROSECUTOR: A question?

       DECARLO: A question.

       PROSECUTOR: One question?

       DECARLO: One question.

       PROSECUTOR: Then the conversation ended: is that
       correct?

       DECARLO: No. They said they had other questions and
       he said, "I think I should have my lawyer here if you’re
       going to ask any more questions."

       PROSECUTOR: Did you say to him, "Hey, Rob. Why get
       your lawyer. Your wife was murdered. Maybe these
       people --"

Marshall I, 586 A.2d at 147. The above were characterized
by the New Jersey Supreme Court as verging on
infringement of the right to counsel, but brief and"not
dwell[ed] on." Id. at 148.

After the prosecutor completed his cross-examination,
Thompson’s counsel, Mr. Hartman, cross-examined
DeCarlo:

                                 48


        HARTMAN: You wouldn’t think it unreasonable that
       if a person retained an attorney and was possibly
       under suspicion that they should have their attorney
       present?

        DECARLO: Not at all. That’s why you hire them for
       his advice.
Id. at 148. Hartman then asked Ms. DeCarlo if she thought
it unreasonable that a person under suspicion would want
their attorney present during questioning, and she
responded that that is why attorneys were hired. Then the
prosecutor resumed his cross-examination:

        PROSECUTOR: Especially when your wife has been
       killed and you haven’t -- you didn’t have anything to
       do with it, you still run out and hire an attorney?

Id.

Marshall’s counsel objected to the question, and the
objection was sustained, but no curative instruction was
sought or given. The New Jersey Supreme Court noted that
what could be "characterized as a question only by a most
indulgent reading" required a "clear and forceful curative
instruction" by the court. Id. The New Jersey Supreme
Court characterized the prosecutor’s cross-examination of
DeCarlo as "a highly improper and inexcusable attempt . . .
to suggest that defendant’s retention of counsel was
inconsistent with his claim that he was innocent." Marshall
I, 586 A.2d at 147.

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                                50


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                                51


       ii. Was the Error Nonetheless Harmless?

In analyzing whether the prosecutor’s behavior
impermissibly "suggest[ed] that retention of counsel is
inconsistent with innocence," the New Jersey Supreme
Court applied a harmless error analysis, reasoning that all
courts of appeals to address the issue, except the Fifth
Circuit Court of Appeals, had done so, and that the Fifth
Circuit itself was inconsistent in whether it applied a per se
or harmless error analysis. Id. at 148-49. In examining the
prosecutor’s conduct for harmless error, the New Jersey
Supreme Court focused on our rationale in United States ex
rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973), where we
reversed the conviction in the face of a prosecutorial
comment that impinged upon the defendant’s right to
counsel, because the "credibility of the petitioner as a
witness was a central issue," given that "critical portions of
the evidence were disputed." Id. at 616.

The prosecutor’s conduct during Marshall’s trial was
distinguishable, according to the New Jersey Supreme
Court, for two reasons: the jury had already been made
aware that Marshall had retained counsel by the time the
episode in question had taken place, and had learned it
from Marshall himself; and "the evidence of defendant’s
guilt was so persuasive that it is virtually impossible to
conceive that this isolated comment by the prosecutor,
however reprehensible it may have been, could have
contributed significantly to the jury’s determination of
guilt." Marshall I, 586 A.2d at 149.

When the New Jersey Supreme Court considered the
same facts in its post-conviction relief review, it reiterated
that the remarks were harmless error, and it likewise
dismissed the possibility that they were evidence either of
the ineffectiveness of Marshall’s counsel (in not requesting
a curative instruction) or prosecutorial misconduct,
because there was no prejudice. Marshall II, 690 A.2d at
67-69. When presented with the habeas petition, however,
the District Court evaluated the claim as the New Jersey
Supreme Court had on direct appeal, and found that the
New Jersey Supreme Court’s analysis and conclusions were
neither unreasonable nor contrary to Supreme Court
jurisprudence. Marshall III, 103 F. Supp. 2d at 777-79. Like

                                52


the District Court, we will evaluate the reasonableness of
the New Jersey Supreme Court’s evaluation on direct
appeal.

Before us, Marshall contends that the prosecutor
"deliberately led" DeCarlo to the improper disclosure, and
that, indeed, "the prosecutor’s entire cross of DeCarlo was
aimed at these topics." App. Br. at 124. But the New Jersey
Supreme Court found that DeCarlo’s comment was
volunteered. Marshall I, 586 A.2d at 148. Whether
DeCarlo’s disclosure was instigated or voluntary is, we
believe, not clear. Thus we will not find the New Jersey
Supreme Court’s determination of the facts to be
unreasonable.

Marshall also, however, challenges the prosecutor’s
follow-up comments implying that if Marshall were
innocent, he would not have "run out and hire[d] an
attorney." Marshall I, 586 A.2d at 148. As noted above, the
New Jersey Supreme Court concluded that the comments
were constitutional error, but that they were harmless
under Chapman v. California, 386 U.S. 18 (1967).25 Under
Chapman, an error is harmless if there is no"reasonable
possibility that the evidence complained of might have
contributed to the conviction." Id. at 23 (quoting Fahy v.
_________________________________________________________________

25. In Hassine v. Zimmerman, 160 F.3d 941, 950-55 (3d Cir. 1998), we
stated that -- in reviewing a claim on habeas that is not governed by
AEDPA -- we would apply the harmless error standard set forth in Brecht
v. Abrahamson, 507 U.S. 619 (1993), regardless of whether the state
court applied the Chapman standard. Hassine, 160 F.3d at 952-53. In
Penry v. Johnson, 532 U.S. 782 (2001), the United States Supreme Court
did likewise under AEDPA, instructing us that, where courts find, using
the AEDPA analysis, that the state court unreasonably applied clearly
established federal law, and thus that an error occurred in the trial that
the state court did not evaluate as such, the habeas court is to apply
Brecht to evaluate whether that error is harmless. Id. at 795. That is not
the situation here, however. The New Jersey Supreme Court correctly
found an error, and applied Chapman to evaluate whether that error was
harmless. We need not determine whether, in such an instance, we
should review their application of Chapman or apply Brecht
independently, however, because here the error would be harmless
regardless of which standard applied. The District Court also found that
the error would be harmless under either standard. See Marshall III, 103
F. Supp. 2d at 778-79.

                                53


Connecticut, 375 U.S. 85, 86-87 (1963)). Further, the court
must be able to declare a belief that it was harmless
beyond a reasonable doubt. Id. at 24. The New Jersey
Supreme Court concluded that the impact of the
prosecutor’s line of questioning was ameliorated because
Marshall testified before DeCarlo and had himself disclosed
that he had retained counsel prior to the incident in
question. Marshall I, 586 A.2d at 149. "We reach that
conclusion in part because the jury knew from defendant’s
own testimony that he had retained counsel and did not
consider that conduct to detract at all from his claim of
innocence." Id. That reasoning, however, was secondary to
the Court’s conviction: "More important to our conclusion,
however, is that the evidence of defendant’s guilt was so
persuasive that it is virtually impossible to conceive that
this isolated comment by the prosecutor, however
reprehensible it may have been, could have contributed
significantly to the jury’s determination of guilt." Id.

In Marshall’s direct testimony at trial, he stated that his
office was searched during the weekend prior to his wife’s
memorial service, and that as a result of that action, he
consulted an attorney. Direct Testimony of Robert Marshall,
February 26, 1986, St. Ex. 28T at 107-09. Immediately
thereafter, Marshall discussed the visit paid him by the
investigators on September 21, when his sister was
present. Id. at 109-11. He denied being showed
photographs at that time. Id. at 110.

DeCarlo’s testimony occurred on February 24, 1986, two
days prior to Marshall’s testimony. Thus, Marshall had not
in fact disclosed his retention of counsel before she
testified. Rather, her testimony provided the initial
impression to the jury as to Marshall’s retention of counsel.
Accordingly, we cannot discount the impact of the
prosecutor’s statements on the basis of the jury’s
knowledge via Marshall’s testimony, as the New Jersey
Supreme Court did. DeCarlo had testified that the
investigators asked Marshall whether he knew "a couple of
names." Direct Testimony of Oakleigh DeCarlo, February
24, 1986, St. Ex. 27T at 118. She further testified that
Marshall was not shown any photographs at that time. Id.

                                54
From the beginning of the cross-examination, the
prosecutor was combative with DeCarlo. She had testified
that she had not heard one of the names asked by the
investigators. The first question that the prosecutor asked
was: "You didn’t hear him answer any questions, did you,
when they said --," to which DeCarlo responded that she
had heard Marshall’s response. Cross-Examination of
Oakleigh DeCarlo, February 24, 1986, St. Ex. 27T at 119.
Then the prosecutor asked whether the conversation ended,
to which DeCarlo replied that Marshall had said he should
have his attorney present if they were to ask more
questions. Id. The prosecutor started to ask whether
DeCarlo had said "Hey, Rob. Why get your lawyer. Your wife
was murdered. Maybe these people --," but when DeCarlo
attempted to answer, he cut her off. Id. Defense counsel
objected, and the prosecutor reframed his question:"Did
you say to your brother, ‘Rob, wait a minute. Don’t just
answer one question. Take a good look at these
photographs.’?" DeCarlo replied -- as Marshall would later
confirm -- that he was not shown any photographs at that
point. Id. at 120. The prosecutor then asked several
questions attempting to elicit whether DeCarlo had ever
stated that she could not tell whether Marshall was lying or
telling the truth, and concluded his cross-examination.
Thompson’s counsel then asked DeCarlo whether she
would think it unreasonable to want an attorney present if
possibly under suspicion. She replied: "Not at all. That’s
why you hire them for his advice." Id. at 122. The
prosecutor then asked again, "Especially when your wife
has been killed and you haven’t -- you didn’t have anything
to do with it, you still run out and hire an attorney?" Id.
The "question" was objected to, and the objection
sustained, and DeCarlo was permitted to step down.

The New Jersey Supreme Court properly considered the
weight of other evidence against Marshall in determining
that the error was harmless. See Brecht, 507 U.S. at 639.
However, as we noted, the New Jersey Supreme Court
stated that part of its determination was based on the fact
-- which is not actually a fact -- that Marshall’s testimony
that he had retained counsel lessened the impact that the
prosecutor’s questioning of DeCarlo had upon the jury. We
then must answer an additional question by looking at the

                                55


record: Considering the totality of DeCarlo’s testimony, was
it unreasonable for the New Jersey Supreme Court to
conclude that the disclosure that Marshall had hired
counsel -- absent the palliative ascribed by the Court of the
jurors’ having already heard from Marshall -- was harmless
beyond a reasonable doubt?

To answer that question, it is important to look at what
the United States Supreme Court reacted to in Griffin v.
California, 380 U.S 609 (1965), and Doyle v. Ohio, 426 U.S.
610 (1976), and what we reacted to in Macon. In Griffin, the
prosecutor used the defendant’s silence -- and his own
powerful oratory -- to convey that the defendant knew the
truth, but was wilfully withholding it from the jury.26
Further, the prosecutor’s words were compounded by the
court’s instructions -- consistent with California law -- that
the "jury could draw an inference unfavorable to the
defendant as to facts within his knowledge about which he
chose not to testify." United States v. Robinson, 485 U.S.
25, 30 (1988) (discussing Griffin, 380 U.S. at 610-15). In
Doyle, the prosecutor, on cross-examination of the
defendant, repeatedly denigrated Doyle’s assertions of
innocence.27 There, the trial court overruled objections and
_________________________________________________________________

26. As quoted by the Supreme Court, the prosecutor testified:

       The defendant certainly knows whether Essie Mae had this beat up
       appearance at the time he left her apartment and went down the
       alley with her. What kind of a man is it that would want to have sex
       with a woman that beat up if she was beat up at the time he left?
       He would know that. He would know how she got down the alley. He
       would know how the blood got on the bottom of the concrete steps.
       He would know how long he was with her in that box. He would
       know how her wig got off. He would know whether he beat her or
       mistreated her. He would know whether he walked away from that
       place cool as a cucumber when he saw Mr. Villasenor because he
       was conscious of his own guilt and wanted to get away from that
       damaged or injured woman. These things he has not seen fit to take
       the stand and deny or explain. And in the whole world, if anybody
       would know, this defendant would know. Essie Mae is dead, she
       can’t tell you her side of the story. The defendant won’t.

Griffin, 380 U.S at 610-11.

27. The relevant prosecutorial questions are as follows:

                                56


allowed the prosecutor to argue the post-arrest silence in
closing. Doyle, 426 U.S. at 614. In Macon, the prosecutor in
his closing expressly tied the defendant’s retention of
counsel to the other circumstantial evidence of his guilt.28
There was no objection or requested instruction. We
concluded there that the error was not harmless, because
the verdict rested on a credibility determination, and the
comments "would appear to have been directed to, and may
have had the effect of, raising in the jurors’ minds the
inference that petitioner was, or at least believed himself to
_________________________________________________________________

       "Mr. Wood, if that is all you had to do with this and you are
       innocent, when Mr. Beamer arrived on the scene why didn’t you tell
       him?"

       "But in any event, you didn’t bother to tell Mr. Beamer anything
       about this?"

       "You are innocent? . . . . That’s why you told the police department
       and Kenneth Beamer when they arrived -- . . . . about your
       innocence?"
       "You said nothing at all about how you had been set up?"

       "As a matter of fact, if I recall your testimony correctly, you said
       instead of protesting your innocence, as you do today, you said in
       response to a question of Mr. Beamer, -- ‘I don’t know what you are
       talking about.’ "

Doyle, 426 U.S. at 614 & n.5.

28. As quoted in our opinion, the relevant portions of the prosecutor’s
summation are:

       "Then what does he do? He drives along and can’t tell us where. The
       gun goes out the window. An act of innocence?"

       "The car is left somewhere and he doesn’t remember where? An act
       of innocence?"

       "He goes home and puts the shirt down in the chest, a torn shirt.
       Then he goes to bed. He says he had trouble sleeping. He gets up
       the next morning and lo and behold, what does he do? He calls his
       lawyer. These are acts of innocence?"

       "I say, ladies and gentlemen, his story is implausible, impossible
       and you can judge by his own conduct, unbelievable."

Macon, 476 F.2d at 614 (emphasis in original).

                                57


be, guilty. Such an inference might certainly tend to cause
the jury to disbelieve Macon’s version of the story." Macon,
476 F. 2d at 616-17. We believe that there are important,
though subtle, distinctions between the effect of the
prosecutor’s actions in these cases and in the one before
us.

First, in Griffin, Doyle, and Macon, the prosecutor
attacked the defendant directly. Here, the attack was
indirect. Second, in each of the above cases, the prosecutor
was allowed to wax eloquent without challenge or
interruption, while here Marshall objected -- and the
objection was sustained -- three times in the brief
interchange between the prosecutor and DeCarlo. Finally,
in part because both the direct and cross examination were
brief, it was very obvious, even to us on a cold record, that
the prosecutor was, for whatever reason, attempting to
twist all of DeCarlo’s testimony -- intimating that she did
not hear Marshall’s answer when she had testified that she
did not hear one of the names asked by the investigator;
asking her why she didn’t ask Marshall to examine the
photographs when she had already testified that he hadn’t
been shown any -- and we think that the way the
prosecutor formulated the questions: "Didn’t you ask him
. . ." would have been perceived as yet further attempts to
badger and twist the testimony of a minor witness.

When all three factors are considered in combination, we
cannot find the prosecutor’s questions and comments,
improper though they were, to support -- as they did in as
in Griffin, Doyle, and Macon-- a clear inference that the
exercise of the constitutional right was itself evidence of the
defendant’s guilt. Thus, we concur in the New Jersey
Supreme Court’s conclusion that the error was harmless.

       b. Right to Call Witnesses

       i. Did the New Jersey Supreme Court Properly
       Conclude that the Error was Not of the Type
       Condemned in Macon?

The remarks in question were quoted by the New Jersey
Supreme Court:

                                58


       And he has the audacity to bring in his three boys to
       testify. That’s obscene. And I’m not being critical of
       them, because I would probably do the same thing. To
       put his boys on that witness stand is obscene, and for
       that there’s a place in hell for him. He will use
       anybody, he will say anything and he will do anything,
       including his own family, to get out from under. And
       that’s Robert Oakley Marshall. Make no mistake about
       it.

Marshall I, 586 A. 2d at 169.

