2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-22-2001

Moore v. Morton

Precedential or Non-Precedential:

Docket 98-5429

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Recommended Citation

"Moore v. Morton" (2001). 2001 Decisions. Paper 137.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/137
Filed June 22, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-5429 

CLARENCE MOORE, 

 Appellant 

v. 

WILLIS MORTON, ADMINISTRATOR; 

PETER G. VERNIERO, ATTORNEY GENERAL 

OF THE STATE OF NEW JERSEY 

On Appeal from the United States District Court 

for the District of New Jersey 

D.C. Civil Action No. 97-cv-02087 

(Honorable Stephen M. Orlofsky) 

Argued September 16, 1999 

Before: SCIRICA, RENDELL and GREENBERG, 

Circuit Judges 

(Filed: June 22, 2001) 

 PAUL J. CASTELEIRO, ESQUIRE 

 (ARGUED) 

 86 Hudson Street 

 Hoboken, New Jersey 07030 

 Attorney for Appellant 
 NANCY A. HULETT, ESQUIRE 

 (ARGUED) 

 Office of Attorney General of 

 New Jersey 

 Department of Law & Public Safety 

 Division of Criminal Justice, 

 Appellate Bureau 

 P.O. Box 086 

 Richard J. Hughes Justice Complex 

 Trenton, New Jersey 08625 

 Attorney for Appellees 

OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

Clarence Moore, who was convicted of rape and robbery 

and sentenced as a persistent offender to life imprisonment 

with twenty-five years of parole ineligibility, appeals from 

the denial of his petition for a writ of habeas corpus under 

28 U.S.C. S 2254. The principal issue at trial was the 

identity of the rapist. The principal evidence was the 

victim's post-hypnotic identification. The state prosecutor 

made certain improper arguments during jury summation 

which were addressed by the trial judge with curative 

instructions. The issue on appeal is whether these improper 

arguments deprived Moore of his right to a fair trial. 

I. 

On March 5, 1987, a jury convicted Moor e of seconddegree burglary, second-degree r obbery, robbery with intent 

to commit aggravated sexual assault, and thr ee counts of 

aggravated sexual assault. These essential facts wer e 

established at Moore's trial. 

 On January 14, 1986, some time after 1:20 a.m., 25- 

 year-old M.A. was viciously assaulted by a man in the 

 bedroom of her cottage in Somers Point. M.A. went to 

 bed that night only to be awakened by a male who 

 grabbed her by the neck. The male demanded money, 

 2 
 and M.A. removed $8 from her purse and gave it to 

 him. When M.A. could produce no more money, the 

 man became angry. He ordered her to undr ess. Despite 

 the man's assurance she would not be hurt if she did 

 as she was told, the man penetrated her anally after 

 she complied with his directions to roll over on her 

 stomach and then kneel on her hands and knees. The 

 man then ordered her to roll over and he penetrated 

 her vaginally. He then forced her to per form fellatio on 

 him until he ejaculated. Still angered by lack of money, 

 the man forced her to again perfor m oral sex until he 

 achieved an erection. He then order ed her to kneel on 

 the bed and "shake" her rear in the air while someone 

 outside watched. He warned her if she did not do this 

 "he would come back and do it again or kill" her. M.A. 

 remained in her bed for four hours fear ful the man was 

 still in the house. 

 Finally, she arranged to have the police called and, 

 when the police arrived, M.A. described her attacker . 

 She described him as a black male, about 5'8" to 5'10" 

 tall, late twenties to early thirties, very muscular and 

 strong. . . . She also said her attacker had been 

 wearing blue jeans. Further, she described him as 

 having some facial hair on the sides of his face. 

 While the bedroom was dark, there was enough outside 

 light "to see a face." Also, although she was not 

 wearing her contact lenses that corrected her 

 nearsightedness, she stated the attacker was "very 

 close" to her, close enough for her to see him and his 

 face . . . . However, M.A. testified she could see without 

 her contacts, that she had driven without them, and 

 her vision did not prevent her from seeing things close 

 to her. 

 When M.A. could not give the police composite artist 

 sufficient information to develop a composite sketch, 

 she suggested hypnosis, thinking it "might help[her] 

 remember, in more detail, his face." With the aid of 

 hypnotically enhanced memory, she could vividly r ecall 

 her attacker's facial features. She ther eafter was able 

 to positively identify the defendant as her assailant 

 both in court and on three occasions in out-of-court 

 3 
 photographic arrays. She described the hypnotic 

 enhancement as making her attacker's face "much 

 clearer" with "the features . . . more detailed." She also 

 testified she initially could not positively r ecognize her 

 assailant without the hypnosis. There is nothing in the 

 record to suggest either the police or the doctor 

 assisting the hypnosis in any way suggested what the 

 assailant might look like. 

 As a result of the hypnosis, M.A. also r ecalled her 

 assailant wore a tan suede jacket with dirt ar ound the 

 pockets. A subsequently executed search warrant at 

 defendant's residence turned up a tan suede sweater 

 jacket with pockets along with several pairs of blue 

 jeans. 

State v. Moore, 641 A.2d 268, 270-71 (N.J. App. Div. 1994) 

("Moore II") (alterations in original). At trial, M.A., a 

Caucasian woman, testified and identified the jacket as the 

one worn by her attacker. 

A portion of the trial consisted of expert testimony on 

hypnosis.1 The State's witness, Dr. Samuel Babcock,

justified his methodology and maintained that M.A.'s 

memory was enhanced through hypnosis.2 Defense witness 

Dr. William A. Miller testified about the shortcomings of 

using hypnosis to enhance a victim's memory. 

_________________________________________________________________ 

1. Under New Jersey law, "testimony enhanced through hypnosis is 

admissible in a criminal trial if the trial courtfinds that the use of 

hypnosis in the particular case was reasonably likely to result in recall 

comparable in accuracy to normal human memory . . . . The trier of fact 

must then decide how much weight to accord the hypnotically refreshed 

testimony." State v. Hurd, 432 A.2d 86, 95 (N.J. 1981). 

2. As required under State v. Hur d, a pre-trial hearing was held to 

determine the admissibility of M.A.'s testimony. 432 A.2d at 95. The 

Appellate Division affirmed the trial court's ruling that the testimony 

was 

admissible, explaining that it was "satisfied the use of hypnosis was 

appropriate for the victim's fear-induced traumatic neurosis, . . . and 

that the trial judge's findings as to the pr ocedures employed and 

adherence to the Hurd requir ements were supported by substantial 

credible evidence in the record." Moore has not raised a federal 

constitutional challenge, in either state or federal court, to the 

admission 

at trial of M.A.'s post-hypnotic testimony. 

 4 
Clarence Moore, an African-American male , did not 

testify. His wife Cheryl Moore, a Caucasian woman, testified 

on his behalf. Mrs. Moore testified that she and her 

husband lived about forty-five minutes from M.A.'s home. 

Although not recalling the night of the rape in particular, 

Mrs. Moore testified she would have noticed if her husband 

were missing for a period of two and a half to three hours 

in the early morning hours. She testified her baby suffered 

from a condition called "failure to thrive" which required 

frequent nursing and that Mr. Moor e assisted her in 

nursing the baby. Mrs. Moore also testified that at the time 

of the rape, she was suffering from mastitis, a type of 

breast infection. 

