2002 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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Recommended Citation

"Marshall v. Hendricks" (2002). 2002 Decisions. Paper 561.

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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 crossexamination, 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 postconviction 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 nonmateriality 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 brotherin-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 selfincrimination 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 crossexamination, 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 nonproduction 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 crossexamination, 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 oftencited 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 selfincrimination, 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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 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 attorneyclient 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 ineffectiveassistance 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 postconviction 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 codefendant’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 ineffectiveassistance 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, DefendantAppellant 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 nonadversarial 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 postconviction 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. 

 120 

 

 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, 

 121 

 

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: 

 122 

 

 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 

 126 

 

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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