Marshall raises these remarks before us twice, once by
citing to the relevant portions of the dissent and including
these remarks among those to be analyzed under Berger
and Darden, App. Br. at 129-30, 132, and earlier, when
Marshall discusses the infringement of the right to counsel
discussed above. There, he states specifically that the right
to counsel should be evaluated in conjunction with other
misconduct "including the prosecutor’s telling the jury in
summation that there is a place in hell for Robert Marshall
for exercising his 6th Amendment right to call his sons as
witnesses." App. Br. at 127. The majority of the New Jersey
Supreme Court did not directly address the contention that
the prosecutor’s comments were tantamount to a denial of
Marshall’s right to call witnesses, stating merely that:

       Arguably, defendant’s sons’ testimony concerned only
       peripheral aspects of the case -- except for that of
       Robbie Marshall who stated that defendant was at
       home at noon on September 6, 1984, the time,
       according to McKinnon, that he and defendant met on
       the Garden State Parkway. Thus, it was not
       unreasonable for the prosecutor to have implied that
       defendant’s sons had been called as witnesses not so
       much for the substance of their testimony but because
       their mere presence as witnesses would suggest
       support for their father, support that would have been
       unwarranted if defendant had participated in the
       murder of their mother. Thus, in emotional and
       inflammatory terms, the prosecutor expressed his
       revulsion at what he perceived as defendant’s ‘using’
       his sons in order to gain an acquittal . . . . Although
       the prosecutor’s remarks went beyond the boundaries

                                59


       of permissibly forceful advocacy, we note that their
       focus was on a distinctly collateral aspect of the trial,
       not on a critical and contested issue of fact. We
       acknowledge that the trial court’s curative instruction
       could have been more forceful, but we are satisfied that
       it was adequate to ameliorate any significant prejudice
       to defendant.

Marshall I, 586 A.2d at 169.

It is beyond dispute that the right to call witnesses is
protected by the Sixth and Fourteenth Amendments."Few
rights are more fundamental than that of an accused to
present witnesses in his own defense. Indeed, this right is
an essential attribute of the adversary system itself." Taylor
v. Illinois, 484 U.S. 400, 408 (1988) (internal citations
omitted). But even though the prosecutor’s misconduct in
this instance did touch on Marshall’s exercise of a
constitutional right, we conclude that the court’s curative
actions rightly kept the offending statements from the
consideration of the jurors, and thus, that consonant with
the United States Supreme Court’s holding in Greer v.
Miller, 483 U.S. 756 (1987), there was no violation of
Marshall’s right to call witnesses.

As the United States Supreme Court characterized Doyle,
the harm lay in using the defendant’s constitutionally
guaranteed silence to impeach him at trial. Greer, 483 U.S.
at 763. In Greer, a question was asked, counsel objected,
and the court sustained the objection and instructed the
jury to disregard questions that had been objected to if the
objection had been sustained. Id. at 764. Thus, "[t]he fact
of Miller’s postarrest silence was not submitted to the jury
as evidence from which it was allowed to draw any
permissible inference, and thus no Doyle violation occurred
in this case." Id. at 764-65.

While the prosecutorial comments here are nowhere near
as benign as the single prosecutorial question at issue in
Greer, we think that Greer’s holding is controlling. Here, as
in Greer, the comments the prosecutor made regarding
Marshall’s sons were at a single point in a long trial.
Though they were more inflammatory -- indeed,"[a]mong
the most inflammatory portions of the prosecutor’s

                                60


summation," "possessing the capacity to anger and arouse
the jury and thereby divert them from their solemn
responsibility to render a verdict based on the evidence,"
Marshall I, 586 A.2d at 168, 169 -- the trial court
instructed the jury specifically to disregard the prosecutor’s
comments: "A defendant in a criminal case has a right to
bring in any witnesses or subpoena or bring in any other
way any witnesses to testify on his behalf, and no adverse
inferences should be drawn against the defendant merely
because his sons testified as witnesses on his behalf." Id. at
169. The Court also instructed the jurors to disregard the
reference to "a place in hell."29 Id. Indeed, the instructions
here were specifically directed at the prosecutor’s
statement, unlike the general instructions that the Court
upheld in Greer.

As Greer stressed, we are to "presume that a jury will
follow an instruction to disregard inadmissible evidence
inadvertently presented to it, unless there is an
‘overwhelming probability’ that the jury will be unable to
follow the court’s instructions, and a strong likelihood that
the effect of the evidence would be ‘devastating’ to the
defendant." Greer, 483 U.S. at 767 n.8. Thus, the fact that
Marshall called his sons as witnesses was "not submitted to
the jury as evidence from which it was allowed to draw any
permissible inference." Id. at 764-65.

The New Jersey Supreme Court concluded that the
prosecutor’s statements were not directed at "a critical and
contested issue of fact" and that the trial court’s curative
instructions were "adequate to ameliorate any significant
prejudice to defendant." Marshall I, 586 A.2d at 169.
Although the New Jersey Supreme Court should have
evaluated this misconduct to determine if there was a
violation under Doyle, its conclusions are essentially the
same as those we reach independently applying the proper
framework, and we find no constitutional error.
Accordingly, we will not disturb its conclusions. 30
_________________________________________________________________

29. Also as in Greer, the trial court denied Marshall’s motion for a
mistrial on the basis of the prosecutor’s actions. Id.

30. Because we find that there was no constitutional error, we do not
need to reach the question of whether any error was harmless.

                                61


3. Accumulation of Error

The New Jersey Supreme Court also evaluated the right
to counsel claim separately from the other claims of
prosecutorial misconduct, and Marshall complains
vociferously that, if the instances of prosecutorial conduct
that were found to be improper by the New Jersey Supreme
Court were considered together, there would be error that
would render the trial unfair and not be harmless. App. Br.
at 127. Further, he alleges that the nondisclosure of
Kraushaar’s immunity agreement should be factored in as
well. Id. As stated above, Marshall is correct that error
attributed to prosecutorial misconduct is accumulated for
the purposes of the Chapman analysis. Lesko v. Lehman,
925 F.2d 1527, 1541 (3d Cir. 1991). Indeed, in Chapman
itself, the cumulative effect of the error was weighed
together.

        Thus, the state prosecutor’s argument and the trial
       judge’s instruction to the jury continuously and
       repeatedly impressed the jury that from the failure of
       petitioners to testify, to all intents and purposes, the
       inferences from the facts in evidence had to be drawn
       in favor of the State -- in short, that by their silence
       petitioners had served as irrefutable witnesses against
       themselves. And though the case in which this
       occurred presented a reasonably strong "circumstantial
       web of evidence" against petitioners, it was also a case
       in which, absent the constitutionally forbidden
       comments, honest, fair-minded jurors might very well
       have brought in not-guilty verdicts. Under these
       circumstances, it is completely impossible for us to say
       that the State has demonstrated, beyond a reasonable
       doubt, that the prosecutor’s comments and the trial
       judge’s instruction did not contribute to petitioners’
       convictions. Such a machine-gun repetition of a denial
       of constitutional rights, designed and calculated to
       make petitioners’ version of the evidence worthless, can
       no more be considered harmless than the introduction
       against a defendant of a coerced confession.

Chapman, 386 U.S. at 25-26 (internal citations omitted). It
is also true, as noted above, that in Brecht v. Abrahamson,
the United States Supreme Court did not preclude the

                                62


possibility that "in an unusual case, a deliberate and
especially egregious error of the trial type, or one that is
combined with a pattern of prosecutorial misconduct, might
so infect the integrity of the proceeding as to warrant the
grant of habeas relief, even if it did not substantially
influence the jury’s verdict." Brecht, 507 U.S. at 638 n.9.

But the essence of Chapman is that a prosecutor’s
misconduct is not harmless when it renders the defendant’s
"evidence worthless." Chapman, 386 U.S. at 26. Here, none
of the misconduct properly before the jury undermined the
integrity or fairness of the proceeding. While the United
States Supreme Court has not clarified what might
constitute an "unusual case," we do not think that the
single instance of constitutional error -- the prosecutor’s
questioning of DeCarlo -- at Marshall’s trial could suffice.31

C. Fourth Amendment and Statutory Violations

After Marshall recorded the tapes to his brother-in-law,
who was also an attorney, and to his secretary and sons in
his motel room at the Best Western, he put stamps on the
envelopes and took two packages to the front desk and
placed them in a container designated for outgoing mail.32
_________________________________________________________________

31. New Jersey law appears more willing than federal law to assess the
accumulation of errors without first evaluating each separately:
       The accused, no matter how abhorrent the offense charged nor how
       seemingly evident the guilt, is entitled to a fair trial surrounded by
       the substantive and procedural safeguards which have stood for
       centuries as bulwarks of liberty in English-speaking countries. This,
       of course, does not mean that the incidental legal errors, which
       creep into the trial but do not prejudice the rights of the accused or
       make the proceedings unfair, may be invoked to upset an otherwise
       valid conviction; . . . . Where, however, the legal errors are of such
       magnitude to prejudice the defendant’s rights or, in their aggregate
       have rendered the trial unfair, our fundamental constitutional
       concepts dictate the granting of a new trial before an impartial jury.

State v. Orecchio, 106 A.2d 541, 542 (N.J. 1954) (internal citations
omitted); see also State v. Rose, 548 A.2d 1058 (N.J. 1988) (finding
prosecutorial misconduct during the penalty phase, in sum, sufficient to
reverse a death sentence). But we are decidedly not in a position to
review the New Jersey Supreme Court’s application of its own law.

32. In the record, there is much dispute as to whether the container in
question was an open tray or a closed box with a slotted lid. The New

                                  63


Alerted by hotel personnel, police who were surveilling
Marshall awakened him, and he was taken to a hospital,
and later to a psychiatric hospital. The police, claiming that
the envelopes were in plain sight, with the topmost package
bearing the words "To be Opened Only in the Event of my
Death," retrieved the packages and later secured warrants
to examine their contents. The tapes that were found
pursuant to those warrants were played at trial, over
Marshall’s protest that the search of the mail depository
and the seizure of the tapes violated his Fourth Amendment
rights. Before the District Court, and now before us,
Marshall also claims that the police actions violated federal
statutes. The District Court concluded that the federal
statutes and regulations Marshall cited were inapplicable
because the United States Postal Service never had custody
of the envelope. Marshall III, 103 F. Supp. 2d at 784. It
further concluded that Marshall had a full and fair
opportunity to litigate his Fourth Amendment claims before
the state courts, and that habeas review was barred by the
United States Supreme Court’s holding in Stone v. Powell,
428 U.S. 465 (1976). Marshall III, 103 F. Supp. 2d at 785.

Before we can reach the merits of these claims, we must
determine whether we should address them at all. Two
issues are presented to us: Are we barred from considering
statutory, non-constitutional claims under AEDPA? And
does Stone v. Powell, which prohibits us from examining
Fourth Amendment claims that have been fully and fairly
litigated in state courts, bar our consideration of the Fourth
Amendment claims?

1. Statutory claims under AEDPA

In his brief on direct appeal to the New Jersey Supreme
Court, Marshall cited to the United States Postal Service’s
Domestic Mail Manual in support of his argument that there
was a Fourth Amendment expectation of privacy in his
letters and that the search warrant must have been
executed by a federal (not a state) officer. The New Jersey
_________________________________________________________________

Jersey courts found that the container was an open tray. Later evidence
calls that conclusion into question, but for our purposes what depository
was used is immaterial.

                                64


Supreme Court rejected those contentions because the
envelope was not "within the custody of the postal
authorities at the time of the seizure" and "[t]he statute
does not limit search warrants to those issued by federal
judges or magistrates." Marshall I, 586 A.2d 118. The
District Court appeared to extend this reasoning to the
additional statutes cited by Marshall before it: 5 U.S.C.
S 301, 39 U.S.C. SS 201, 404(a)(1) and 3623(d). See Marshall
III, 103 F. Supp. 2d at 783-84.

We conclude that we do not have jurisdiction to entertain
Marshall’s complaint as to the District Court’s
determination of his statutory claims. In Slack v. McDaniel,
529 U.S. 473 (2000), the Supreme Court noted that 28
U.S.C. S 2253(c)), that section of AEDPA that governs our
ability to issue a COA to review a District Court’s
adjudication of the claims of a habeas petition, states
explicitly that "a COA may not issue unless ‘the applicant
has made a substantial showing of the denial of a
constitutional right.’ " 529 U.S. at 483. In that section, as
Slack explains, Congress codified the standard of Barefoot
v. Estelle, 463 U.S. 880, 894 (1983), except that Barefoot
only required the denial of a federal right, while AEDPA
requires the denial of a constitutional right. Slack, 529 U.S.
at 483.

While the Seventh Circuit Court of Appeals has extended
Slack -- and in our view, the explicit language of the
statute as well -- to allow "independently substantial
statutory issue[s]" to "come along for the ride" if there is a
"substantial constitutional question" within the case,
Ramunno v. United States, 264 F.3d 723, 725 (7th Cir.
2001), we refuse to deviate from Congress’s express terms.
In United States v. Cepero, 224 F.3d 256, 262-63, 267 (3d
Cir. 2000), we construed Slack and the plain language of 28
U.S.C. S 2253(c)) to deprive us of jurisdiction to hear
statutory questions pursuant to habeas appeals. In
response to "the ad terrorem argument that the defendant
is thereby totally denied the opportunity to appeal
nonconstitutional issues, the short answer is that Congress
has indicated that these issues must be presented in the
direct appeal from the conviction." Id. at 265.33 Marshall did
not, and he cannot now raise them here.
_________________________________________________________________

33. The premise that nonconstitutional claims are waived if not raised on
direct appeal is, of course, unremarkable and well settled law. See, e.g.,
                                65


2. Stone v. Powell and the Fourth Amendment Bar

In Stone v. Powell, 428 U.S. 465 (1976), the Supreme
Court examined the nature of the exclusionary rule, which
it characterized as a "judicially created means of
effectuating the rights secured by the Fourth Amendment"
and balanced its utility as a deterrent against the risk of
excluding trustworthy evidence and thus "deflect[ing] the
truthfinding process." Id. at 482, 490. Finding that, as to
collateral review, the costs of the exclusionary rule
outweighed the benefits of its application, the Court
concluded that "where the State has provided an
opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was
introduced at his trial." Id. at 494. While the federal courts
are not thus deprived of jurisdiction to hear the claim, they
are -- for prudential reasons -- restricted in their
application of the exclusionary rule. Id. at 494 n.37.

Seeking to avoid this restriction, Marshall seizes upon
the qualifying phrase in Stone, "where the State has
provided an opportunity for full and fair litigation," and
argues that he has not had an opportunity for full and fair
litigation, and thus, that the bar of Stone v. Powell should
not apply.34 Appellant’s Memorandum of Law in Support of
Application for Certificate of Appealability 131-143.
_________________________________________________________________

Sunal v. Large, 332 U.S. 174, 178-79 (1947) (cited in Stone v. Powell,
428 U.S. 465, 478 n.10 (1976)).

34. Marshall also raises two additional arguments: that Stone v. Powell
should not be applied in a capital case, since the Supreme Court has
consistently recognized that "death is different," (App. Memorandum in
Law in Support of Application for Certificate of Appealability at 129-31)
and that the letter addressed to his brother-in-law, who was also an
attorney, implicated his Sixth Amendment right, and thus was protected
by attorney-client privilege and not governed by Stone by virtue of
Kimmelman v. Morrison, 477 U.S. 365, 382-83 (1986) (refusing to apply
Stone’s bar when Sixth Amendment claims were tied to a Fourth
Amendment issue). But we find both of Marshall’s arguments
unpersuasive here.

                                66


We have recognized that there may be instances in which
a full and fair opportunity to litigate was denied to a habeas
petitioner, but this is not one of them. This is not a case
where a structural defect in the system itself prevented
Marshall’s claim from being heard. See, e.g., Boyd v. Mintz,
631 F.2d 247, 250-51 (3d Cir. 1980); see also Gilmore v.
Marks, 799 F.2d 51, 57 (3d Cir. 1986) (observing that a
state’s "failure to give at least colorable application of the
correct Fourth Amendment constitutional standard" might
amount to a denial of the opportunity for full and fair
litigation). An erroneous or summary resolution by a state
court of a Fourth Amendment claim does not overcome the
bar. Id. And, as the District Court correctly assessed,
Marshall III, 103 F. Supp. 2d at 785-86, Marshall is at most
_________________________________________________________________

There is nothing within the language of Stone v. Powell itself upon
which to base a distinction between capital and non-capital collateral
review. We have applied Stone without hesitancy to capital cases. See,
e.g., Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir.), cert. denied, 512
U.S. 1230 (1994). Indeed, the principles of comity that underlie Stone v.
Powell, as well as the cost-benefit analysis postulated in Stone -- i.e., the
deterrent value vis-a-vis those tempted to violate the proscriptions
against illegal search and seizure weighed against the risk that risk that
trustworthy evidence would be excluded -- militate against the
distinction Marshall would have us draw.