The state trial court observed, "[T]he only r eal question in 

this case is that of identity." There was no dispute that the 

victim was sexually assaulted and robbed, and the only 

"real question" for the jury was whether Moore was the 

culprit. As the trial court found, the answer tur ned on 

"whether or not the [hypnotically] enhanced or refreshed 

recollection [of the victim] [wa]s of sufficient reliable 

character and with such probative value that the jury 

should believe [the victim] beyond a r easonable doubt." 

The trial lasted more than two weeks and at the 

conclusion, both the defense and the prosecution delivered 

summations that lasted two to three hours. In his 

summation, the prosecutor sought to explain why Mrs. 

Moore's testimony buttressed the State's case stating, 

"Based on the testimony of Cheryl Moore, the case is 

stronger than ever, that the odds ar e that this defendant is 

the perpetrator [and] . . . you have mor e reason to convict 

Clarence McKinley Moore now that she has testified than 

ever." The prosecutor noted that ther e were in fact "three 

important things" that the jury should lear n from Mrs. 

Moore's "appearance" as a defense witness. 

 Here's where I ask you to really concentrate on my 

 words because if you misunderstand what I'm saying 

 right now, I am going to feel real bad and foolish, and 

 you are too. So let's all understand it like adults. 

 Race has nothing whatsoever to do with this case, 

 right? Right. We all know that the race of the people 

 5 
 involved does not at all dictate whether he's guilty or 

 anything like that. I mean, let's hope that we all feel 

 that way, whether we are white or black or anything. 

 Okay? So let's clear the air that the statement that I'm 

 about to make has nothing whatsoever to do -- and I 

 hope this machine hears this-- has nothing whatsoever 

 to do with race. 

 This has to do with selection, okay? Here's what I 

 mean. All of us select people in life to be with based on 

 whatever reason, whether it's people to marry, whether 

 it's friends, whether it's people to associate with, 

 whether it's business people. We all make choices in 

 life that lead us to relationships with others, and those 

 choices may or may not be significant. 

 Let me show you what I mean. What if you as an 

 individual, whether you're male or a female, decide in 

 your life that you want to live your life with a blonde? 

 You know, you see all of these ads about blondes have 

 more fun and this and that and, again, whether you 

 are male or female or whatever--it can work both ways 

 --and so you become interested in being with blondes 

 because you prefer them. Right? Gentlemen pr efer 

 blondes. 

 Well, that can be seen, can't it, because maybe the 

 people that you choose to date or marry or be with all 

 appear to be blondes or it might be redheads or it 

 might be green hair. You know, nowadays I guess green 

 is one of the popular colors. It could be anything. You 

 could substitute any color hair or you could substitute 

 any particular trait. Right? It needn't even be color of 

 hair. It could be the color of eyes. It could be a person 

 who likes tall people. I think whoever I should be with 

 should be six foot four. It would make me feel terrific 

 to be with a woman six foot four, or vice versa, a 

 woman could think of a man like that. 

 You see my point? It's not a statement of race; it's a 

 question of choice, selection of who you might want to 

 be with, whether it is as a mate or a boyfriend or 

 girlfriend or victim. How about that? How about that 

 some people might choose a victim according to the 

 6 
 way they look, whether they be blonde or blue or 

 anything else? 

 So I ask you this: What did we learn when we found 

 out that Cheryl Moore was the wife of the defendant? 

 I suggest to you in a nonracist way that what we found 

 out was that Clarence McKinley Moore made a choice 

 to be with a Caucasian woman -- 

Moore's counsel objected at that point and moved for a 

mistrial arguing the reference to race was irrelevant, 

inflammatory and prejudicial.3 The trial court denied the 

motion for a mistrial but admonished the prosecutor at 

sidebar not to refer to race.4 The court sustained the 

objection and instructed the jury: 

_________________________________________________________________ 

3. At sidebar, Moore's counsel ar gued, 

 Your honor, I'm going to ask for a mistrial because if there's no 

 reason that race should be brought into this thing at all, there's 

 nothing probative because of the fact that he's married to a white 

 woman that would suggest that he would then necessarily go out 

 and attack and assault a white woman. 

 That is precisely what [the prosecutor] is trying to infer here, 

that 

 because he's married to a white woman and because a white woman 

 has been assaulted, that that necessarily was the selection process 

 that went on in his mind because he couched the question in terms 

 of choice of victims. 

 There is absolutely no reason to inject race in this case. I stayed 

 away from it, and up until this point in time everybody stayed away 

 from it. The comments that were just elicited by [the prosecutor], 

it's 

 only done for one purpose entirely, and that's to inflame this jury 

 and to improperly put before them the fact of race as an issue in 

 terms of how this defendant, if in fact he was the perpetrator, 

 selected the victim. 

 There was no testimony as to that. Ther e was no testimony that he 

 has assaulted other white victims before or anything of that 

nature, 

 and all of the sudden, only because his wife is white, [the 

 prosecutor] is now trying to infer to this jury that this is a 

selection, 

 that that is something probative that they can use in making a 

 determination, and I mean, it has no part in this trial. It is 

highly 

 prejudicial, has no purpose for being other than the purpose that 
 [the prosecutor] is trying to do, an impr oper inference to this 

jury, 

 and I would ask the court to declare a mistrial. 

4. At sidebar, the trial judge stated: 

 I will instruct this jury that they are not to consider for any 

purpose 

 7 
 Ladies and gentlemen of the jury, I am ordering you to 

 disregard what the prosecutor said in reference to the 

 testimony, the appearance of Mrs. Moore, she being a 

 white person, a Caucasian, and Mr. Moor e being a 

 black person, and that the reason, the selective 

 process, was that he did this aggravated assault 

 because he selected a white or Caucasian person. 

 Disregard that. That's an unfair and unr easonable 

 inference to be drawn from the testimony and I'm 

 convinced that it's not proper argument to the jury. 

The prosecutor then argued: 

 I say to you that there are two other r easons why you 

 should find that the State's case gets str onger with the 

 testimony of Cheryl Moore. We lear ned that on 

 December 4, 1985, the defendant's wife gives birth to 

 a child. She further tells you that from that time on up 

 until the time he's arrested, she's disabled. I mean, she 

 has bleeding breasts. 

 I ask you to consider that and infer that that would 

 give believability to the fact that during that period of 

 time, that is, on January 14, 1986, right in the middle 

 of the time after the birth of the child and the disability 

 of the wife, I ask you to infer that that is a period of 

 time when this individual would have his greatest need 

 for sexual release. 

Moore's counsel objected and renewed his motion for a 

mistrial. He noted that there was no evidence in the record 

_________________________________________________________________ 

 any suggestion of any racial impropriety, they are not to decide 

this 

 matter on prejudice, bias or . . . anything to do with race. I am 

also 

 going to tell this jury to disregard that argument and I'm going to 

 tell the prosecutor that you are not to r efer to that area. 