Here, the New Jersey Supreme Court found that the relationship
between Marshall and his brother-in-law was not primarily an attorney-
client relationship. Further, the legal relationship between the Sixth
Amendment and Fourth Amendment claim are distinguishable from the
situation in Kimmelman, on which Marshall relies. There, adjudication of
the Sixth Amendment claim would have been foreclosed if there could be
no determination whether the underlying Fourth Amendment claim was
meritorious. Kimmelman, 477 U.S. at 375. Here, in contrast, Marshall
seeks to demonstrate that the Fourth Amendment violation was more
egregious because it also implicated a Sixth Amendment right.
Additionally, the New Jersey Supreme Court found that the tape was
sent to his brother-in-law in a family capacity and that, although his
brother-in-law had on occasion provided advice, the police were on
notice that Marshall had retained counsel and that all legal
representations in the investigation had been made by that counsel, not
by Marshall’s brother-in-law. Given our deferential review of the state
courts’ findings of facts, we will not disturb this conclusion.

                                67


alleging that the Fourth Amendment claims were decided
incorrectly or incompletely by the New Jersey courts,
allegations which are insufficient to surmount the Stone
bar.

Marshall tries to argue that a full and fair litigation
would require consideration of the salient United States
Supreme Court precedent, and he raises a very old decision
that he argues should have controlled the New Jersey
Supreme Court’s decision. App. Br. at 140-41. See Rosen v.
United States, 245 U.S. 467, 468 (1918). We do not need to
decide on these facts what would be sufficient to constitute
a "denial of opportunity for full and fair litigation," and
because the holding of Rosen is clearly not controlling here
we will not fault the New Jersey courts for failing to apply
it. We are satisfied that there was no structural defect that
prevented the full and fair litigation of Marshall’s Fourth
Amendment claims in state court, and we are thus barred
from reconsidering them here. In retrospect, and in light of
our determination of the Fourth Amendment and related
statutory claims, we acknowledge that the COA was
improvidently granted as to those issues and it will
therefore be dismissed.

D. Murder for Hire: As both an element of the crime and an
aggravating circumstance?

Marshall brings an as-applied challenge to New Jersey’s
death penalty statute, alleging that it violates the Eighth
Amendment in its application to his crime. The aggravating
factor relied on by the State -- that Marshall arranged the
murder for pecuniary gain -- duplicated an element of the
underlying offense. As Marshall correctly states, the United
Supreme Court has held that the Constitution requires a
capital sentencing scheme "genuinely [to] narrow the class
of persons eligible for the death penalty and . . . reasonably
[to] justify the imposition of a more severe sentence on the
defendant compared to others found guilty of murder." Zant
v. Stephens, 462 U.S. 862, 877 (1983). As the New Jersey
Supreme Court correctly noted, the United States Supreme
Court held in Lowenfield v. Phelps, 484 U.S. 231 (1988),
that it may be permissible for an aggravating factor to
duplicate an element of the underlying offense. See
Marshall I, 586 A.2d at 155. Although Marshall criticizes

                                68


the New Jersey Supreme Court for failing to reference   Zant,35
we find no fault in the New Jersey Supreme Court’s
evaluating more recent United States Supreme Court
precedent, and referring to its own caselaw which
interpreted the earlier United States Supreme Court
precedent, including Zant, instead. More recently, we   had
the opportunity to consider a similar challenge to
Delaware’s capital sentencing structure, and there we   noted
that, after Lowenfield, the "courts of appeals have
consistently held that a sentencing jury can consider   an
element of the capital offense as an aggravating
circumstance even if it is duplicitous [sic]." Deputy   v.
Taylor, 19 F.3d 1485, 1502 (3d Cir. 1994).

Marshall alleges that the homicide statute itself is
broadly drafted, encompassing "virtually every murder
committed either ‘purposely’ or ‘knowingly.’ " App. Br. at
135. Marshall contends that since his conviction was for
hiring someone to murder his wife, and since the
aggravating factor duplicated the elements of the
underlying crime itself, there was no possibility for
narrowing or for channeling the jury’s discretion. The
United States Supreme Court addressed a similar
contention in Arave v. Creech, 507 U.S. 463 (1993).
_________________________________________________________________

35. In fact, Marshall urges us not to apply AEDPA to our examination of
this question, since "the New Jersey Supreme Court did not engage in
any meaningful analysis of this claim, failing even to cite to Zant." App.
Br. at 138. Marshall misapprehends the duty of the state court. Its duty
is to apply the "correct governing legal principle" reasonably. [Terry]
Williams v. Taylor, 529 U.S. 362, 413 (2000). It does not have to recite
a specific case name in order to apply the principles enunciated within
that case. By referring to its earlier analysis of the precise issues raised
by Marshall in State v. Ramseur, 524 A.2d 188, 218-220 (N.J. 1987), an
opinion that does discuss the requirements of Zant v. Stephens, 462 U.S.
862 (1983), in addition to other pertinent United States Supreme Court
jurisprudence, including Furman v. Georgia, 408 U.S. 238 (1972), and
Gregg v. Georgia, 428 U.S. 153 (1976), and by considering the impact of
the United States Supreme Court opinion rendered in the interim
between its decision in Ramseur and its consideration of Marshall’s
claims, Lowenfield v. Phelps, 484 U.S. 231 (1988), the New Jersey
Supreme Court did all that it was required to do for us to apply AEDPA
deference.

                                69


       When the purpose of a statutory aggravating
       circumstance is to enable the sentencer to distinguish
       those who deserve capital punishment from those who
       do not, the circumstance must provide a principled
       basis for doing so. If the sentencer fairly could
       conclude that an aggravating circumstance applies to
       every defendant eligible for the death penalty, the
       circumstance is constitutionally infirm.

Id. at 474 (emphasis in original) (internal citations omitted).

Applying Arave’s standard, however, it is clear that the
New Jersey legislature had a right to establish a motive (for
pecuniary gain) as more culpable than other motives, and
to determine that a motive-specific factor would narrow the
class of death-eligible murderers and would provide a
principled consideration for jurors to weigh in making an
individualized determination at the capital sentencing
phase. That one of the means by which a person may
commit murder with this motive is to hire someone else
actually to execute the crime is immaterial to the limiting
analysis.

The strictures of the United States Constitution do not
require New Jersey to assign a constitutionally mandated
function to aggravating circumstances, but to design a
scheme that both narrows the class of death-eligible
defendants and channels the jury’s discretion to ensure
that a death-eligible defendant is not sentenced to death
arbitrarily or capriciously.36 Here there can be no question
that the New Jersey legislature required sufficient
culpability to withstand constitutional scrutiny. The New
Jersey Supreme Court so held in Ramseur, and it was not
unreasonable for the New Jersey Supreme Court to rely
upon its detailed analysis in that opinion, and upon the
more recent United States Supreme Court jurisprudence, in
its consideration of Marshall’s claim.
_________________________________________________________________

36. We note as well that Marshall did undergo a proportionality review,
characterized in a Harvard Law Review article as"an additional fail-safe."
Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections
on Two Decades of Constitutional Regulation of Capital Punishment, 109
HARV. L. REV. 355, 373 (1995).
                                 70


E. Guilt Phase Ineffectiveness

Marshall cites before us nine separate ways in which he
contends his counsel was ineffective during the guilt phase
of the trial. The State counters that Marshall’s"litany of
purported inadequacies is merely a lengthy series of
inconsequential minutiae." Appee. Br. at 76. As both
parties recognize, claims of ineffective assistance of counsel
are governed by Strickland v. Washington, 466 U.S. 668
(1984), and its progeny, although Marshall contends that,
while the New Jersey Supreme Court correctly identified
Strickland as controlling, it "both misconstrued and
unreasonably applied" it. Marshall contends that he "has
been afforded virtually no process on his ineffective-
assistance claim." App. Br. at 99. As the State notes,
Marshall originally raised claims of ineffectiveness in his
direct appeal brief, and then raised "more than 300 claims
in all" on appeal from the denial of post-conviction relief.
Appee. Br. at 77. The New Jersey Supreme Court found all
of Marshall’s claims to be without merit. The District Court
did not find the New Jersey Supreme Court’s conclusions
unreasonable under AEDPA, but Marshall contends that it
merely agreed, "in summary fashion," with the conclusions
of the New Jersey Supreme Court. App. Br. at 100-01.
Actually, as discussed below, most of the New Jersey
Supreme Court’s conclusions were based on a finding that
Marshall could not demonstrate prejudice. The District
Court instead concluded that Marshall had not established
that the performance of his attorney was deficient:

       In hindsight, petitioner has compiled a long list of
       alleged errors and mistakes his counsel committed
       during his trial. The Court does not imply that defense
       counsel made no errors whatsoever, but that his
       performance was well within the required reasonable
       standard and his litigation strategy was based upon
       reasonable professional judgment.

Marshall III, 103 F. Supp. 2d at 790.

The nine areas of alleged ineffectiveness raised before us
by Marshall are:

1. Counsel did not develop or present any defense to
counter the State’s contention that the murder was
financially motivated. App. Br. at 104-07.

                                 71


2. Counsel did not develop or present evidence to refute
much of the State’s circumstantial evidence about the
events the night of the murder. App. Br. at 107-11.

3. Counsel did not provide independent evidence to
refute McKinnon’s testimony. App. Br. at 111.
4. Counsel did not present evidence to refute the State’s
allegations that Marshall’s attempted suicide was staged.
App. Br. at 111-13.

5. Counsel did not present evidence to counter the
"prosecutor’s theatrics [which] were sensational, shocking,
and quite effective." App. Br. at 113-15.

6. Counsel did not present the evidence that his own
testimony -- at a limited PCR hearing -- cited as his
primary trial strategy: character evidence. App. Br. at 115-
16.

7. Counsel had no coherent defense theory. App. Br. at
116-17.

8. Counsel did not present other evidence that was
within his possession. App. Br. at 118-20.

9. Counsel did not object nor seek curative action when
inadmissible testimony was admitted, or when the
prosecutor engaged in misconduct. He also put "irrelevant,
prejudicial facts before the jury." App. Br. at 120-23.

Under Strickland, courts are precluded from finding that
counsel was ineffective unless they find both that counsel’s
performance fell below an objectively unreasonable
standard, and that the defendant was prejudiced by that
performance. Strickland, 466 U.S. at 687. In order to
establish prejudice, a defendant need not demonstrate that
the outcome of the proceeding would have been different,
but only 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."37 Id. at 694. Where prejudice is lacking, the court
_________________________________________________________________

37. As noted earlier, at A., supra, the Strickland prejudice standard is the
same as the Brady materiality standard.

                                72


need not determine whether the performance was subpar.
Id. at 697. Further, it is critical that courts be "highly
deferential" to counsel’s reasonable strategic decisions and
guard against the temptation to engage in hindsight. Id. at
689-90. In part, this is because the purpose of the rule is
not to improve the standard of professional conduct, but
only to protect a defendant’s right to counsel. Id. at 689.
Thus, the court is not engaging in a prophylactic exercise
to guarantee each defendant a perfect trial with optimally
proficient counsel, but rather to guarantee each defendant
a fair trial, with constitutionally competent counsel. In
order to assess an ineffectiveness claim properly, the court
"must consider the totality of the evidence before the judge
or jury." Id. at 695.
The deference accorded to counsel’s reasonable strategic
decisions can be seen in numerous United States Supreme
Court rulings following on the heels of Strickland. E.g.,
Burger v. Kemp, 483 U.S. 776, 794-95 (1987); Darden v.
Wainwright, 477 U.S. 168, 185-86 (1986). Nonetheless, the
Court has found the decisions of some attorneys to be
objectively unreasonable. E.g., [Terry] Williams v. Taylor,
529 U.S. 362 (2000); Kimmelman v. Morrison, 477 U.S. 365,
385-87 (1986).

It is rare for a court to review claims of ineffective
assistance of counsel on direct appeal, because the record
is typically not adequately developed by that point to allow
sufficient review. United States v. Cocivera, 104 F.3d 566,
570-71 (3d Cir. 1996); State v. Morton, 715 A.2d 228, 253
(N.J. 1998). The New Jersey Supreme Court recognized this
in the appeal from the denial of post-conviction relief. The
PCR court had determined that all of Marshall’s
ineffectiveness claims were procedurally barred, since some
ineffectiveness claims had been raised on direct appeal,
reasoning that ineffectiveness had been previously
adjudicated, and that Marshall was thus barred from
raising new instances of ineffectiveness before the court.
The New Jersey Supreme Court specifically rejected the
PCR court’s conclusion, explaining that its analysis on
direct appeal was limited to the specific instances and the
contours of the record that were before it at that time, and
thus were not dispositive of the other instances of

                                73


ineffectiveness raised in Marshall’s application for post-
conviction relief; nor could the treatment of the specific
issues raised on direct appeal be viewed as dispositive of a
broader claim of ineffectiveness on appeal from the denial
of post-conviction relief. See Marshall II, 690 A.2d at 29-32.
However, when specific issues were adjudicated on direct
appeal and found to be without merit, the New Jersey
Supreme Court relied on its resolution on direct appeal in
finding that counsel could not be constitutionally ineffective
in those areas. Marshall II, 690 A.2d at 87.

On direct appeal, the New Jersey Supreme Court read
many of Marshall’s contentions as suggesting trial
strategies that, in hindsight, might have been more
effective. Marshall I, 586 A.2d at 171-72. As the Court
correctly concluded, the mere existence of alternative --
even preferable or more effective -- strategies does not
satisfy the requirements of demonstrating ineffectiveness
under Strickland.

On appeal from the denial of post-conviction relief, the
New Jersey Supreme Court prefaced its analysis of
Marshall’s claims with the observation that this was the
first appeal taken to it from a denial of post-conviction relief
under the then-recently enacted Capital Punishment Act.
Marshall II, 690 A.2d at 27. The New Jersey Supreme Court
was clearly disturbed by the sheer magnitude of Marshall’s
presentation, stating both that it "question[ed] both the
wisdom and the necessity for so massive a presentation"
and that "[p]ost-conviction relief issues should be
categorized broadly but coherently, and to the extent
necessary illustrated by pertinent examples. No valid
purpose is served when every minute example of trial
counsel’s alleged ineffectiveness is offered as a separate
ground for post-conviction relief." Id.

Thus, while allowing Marshall to raise his ineffectiveness
claims, the Court grouped them into more general
categories and declined to analyze claims that, even if
counsel had sought to proceed as Marshall suggested,
would have been foreclosed or completely lacking in merit.
In doing so, the Court reasoned from Strickland that if the
claims would not have been meritorious if pursued,

                                74


Marshall could not have been prejudiced. In Strickland, the
United States Supreme Court stated:

       Although we have discussed the performance
       component of an ineffectiveness claim prior to the
       prejudice component, there is no reason for a court
       deciding an ineffective assistance claim to approach the
       inquiry in the same order or even to address both
       components of the inquiry if the defendant makes an
       insufficient showing on one. In particular, a court need
       not determine whether counsel’s performance was
       deficient before examining the prejudice suffered by the
       defendant as a result of the alleged deficiencies.

Strickland, 466 U.S. at 697. See Marshall II, 690 A.2d at
54, 87. Given the sheer volume of the claims, and the
related nature of many of them, we do not think that the
New Jersey Supreme Court was unreasonable in this
approach.38 We note, as we discuss more fully below, that
it is important here that we can focus on the prejudice
analysis, because we do not have a complete record on
which to assess some of the performance claims: while we
have Zeitz’s trial preparation file, he has never been
questioned as to whether some of his actions were the
result of strategic decisions.

Marshall has asked us to hold that it was error for the
New Jersey Supreme Court not to "acknowledge or apply
the requirement that it look outside the trial record and
examine the circumstances underlying the claimed
deficiencies." App. Br. at 102. But the purpose of assessing
counsel’s acts from an objective standpoint is to assess the
reasonableness of counsel’s actions. We do not need to
reach the question of whether the attorney’s actions fell
below an objectively unreasonable standard if we can
determine first that Marshall was not prejudiced.

But Marshall claims as well that the New Jersey Supreme
_________________________________________________________________

38. In its opinion affirming the denial of post-conviction relief, the New
Jersey Supreme Court included a chart that grouped the "548 grounds"
that Marshall had advanced for reversal into categories. On that chart,
267 issues related to ineffective assistance of counsel claims. Marshall II,
690 A.2d at 25.