 I am convinced that summation is to argue the facts that were 

 adduced from the witness stand. I am also convinced that it is not 

 a reasonable inference to draw from the fact that this defendant is 

 married to a white women that he selectively made that decision to 

 rape or rob, [and] . . . sexual[ly] assault, a white woman. I don't 

 think that's a reasonable inference that can be drawn from the 

 selective process, and I'm going to so instruct the jury. 

 8 
"to even suggest that [Moore] couldn't have had sexual 

relations with" his wife during the period of time in 

question. The trial court denied the motion for a mistrial, 

and repeated its warning to the pr osecutor "to stay away 

from the area of white/black because I don't think that's in 

the case."5 The court sustained the objection to the 

inference and instructed the jury: 

 Ladies and gentlemen of the jury, I'm going to or der 

 you to disregard that last statement of the prosecutor. 

 I don't believe a reasonable inference can be drawn in 

 that vein, that because there was not access--and I'm 

 not even sure there was--but because Mrs. Moore 

 testified that she had this mastitis, that that would 

 give the defendant that impetus to do something. 

 That's an improper inference. You are to disregard 

 that. 

Undeterred, the prosecutor concluded with a third 

improper remark6 to the jury: 

_________________________________________________________________ 

5. At sidebar, the trial judge stated: 

 I want you to stay away from the areas of white/black because I 

 don't think that's in the case; two, the reason that he could 

possibly 

 rape some woman because of the wife or anything dealing with the 

 reason the wife-which would give reason fr om him to do something 

 because he was unable to satisfy his needs at home or anything in 

 that vein. I don't think it's part of this case. 

6. Prior to this third remark, the pr osecutor told the jury that M.A. had 

been victimized beyond her rape by the investigative and trial process. 

Defense counsel objected to this comment and also objected to a 

perceived implication that Moore did not testify in his defense. After 

another sidebar conference, the trial judge issued the following curative 

instruction: 

 Ladies and gentlemen of the jury, there has been some reference to 

 the fact that [the defendant] only called two defense witnesses. I 

 want to tell you -- and I'll tell you in the general context of my 

 charge later on -- that the defendant is under an obligation to do 

 nothing. The defendant need not call any witnesses. 

 I indicated that to you earlier on when we first got here. The 

 defendant can stand mute and not say anything and you are not to 

 take any unreasonable -- any inference from that at all. 

 9 
 The last thing I have to say is that if you don't believe 

 [M.A.] and you think she's lying, then you've probably 

 perpetrated a worse assault on her. 

The court dismissed the jury for the day, advising 

counsel it would charge the jury the next mor ning.

Immediately thereafter, Moore's counsel raised an objection 

and renewed his motion for a mistrial, ar guing the

comment regarding "perpetrating a worse assault" on M.A., 

particularly when viewed in connection with the 

prosecutor's earlier comments, requir ed a mistrial. 

The trial court denied the motion for a mistrial, 

explaining the comment about "perpetrating a worse 

assault" on M.A. was "tangentially dealing with credibility." 

But the court informed counsel that, "in or der to insure 

fairness," it would nevertheless instruct the jury to 

disregard the remark. The court issued the following 

instruction the next morning: 

 Before I [charge you], I want to tell you I'm going to 

 order you--I generally don't order people. I'm going to 

 order you to disregard that last r emark made by [the 

 prosecutor] to the effect that the last thing I have to 

 say to you is that if you don't believe her and you think 

 she's lying, then you're probably perpetrating a worse 

 assault on her. 

 Disregard that remark. I have deter mined that's 

 improper and you are not to consider that for any 

 purpose in this case. 

The court charged the jury without objection. The jury 

returned a verdict of guilty on all counts. At sentencing, the 

trial court granted the State's motion to tr eat Moore as a 

"persistent offender," and imposed an extended term of life 

imprisonment with twenty- five years of par ole ineligibility. 

See N.J. Stat. Ann. S 2C:44-3a (W est 2001). Moore's 

sentence was predicated on a 1968 conviction for carnal 

abuse, eight convictions in 1970 for burglary, and a 1976 

conviction for distribution and possession with the intent to 

distribute marijuana. These prior convictions, along with 

his immediate conviction for burglary, r obbery and three 

separate counts of aggravated sexual assault, placed him 

under New Jersey's persistent offender category. State v. 

 10 
Moore, A-1910-87Ta, slip op. at *7-8 (N.J. Super. Ct. App. 

Div. April 1, 1991) ("Moore I"). 

On direct appeal to the Appellate Division, Moore, now 

represented by the public defender , claimed among other 

things, that "the prosecutor's summation exceeded the 

bounds of propriety making it impossible for the defendant 

to receive a fair trial." Id. at *2. In support, Moore cited the 

references in the state's summation about the "selection 

process," the "need for sexual release," and the remark 

about "perpetrating a worse assault on the victim." The 

Appellate Division rejected Moore's claim on the merits. 

Although it found the prosecutor's "outrageous conduct 

violated ethical principles" and "showed a disregard of the 

obligation of the prosecutor to play fair and see that justice 

is done," the Appellate Division ruled that, within the 

context of the trial, the trial judge's "for ceful" instructions 

to the jury cured the harm that was done. Id. at *4. Moore 

received new counsel from the public defender's office, and 

filed a petition for certification to the New Jersey Supreme 

Court presenting his due process claim and additional 

allegations of prosecutorial misconduct. The New Jersey 

Supreme Court declined review, and denied Moore's motion 

for reconsideration. 

In 1992, still represented by the public defender who filed 

the petition for certification, Moore filed a motion for state 

post-conviction review claiming, inter alia , he was denied 

his Sixth Amendment right to effective assistance of 

counsel on direct appeal because counsel failed to raise due 

process claims resulting from the following allegations of 

prosecutorial misconduct: (1) improper r eference to matters 

outside the evidence and stating his personal opinion on 

the veracity of witnesses and the defendant's guilt; (2) 

misstating the law and diluting the burden of proof by 

informing the jury that reasonable doubt meant "the odds 

are" the defendant did it; and (3) disparaging and ridiculing 

the defense and defense counsel. The trial court, without 

holding an evidentiary hearing, denied the petition as 

procedurally barred and without merit. On appeal, the 

Appellate Division highlighted some of the pr ocedural 

infirmities, but chose to reject Moor e's claim on the merits. 

The Appellate Division ruled that, even if Moor e's counsel 

 11 
had properly raised every instance of alleged prosecutorial 

misconduct on direct appeal, it would have concluded that 

Moore had a fair trial, and was not denied ef fective 

assistance of counsel. Moore II, 641 A.2d at 268. The New 

Jersey Supreme Court denied Moore's petition for 

certification. 