                                75


Court failed equally in its determination of prejudice under
Strickland (and the United States Supreme Court’s more
recent enunciation of how Strickland claims are to be
evaluated under AEDPA, [Terry] Williams v. Taylor, 529 U.S.
362 (2000)). Marshall urges that the New Jersey Supreme
Court misapprehended its task under Strickland ,
misreading the explicit instruction to consider the totality of
the evidence as requiring it "only . . . to consider the
strength of the State’s case against petitioner at trial." App.
Br. at 103. Such an analysis, according to Marshall, cannot
comport with the teachings of the United States Supreme
Court, because an assessment of the omitted evidence is
required, and, since it was not in the trial record, it was not
susceptible to analysis. Id. at 103-04. He cites in support
two passages from [Terry] Williams, one penned by Justice
Stevens in his majority opinion, and the other by Justice
O’Connor in her concurrence.

In the passage quoted from Justice Stevens, the Court
counters the Virginia Supreme Court’s finding that there
was no prejudice because the mitigation evidence not
uncovered by counsel "barely would have altered the profile
of this defendant that was presented to the jury" by noting
that in so concluding the court "ignored or overlooked the
evidence of Williams’ difficult childhood and abuse and his
limited mental capacity." [Terry] Williams, 529 U.S. at 374
n.5. Justice O’Connor then notes that when the original
trial judge was shown the newly unearthed mitigation
evidence, he concluded that Williams was prejudiced and,
despite earlier having found Williams’ death sentence
"justified and warranted," recommended a new sentencing
hearing. Id. at 416 (O’Connor, J., concurring). Justice
O’Connor concluded that the Virginia Supreme Court’s
decision not to grant the sentencing hearing thus"reveals
an obvious failure to consider the totality of the omitted
mitigation evidence." Id. However, we conclude that
counsel’s conduct during the guilt phase of Marshall’s trial
does not reflect the same concerns that animated the
United States Supreme Court in its consideration of the
unpresented evidence in [Terry] Williams , as is evident upon
closer examination of the specific claims Marshall raises
before us.

                                76


1. Financial and Insurance Information

Marshall contends that his trial counsel was ineffective
for failing to develop financial and insurance information to
demonstrate that Marshall could reasonably expect to cover
his expenses and satisfy his debts through future earnings,
and that insuring Maria Marshall was based on a rational
analysis of the family’s needs if she were no longer present.
Further, he argues that proper psychiatric testimony would
have revealed that his expressions of despair on the suicide
tape were not probative of his actual financial situation.

The New Jersey Supreme Court found that the failure to
develop those arguments was not prejudicial. As to the
financial information, they found that it had been placed
before the jury -- albeit pursuant to the questioning by co-
defendant’s, not Marshall’s counsel -- and other witnesses
had testified that Marshall was an outstanding insurance
salesman. Marshall had explained at length why and how
he assessed the amounts of insurance needed on Maria. In
[Terry] Williams, the jurors had no opportunity to consider
the mitigating evidence at all; as Justice O’Connor noted, if
the trial judge himself felt a new sentencing was warranted
on the basis of the information, the total absence of that
evidence before the jury was prejudicial.

Further, it was not the fact of Marshall’s financial
situation, nor the rationality of accruing insurance on
Maria that was in dispute: it was whether his perception of
his increasing indebtedness led him to consider the
magnitude of the assets available from the insurance
policies as a solution to an overwhelming debt. Thus,
Marshall is incorrect when he argues that his own acts and
expressions of despair as to his finances could have been
explained away by proper psychiatric testimony. His
statements on the suicide tape that he was worried about
his debt led the New Jersey Supreme Court to conclude
that Marshall could not "demonstrate how trial counsel’s
more comprehensive preparation and different trial strategy
could persuasively have overcome defendant’s own
perception that his debt was difficult to manage." Marshall
II, 690 A.2d at 65. We note as well that Kraushaar’s
testimony also portrayed Marshall as a man who was
worried about finances and how to resolve his debt. It was

                                77


not unreasonable for the New Jersey Supreme Court to find
that the presentation of objective data justifying either the
level of debt or the level of insurance maintained on Maria
had no reasonable probability of impacting how the jurors
perceived Marshall’s response to his debt, nor to the
insurance that indisputably would eliminate that debt.

2. Crime Scene Evidence

Marshall contends that he was prejudiced by his trial
counsel’s failure to test the tire and to bring out other
evidence that would tend to demonstrate that Marshall
pulled off the road where he did because he was afraid of
being hit -- as a friend of his recently had been-- and had
himself been seriously injured. He urges that if the car
trouble were shown to be legitimate, and the circumstances
surrounding the crime cast in a more accurate light, the
jury could have found that Maria was killed to prevent her
from identifying thieves, rather than as the result of a
carefully arranged plot between her husband and
McKinnon. Here, the New Jersey Supreme Court did find
that Zeitz’s performance was below objective standards of
proficiency, but that there was no constitutional violation
because there was but "scant support" for the alternate
theory of the crime. Marshall II, 690 A. 2d at 60-61, 63.
Under Strickland, the burden is on the defendant to
establish that counsel’s performance prejudiced the
defense. Strickland, 466 U.S. at 687. It was not
unreasonable for the New Jersey Supreme Court to
conclude that mere articulation of an alternate theory of the
crime was not adequate to satisfy this burden.

3. McKinnon’s Statement

Marshall’s counsel hired an investigator to go to
Louisiana. While there, the investigator secured a
statement, authored by McKinnon, suggesting an alternate
and exculpatory explanation for his relationship with
Marshall. At trial, despite repeated requests by the State,
Marshall’s counsel claimed that he did not have the
statement, averring that it was shown to him "a long time
ago, over a year ago, and I’ve been asking him to locate the
thing since then and I said it over and over again, and I
don’t think I have to continue defending myself about it."

                                78


Marshall II, 690 A.2d at 44. On cross-examination, the
investigator read the statement into the record. Because
neither McKinnon nor Marshall had been cross-examined
on the statement, the trial court ruled that both could be
recalled for cross-examination, although McKinnon could
be recalled only by the co-defendant’s counsel, since he was
"faultless" in having been unable to cross-examine on the
statement. Id. at 44. Neither witness was recalled. Id.

Marshall claims that his trial counsel was ineffective in
not utilizing McKinnon’s prior statement to impeach his
testimony on the stand, claiming that the omission revealed
either "incredible lack of preparation, or demonstrated
highly questionable conduct on the part of the defense of
which the jury was made aware." App. Br. at 111. In a
conclusory fashion, Marshall claims that "evidence that
would cast doubt on McKinnon’s testimony would have
been some of the most valuable impeachment evidence
available and thereby cast doubt on the State’s entire case."
Id. Marshall refers us to the determination of the New
Jersey Supreme Court that, since the statement was
ultimately before the jury, "its late admission into evidence
was immaterial. The jury had the benefit of the statement
itself, and counsel had the opportunity to present
arguments concerning McKinnon’s statement to the jury in
summation." Marshall II, 690 A.2d at 45. Reading
Marshall’s claim carefully, the prejudice that Marshall
asserts would result from the jurors’ being denied access to
the contents of the statement and the fact that it
contradicted McKinnon’s testimony at trial. But, as
Marshall’s counsel pointed out, since the jury had received
both statements it could draw its own conclusions. Id. at
44-45. Thus, although counsel should have ensured that
the document that was in the possession of his investigator
was produced to the State and co-defendant’s counsel in a
timely manner, it was not unreasonable for the New Jersey
Supreme Court to conclude that Marshall was not
constitutionally prejudiced since the contents of the
inconsistent statements were indeed available for
consideration by the jury.

4. The Suicide Attempt

As noted above, after his wife’s death, with the pressures
of the investigation mounting and his relationship with

                                79


Kraushaar at an end, Marshall checked into the Best
Western room where he and Kraushaar used to meet, and
prepared tapes and a suicide drink, which he did not
consume. At trial, the State intimated that the suicide
attempt was staged, not genuine. Counsel did not present
evidence to refute these allegations, except to elicit
testimony from Marshall that the suicide attempt was
genuine. App. Br. at 111-13. Although counsel had
arranged for a psychologist, Dr. Atkins, to assess Marshall’s
condition, the report was not obtained until mid-trial, and
was not used. Nor was Dr. Atkins called as an expert. Id.
at 112.

Marshall contends that the psychological testimony is
critical, because it would establish that the tape--
discussed above as reflecting Marshall’s despair over his
finances -- was the result of "a major depressive episode."
Id. Marshall alleges that the New Jersey Supreme Court did
not address these arguments in affirming the denial of
post-conviction relief, even though he raised them, and
that, as a consequence, we should not apply AEDPA
deference.39 In response, the State contends that the court
did address Marshall’s contention, albeit generally, and
thus argues that Appel v. Horn, 250 F.3d 203 (3d Cir.
2001), is inapplicable. See Marshall II, 690 A.2d at 73.

Given the posture of Marshall’s claim, we do not need to
address the level of deference owed, because Marshall has
stated that the purpose for which the report would have
been used is to demonstrate that Marshall was depressed
when he produced the tape, which in turn would impact
the reliability of the financial data. Those issues, as
discussed above, were adjudicated on the merits by the
New Jersey Supreme Court. We have already indicated that
Marshall has misapprehended the New Jersey Supreme
Court’s view of the significance of the tape: it is not that it
reflects Marshall’s true financial status, but that it reflects
Marshall’s reaction to and perception of his financial
_________________________________________________________________

39. As noted above, see supra note 18, where the state court does not
adjudicate a federal claim on its merits, we will apply pre-AEDPA
deference. Here the parties both discuss Appel v. Horn, 250 F.3d 203,
210 (2001). Everett v. Beard, cited above, is equally apt here.

                                80


status, and, indeed, his state of mind. Thus, adducing
testimony to demonstrate that the finances and other
stressors in Marshall’s life had caused him to enter a
"major depressive episode" and attempt suicide could only
bolster the image of Marshall’s finances as sufficiently
worrisome to provoke Marshall to commit desperate acts.
The information therefore could not have a reasonable
probability of affecting the outcome.

Further, courts are to be especially deferential to
reasoned decisions by counsel. The fact that Marshall’s
counsel was the one who arranged for the psychological
examination indicates that he was sensitive to the
possibility that the information may be valuable for trial,
and that he asked for it, received it, and did not use it
places his decision squarely in the realm of the myriad
tactical decisions counsel must make during a trial, and
which courts, with the benefit of hindsight, should not
second-guess.

5. Countering Prosecutorial Theatrics

During cross-examination, the prosecutor asked Marshall
if he was wearing his wedding ring because he had been
instructed to. Counsel objected, and the objection was
sustained. Marshall volunteered the fact that he had had to
surrender the ring when he was arrested, but, due to
different policies in different locations, was now allowed to
wear the ring. The prosecutor then asked whether the ring
was a reflection of how much he loved and missed his wife,
and, upon receiving an affirmative answer, asked why
Maria’s ashes were "still in a brown cardboard box at the
funeral home in a desk -- ." Cross-Examination of Robert
Marshall, February 26, 1986, St. Ex. 29T at 84. Counsel
objected, and after a discussion at sidebar, the objection
was overruled. Id. at 84-89. Marshall claims that counsel
had avenues open to him to neutralize the effect of the
prosecutor’s questioning, and he suggests some options to
us. But, as Strickland emphasizes, a trial does not have to
be perfect to be constitutionally fair. Because reviewing
courts are not seeking to enforce optimal attorney
performance, they are not to question whether there was a
"better" response possible -- only whether the attorney’s
response was constitutionally adequate. The New Jersey

                                81


Supreme Court recognized that counsel did attempt to
neutralize the testimony, by eliciting from one of Marshall’s
sons the family’s plans to travel to Florida together to bury
Maria, plans that had to be postponed when Marshall was
arrested. Marshall II, 690 A.2d at 74. It concluded that the
topic was "peripheral" and further testimony"would not
have materially aided defendant’s chances of being
acquitted of the charged offenses." Id. Such a conclusion is
reasonable, and our review is only as to reasonableness.
Even were we to disagree with the New Jersey Supreme
Court’s conclusion, however, we would still hold that
Marshall has not demonstrated performance that falls
below the threshold set by Strickland.

6. Counsel’s Non-Adherence to His Stated Strategy

Marshall claims -- without citation to the record-- that
his trial counsel "testified that his trial strategy was to
present character evidence" yet, for the witnesses that were
called, he did not always interview them prior to their
taking the stand, did not establish a proper foundation for
their testimony, and did not elicit from them all of the
information that should have been elicited. App. Br. at 115-
16. The New Jersey Supreme Court considered Marshall’s
claims here in conjunction with other "miscellaneous
claims" of ineffectiveness, and concluded that"[i]rrespective
of whether those and analogous pretrial omissions by
counsel constituted deviations that fell below an objective
standard of reasonableness, we are convinced that
defendant cannot demonstrate that counsel’s alleged
pretrial deficiencies either individually or collectively had
the capacity to change the result of the proceeding."
Marshall II, 690 A.2d at 87. The claim Marshall raises has
two aspects to it: first, were the witnesses in question
adequately prepared to testify; and second, were they
adequately prepared if, indeed, the character testimony was
critical to his trial strategy. If the witnesses were not critical
to counsel’s trial strategy, but were called merely to provide
limited testimony, Marshall could not realistically satisfy
either prong of Strickland. Thus, the critical question to
assessing the reasonableness of the New Jersey Supreme
Court’s conclusion is: Were the witnesses in question vital
to counsel’s trial strategy?

                                82


The witnesses Marshall called who did provide -- or
might have been expected to provide -- character testimony
included his sons, his sister, and other members of the
insurance industry and the Toms River community. As
noted above, the character testimony elicited consisted
primarily of brief affirmations that Marshall had a
reputation for being law-abiding and a man of integrity, and
that he was an excellent insurance salesman.

At the limited remand hearing, Marshall’s trial counsel
explained why he chose from the outset to have Marshall
testify, distinguishing Marshall’s situation from one in
which the defendant had an extensive criminal history, or
one where the State’s case was particularly weak-- both of
which were situations where a defense attorney would not
want to commit the defendant to taking the stand from the
outset. With Marshall, in contrast, the trial was expected to
be lengthy, and counsel cited to jury studies that stated
that eighty percent of a panel make up their mind
preliminarily after the opening statements. Direct
Testimony of Glenn Zeitz, December 1, 1994, St. Ex. 6PCT
at 11-13. He then stated:

        In this particular case, the way we defended this
       case, was to let the Jury know right from the beginning
       that there was going to be character testimony. I
       wanted to personalize my client. There’s other
       references in the opening that deal with his
       background, the charitable things that he did, there
       were -- there was a reference to character testimony
       that they were going to hear from. And, in essence,
       what we were trying to accomplish in this case was to
       wait and have the Jury wait in their own minds until
       they heard his version, to give him an opportunity to
       tell them what happened here, rather than make up
       their minds preliminarily, notwithstanding the advice
       that we knew they’d be getting from the trial Court.

Id. at 13. It cannot reasonably be inferred from counsel’s
explanation as to why he felt it important to tell the jury
from the outset that Marshall would testify what
significance he accorded to any of the other witnesses’
testimony. Because their testimony accounted for only a
tiny portion of the trial testimony adduced, and because

                                83


Marshall has not demonstrated to us that any of the
testimony that would have been provided would have any
bearing at all on the jury’s determination of guilt or
innocence, it was not unreasonable for the New Jersey
Supreme Court to conclude that ill preparation as to those
witnesses, if it were found, would not be prejudicial to
Marshall.

7. Counsel’s Lack of a Coherent Defense Theory.

Although Marshall characterizes this claim as a failure to
develop a coherent defense theory, his claim above would
indicate that he thought that trial counsel had, indeed,
formulated a coherent theory, one that focused on
portraying Marshall as a good man, who would succeed by
communicating directly with the jury. Further, the specific
tactical decisions that Marshall cites in support of this
contention40 amount to little more than a listing of things
that, with the benefit of hindsight, counsel might have
handled differently.

8. Counsel’s Failure to Present Certain Evidence

All of the examples cited to us are tied to Marshall’s
understanding of other parts of his defense that have been
rejected by the New Jersey Supreme Court. For example,
Marshall criticizes counsel for not contradicting a trooper’s
statement at trial that Marshall had reported a flat tire,
with the report the trooper prepared, indicating that the tire
was half-flat. This is addressed by the reasoning in 2, above.41
_________________________________________________________________

40. In this category, Marshall considers the fact that his trial counsel
allowed co-defendant’s counsel to conduct "crucial examination" of
witnesses, that he failed to object when co-defendant’s counsel elicited
testimony that benefitted his client but harmed Marshall, that he placed
Marshall on the stand "abruptly in the middle of his case" and that he
"fail[ed] to recognize that Kolins, his investigator, had engaged in such
incriminating conduct that [counsel] needed to terminate their
relationship or otherwise disassociate Kolins’ conduct from his client" as
evidence of trial counsel’s lack of a coherent theory of defense. App. Br.
at 116-17.
41. The State also points out that "most of what petitioner says should
have been elicited was inadmissible hearsay under New Jersey law,"
Appee. Br. at 93, a point the New Jersey Supreme Court did not need to
reach, since it evaluated this claim under the prejudice prong of
Strickland.