In April 1997, no longer represented by the public 

defender's office, Moore timely filed a counseled habeas 

corpus petition under 28 U.S.C. S 2254 in the United States 

District Court for the District of New Jersey. He raised the 

following claim: 

 The deliberate and continuous misconduct by the 

 prosecutor which included racist rationales to justify 

 the conviction of the African-American petitioner of 

 raping a white woman, statements that reasonable 

 doubt meant that the `odds are' that the petitioner 

 committed the offense, statements that defense counsel 

 didn't care about justice and was only trying to `sell' 

 reasonable doubt and a warning to the jury that if they 

 acquit the petitioner they will have perpetrated an 

 assault upon the victim, worse than her rape, deprived 

 petitioner of his right to a fair trial.7 

After reviewing the record, and finding the prosecutor's 

conduct "offensive and unprofessional," the District Court 

held that "the Appellate Division's opinions on direct appeal 

_________________________________________________________________ 

7. In this appeal we will only address Moor e's federal due process claim 

with respect to the instances of prosecutorial misconduct that he raised 

at each level of review before the New Jersey courts (i.e. the 

prosecutor's 

"selection" argument, the "sexual r elease" argument, and the comment 

regarding "perpetrating a worse assault on the victim"). The remaining 

factual predicates were not fairly pr esented to the New Jersey courts in 

support of his due process claim. Therefor e to the extent Moore seeks 

relief based on other allegations of pr osecutorial misconduct, these 

claims are unexhausted, and now procedurally defaulted. O'Sullivan v. 

Boerckel, 526 U.S. 838, 842 (1999) ("Before a federal court may grant 

habeas relief to a state prisoner, the prisoner must exhaust his remedies 

in state court."); McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 

1999) (to "fairly present" a federal constitutional claim, a petitioner 

must 

present the claim's "factual and legal substance to the state courts in a 

manner that puts them on notice that a federal claim is being asserted") 

(citing Anderson v. Harless, 459 U.S. 461 (1982)). 

 12 
and on post-conviction relief clearly consider ed the weight 

of the evidence in evaluating Moore's claim." State v. Moore, 

No. 97-2087, slip op. at *17 (D.N.J. Aug. 12, 1998) ("Moore 

III"). The District Court concluded it was not an 

"unreasonable application of clearly established federal law" 

for the Appellate Division to hold the evidence could 

support the jury's verdict and "the pr osecutor's conduct, 

considered within the context of the entir e trial -- including 

the judge's curative instructions, the evidence and the 

correct jury charge -- did not `infect the trial with 

unfairness.' " Id. at *18 (citing 28 U.S.C. S 2254(d)(1) (as 

amended by the Anti-Terrorism and Ef fective Death Penalty 

Act)). The District Court noted, 

 Were I sitting as an Appellate Court judge on direct 

 review of the trial below, I might well have concluded 

 that the prosecutor's misconduct deprived Moor e of his 

 right to a fair trial. Congress, however , has imposed a 

 much more demanding standard of review on federal 

 habeas corpus courts. The Appellate Division

 considered the issue presented to me on two occasions 

 and concluded that Moore was not denied a fair trial. 

 After a complete review of the trial recor d, I cannot 

 conclude that the state court's analyses wer e "an 

 unreasonable application of clearly established federal 

 law." 

Id. at *19. 

II. 

The District Court had jurisdiction under 28 U.S.C.

S 2254(a) and granted a certificate of appealability under 28 

U.S.C. S 2253. We have jurisdiction under 28 U.S.C.

SS 1291, 2253. Because the District Court r elied exclusively 

on the state court record and did not hold an evidentiary 

hearing, our review of its decision is plenary. Hartey v. 

Vaughn, 186 F.3d 367, 371 (3d Cir . 1999), cert. denied, 528 

U.S. 1138 (2000). 

III. 

A state prisoner's habeas corpus petition "shall not be 

granted with respect to any claim that was adjudicated on 

 13 
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." 28 U.S.C. 

S 2254(d)(1). "[S]ection 2254(d) fir mly establishes the state 

court decision as the starting point in habeas r eview." 

Matteo v. Superintendent, SCI Albion, 171 F .3d 877, 885 (3d 

Cir.) (en banc), cert. denied, 528 U.S. 824 (1999).

In Williams v. Taylor, 529 U.S. 362, 404-06 (2000), the 

Supreme Court held that "contrary to" and"unreasonable 

application of " have independent, if overlapping meanings. 

To hold a state court decision is "contrary to . . . clearly 

established Federal law, as determined by the Supreme 

Court of the United States," a federal court mustfind the 

state court arrived "at a conclusion opposite to that reached 

by [the Supreme] Court on a question of law," or that the 

state court confronted facts "materially indistinguishable 

from a relevant Supreme Court pr ecedent" but arrived "at 

a result different from" that reached by the Supreme Court. 

Id. at 404-09. The Court explained that "a run-of-the-mill 

state-court decision applying the correct legal rule from our 

cases to the facts of a prisoner's case would notfit 

comfortably within S 2254(d)(1)'s `contrary to clause,' " but 

that, as an example, a state court decision applying a 

burden of proof other than that required by Supreme Court 

precedent would be contrary to clearly established federal 

law as determined by the Supreme Court. Id. at 406.

Even if a state court judgment is not contrary to 

Supreme Court precedent, it may be an unr easonable

application of that precedent. Id. at 407-08. To hold that a 

state court's decision is an unreasonable application of 

"clearly established Federal law, as deter mined by the 

Supreme Court of the United States," we mustfind that (1) 

the state court identified "the correct governing legal rule 

from [the Supreme] Court's cases but unreasonably 

applie[d] it to the facts" of the particular case, or (2) the 

state court unreasonably extended or failed to extend a 

legal principle from the Supreme Court's precedent. Id. at 

407. "[A] federal habeas court making the`unreasonable 

application' inquiry should ask whether the state court's 

 14 
application of clearly established federal law was objectively 

unreasonable." Id. at 409. The federal court "may not issue 

the writ simply because that court concludes in its

independent judgment that the relevant state court decision 

applied clearly established federal law erroneously or 

incorrectly. Rather, that application must also be 

unreasonable." Id. at 411. 

"[C]learly established Federal law, as deter mined by the 

Supreme Court of the United States" r efers to Supreme 

Court "holdings, as opposed to the dicta," as of the time of 

the relevant state court decision.8 Id. at 412. Supreme 

_________________________________________________________________ 

8. In determining whether a state court unr easonably failed to apply 

federal law, the Supreme Court instructed, 

 [T]he "unreasonable application" inquiry should ask whether the 

 state court's application of clearly established federal law was 

 objectively unreasonable. The federal habeas court should not 

 transform the inquiry into a subjective one by resting its 

 determination instead on the simple fact that at least one of the 

 Nation's jurists has applied the relevant federal law in the same 

 manner the state court did in the habeas petitioner's case. 

 * * * 

 The term "unreasonable" is no doubt difficult to define. That said, 

it 

 is a common term in the legal world and, accor dingly, federal 

judges 

 are familiar with its meaning. For purposes of today's opinion, the 

 most important point is that an unreasonable application of federal 

 law is different from an incorr ect application of federal law. 

Williams, 529 U.S. at 409-10 (emphasis in original). 

In interpreting the Anti-Terrorism and Effective Death Penalty Act 

("AEDPA") in a different context we recently stated, "We find no 

indication that AEDPA eliminated the r ole of the lower federal courts in 

interpreting the effect of Supreme Court pronouncements." West v. 