                                84


Marshall also criticizes trial counsel for a witness’s
exclusion. Counsel had put Henry Tamburin’s name on the
witness list originally, then informed the court that his
name was not on the list, and did not correct the error until
he called Tamburin to the stand, at which point the court
sustained the prosecutor’s objection and limited the scope
of the witness’s testimony. Because Tamburin would have
testified about the use of "comps" at casinos, and the
gambling system he had taught to Marshall, Marshall now
finds it "baffling in view of the voir dire he had requested on
comp abusers" that he did not ensure that Tamburin was
able to testify. Had he testified, however, all that would
have become clear is what Marshall’s gambling strategy
was. As noted above, the issue before the jury was whether
Marshall’s perception of his financial circumstances was
such that it could prompt a desperate act; explaining how
he gambled would not address that issue, and thus the
New Jersey Supreme Court reasonably concluded the
omission of the testimony was not prejudicial.

Marshall also faults trial counsel for not having
Marshall’s secretary testify that Marshall had sent
information on financial products to Robert Cumber. The
jury knew that Marshall had met Cumber at a party in New
Jersey,42 and that Marshall had sent him information on
financial products. They also knew that Cumber introduced
McKinnon and Marshall. But Marshall is asserting that the
secretary’s verification that Marshall did send the financial
records "would have rebutted the inferences that the many
calls Marshall placed to Cumber were to locate McKinnon
to hasten his wife’s murder." App. Br. at 120. Even
assuming that trial counsel had adduced testimony
verifying that Marshall sent documents to Cumber, that
testimony would not serve to verify that the numerous
phone conversations over the course of the summer
concerned those documents; the jury would still be
compelled to determine whether it believed Marshall’s or
McKinnon’s testimony as to the purpose of the telephone
calls. Thus, the New Jersey Supreme Court was not
_________________________________________________________________

42. The State points out that "at trial petitioner forgot ‘exactly how’ the
conversation somehow led to the fact that I was looking for an
investigator’ to track down missing casino money." Appee. Br. at 95.

                                85


unreasonable in determining that Marshall could not have
been prejudiced by the failure to call Marshall’s secretary.

Marshall also faults the New Jersey Supreme Court for
evaluating each of counsel’s alleged failures individually,
characterizing it as the "divide-and-conquer approach of
ruling on each individual Strickland error rather than
assessing the joint prejudice from all the ineffective-
assistance claims." App. Br. at 120. Marshall cites to [Terry]
Williams v. Taylor, 529 U.S. 362, 397-98 (2000), for this
proposition. We think that Marshall misapprehends the
guidance of the United States Supreme Court. In Williams,
the United States Supreme Court found fault for"failing to
evaluate the totality of the available mitigation evidence --
both that adduced at trial, and the evidence adduced in the
habeas proceeding -- in reweighing it against the evidence
in aggravation," thus erroneously concluding that Williams
had not been prejudiced by his counsel’s errors at the
sentencing phase. Id. But here, Marshall has not placed
before us anything that would singly, or in combination,
have had a reasonable probability of affecting the outcome
of his trial. The New Jersey Supreme Court reasonably
concluded precisely that. "[F]ew of the allegations of
ineffective assistance at trial involved significant
deficiencies in the quality of counsel’s representation, and
those that did were not material to the trial result."
Marshall II, 690 A.2d at 90.

9. Failure to Object or Seek Curative Action

Marshall alleges that trial counsel did not object nor seek
curative action when inadmissible testimony was admitted,
or when the prosecutor engaged in misconduct. He also put
"irrelevant, prejudicial facts before the jury." App. Br. at
120. The New Jersey Supreme Court reasonably determined
that Marshall could not demonstrate ineffectiveness under
Strickland as to these alleged faults of counsel.

While we examine more fully the circumstances under
which an evidentiary hearing is required below, we do
conclude here that neither the New Jersey Supreme Court
nor the District Court was required to hold an evidentiary
hearing to develop the above claims of ineffectiveness at the
guilt phase.

                                86


Volume 3 of 3

                                87
F. Cumulative Error

Marshall contends that even if we do not find the errors
in his trial43 individually so egregious that we would grant
the writ of habeas corpus, the errors of all kinds that have
been recounted are so invidious and numerous that we
ought to aggregate them and find that, in sum, the
constitutional error was sufficient to grant the writ.

We addressed this issue in the habeas context in United
States ex rel. Sullivan v. Cuyler, 631 F.2d 14, 17 (3d Cir.
1980), recognizing that errors that individually do not
warrant a new trial may do so when combined.44 Here, even
were we to cumulate all the claimed errors and
superimpose them over the extensive trial proceedings,
given the quantity and quality of the totality of the evidence
presented to the jury, we could not conclude that the New
Jersey Supreme Court unreasonably applied Supreme
Court precedent or unreasonably determined the facts in
making its ruling.

G. Penalty Phase Ineffectiveness

As we noted at the outset, counsel and the court
discussed the procedures that would be followed in the
penalty phase while Marshall was at the hospital, and the
jury was at lunch. Within a few minutes of Marshall’s
return, at 1:45 p.m., the court convened the penalty phase.
_________________________________________________________________

43. The errors Marshall asks us to aggregate are those he contends the
New Jersey Supreme Court recognized as occurring"in the course of
[his] trial." App. Memorandum of Law in Support of Application for
Certificate of Appealability at 194. However, Marshall includes a penalty
phase statement by the prosecutor in that list, id. at 195, as well as
pretrial and penalty phase "additional problems." Id. We find persuasive
the reasoning of the Western District of Pennsylvania that only errors
occurring during trial should be considered in accumulation, a point
made expressly in Pursell v. Horn, 187 F. Supp. 2d 260, 375-76 (W.D.
Pa. 2002), and implicitly in the analysis of the other courts of appeals to
have considered the issue.

44. "Moreover unified consideration of the claims in the petition well
satisfies the interests of justice because the cumulative effect of the
alleged errors may violate due process, requiring the grant of the writ,
whereas any one alleged error considered alone may be deemed
harmless." United States ex rel. Sullivan v. Cuyler, 631 F.2d 14, 17 (3d
Cir. 1980).

                                88


        THE COURT: Gentlemen, we’re now prepared, I
       believe, to move on to the penalty phase of this matter.
       I did have a discussion with counsel in chambers
       regarding the procedure that we’re going to follow, and
       before we place that on the record, are counsel in
       agreement that that is the procedure that will be
followed?

 ZEITZ: Yes, sir.

 KELLY: Yes, sir, your Honor.

 THE 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 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 intend 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.

 It’s also based on the understanding that what we
will do procedurally, is that Mr. Kelly and I will not
make any opening statement to the jury at the penalty
phase, but, in essence, what we will do is, I will make
my summation arguments and then Mr. Kelly will
make his to the jury.

 I’ve also explained to my client, as part of this
proceeding, which I think I should spread on the
record, that the State, in its argument on the penalty
phase, will be proceeding on one aggravating factor,
and this is aggravating factor two as outlined in the

                         89


notice of aggravating factors that was filed in this case
at or about the time of the return of the indictment,
which states that the defendant procured the
commission of the offense by payment or promise of
payment of anything of pecuniary value.

 I’ve also explained to my client that there are two
mitigating factors which I will be arguing to the jury at
the penalty phase, number one -- and I might add,
Judge, that we did file, even though it was certainly
premature, but we did file a notice of mitigating factors
earlier in the case; specifically, that the defense will
argue, number one, that defendant Robert O. Marshall
has no history of prior criminal activity, and, I believe,
I asked the Court in chambers to delete the word
significant, because that seems to relate to a situation
       that where someone may have something -- some
       blemish in their past, and the jury has to make some
       consideration as to whether or not that’s significant or
       not, and I think the State is at least prepared to at
       least stipulate on the record that he has no history of
       prior criminal activity and, therefore, that, in essence,
       is a mitigating factor that they must find on his behalf.

        Second, we will be arguing an additional mitigating
       factor which deals with anything that may relate to the
       character of the defendant, which I believe is the last
       mitigating factor that’s referred to in the statute, and
       we are going to be arguing certain things with regard to
       his character which we’d asked the jury to consider as
       a mitigating factor.

        I’ve explained to my client, in essence, that this is
       the procedure that I would like to adopt and follow at
       this stage, and it’s my understanding that he is in
       agreement with this procedure.

        THE COURT: Very well. And, Mr. Kelly, I suppose
       you’re in agreement with the procedure that we’re
       about to follow.

        KELLY: Yes, your Honor, I am.

The Court brought in the jury and explained to them the
procedure that would be followed, alerting them to the

                                90


aggravating and mitigating factors to be "argued" and that
the jury would find. He concluded by saying:

        You will now be asked to determine whether the
       defendant shall be sentenced to death or not.

        As was true in the trial we just concluded, your
       decision in that regard must be based solely upon the
       evidence presented in this courtroom and my
       instructions regarding the law.

        It is important to note that the penalty proceedings
       will not focus on whether or not the defendant is guilty.
       You have already returned a verdict in which you
       concluded beyond a reasonable doubt that the
       defendant is guilty of the murder. Rather, what is
       presented here will be concerned with whether or not
       there are factors which, on balance, lead you to
       conclude that the defendant should suffer the death
       penalty.

        You will hear argument as to the alleged aggravating
       factor which the State contends, or may contend,
       warrants the imposition of the death penalty in this
       case, in addition to the evidence at the trial of which
       you can take cognizance.
 The aggravating factor which is alleged is that the
defendant procured the commission of the offense by
payment or promise of payment of anything of
pecuniary value. That is one of the aggravating factors
listed in our statute. And that is the aggravating factor
that the State may contend calls for the imposition of
the death penalty.

 On the other hand, you will   hear argument as to
mitigating factors which the   defendant argues exist. As
with the alleged aggravating   factor, you should also
consider the evidence at the   trial as evidence
pertaining to the mitigating   factors.

 The two mitigating factors which are alleged to exist
are, first, that the defendant has no history of criminal
activity. And I might state parenthetically at this point
that the parties have stipulated, or agreed, that the
defendant has no history of criminal activity. Therefore,

                         91


when you come to that place on the form that you’ll
get, you will have to answer that yes, the defendant
has no history of criminal activity, because he does
not.

 The second mitigating factor alleged is any other
factor which is relevant to the defendant’s character or
record or to the circumstances of the offense, which, I
presume, there will be some statements made to you
shortly.

 Should you find beyond a reasonable doubt that the
aggravating factor has been proven, then it will be your
obligation to determine the mitigating factors also
present.

 While the State must prove aggravating factors
beyond a reasonable doubt, the defense has a lesser
burden. If any evidence has been presented with
respect to a mitigating factor, then you are bound by
law to consider it and weigh it against any aggravating
factor you may have found present. The defendant does
not have to establish the existence of mitigating
factors, merely introduce evidence of them.

 You will be asked to weigh the evidence of mitigating
factors against the aggravating factor proven.

 Under our law, the jury must return a special verdict
on a form which will be provided to you, stating in
writing the existence or nonexistence of the aggravating
factor, and the evidence of the mitigating factors
alleged.

 If any aggravating factor is found to exist, the verdict
must also state whether any such factor beyond a
reasonable doubt outweighs all mitigating factors.
Should you find that any aggravating factor exists, and
beyond a reasonable doubt that this aggravating factor
outweighs all mitigating factors, then it’s the
responsibility of the Judge to impose the death penalty
in this case.

 If you’re not satisfied beyond a reasonable doubt that
the aggravating factor exists, or you’re not satisfied
beyond a reasonable doubt that the aggravating factor

                         92


outweighs all mitigating factors, then the defendant
would be sentenced by the Court to a term of
imprisonment from thirty years to life, and whatever
term would be imposed, the defendant could not be
considered for parole until he has served thirty years in
prison.

 So at this point, I believe Mr. Zeitz, on behalf of the
defendant, will make a statement to you.

 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 is 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.

 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.

                         93
 The State has one aggravating factor which they are
going to ask you to consider, and that is the fact that,
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 the 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
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 reasonable 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

                         94


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.

Transcript of Proceedings, March 5, 1986, St. Ex. 34T at 5-
28.

The jury began its deliberations at 2:20, and at 3:55, the
jury unanimously sentenced Marshall to death.

As is obvious from the above replication, Zeitz did little
more in the penalty phase than concede the existence of
the aggravating factor and make vague references to
evidence that was presented at trial only sparsely-- from
Marshall’s own autobiographical narration and the few
"character" witnesses who had testified that Marshall was
honest and law-abiding and an excellent salesman.
Marshall characterizes the entire penalty phase as a
"travesty." App. Br. at 19. He urges numerous ways in
which Zeitz mishandled this important 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 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.

                                95


       5. Zeitz never discussed the penalty phase with
       Marshall.

       6. Zeitz never prepared for the penalty phase and
       conducted no investigation.

We view these claims as falling into two 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. Marshall contends that
these failures were the result of a "complete[ ] fail[ure] to
investigate, prepare or present a case in mitigation,
ultimately leaving petitioner in essence, without an
advocate on his behalf." App. Br. at 20.

Anyone with an understanding of death penalty litigation,
especially during the penalty phase, would be inclined to
agree with Marshall’s characterization.

       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.

Gary Goodpaster, The Trial for Life: Effective Assistance of
Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 303
(1983). The United States Supreme Court, in requiring full
disclosure of presentence reports in capital proceedings,
emphasized that a process that entrusted the interpretation
of the report to a trial court’s discretion without allowing for
the advocacy of defense counsel was based on:

       the erroneous premise that the participation of counsel
       is superfluous to the process of evaluating the
       relevance and significance of aggravating and
       mitigating facts. Our belief that debate between
       adversaries is often essential to the truth-seeking

                                96


       function of trials requires us also to recognize the
       importance of giving counsel an opportunity to
       comment on facts which may influence the sentencing
       decision in capital cases.

Gardner v. Florida, 430 U.S. 349, 360 (1977) (plurality
opinion). The Court built upon this rationale in concluding
in United States v. Cronic that "[t]he right to the effective
assistance of counsel is thus the right of the accused to
require the prosecution’s case to survive the crucible of
meaningful adversarial testing." 466 U.S. 648, 656 (1984).

Capital jurisprudence has long recognized that counsel’s
ability to advocate effectively during the sentencing phase is
derived from adequate preparation directed specifically to
the penalty phase. Thus, in his concurrence in Strickland,
Justice Brennan stressed:

       Of course, "[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 or fails to present a case in
       mitigation at the capital sentencing hearing."
       Accordingly, counsel’s general duty to investigate takes
       on supreme importance to a defendant in the context
       of developing mitigating evidence to present to a judge
       or jury considering the sentence of death; claims of
       ineffective assistance in the performance of that duty
       should therefore be considered with commensurate
       care.

466 U.S. at 706 (Brennan, J., concurring in part and
dissenting in part) (internal citations omitted).

Marshall focuses understandably on what counsel did
not do, juxtaposing it against what counsel did do, which
appears from the record before us to have been very little.
Zeitz rambled his way through the mitigating factors. He
told the jury it had already found the aggravating factor.45
_________________________________________________________________

45. Although Marshall does not press this claim on appeal, we note that
under New Jersey law, the jury should have been told to deliberate anew
as to whether the prosecutor had established the existence of the
aggravating factor beyond a reasonable doubt, as well as to what weight
to accord that factor in the face of the mitigating factors presented. The
New Jersey Supreme Court did not reference this, and, in fact, seemed
to find the instructions to the jury to be proper. See Marshall I, 586 A.2d
at 157.

                                97


He dwelt more on Marshall’s lack of a criminal record --
which the State had stipulated, and the court had
instructed the jury must be found by them-- than on the
other factor that purportedly was the heart of the defense
in the guilt phase, namely, that Marshall was a good person
devoted to his family and community. Here Zeitz noted only
sparse facts, eschewing the notion of going "through a
whole litany" in favor of merely characterizing it as a
"substantial" record. In fact, the record at trial, as we cite
above, only included Marshall’s own testimony as to his
community service or his devotion to his family, and that
was elicited in the course of introductory autobiographical
information; it was hardly "substantial."

Toward the beginning of Marshall’s testimony, Zeitz
inquired as to the homes Marshall had owned in Toms
River, and whether he worked from home, and whether his
wife helped him. Zeitz then asked whether, while Marshall
was building his sales business, Marshall and his wife
"bec[a]me active in any types of groups or social
organizations or anything of that nature in [his]
community." Marshall responded:

        Well, in 1969, I believe, we joined the country club so
       that I could play tennis and the boys could swim,
       which was really the main purpose of our joining.

        I shortly thereafter became a member of the Toms
       River Rotary Club, was co-founder of the Toms River
       Business Association, which was a business-oriented
       group. My wife was a member of a hospital auxiliary
       group, which they referred to as a twig, laurel, pine
       and so forth, all names for trees, which was a group
       which was basically a fund-raising group of women
       who raised money for the hospital.

Direct Testimony of Robert Marshall, February 26, 1986,
St. Ex. 28T at 7-8. Zeitz then asked whether Marshall ever
had become active in United Way.
        Yes. Because of my fund-raising activities in other
       areas for the YMCA and the Rotary and another
       organization that I belonged to, it seemed as though I
       always ended up as the fund-raising chairman for one
       reason or another. So the president of the United Way

                                98


       asked me if I would join them, and I became the fund-
       raising chairman in 1982, ‘83.

Id. at 8. Zeitz then inquired as to Marshall’s professional
advancement, his certification as a charter life underwriter
and earning of a real estate license, his expertise in
financial products, and the companies for which he worked
and the number of clients he had. Zeitz then moved on to
inquiring about the party at which Marshall met Cumber,
Marshall’s affair with Sarann Kraushaar, and other details
of the period of and subsequent to Maria’s murder. Yet
those bare references to social activities were presented to
the jury in the mitigating phase as:

        He was involved in, among other things, with the
       Ocean County Businessmen’s Association. You’ve
       heard that. He was campaign chairman for the 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
       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.

Transcript of Proceedings, March 5, 1986, St. Ex. 34T at
16.

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." Id. at 17.

Recently, the United States Supreme Court was asked to
declare counsel’s performance in the penalty phase a per se
violation of the defendant’s right to counsel where counsel

                                99


had failed to offer mitigating evidence and had waived
closing argument. Bell v. Cone, 535 U.S. ___, 122 S.Ct.
1843 (2002). The United States Supreme Court refused to
do so, making clear that the principles set forth in
Strickland must guide a court’s analysis of ineffectiveness
even where a penalty phase presentation appears woefully
inadequate. The elements of the Strickland inquiry in the
penalty phase are no different from the elements in the trial
proceedings: did counsel’s representation fall below an
objective standard of reasonableness, 466 U.S. at 688, and
is there "a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. In Bell, the Court noted:

       In Strickland we said that "judicial scrutiny of a
       counsel’s performance must be highly deferential" and
       that "every effort [must] 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." Thus, even when a court is presented with an
       ineffective-assistance claim not subject to S 2254(d)(1)
       deference, a defendant must overcome the
       "presumption that, under the circumstances, the
       challenged action ‘might be considered sound trial
       strategy.’ "

535 U.S. at ___, 122 S.Ct. at 1852 (internal citations
omitted).

Before examining the application of the Strickland
analysis by the New Jersey courts, we will consider the
nature of the types of substandard performance charged by
Marshall, the types of evidence he contends should have
been presented, and the things he alleges should have been
done differently, which Marshall urges would have made it
reasonably probable that the jury would have spared his
life.

The failing Marshall presses most forcefully is the failure
to present readily available witnesses to humanize Marshall
and render him a more sympathetic person who should not
be put to death. These witnesses include Dr. Atkins, who
had accompanied Zeitz the night of Marshall’s suicide

                                100


attempt, and had facilitated Marshall’s transfer to a
psychiatric hospital. During that evening, Dr. Atkins spent
about an hour interviewing Marshall alone. His clinical
impressions from that interview were reported to Zeitz in
written form in February 1986. He reported that Marshall
was "suffering a major depressive episode," and that the
suicide attempt was a "bonafide" attempt of"an extremely
fragile, anxious man who was expressing feelings of
hopelessness, helplessness and futility." PCR Appeal,
Defendant-Appellant Appendix, Vol. 31 at Da4281-82.

Only one of Marshall’s siblings, his sister Oakleigh
DeCarlo, testified at trial. As discussed at length above, the
purpose of her testimony was limited. Yet, according to
Marshall’s representations before us, she and her other
siblings were prepared to provide testimony that would
have shown Marshall to be a generous and caring father
and sibling, but also one who was driven by a need to
overcome the poverty and abuse he and his family had
experienced when he was a child. He worked from a young
age, yet also shared his earnings with his family. App. Br.
at 26. As DeCarlo would have testified, Marshall’s father
was a salesman who was often absent, leaving Marshall to
take care of his mother and younger siblings. Id . When he
was at home, Marshall’s father drank heavily and was often
abusive. Id. at 27, 31. When growing up, Marshall’s family
never owned the homes they lived in; when he had his own
family, Marshall wanted his sons to "do better than ‘we
did.’ " Id. at 28. His colleagues-- those who testified at all
had testified to his success as a salesman or his reputation
for being law-abiding only -- could have testified about his
commitment to family, and about his fund-raising and
other community activities.

Several witnesses were never even contacted. These
included Marshall’s other sisters and his brother; his
secretary, Nikki Daly; Tom North, who grew up with
Marshall; the coach of Marshall’s sons’ swim team, Michael
Conlon; and the high school’s former athletic director, Bill
Lundy, the latter two of whom would have testified to
Marshall’s generosity and commitment of both time and
money. The Executive Director of the United Way, Kathy
Sauer, could have testified about Marshall’s fund-raising

                                101


work, and his accountant, Bruce Bowe, could have testified
about his charitable contributions. Id. at 36-37. According
to Marshall, none were contacted about their possible
testimony.

Additionally, and perhaps more importantly, Marshall
has testified that counsel had no discussion with him, and
that, not only did Zeitz fail to contact witnesses who were
prepared and willing to provide relevant mitigating
evidence, but he did no preparation or investigation
whatsoever for the penalty phase. We know that counsel
produced all his interview notes, spanning the time period
from December 1984 to January 1986, and in the almost
thirty pages of notes, there is no reference to any
discussion of the penalty phase. PCR Appeal, Defendant-
Appellant Appendix, Vol. 31 at Da4247-76. And we know
that both Marshall and Zeitz stated that the discussion as
to what would occur in the penalty phase took place during
those few minutes between Marshall’s return from the
hospital and the commencement of the penalty phase.
During that time, according to Zeitz, they discussed the
agreement Zeitz had just reached with the judge and the
prosecutor, as well as whether -- in light of the State’s
decision not to argue that the offense was heinous, nor to
seek an aggravating factor as to the manner in which the
killing took place -- he wanted to call his sons as witnesses
in the penalty phase. Cross-Examination of Glenn A. Zeitz,
December 20, 1994, St. Ex. 9PCT at 119. In his testimony
at the PCR hearing, Marshall summed up the discussion: "I
think he asked me if I wanted to go ahead and I said-- I
think that’s when I said let’s get it over with." Direct
Testimony of Robert Marshall, December 20, 1994, St. Ex.
9PCT at 142.

Marshall was adamant that the penalty phase had never
been discussed prior to trial:

       We never discussed the penalty phase. We only
       discussed questions dealing with the trial itself. There
       was never any discussion about the penalty phase. . . .
       He certainly made me aware that this was a death
       penalty trial and that that was a possibility, but we
       never discussed procedurally or anything beyond the

                                102


       trial itself. We were all -- all our discussions dealt with
       the trial portion not the possibility of a penalty phase.

Id. at 142. Zeitz admitted that his notes do not reflect any
discussions of the penalty phase with Marshall. Id. at 131.
And Zeitz testified that when he referred to having
discussed the penalty phase procedure with his client, he
was referring to the discussion that occurred between the
return of the verdict and the commencing of the penalty
phase. Id. at 115.

As we noted above, counsel’s duty of inquiry in the death
penalty sentencing phase is somewhat unique. First, the
preparation and investigation for the penalty phase are
different from the guilt phase. The penalty phase focuses
not on absolving the defendant from guilt, but rather on the
production of evidence to make a case for life. The purpose
of investigation is to find witnesses to help humanize the
defendant, given that a jury has found him guilty of a
capital offense. "[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary." Strickland, 466 U.S.
at 691. The scope of investigation that may be reasonable
"may be determined or substantially influenced by the
defendant’s own statements or actions," and the
reasonableness of investigation in particular "depends
critically" on the information or guidance provided by the
defendant. Id.

Recently, we confronted the question of whether it was
reasonable for an attorney to define the parameters of his
investigation based on the defendant’s account of the facts
and the witnesses he identified. Stevens v. Delaware Corr.
Ctr., 295 F.3d 361 (3d Cir. 2002). There we concluded that
there was no duty to conduct an investigation that would
contradict or undermine the defendant’s testimony, relying
on the statement in Strickland that "counsel’s failure to
pursue certain investigations cannot be later challenged as
unreasonable when the defendant has given counsel reason
to believe tht a line of investigation should not be pursued."
Id. at 374 (quoting Strickland, 466 U.S. at 691). But even
where a client is recalcitrant, courts have been ambivalent
in whether counsel is relieved of any further duty of
investigation, particularly where the client exhibits signs of

                                103


instability. See, e.g., Johnston v. Singletary, 162 F.3d 630,
641-42 (11th Cir. 1998). Here, the only possible limitation
recited by Zeitz is that Marshall was unwilling to have his
sons testify again in the penalty phase, even though Zeitz
suggested the possibility in the brief meeting prior to the
commencement of the penalty phase.

Second, we note that the application of the second prong
of Strickland -- the prejudice prong -- has a somewhat
more subtle application in the penalty phase than in the
guilt phase in a "weighing" state such as New Jersey. 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; 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. N.J. Stat. Ann. S 2C:11-3c(3)
provides:

       (a) If the jury or the court finds that any aggravating
       factors exist and that all of the aggravating factors
       outweigh beyond a reasonable doubt all of the
       mitigating factors, the court shall sentence the
       defendant to death.

       (b) If the jury or the court finds that no aggravating
       factors exist, or that all of the aggravating factors
       which exist do not outweigh all of the mitigating
       factors, the court shall sentence the defendant
       pursuant to subsection b (which provides for sentences
       from thirty years to life).

       (c) If the jury is unable to reach a unanimous verdict,
       the court shall sentence the defendant pursuant to
       subsection b (which provides for sentences from thirty
       years to life).

The New Jersey Supreme Court has explained the impact of
these requirements.

       The jury makes that profound decision [as to life or
       death] through its "determination of the existence of
       aggravating and mitigating factors and the balancing of
       the former against the latter." Our capital

                                104


       jurisprudence has recognized that "the jury must . . .
       make the normative judgment whether the aggravating
       outweigh the mitigating factors beyond a reasonable
       doubt. That decision, in effect, determines the
       appropriateness of the death penalty for the
       defendant." 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, 776 A.2d 144, 192 (N.J. 2001) (internal
citations omitted).

While Strickland states the applicable principles, the
recent United States Supreme Court ruling in Bell is a
useful illustration of Strickland’s principles to the penalty
phase setting. In Bell, defense counsel made an opening
statement calling the jury’s attention to the mitigating
evidence already before them. He noted defendant’s mental
disturbance, duress, addiction, and feelings of remorse. He
urged the jury that it should preserve his life"if one looked
at ‘the whole man.’ " The Supreme Court noted: "He asked
for mercy, calling it a blessing that would raise them above
the State to the level of God." Bell, 535 U.S. at ___, 122
S.Ct. at 1848. The prosecution put on one witness, but the
defense did not. The government attorney (who was not the
lead prosecutor) made a "low key" closing. Defense counsel
waived final argument, preventing the lead prosecutor,
conceded to be very effective, from arguing in rebuttal.

The Sixth Circuit Court of Appeals held that, by counsel’s
not asking for mercy after the prosecutor’s final argument,
counsel did not subject the state’s call for the death penalty
to "meaningful adversarial testing," and that, under Cronic
(decided the same day as Strickland), prejudice should be
presumed. Id. at ___, 1849. The United States Supreme
Court reversed. It noted that this was not a case in which
counsel "entirely" failed to subject the prosecution’s case to
meaningful adversarial testing -- as in Cronic -- but only
failed to oppose the prosecution "at specific points." Id. at
___, 122 S.Ct. at 1851. Accordingly, the Court addressed
each of the claimed failures, employing Strickland. In light

                                105


of Bell, we recognize that, tempted as we might be to
conclude that Zeitz’s failure to investigate and prepare, or
to take any adversarial position or ask for mercy would,
without more, constitute objectively unreasonable
performance, we are nonetheless constrained to perform the
complete Strickland analysis in this setting and to test
whether the New Jersey courts’ application of Strickland
passes muster under the applicable AEDPA standard. We
note further that, although Marshall has contended that we
could find the performance to constitute objectively
unreasonable performance without more, he has not argued
that we should evaluate ineffectiveness using the Cronic
standard.
In Bell, the United States Supreme Court then found
counsel’s rationales for not calling certain witnesses and
not making a final argument to be acceptable as statements
of strategy:

       While counsel recognized that respondent’s mother
       could have provided further information about
       respondent’s childhood and spoken of her love for him,
       he concluded that she had not made a good witness at
       the guilt stage, and he did not wish to subject her to
       further cross-examination. Respondent advances no
       argument that would call his attorney’s assessment
       into question.

       In his trial preparations, counsel investigated the
       possibility of calling other witnesses. He thought
       respondent’s sister, who was closest to him, might
       make a good witness, but she did not want to testify.
       And even if she had agreed, putting her on the stand
       would have allowed the prosecutor to question her
       about the fact that respondent called her from the
       Todds’ house just after the killings. After consulting
       with his client, counsel opted not to call respondent
       himself as a witness. And we think counsel had sound
       tactical reasons for deciding against it. Respondent
       said he was very angry with the prosecutor and
       thought he might lash out if pressed on cross
       examination, which could have only alienated him in
       the eyes of the jury. There was also the possibility of
       calling other witnesses from his childhood or days in

                                 106


       the Army. But counsel feared that the prosecution
       might elicit information about respondent’s criminal
       history. He further feared that testimony about
       respondent’s normal youth might, in the jury’s eyes,
       cut the other way.

Id. at ___, 122 S.Ct. at 1853.

The Court then concluded:

       Given the choices available to respondent’s counsel
       and the reasons we have identified, we cannot say that
       the state court’s application of Strickland’s attorney-
       performance standard was objectively unreasonable.

Id. at ___, 122 S.Ct. at 1854 (emphasis added).

From Bell, then, the task of the reviewing court is to take
each of the claimed failures and measure them against
counsel’s stated rationale to determine whether the choices
were objectively unreasonable.

1. Was Counsel’s Representation Objectively
Unreasonable?

The United States Supreme Court has counseled that in
order to assess counsel’s performance objectively, reviewing
courts must resist the temptation of hindsight, instead
determining whether, given the specific factual setting, and
counsel’s perspective at the time, his strategic choices were
objectively unreasonable.

       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.
       Because of the difficulties inherent in making the
       evaluation, 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."

Strickland, 466 U.S. at 689 (internal citations omitted).

                                107


A reviewing court cannot make such a determination on
a clean slate. It is this mandated perspective that dictates
that a reviewing court rarely resolve ineffectiveness claims
on direct appeal, and that underlies the United States
Supreme Court’s insistence that a sufficient record is
necessary in order to rule on ineffectiveness claims such as
this. E.g., Roe v. Flores-Ortega, 528 U.S. 470, 487 (2000)
(remanding due to the inadequacy of the record);
Kimmelman v. Morrison, 477 U.S. 365, 390-91(1986)
(remanding because record was inadequate to determine
whether the defendant was prejudiced, even though it was
adequate to determine that counsel’s performance was
constitutionally deficient); see also United States v.
Headley, 923 F.2d 1079, 1083 (3d Cir. 1991) (noting that
claims of ineffectiveness should be brought through a
collateral proceeding to develop the factual basis of the
claim, unless the record is sufficient to make the
assessment on direct appeal); State v. Morton , 715 A.2d
228, 253 (N.J. 1998) (listing cases) (iterating the general
policy against considering ineffectiveness claims on direct
appeal, and the Court’s refusal to decide such claims when
the record is "inadequate to disclose what reasons of tactic
and strategy motivated counsel"). As is evident from the
United States Supreme Court’s analysis in Bell , counsel’s
explanations for his actions might justify what would
facially appear to be substandard performance.

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.
The Court in Bell was able to determine that counsel’s
decision to offer a neutral and abbreviated penalty phase
and no evidence in mitigation was a strategic move on his
part; we cannot reach a similar conclusion on this record.
Also unlike Bell, there 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. As noted above, we know that his notes reflect
no conversations with Marshall about the penalty phase,
and that several prospective witnesses were not contacted

                                108


by him. We also know that Zeitz’s "usual practice would be
to prepare something and put a date or some notation."
Direct Testimony of Glenn Zeitz, December 1, 1994, St. Ex.
6PCT at 20. Zeitz also testified, however, that there were
some conversations with Marshall that were not recorded in
his notes. Id.