Vaughn, 204 F.3d 53, 62 n.10 (3d Cir. 2000) (discussing traditional 

retroactivity analysis in light of AEDPA). Similarly in Matteo, 171 F.3d 

890, we held, 

 [A]lthough AEDPA refers to "clearly established Federal law, `as 

 determined by the Supreme Court of the United States,' " (citation 

 omitted), we do not believe federal habeas courts ar e precluded 

from 

 considering the decisions of the inferior federal courts when 

 evaluating whether the state court's application of the law was 
 15 
Court precedent which would have been consider ed an "old 

rule" under Teague v. Lane, 489 U.S. 288 (1989), is also 

"clearly established Federal law, as deter mined by the 

Supreme Court of the United States."9 Id. 

IV. 

With this standard of review in mind, we will examine 

Moore's claims that the prosecutor's summation deprived 

him of a fair trial. 

A. 

The conduct of the trial, including closing ar guments, is 

regulated under the sound discretion of the trial judge. 

Herring v. New York, 422 U.S. 853, 862 (1975). But 

prosecutorial misconduct may "so infect[ ] the trial with 

unfairness as to make the resulting conviction a denial of 

due process." Donnelly v. DeChristofor o, 416 U.S. 637, 643 

_________________________________________________________________ 

 reasonable. See O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998) 

 ("To the extent that inferior federal courts have decided factually 

 similar cases, reference to those decisions is appropriate in 

 assessing the reasonableness vel non of the state court's treatment 

 of the contested issue.") . . . . [I]n certain cases it may be 

 appropriate to consider the decisions of inferior federal courts as 

 helpful amplifications of Supreme Court pr ecedent. 

9. In Hameen v. State of Delaware, we recently applied the Supreme 

Court's Williams test. 212 F.3d 226 (3d Cir. 2000), cert. denied, 121 

S.Ct. 

1365 (2001). In Hameen we determined the Delaware Supreme Court's 

application of a retroactive amendment to the state death penalty law 

was not a violation of the Ex Post Facto Clause of the United States 

Constitution because it was not "contrary to" clearly established federal 

law. In coming to this determination we detailed at length the Supreme 

Court's ex post facto precedent and stated we"simply cannot find . . . 

the decision of the Supreme Court of Delawar e . . . contrary to any [of 

these cases]. . . . In the circumstances, if we found an ex post facto 

violation here, we surely would be unfaithful to our obligations under the 

AEDPA." Id. at 246. After reviewing Supreme Court jurisprudence in this 

area we also determined there was"no basis to hold that the Delaware 

Court unreasonably applied the Supreme Court's ex post facto cases to 

the facts of this case or unreasonably r efused to extend ex post facto 

principles to this case." Id. (citing Williams, 529 U.S. 362). 

 16 
(1974). Such misconduct must constitute a " `failure to 

observe that fundamental fairness essential to the very 

concept of justice.' " Id. at 642 (quoting Lisenba v. 

California, 314 U.S. 219, 236 (1941)). Where "specific 

guarantees of the Bill of Rights are involved,[the Supreme] 

Court has taken special care to assure that prosecutorial 

conduct in no way impermissibly infringes them," id. at 

643, but the test remains the same. See Dar den v. 

Wainwright, 477 U.S. 168, 182 (1986), reh'g denied, 478 

U.S. 1036 (1986). 

In Donnelly, a first-degree mur der prosecution, the Court 

addressed an improper remark by a state prosecutor during 

jury summation. The trial court later gave the following 

curative instruction as part of the jury char ge: 

 Closing arguments are not evidence for your 

 consideration . . . . Now in his closing, the District 

 Attorney, I noted, made a statement: "I don't know 

 what they want you to do by way of a verdict. They 

 said they hope that you find him not guilty. I quite 

 frankly think that they hope you find him guilty of 

 something a little less than first-degree mur der." There 

 is no evidence of that whatsoever, of course, you are 

 instructed to disregard that statement made by the 

 District Attorney. Consider the case as though no such 

 statement was made. 

Id. at 641. 

The Supreme Court rejected the defendant's claim for 

federal habeas relief, finding that an "examination of the 

entire proceeding" did not support the contention that the 

"prosecutor's remark . . . by itself so infected the trial with 

unfairness as to make the resulting conviction a denial of 

due process." Id. at 643. The Court noted that, although 

the prosecutor's statement was improper , it was not so 

prejudicial that its effect could not be mitigated by a 

curative instruction. Finding the trial court had issued a 

"strong" instruction, twice stating the prosecutor's 

arguments were not evidence and dir ecting the jury to 

disregard the offensive statement in particular, the Court 

held any prejudice had been cured. Id. at 643-44. The 

Court further explained the prosecutor's comment was 

 17 
"admittedly an ambiguous one," id. at 645, and the case 

was not one "in which the prosecutor's r emarks so 

prejudiced a specific right, such as the privilege against 

compulsory self-incrimination, as to amount to a denial of 

that right." Id. at 643 (citing Griffin v. California, 380 U.S. 

609 (1965)). 

In Darden, the prosecutor made several improper 

remarks during closing argument, including using defense 

counsel's term "animal" to refer to the defendant and 

making "several offensive comments r eflecting an emotional 

reaction to the case." 477 U.S. at 180 & nn. 9-12. The state 

jury convicted the defendant of murder and assault with 

intent to kill and recommended a death sentence. The 

Supreme Court affirmed the denial of the defendant's 

federal habeas petition. Although the Court found the 

closing "deserve[d] the condemnation it has received from 

every court to review it," id. at 179, the Court concluded 

that, when viewed in context, the comments "did not

manipulate or misstate the evidence, nor . . . implicate 

other specific rights of the accused." Id. at 182. The Court 

noted the trial court had "instructed the jur ors several 

times that their decision was to be made on the basis of the 

evidence alone, and that the arguments of counsel were not 

evidence." Id. Moreover, the Supreme Court found "[t]he 

weight of the evidence against petitioner was heavy; the 

overwhelming eyewitness and circumstantial evidence to 

support a finding of guilt on all charges, .. . reduced the 

likelihood that the jury's decision was influenced by the 

argument." Id. (internal quotes omitted). 

To the extent that we may discern, ther efore, 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. Ther e are 

"some occurrences at trial [that] may be too clearly 

prejudicial for . . . a curative instruction to mitigate their 

effect."10 Donnelly , 416 U.S. at 644; cf. Bruton v. United 

_________________________________________________________________ 

10. Other courts of appeals have set forth tests for determining whether 

prosecutorial misconduct violates a defendant's right to due process. 

 18 
States, 391 U.S. 123, 135 (1968) (admission of 

codefendant's inculpatory confession too prejudicial to be 

cured through jury instruction). 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. Darden, 477 U.S. at 182; Donnelly, 416 U.S. at 

163. 

B. 

1. 

We now examine whether the Appellate Division's 

judgment was contrary to clearly established federal law as 

determined by the Supreme Court of the United States or 

an unreasonable application of federal law as determined 

by the Supreme Court of the United States. Williams, 529 

U.S. at 404-09. The Supreme Court has noted that in

addressing whether or not prosecutorial misconduct has 

denied a defendant of a fair trial, "the pr ocess of 

constitutional line drawing . . . is necessarily imprecise." 

Donnelly, 416 U.S. at 645. Here, the New Jersey Appellate 

Division examined each of the prosecutor's challenged 

arguments and, although finding them impr oper, held that 

when examined in light of the entire trial and the trial 

court's curative instructions, Moore had not been deprived 

of a fair trial. This was the correct analysis under Supreme 

Court precedent. Darden, 477 U.S. at 183; Donnelly, 416 

_________________________________________________________________ 

See, e.g., United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995) 

(examining severity of misconduct, curative instructions and evidence); 

United States v. Capone, 683 F.2d 582, 585 (1st Cir. 1982) (looking at 

severity of conduct, whether it was purposeful, ef fect of curative 

instruction, and strength of evidence). Some courts have also discussed 

"incurable errors." See, e.g.,Floyd v. Meachum, 907 F.2d 347, 356 (2d 

Cir. 1990) (granting habeas petition under pr e-AEDPA standard in part 

because prosecutor's remarks that defendant was a liar and her repeated 

references to the Fifth Amendment wer e incurable error under Donnelly). 

But under Williams, 529 U.S. 362, we must determine whether the 

reviewing courts unreasonably applied federal law as determined by the 

Supreme Court. 

 19 
U.S. at 163. Furthermore, because we have found no 

Supreme Court cases with facts "materially 

indistinguishable" from those at hand, we hold the state 

court's decision was not contrary to clearly established 

federal law. Williams, 529 U.S. at 404-09. 

2. 

Whether the Appellate Division unreasonably failed to 

apply clearly established federal law as deter mined by the 

Supreme Court is a more difficult question. The Appellate 

Division twice concluded that there was sufficient evidence 

to support Moore's conviction. See Moor e I, slip op. at *11 

("In ruling on the motion for a new trial the trial judge 

made a careful analysis of the evidence with r espect to the 

ability of the victim to have seen and identify her assailant. 

An examination of the record fully substantiates his recital 

and satisfies us that the conviction is supported by 

substantial credible evidence . . . ."). Specifically addressing 

the credibility of M.A.'s post-hypnotic identification, the 

Appellate Division stated, "There is nothing in the record to 

suggest either the police or the doctor assisting the 

hypnosis in any way suggested what the assailant might 

look like." Moore II, 641 A.2d at 271. 

Addressing the prosecutorial misconduct claims in 

particular, the Appellate Division held,"An examination of 

the [prosecutor's] summation in its entir ety shows that the 

complained of comments represented a small portion of an 

extremely lengthy summation, are too br oadly characterized 

by defendant and were in each case promptly and 

appropriately dealt with by a forceful curative instruction." 

Moore I, slip op. at *4. As to the pr osecutor's argument that 

the jury should infer that Moore selected a white woman to 

rape because his wife is white, the Appellate Division 

explained that "the impropriety of the suggestion was 

forcefully expressed" by the trial judge when he told the 

prosecutor at sidebar that the inference was unreasonable. 

Id. The Appellate Division noted the trial judge"immediately 

gave a forceful and complete curative instruction which not 

only told the jury to disregard the pr osecutor's remarks but 

told them it was an unfair and unreasonable inference and 

an improper argument." Id. at *5. The court was "satisfied 

 20 
that [the trial judge's action] prevented the prosecutor's 

statement from substantially prejudicing defendant's right 

to a fair trial." Id. 

As to the prosecutor's argument that Moor e committed 

the rape because he had his "greatest need for sexual 

release" while his wife was ill, the Appellate Division noted 

that the trial judge issued a "curative instruction in which 

he told the jury to disregard the pr osecutor's statement; 

that it was an unreasonable and improper inference." Id. at 

*5-6. The Appellate Division was "satisfied that any possible 

prejudice was fully removed by the trial judge's prompt 

action." Id. at *6. And as to the final remark-- that the jury 

would probably perpetrate a "worse assault" on M.A. if they 

failed to believe her testimony-- the Appellate Division 

noted that "[o]nce again the jury was instructed to

disregard the comment, that it was impr oper." Id. at *6-7. 

The court was "satisfied the judge's action her e, as with the 

previous improprieties, prevented the prosecutor's 

statements from substantially prejudging the defendant." 

Id. at *7. 

In conclusion, the Appellate Division noted the following: 

 Although we are persuaded that the prosecutor's 

 comments did not deprive defendant of a fair trial, we 

 would be derelict if we did not express our disapproval 

 in the strongest terms. The summation showed a 

 disregard of the obligation of the pr osecutor to play fair 

 and see that justice is done. [citation omitted]. Our 

 role, however, is not to supervise or punish

 prosecutorial misconduct. It is to examine the trial for 

 fairness. Fortunately, the judge, unlike the prosecutor, 

 was sensitive to the need for a fair trial and pr omptly 

 and forcefully delivered curative instructions to the 

 jury. 

Id. The Appellate Division noted its view that "the

prosecutor's outrageous conduct violated ethical 

principles," and "urge[d] the Attorney General to bring the 

matter to the attention of the appropriate ethics body." Id. 

The State maintains the Appellate Division's judgment 

"cannot be seen as unjustified" or unr easonable under 

Donnelly and Darden. Br. for Appellee at 37. Although the 

 21 
Appellate Division correctly identified the governing federal 

law for prosecutorial misconduct claims, see Darden, 477 

U.S. at 182; Donnelly, 416 U.S. at 644, the question is 

whether it failed to reasonably apply that law to the facts of 

this case. 

The sole issue at trial was the identity of the rapist. It is 

undisputed that M.A.'s initial description of her attacker 

was vague. The morning after the rape she told police that 

she had only seen him "from the light outside" her 

apartment which came from street lights on the road and 

from lights in a hospital parking lot half a block away. M.A. 

acknowledged at trial that she had her eyes closed most of 

the time during the attack and that she was "scar ed to 

death." She also testified that her attacker told her to keep 

her eyes closed and that he "kept telling me that he had a 

knife and if I didn't do what he said that he would hurt 

me." She noted that she only had a "very fleeting 

opportunity" to see her attacker, but at"one point when he 

was standing over the bed, I saw his face." M.A. stated he 

was "close enough to see, but not in detail." She stated that 

even though she was not wearing her contact lenses during 

the attack, her attacker was "very close" to her - close 

enough for her to see him and his face. She stated that she 

could see certain things without her contact lenses- that 

she had driven without them and that her vision did not 

prevent her from seeing things close to her. 

Although in her initial statement to police the day after 

the rape she stated her attacker "may have been black," in 

a written statement to police that same day she described 

her attacker as "black, about 5'10", 175 lbs., late 20's to 

mid 30's. Short hair, short beard close to his face. He was 

wearing blue jeans." She also stated, "Y ou could tell he was 

black" because of his "tough street talk." She described her 

attacker's build as "medium, muscular. Not bulky, just 

muscular." 