But, as was the case with Kimmelman v. Morrison , 477
U.S. at 389, the testimony was provided in response to
different questions, at an evidentiary hearing held for a
different purpose -- to answer the two limited questions
discussed above. Just as the United States Supreme Court
refused to infer a lack of prejudice from a judge’s comments
in Kimmelman, we must decline to infer either a lack of
strategy or a strategy from the testimony Zeitz provided as
to why he announced in his opening statement that
Marshall would testify at trial and why he chose not to seek
a continuance between the guilt and sentencing phases.

Aside from those two limited areas of inquiry, there was
no opportunity for Marshall to subpoena witnesses, and no
opportunity for the court to apprise those witnesses’
responses to direct and cross-examination. Further, Zeitz
refused to submit any affidavits to the court without a
subpoena. The Public Defender submitted an affidavit on
Marshall’s behalf that stated in relevant part:

       7. He [Zeitz] advised me that because the court had
       denied the defendant the right to produce testimony on
       the remaining claims of ineffective assistance of
       counsel, he was no longer obliged to provide any
       information to me, either factually or regarding his
       thought processes, and would not do so.

       8. Zeitz indicated that he felt that it would be too time
       consuming for him to review his files and respond
       regarding what actions he took in representing Mr.
       Marshall and why he did so. He acknowledged that,
       were these claims subject to an evidentiary hearing, he
       could be subpoenaed to testify and would then be
       forced to answer defense counsel’s questions.

Affidavit of Joan Van Pelt, June 22, 1994, DE-44(3) at
2639a. Because the only testimony from Zeitz was
restricted to the two areas discussed above, we have no

                                109
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.

Marshall urges that the known facts -- the brief penalty
statement and failure to call numerous available witnesses
-- requires a finding that counsel’s actions were necessarily
unreasonable. While it is conceivable that a court could
conclude that, even if counsel did act for strategic reasons
and know of witnesses, but rejected the idea of using them,
such a choice was nonetheless objectively unreasonable, we
believe the conclusion would run afoul of Strickland and
Bell if it were based on analysis absent facts.

2. Is There a Reasonable Probability That, Absent All of
Counsel’s Alleged Errors, The Penalty Phase Would Have
Ended Differently?

Since we conclude that we cannot resolve the first prong
of Strickland on this record, we turn -- as the New Jersey
Supreme Court did for the most part -- to the second,
"prejudice" prong. "The purpose of the Sixth Amendment
guarantee of counsel is to ensure that a defendant has the
assistance necessary to justify reliance on the outcome of
the proceeding. Accordingly, any deficiencies in counsel’s
performance must be prejudicial to the defense in order to
constitute ineffective assistance under the Constitution."
Strickland, 466 U.S. at 691-92. Because under Strickland
either prong can be dispositive, if we can conclude that
there is no prejudice -- i.e., that even if counsel had not
failed in the ways alleged, there is no reasonable probability
that the outcome would be different -- our analysis would
be at an end. Id. at 697. But we find we cannot so
conclude. That is because, given the strength of the
allegations of ineffectiveness before us, the brevity and non-
adversarial tone of the penalty phase proceeding itself, and
our inability to understand or know what counsel did do, it

                                110


is 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.

In the guilt phase prejudice analysis, the quantity and
quality of what was done by counsel and the evidence
presented enabled us to determine that the alleged
ineffectiveness was not prejudicial. Here, in contrast,
Marshall has demonstrated an apparent lack of adversarial
effort. The quantity and quality of what was done by
counsel is sorely lacking. Plus, Marshall has offered a
significant quantum of apparently relevant mitigating
evidence that was never placed before the jury for
consideration. If all of Marshall’s allegations of
ineffectiveness are as he claims, it would be difficult to
conclude that the outcome would not have been different
had the evidence been offered. This is especially true given,
as we have noted, the emphasis on the non-mathematical
nature of a jury’s "weighing" of aggravating and mitigating
circumstances. Indeed, the New Jersey Supreme Court has
rejected proportionality review methods that overemphasize
quantitative comparisons, precisely because it recognizes
that jury deliberations during the penalty phase are
"intensely qualitative." State v. Loftin , 724 A.2d 129, 150
(N.J. 1999) (quoting Marshall’s proportionality review, State
v. Marshall, 613 A. 2d 1059, 1091 (N.J. 1992)).

But even as to the prejudice prong, we are frustrated by
the state of the record. For all we know, counsel may have
known that the prosecution intended to produce
devastating testimony to counter what Marshall now says
would have been persuasive. We cannot tell what portion,
if any, of the quantum of what counsel did not do should
be deemed ineffective rather than strategic. And, if we do
not know what "ineffectiveness" goes into the prejudice
equation, it is difficult if not impossible to calculate the
probable difference it would have made in terms of the
outcome. Therefore, as we discuss above, we cannot
conclude that Marshall was not prejudiced; further, we
cannot conclude that he was, because we have no idea how
much of the claimed ineffectiveness was truly ineffective --
if any -- and accordingly cannot opine as to a reasonable

                                111


probability that the outcome would have been different.
Given these unknowns, we would run afoul of both [Terry]
Williams and Bell if we were to find prejudice on the state
of this record. Under [Terry] Williams, courts are required to
"evaluate the totality of the available mitigation evidence --
both that adduced at trial, and the evidence adduced in the
habeas proceeding -- in reweighing it against the evidence
in aggravation." 529 U.S. at 397-98. And Bell counsels
against per se conclusions based on less than complete
facts. We know only Marshall’s alleged totality of evidence;
on remand the District Court will conduct a hearing and
will actually know which of counsel’s actions and omissions
were ineffective under Strickland and should be weighed in
the balance. Thus, the District Court will be able to engage
in a fully-developed prejudice analysis.

We note that Marshall has consistently raised the lack of
an evidentiary hearing as an issue before the New Jersey
Supreme Court, the District Court, and before us,
contending that he requires an evidentiary hearing to
develop the record on his ineffectiveness claims. We agree.
But, under AEDPA, the critical question is not whether we
disagree with the New Jersey Supreme Court, but whether
the New Jersey Supreme Court’s determination of the facts
or application of the law was unreasonable. We will address
the need for a hearing in that context.

3. The New Jersey Supreme Court’s Strickland Analysis

The New Jersey Supreme Court addressed claims of
ineffectiveness on both direct appeal and on appeal from
the denial of post-conviction relief. Both times, the Court
determined that Marshall was not prejudiced by counsel’s
alleged failures. In so doing, however, we are constrained to
find that the Court was diverted from the principles we
cited above.

       a. Performance: The Analysis on Direct Appeal

On direct appeal the New Jersey Supreme Court
addressed two aspects of the ineffectiveness claims-- the
additional mitigating evidence that Marshall urges should
have been presented, and the brevity of counsel’s penalty
phase appeal to the jury. The Court’s approach to both

                                112


these issues demonstrates why the claim can only be
decided under Strickland with the benefit of counsel’s
insight at an evidentiary hearing. The Court’s analysis was
based on surmise as to why counsel might have chosen to
act as he did. The essence of the Court’s ruling was that
counsel had his reasons for not presenting mitigating
evidence:

       It is self-evident that in view of the crime of which
       defendant was convicted, the selection of mitigating
       evidence on which to rely was a matter of some
       delicacy, requiring counsel to consider carefully the
       prospect of rebuttal evidence and rebuttal arguments,
       as well as the jury’s anticipated reaction to any
       mitigation evidence that was offered. 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.

Marshall I, 586 A.2d at 172. This conclusion assumes that
counsel had prepared and investigated, that he knew of and
did "select" mitigating evidence and did "consider carefully"
how to proceed, and that he made a "strategic decision" not
to use the mitigating evidence he had before him. We can
find no evidence to support this assumed basis for
counsel’s actions or these factual findings, and they are
therefore not reasonable determinations of the facts.

Then, addressing the brevity of counsel’s argument at
sentencing, the Court opined that, because the prosecutor’s
response had addressed both mitigating factors relied upon
by defendant:

       [I]t is reasonable to assume that the content of
       defendant’s closing argument was formulated in
       anticipation of the State’s response.
       We also infer from counsel’s closing argument a
       strategic decision to avoid any emotional appeal to the
       jury, in favor of a low-key statement that emphasized
       that the life or death decision was the responsibility of
       each individual juror. In the context of this record and
       the grave offense of which defendant was convicted, a
       closing argument that focused each juror’s attention on

                                113


       his or her moral responsibility for defendant’s life or
       death cannot easily be discredited.

Id. at 173 (internal citations omitted). The Court then
referenced the case of Romero v. Lynaugh, 884 F.2d 871
(5th Cir. 1989), as support for the type of "difficult
situation" faced by counsel. It concluded:

       We are in accord with the reasoning of the Fifth Circuit
       in Romero, supra. What constitutes an effective closing
       argument in a capital case depends on the crime, the
       evidence, the circumstances -- in short, the entire
       record, and there is no general rule requiring counsel
       in such cases to appeal specifically to the jury to spare
       the defendant’s life. The argument that may succeed in
       one case can fail in another, and our responsibility is
       to insure that competent capital counsel, having an
       "expertise regarding the special considerations present
       in capital cases," made a reasonable strategic choice
       based on adequate investigation. We are unpersuaded
       that defendant’s highly-experienced and qualified
       counsel acted unreasonably in formulating his closing
       argument to the jury.

Marshall I, 586 A.2d at 173 (internal citations omitted). The
problem with the Court’s reasoning is that, while
referencing specific factors on which counsel’s decision
regarding a closing argument can depend, the Court
actually knew nothing regarding whether those factors
played any role at all in Zeitz’s decision, but assumed that
a strategic choice was made and was reasonable, merely
because the choice would have been "difficult." In Romero,
the Fifth Circuit Court of Appeals was reviewing the
testimony provided by the attorney to assess the
reasonableness of the strategic choices he had made. Here,
the New Jersey Supreme Court has in essence created a
new standard that would hold any strategy reasonable if
the choices presented to counsel were "difficult." Such
reasoning would eviscerate evidentiary hearings when
ineffectiveness at the sentencing phase in a capital case is
claimed, because, as Marshall notes in his brief, all
strategic choices that counsel must make in asking a jury
who has convicted a defendant of a capital crime not to
impose the death sentence are difficult. But such a

                                114
standard would be contrary to the principles enunciated in
Strickland and applied by the United States Supreme Court
in subsequent cases, including [Terry] Williams v. Taylor,
529 U.S. 362, 399 (2000), where the Court held that
Williams’ counsel was ineffective at the sentencing phase
for shortcomings similar to those Marshall has alleged here.

As demonstrated in both [Terry] Williams and Bell, under
Strickland the reviewing court must consider whether
counsel’s performance was substandard by employing a
specific inquiry into what counsel did and why, and
comparing that to what the appellant urges should have
been done; such an inquiry cannot rest on generalized
assumptions.

       b. Prejudice: The Analysis on Direct Appeal

In assessing the "prejudice" prong of Strickland, the
Court stated in conclusory fashion:

       In any event, we have no doubt that even if counsel’s
       closing argument were deemed to be deficient, there
       was no reasonable probability that deficiency materially
       contributed to defendant’s death sentence.

Marshall I, 586 A.2d at 174. This is the entire reasoning
regarding this issue. The Court sets forth no analysis or
explanation, and the standard it states is at best imprecise.
Every finding of lack of prejudice under Strickland must be
based on certain logic or principles that can be tested. Here
there is none. This is perhaps understandable, because a
thoughtful analysis under the Strickland prejudice prong --
as urged by Justices O’Connor and Stevens in [Terry]
Williams -- must include an understanding as to the
omitted matter, that is, what the penalty would have
consisted of had counsel been effective, so as to determine
whether it would have affected the outcome. The New
Jersey Supreme Court on direct appeal did not consider
what a lengthier more adversarial presentation with
evidence in mitigation might have contained and how that
would have impacted the jury’s deliberations. We view its
determination as unreasonably applying Strickland’s second
prong as well.

                                115


       c. The Analysis on Appeal to the New Jersey Supreme
       Court of Denial of Post-Conviction Relief

In addressing Marshall’s appeal from the denial of post-
conviction relief, the New Jersey Supreme Court was again
called upon to address a myriad of ineffectiveness claims
asserted by Marshall regarding the penalty phase. Although
the New Jersey Supreme Court had before it the testimony
adduced at the limited evidentiary hearing, the PCR court
had denied an evidentiary hearing as to the remaining
ineffectiveness claims, and the New Jersey Supreme Court
affirmed that denial. The Court explained the standards for
the grant of a hearing.
       Although no PCR rule requires that evidentiary
       hearings be held on PCR petitions, Rule 3:22-10
       recognizes that the PCR court may exercise its
       discretion to conduct evidentiary hearings at which
       oral testimony is taken. Post conviction relief"courts
       ordinarily should grant evidentiary hearings . . . if a
       defendant has presented a prima facie [case] in support
       of post-conviction relief." To establish such a prima
       facie case, the defendant must demonstrate a
       reasonable likelihood that his or her claim will
       ultimately succeed on the merits.

Marshall II, 690 A.2d at 35 (internal citations omitted).46 In
affirming the denial, the Court concluded that Marshall had
not made "the requisite showing suggesting that an
evidentiary hearing would demonstrate a probability that
_________________________________________________________________

46. The dissent noted in response to the denial of an evidentiary hearing
on Marshall’s penalty phase ineffectiveness claims:

        In this case, defendant seeks a hearing to establish that he was
       sentenced to death without the constitutionally-required effective
       assistance of counsel. In order to establish his entitlement to a
       hearing, defendant’s petition need only raise a prima facie right to
       relief. Defendant’s petition raises an almost open and shut case of
       ineffective assistance of counsel. All that can possibly sustain the
       conviction is a hearing that might somehow lend credibility to
       counsel’s choice to present no case at all.

Marshall II, 690 A.2d at 100 (O’Hern, J., concurring in part and
dissenting in part).

                                116


the production of the omitted evidence would have affected
substantially the jury’s penalty-phase deliberations." Id. at
84.

Again, the Court’s analysis suffers from a lack of
knowledge that can be attributed to the lack of an
evidentiary hearing. As a result, the Court once again
speculated and made assumptions as to counsel’s rationale
and as to the probable impact. It should be noted that by
this time there was some evidence in the record from the
limited evidentiary hearing. However, Zeitz’s only testimony
during this limited hearing relevant to his strategy in the
penalty phase was regarding his discussions with Marshall
about the penalty phase during which he acknowledged
that the written notes he had maintained as a
memorialization of his numerous conversations with
defendant did not reflect any penalty-phase discussions.
There were also non-testimonial submissions, two of which
are discussed in greater detail below.

On appeal from the denial of post-conviction relief, the
New Jersey Supreme Court sidestepped the questions of
counsel’s performance, often merging the performance and
prejudice analysis. The Court characterized Marshall’s
"generalized complaints of ineffectiveness" as follows:

       [T]rial counsel’s decision to present no penalty-phase
       witnesses and to advance no forceful argument in
       summation against the death penalty was not the
       product of a strategic decision by trial counsel, but
       simply reflected counsel’s utter lack of preparation for
       a penalty-phase proceeding.

Id. at 79. The Court noted that support for this claim
consisted of a certification from Van Pelt, the Public
Defender, and an affidavit from Ruffin, a mitigation
specialist, who, the Court noted, was a psychologist, not an
attorney. Van Pelt certified that she had reviewed Zeitz’s
files, and they contained

       no materials concerning the penalty phase of the case,
       no legal research concerning aggravating and
       mitigating factors or requests to charge in the penalty
       phase of capital cases, no reports of investigations in
       preparation for a case in mitigation, no reports of

                                117


       consultations with experts in the presentation of
       mitigating evidence, and no notes of interviews with
       friends or family members in preparation for the
       presentation of mitigating evidence.

Id. Ruffin, who is hired by attorneys to assist in the
preparation and presentation of mitigation evidence in
capital cases, submitted an affidavit detailing what a
"proper" mitigation investigation should include, and
concluded that, from his review of Zeitz’s files, Zeitz "failed
to conduct a penalty-phase investigation that met the
accepted standards of counsel experienced in the conduct
of death-penalty trials." Id.