Because of her limited opportunity to view her attacker, 

M.A. suggested to police that she might be able to 

remember him in more detail if she wer e hypnotized. Three 

weeks after the rape, the Somers Point Police arranged an 

appointment with Dr. Samuel Babcock, a clinical 

psychologist, for M.A. to be hypnotized. Befor e the hypnotic 

 22 
session with Dr. Babcock, M.A. had not identified Moore as 

her attacker. M.A. testified that the police did not show her 

photographs of potential suspects before the hypnotic 

session. In accordance with New Jersey law, Dr . Babcock 

taped his meeting with M.A. The transcript of his meeting 

was produced at trial and portions of the audio tape were 

played for the jury. Part of this evidence consisted of M.A.'s 

pre-hypnotic description to Dr. Babcock of her limited 

ability to see her attacker. She said, "There's not much 

[light], some, a little bit of light comes thr ough the window 

but there was no light in my house, no lights were on it's 

pretty dark." When asked how much light came through 

her window she stated, "Ah, not very much, its enough to 

see like shadows and stuff, but not . . . . Like outlines of 

things, you know, but uhm, nothing really you know, not 

like ahm, nothing in detail." In her pre-hypnotic interview 

with Dr. Babcock, she also stated that her attacker's face 

was "round, . . . he had a short bear d, meaning facial hair 

as though he hadn't shaved in a few days. He was about 

five-foot-eleven." 

After undergoing hypnosis, M.A. was able to r ecall that 

her attacker's skin color was "medium." She testified that 

"[w]hen I was hypnotized, I saw his face again just like I 

had seen it, but it was much clearer." Immediately after the 

hypnotic session, M.A. met with a state police sketch artist 

and described her attacker. The sketch artist testified that 

as a result of the hypnosis, M.A.'s memory was"definitely 

enhanced" and she was "surer of particular . . . information 

. . . . [S]he told me that she remember ed better." He said 

M.A. 

 described the person or the perpetrator of the crime as 

 being a Negro male, approximately twenty-eight years 

 old, approximately one hundred eighty pounds, 

 approximately five[-]foot[-]eleven, muscular build, 

 medium complexion. She remembered his eyes as 

 approximately being dark. She remember[ed] stubble 

 on his face and the hair as being black and short with 

 tight texture. 

In addition to recalling more specific features of her 

attacker during hypnosis, M.A. remember ed her attacker 

had worn jeans and a tan suede jacket with a zipper. 

 23 
Several days later she also recalled ther e was dirt or a stain 

near one of the pockets of her attacker's jacket. 

With the assistance of M.A.'s "sketch," the police 

arranged a photo line-up of possible suspects that included 

a photograph of Clarence Moore. Police included Moore in 

this line-up because he was a suspect in two other sexual 

assault cases in Somers Point. Moore was also awaiting 

trial on sexual assault charges in Cape May County.

M.A. immediately recognized the photograph of Clarence 

Moore during the photo line-up. But the two other sexual 

assault victims from Somers Point could not identify him. 

In a written statement to police following this photo line-up, 

M.A. stated, 

 On February 5, 1986, at 12:40 A.M., I was shown a 

 photo line-up consisting of six photographs of black 

 men by Capt. Lukasiewicz and Sgt. Kaufman. After 

 carefully viewing these photographs, I picked photo #2 

 [the photo of Clarence Moore] as the man who sexually 

 assaulted me. I am absolutely sure of this 

 identification. 

After this initial photo identification, the police executed 

a search warrant at Moore's home. They found a pair of 

jeans and a jacket with a suede front and "sweater 

material" on the collar, back and sleeves. The jacket had 

stains on the front. M.A. had not mentioned to police that 

her attacker's jacket had sweater material on the sleeves. 

Additionally, M.A. described the jacket as "tan," but a state 

police laboratory that conducted tests on the jacket said it 

contained "orange fibers." 

On October 9, 1986, almost nine months after the initial 

identification of Moore, M.A. again met with the Somers 

Point Police and the Atlantic County Prosecutor's office and 

was shown a series of different photographs of suspects 

including a more recent photograph of Clar ence Moore (the 

previous photograph had been taken two years earlier). The 

officers present at this viewing testified that M.A. 

immediately identified Clarence Moore as her attacker. After 

this identification, the officers showed M.A. a third series of 

photographs from a live line-up of suspects that were in a 

different order from the suspects in the previous 

 24 
photographs. M.A. again identified Clarence Moore as her 

attacker. 

The investigating officers and those present during M.A.'s 

out of court identifications testified at trial. Defense counsel 

cross-examined these witnesses about the identification 

procedures. The officer who conducted the first photo lineup described the procedures he employed in selecting 

photographs for the identification stating, 

 I obtained five other photographs of people that 

 appeared similar in physical appearance [to Moore]. 

 With those I then photographed all six separately so 

 they would all be of the same general size and color 

 hue. I then placed them into a folder that has squar es 

 cut out so that only the face was showing. 

He also testified that he chose the photographs in the lineup by going through a large stack of photographs at the 

police station and that he "tried to pick out the pictures 

that most closely resembled Mr. Moor e." He testified that 

during the identification, M.A. immediately picked out 

Moore's photo and said, " `I'm sur e that's him. I'll never 

forget his face. I see it every time I close my eyes.' " 

Dr. Samuel Babcock testified at trial about the 

procedures he employed in hypnotizing M.A. During crossexamination, Dr. Babcock was questioned about his 

methodology, specifically whether his procedure relied on 

suggestive forms of questioning to enhance r ecall.11 

_________________________________________________________________ 

11. Defense counsel questioned Dr. Babcock about confabulation, where 

a person under hypnosis may unconsciously fill in memory gaps with 

suggested information. Defense counsel suggested that authorities 

within the scientific community believed the mor e assertive and 

dominant the hypnotist, the greater likelihood the hypnotized subject 

would experience confabulation. Defense counsel questioned Dr. 

Babcock about how assertive he was with his patients. He also 

questioned Dr. Babcock about the age r egression technique of hypnosis 

he employed in hypnotizing his clients, and whether he was aware that 

some authorities believed this technique resulted in a greater number of 

subjects experiencing confabulation. Dr. Babcock responded to these 

questions by acknowledging the scholarly criticism of suggestive 

questioning and its impact on confabulation. However , he stated, 

 25 
At trial M.A. testified that when she was sexually 

assaulted she was able to look at the person who attacked 

her and was able to see his face. She stated she was able 

to see him "clearly," and that after being hypnotized, "I saw 

his face again just like I had seen it, but it was much 

clearer." In describing her identification of Moore at the 

initial photo line-up, M.A. testified, "As soon as I saw 

number two [Moore], I recognized him." In testifying about 

the second photo identification, M.A. said, "I immediately 

recognized the man who assaulted me." She testified that 

the other photographs in the line-up did not look very 

different from Moore but she knew Moore because "that is 

the same face that I saw that night. I recognize that face, 

everything about it." Finally, M.A. identified Moore during 

an in-court identification stating there was no question 

whatsoever in her mind that he was her attacker . 

The state recovered physical evidence, including various 

articles of clothing and blankets from M.A.'s apartment, 

and sent this evidence to a crime laboratory for DNA 

testing. The laboratory also examined hair, saliva and blood 

samples from both M.A. and Moore. After testing this 

material, the laboratory issued a report stating, "An 

insufficient amount of high molecular weight human DNA 

was isolated from the vaginal swabs, fitted sheet, beige 

blanket, yellow blanket and the light blue comforter 

therefore no comparisons could be made with blood from 

Clarence Moore." 

C. 