The Court then discussed the Strickland test, and its
application in the context of a penalty phase proceeding,
and noted its view:

       [A] reviewing court strays from its traditional function
       if it attempts to predict the probability that a penalty-
       phase jury would have changed its verdict if counsel
       had not been deficient. In our view, an adaptation of
       the Strickland/Fritz prejudice test to capital-case
       penalty-phase proceedings that more faithfully reflects
       our appellate function would require courts to
       determine whether there is a reasonable probability
       that, but for counsel’s unprofessional errors, the jury’s
       penalty-phase deliberations would have been affected
       substantially.

Id. at 81. These variations from the specific Strickland
standard might be, on the one hand, permissible useful
distinctions, or, on the other, deviations not in keeping
within Supreme Court precedent.47 However, we will not
challenge the Court’s fashioning its own rule, as such,
unless its application actually runs afoul of Strickland.

The Court decried the lack of evidence regarding
information that an adequate investigation would have
revealed, and of other information that would have had a
_________________________________________________________________

47. The Court stated it was confident that it was faithful to Strickland:
"We are satisfied that our adaptation of the Strickland prejudice prong to
penalty-phase proceedings is faithful to the core meaning of the standard
announced by the Strickland court." Id. at 82.

                                118


"substantial effect" on the jury’s deliberation in the penalty
phase:

       However, no documentation in the PCR record
       discloses information that an adequate investigation
       would have revealed and that would have been
       reasonably likely to affect substantially the jury’s
       deliberations in the penalty phase. Ruffin’s
       unsubstantiated allegation that such information
       "exists" is plainly inadequate. Even with the benefit of
       hindsight, PCR counsel does not allege the existence of
       facts, information, or specific evidence possessing a
       reasonable possibility of having had a substantial effect
       on the jury’s deliberation in the penalty phase.

Id. at 82. However, two pages later it recounted at length --
in connection with Marshall’s argument regarding failure to
present mitigating evidence -- the very types of witnesses
not produced, and investigation not undertaken, by counsel
that should have been considered to be relevant mitigating
evidence:

       Defendant alleges that counsel was ineffective in failing
       to present specific types of mitigating evidence,
       including testimony from defendant’s sister, Oakleigh
       DeCarlo, about their relationship and childhood and
       the impact of defendant’s execution on her and
       defendant’s children; testimony of an unspecified
       nature from a psychologist or other mental health
       professional; testimony from a qualified social scientist
       about defendant’s likelihood of recidivism; testimony
       from a qualified mental health professional regarding
       defendant’s lack of future dangerousness; testimony
       from Dr. Atkins concerning defendant’s depressive
       state and suicidal tendencies on the occasion of
       defendant’s alleged suicide attempt at the Best Western
       Motel; evidence consisting of family photographs
       provided to trial counsel by defendant’s sister;
       testimony from Henry Tamburin concerning
       defendant’s philosophy of gambling; evidence
       consisting of a letter written in July 1985 by the
       victim’s father in support of a motion for bail
       reduction; testimony from defendant’s son, John,
       concerning defendant’s mental state when he spoke to
                                119


       John from the Best Western Motel and concerning
       John’s relationship with defendant and the likely
       impact of defendant’s execution on their family;
       testimony from defendant’s religious counselors about
       the appropriateness of sentencing defendant to death;
       and testimony establishing as a specific mitigating
       factor that defendant’s execution would cause hardship
       and emotional distress on defendant’s family.

Id. at 84. The Court never discusses the impact of the two
expert submissions or of this proffered mitigating evidence,
but reiterates that it lacked specific information that would
have altered the outcome: "That conclusion is buttressed by
the inability of PCR counsel to identify specific facts or
information concerning defendant that, if offered as
mitigating evidence, were likely to have affected
substantially the jury’s penalty-phase deliberations." Id. at
83. The Court reasoned that, due to the "nature of the
crime" and assessing the "entire trial" and the "grave
offense" of which defendant was convicted: "After the jury
returned a guilty verdict, the conclusion is inescapable that
the task of mounting an effective mitigating strategy was
formidable indeed."48 Id . at 82-83. The Court then
concluded:

       We entertain no doubt that even the most experienced
       capital counsel would have encountered considerable
       difficulty in preparing an effective case in mitigation for
       the penalty-phase of defendant’s trial. Acknowledging
       that difficulty, we cannot ascertain on the record before
       us whether or not an evidentiary hearing might
       establish that trial counsel’s preparation for the
_________________________________________________________________

48. The Court made several assumptions along the way: The nature of
the crime of which defendant was convicted diminished the likelihood
that the types of mitigation evidence commonly used in capital cases
would have had a positive impact on the jury; the claims of ineffective
assistance of counsel in the penalty phase can fairly be assessed only in
the context of the entire trial record and of the grave offense of which
defendant was convicted; because trial counsel was privately retained
and well-compensated, the inference was compelling that strategic
decisions were not made without consultation with defendant; after the
jury returned a guilty verdict, the conclusion was inescapable that the
task of mounting an effective mitigation strategy was formidable indeed.

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       penalty phase was deficient. Nevertheless, following the
       admonition in Strickland that disposition of the
       prejudice prong of an ineffectiveness claim may obviate
       resolution of whether counsel’s performance was
       deficient, we hold that defendant has failed to
       demonstrate any likelihood that an evidentiary hearing
       would produce proof that would show that there is a
       reasonable probability that, but for counsel’s
       unprofessional errors, the jury’s penalty-phase
       deliberations would have been affected substantially. In
       reaching that conclusion, we reiterate our observation
       on direct appeal that "the jury found both mitigating
       factors relied on by defendant . . . [and] that several
       defense witnesses at trial testified to defendant’s good
       reputation in the community, and defendant testified
       extensively concerning his background, education,
       family life, and civic activities." In this case, the
       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. Accordingly, we reject on the
       merits defendant’s generalized claims of ineffectiveness
       of counsel in the penalty phase.

Id. at 83 (internal citations omitted). The Court thus
disposed of the "generalized" claims of ineffectiveness.

It may be that the New Jersey Supreme Court viewed the
prospect of seeking to convince a jury to spare Marshall’s
life as a hopeless, useless act in light of the heinous crime
the jury found he had committed. But that reasoning is not
fact-based, and, as a matter of law, disregards the very
function of mitigating evidence and the humanization of the
defendant that counsel must at least attempt to accomplish
in the penalty phase, indeed, the very purpose of
characterizing the sentencing proceeding as adversarial.
And does not the reasoning that the gravity of the crime
itself will inevitably cause the jury to vote for death, mean
that the attorney must interpose something between the
crime and the juror’s minds such that any decision not to
do so is at the least a questionable, if not an unreasonable,
strategy? Even the attorney in Bell tried to humanize Bell,

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urging the jury "that there was a good reason for preserving
his client’s life if one looked at ‘the whole man.’ " Bell, 535
U.S. at ___, 122 S.Ct. at 1848. Here, counsel did very little
in this regard, and we have no knowledge of why he did
what he did do.

On appeal from the denial of post-conviction relief, the
New Jersey Supreme Court chose not to decide whether
counsel’s representation was deficient, but decided instead
based upon the prejudice prong:

       [W]e hold that defendant has failed to demonstrate any
       likelihood that an evidentiary hearing would produce
       proof that would show that there is a reasonable
       probability that, but for counsel’s unprofessional
       errors, the jury’s penalty-phase deliberations would
       have been affected substantially.

Marshall II, 690 A.2d at 83. But, although this "holding" is
couched in prejudice terms, it is really not a conclusion
regarding prejudice, because the Court reached its
conclusion without ever considering the impact the omitted
material might have had on the jury’s deliberations.
Instead, the Court appears to be justifying its denial of an
evidentiary hearing -- the purpose of which would have
been to provide the information the court was lacking,
namely what counsel did and did not do -- despite the fact
that the hearing was the only way the Court could have
been informed, through counsel’s own testimony after the
fact and with the benefit of hindsight, as to what counsel
actually did or failed to do, in order that the Court could
ascertain whether his acts were substandard and
prejudicial. Thus, the Court’s somewhat cryptic analysis
and conclusions epitomize the basic problem that, as we
have noted, is an essential aspect of any Strickland ruling
and is lacking here -- a sufficient record to probe the
claimed ineffectiveness.

The Court did subsequently refer to what it termed
"specific" ineffectiveness claims, i.e. , the failure to present
the itemized witnesses to which we referred above. The
Court viewed this claim, and other similar ones, to"involve
clearly debatable issues of strategy," but then concluded:

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       We are unpersuaded that trial counsel’s failure to offer
       evidence of the type described in defendant’s specific
       claims constitutes ineffectiveness of counsel, or that
       defendant has made the requisite showing suggesting
       that an evidentiary hearing would demonstrate a
       probability that the production of the omitted evidence
       would have affected substantially the jury’s penalty-
       phase deliberations. Each of the specific allegations of
       ineffectiveness involves evidence that, although
       possibly beneficial to defendant, posed the clear risk of
       an adverse jury reaction. In reviewing claims of
       ineffective assistance of counsel, we reiterate that a
       defendant must show that "counsel’s representation fell
       below an objective standard of reasonableness," and
       that "[j]udicial scrutiny of counsel’s performance must
       be highly deferential." None of defendant’s claims of
       ineffectiveness based on the failure to offer specific
       mitigating evidence in the penalty phase satisfy the
       Strickland standards.

Id. at 84 (internal citations omitted). Once again, the Court
is at once rejecting the notion of an evidentiary hearing and
assuming strategic considerations; as a result, the Court
gives deference to counsel’s decision-making that we find
lacking in record support.

We conclude that Strickland requires an analysis based
on a complete record. The reviewing court’s reasoning
under the first prong needs to be made with an
understanding of counsel’s thought process, as in Bell, so
that a conclusion whether counsel was ineffective can be
made based on facts of record, rather than on assumptions.
Similarly, the prejudice test requires that once the areas
where counsel was found to be ineffective are identified, the
redefined presentation must be measured against the
reasonably probable outcome in a given case.49 In the
penalty phase of a capital case, this involves a delicate
weighing process.
_________________________________________________________________

49. If a court chooses to undertake the prejudice prong first, as
Strickland clearly allows, it must make its assessment assuming that
defendant’s allegations are true.

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A proper prejudice determination requires the reviewing
court to reweigh the aggravating and mitigating factors with
all of the corrections taken into account. See[Terry]
Williams v. Taylor, 529 U.S. at 398 (faulting the court for
"fail[ing] to evaluate the totality of the available mitigation
evidence -- both that adduced at trial, and the evidence
adduced in the habeas proceeding -- in reweighing it
against the evidence in aggravation"). In other words, "the
entire postconviction record, viewed as a whole and
cumulative of mitigation evidence presented originally,
raised ‘a reasonable probability that the result of the
sentencing proceeding would have been different’ if
competent counsel had presented and explained the
significance of all the available evidence." Id. at 399.
Although the Williams Court cited to Clemons v. Mississippi,
494 U.S. 738 (1990), as its model for reweighing, the
reweighing process is set out in Strickland itself.

        When a defendant challenges a conviction, the
       question is whether there is a reasonable probability
       that, absent the errors, the factfinder would have had
       a reasonable doubt respecting guilt. When a defendant
       challenges a death sentence such as the one at issue
       in this case, the question is whether there is a
       reasonable probability that, absent the errors, the
       sentencer -- including an appellate court, to the extent
       it independently reweighs the evidence -- would have
       concluded that the balance of aggravating and
       mitigating circumstances did not warrant death.

        In making this determination, a court hearing an
       ineffectiveness claim must consider the totality of the
       evidence before the judge or jury. Some of the factual
       findings will have been unaffected by the errors, and
       factual findings that were affected will have been
       affected in different ways. Some errors will have had a
       pervasive effect on the inferences to be drawn from the
       evidence, altering the entire evidentiary picture, and
       some will have had an isolated, trivial effect. Moreover,
       a verdict or conclusion only weakly supported by the
       record is more likely to have been affected by errors
       than one with overwhelming record support. Taking the
       unaffected findings as a given, and taking due account

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       of the effect of the errors on the remaining findings, a
       court making the prejudice inquiry must ask if the
       defendant has met the burden of showing that the
       decision reached would reasonably likely have been
       different absent the errors.

Strickland, 466 U.S. at 695-96. In Clemons, the Court
stressed that reweighing must "give defendants the
individualized treatment that would result from actual
reweighing of the mix of mitigating factors and aggravating
circumstances." 494 U.S. at 752 (emphasis added). There,
the Court was seeking to assess the validity of a sentencing
decision when one of the aggravating factors had been held
to be invalid. But the requirement that the total mix be
reevaluated is no less critical when the claim is as to
counsel’s ineffectiveness, as the Court’s citation to Clemons
in [Terry] Williams demonstrates.

Here, the New Jersey Supreme Court, and on its heels,
the District Court, did not conduct a re-weighing under the
prejudice prong. In fact, it could not do so, because it had
not fully explored what was to be weighed. It never held an
evidentiary hearing, and the non-testimonial hearing that
the District Court did conduct did not have input from the
critical party -- Zeitz -- because he refused to submit an
affidavit to the Court. The dissenters on the New Jersey
Supreme Court were correct that on these facts, it was
impossible to adjudicate Marshall’s claim reasonably
without further factual development. See Marshall II, 690
A.2d at 100-02 (O’Hern, J., concurring in part and
dissenting in part). The New Jersey Supreme Court’s
determination was thus an unreasonable application of
Strickland -- based on its unreasonable determination of
the underlying facts.

4. The Remedy

We still must address the question of whether the proper
remedy is to grant the collateral relief that Marshall seeks,
or whether to remand for further proceedings in the District
Court. We have stated that the New Jersey Supreme Court
unreasonably determined the underlying facts. But that
error was not detected by the District Court when it denied
Marshall’s habeas petition. The District Court refused to

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allow Marshall to depose Zeitz to develop his ineffectiveness
claim, reasoning that "[e]ven looking at petitioner’s most
disturbing suggestion, that Zeitz failed to sufficiently
investigate and prepare for petitioner’s penalty phase,
petitioner has not pointed to specifics or explained precisely
how deposing Mr. Zeitz would allow him to succeed in
proving such a Strickland violation." Marshall III, 103 F.
Supp. 2d at 767. The District Court further stated that it
"agrees with the New Jersey Supreme Court that because
Mr. Zeitz consistently consulted with petitioner throughout
the penalty phase and because his request does not specify
what he hopes to find by deposing Mr. Zeitz, this Court is
unwilling to second-guess Mr. Zeitz’s strategic decisions."
Id. The Court treated the request to depose Zeitz as a
discovery request, and concluded that the "full evidentiary
hearing" sought by Marshall on both the Brady and
Strickland claims was not required, because"none of the
Townsend factors requiring an evidentiary hearing are
applicable here, and all of petitioner’s claims were fully and
fairly developed during the state court proceedings." Id. at
772.

At the end of the day, our ruling is that the District Court
erred in concluding that the State’s application of
Strickland was reasonable. We conclude that the District
Court could not make that determination without
conducting an evidentiary hearing to explore the claimed
ineffectiveness of counsel. We note the possibility that after
the District Court holds the evidentiary hearing it may
conclude that under Strickland counsel was not ineffective
or Marshall was not prejudiced such that the New Jersey
Supreme Court’s ruling would stand. If, on the other hand,
the hearing reveals facts to suggest the conclusion that the
two prong Strickland test has been satisfied, the writ should
thereupon issue, conditioned on a new sentencing phase.
Therefore, it is not only appropriate for the District Court to
hold the evidentiary hearing on remand, it is essential to its
proper consideration of the New Jersey Supreme Court
ruling under Strickland. We note that our sister courts of
appeals have likewise remanded for further factual
development when the record has been inadequate to make
a proper legal determination of a claim raised on habeas
appeal post-AEDPA, in some instances expressly requiring

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an evidentiary hearing, and in others merely noting its
availability as a tool for the district court to use in its
development of the record. See, e.g., Newell v. Hanks, 283
F.3d 827, 838 (7th Cir. 2002); Greer v. Mitchell , 264 F.3d
663, 669 (6th Cir. 2001); United States v. Johnson, 256
F.3d 895, 898 (9th Cir. 2001) (en banc); Valverde v.
Stinson, 224 F.3d 129, 135 (2d Cir. 2000). We conclude
that a District Court hearing is essential, and remand for a
new ruling by the District Court as to Strickland based
upon a complete record.

Conclusion

For all the reasons recited above, the decision of the
District Court as to the claim of ineffectiveness of counsel
in the sentencing phase will be REVERSED and
REMANDED for further proceedings consistent with this
opinion. The Certificate of Appealability granted on March
28, 2001, with respect to claims 4 and 5 of appellant’s
application therefor, will be DISMISSED as improvidently
granted. As to all other claims, the decision of the District
Court will be AFFIRMED.

A True Copy:
Teste:

         Clerk of the United States Court of Appeals
         for the Third Circuit

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