As noted, the quantum or weight of the evidence is 

crucial to determining whether the prosecutor's arguments 

during summation were so prejudicial as to result in a 

denial of due process. Darden, 477 U.S. at 182; Donnelly, 

_________________________________________________________________ 

 I keep low key, I do not lead the person. I only ask them to 

continue 

 their own narrative, asking questions within their narrative but 

 without pressure. If I feel that they'r e not giving an answer, 

I'll back 

 off the question. Perhaps I may come back to it later, but I do not 

 do it in any kind of a pressure situation. 

 26 
416 U.S. at 644. The Appellate Division analyzed the 

"incurability" of the prosecutor's r emarks within the context 

of the entire trial and specifically examined the weight of 

the evidence.12 Moore I, slip op. at *11; Moore II, 641 A.2d 

at 124. Although M.A.'s identification of Moor e was posthypnotic, the New Jersey courts have validated this form of 

identification.13 The New Jersey courts reviewed this 

_________________________________________________________________ 

12. M.A.'s description of Moore as her attacker cannot be corroborated 

by other witnesses. But corroborating witnesses are usually unavailable 

in cases involving sexual assault. It is the duty of the fact finder to 

assess the credibility and reliability of the victim's testimony. Moore's 

attorney cross-examined M.A. on her identification and the jury found 

her identification reliable. The trial court and Appellate Division held, 

if 

the jury found M.A.'s identification reliable, there was sufficient 

evidence 

to sustain Moore's conviction. Moor e II, 641 A.2d at 124-25. 

13. As recently as 1996, the New Jersey Supr eme Court declined to 

adopt a per se rule prohibiting hypnotically induced testimony. State v. 

Fertig, 668 A.2d 1076, 1081-82 (N.J. 1996). The court reasoned that 

although many state courts prohibit hypnotically induced testimony, 

other courts have evaluated post-hypnotic testimony under a totality of 

the circumstances test or have consider ed other factors, including 

"procedural safeguards similar to those in Hurd to determine case-bycase whether hypnotically-refreshed testimony is admissible." Id. at 

1081. The court noted that twenty-six courts have found hypnotically 

refreshed testimony per se inadmissible while only four states, North 

Dakota, Oregon, Tennessee and Wyoming, find it generally admissible. 

The court also noted that the expert whose r ecommendations they relied 

upon in Hurd to determine the admissibility of hypnotically induced 

testimony now believes that "procedural safeguards cannot fully protect 

against the admission of [some improper] testimony . . . . [Therefore] 

hypnosis should not be used to prepare a witness to testify in court, . . 

. 

in an attempt to improve the recall of a previously unreliable or 

uncertain witness." Id. (quoting Martin T . Orne, et al., Hypnotically 

Induced Testimony in Eyewitness Testimony: Psychological Perspective 

171, 205 (Gary L. Wells & Elizabeth F . Loftus, eds. 1984)). But the New 

Jersey Supreme Court commented that many federal courts, including 

the Courts of Appeals for the Fourth, Fifth, Seventh, Eighth and 

Eleventh Circuits, and several state courts, including courts in Alabama, 

Colorado, Florida, Mississippi, New Mexico, South Dakota and 

Wisconsin, determine on a case-by-case basis whether hypnotically 

refreshed testimony is sufficiently r eliable to be admissible. Id. at 

1081. 

The New Jersey Supreme Court stated, "These courts recognize, as we 

did in Hurd, that a per se inadmissible rule may exclude otherwise 

 27 
evidence and found nothing in the recor d suggested that 

either the police or Dr. Babcock suggested what the

assailant looked like. Moore I, slip op. at *10. The Appellate 

Division noted, 

 Following a thorough Hurd hearing, the trial judge 

 found that all the standards set forth by the[New 

 Jersey] Supreme Court had been fully complied with. 

 We are satisfied the use of hypnosis was appropriate 

 for the victim's fear-induced traumatic neur osis, and 

 that the trial judge's findings as to the pr ocedures 

 employed and adherence to the Hurd requirements 

 were supported by substantial credible evidence in the 

 record. 

Id. 

The Appellate Division concluded the evidence was"more 

than sufficient" to support a finding of guilt. Moore I, slip 

op. at *11; Moore II, 641 A.2d at 124. But finding the 

evidence "more than sufficient" for conviction does not 

necessarily end the constitutional inquiry. Although the 

jury found Moore guilty beyond a reasonable doubt, the 

Supreme Court requires the reviewing court to factor the 

prejudicial effect of the prosecutor's improper remarks into 

the jury's finding of guilt and then assess its impact. 

Taking into consideration the quantum of evidence properly 

presented, the due process inquiry r equires the reviewing 

court to determine whether the prosecutor's remarks were 

so prejudicial, even in light of the curative instructions, as 

to result in the denial of the right to a fair trial. When the 

evidence is strong, and the curative instructions adequate, 

_________________________________________________________________ 

reliable evidence." Id. In Fertig, however the court added an additional 

procedural safeguard stating, "When trial courts admit hypnoticallyrefreshed testimony, they should instruct the jury of the effect that 

hypnosis may have on that testimony." Id. at 1082. 

In this case, the trial court conducted the appr opriate Hurd hearing to 

determine the admissibility of M.A.'s post-hypnotic identification and 

instructed the jury that they could consider this testimony if they found 

it reliable. Of course, Fertig's requirement that the jurors be instructed 

about the effect hypnosis may have on testimony was inapplicable at the 

time of Moore's trial. 

 28 
the Supreme Court has held the prosecutor's prejudicial 

conduct does not deprive a defendant of a fair trial. Greer 

v. Miller, 483 U.S. 756, 767 n.8 (holding evidence "primarily 

consisting of detailed testimony [of a co-conspirator who 

had confessed to the crime] which was corr oborated by 

physical and other testimonial evidence" was str ong enough 

to support conviction despite prejudicial comments), reh'g 

denied, 483 U.S. 1056 (1987); Darden , 477 U.S. at 182 

(holding "the weight of evidence against the[defendant] was 

heavy; the overwhelming eyewitness and circumstantial 

evidence to support a finding of guilt on the char ges . . . 

reduced the likelihood that the jury's decision was

influenced by the [prosecutor's] impr oper argument"). We 

must assess then the prosecutor's improper remarks, the 

curative instructions and the weight of the evidence. 

D. 

The prosecutor's challenged arguments at the very least 

were irrelevant, illogical and offensive. His "selection" 

argument appeared to be based on the per ception that rape 

is an expression of sexual desire rather than violence.14 In 

fact it is generally understood the opposite is true, 

Lieberman v. Washington, 128 F .3d 1085, 1098 (7th Cir. 

1997) (citing authorities), and the trial court advised the 

jury of the invalidity of the prosecutor's theory in its 

curative instruction. To the extent the pr osecutor's theory 

implicitly represented that a black man's attraction to a 

white woman is an identifying characteristic, the trial court 

countered it was "unfair and unreasonable" to infer that the 

selection of a white victim would help identify Moor e. The 

trial court also invalidated the prosecutor's"sexual release" 

argument by instructing the jury that the inference was 

unreasonable and improper and ther e was no evidence of 

lack of sexual access. 

The prosecutor's "selection" argument cited Moore's

marriage to a white woman, arguably raising biases against 

miscegenation and ugly stereotypes. Racially or ethnically 

_________________________________________________________________ 

14. The State acknowledges, "The Appellate Division properly saw this 

remark as an ignorant and uninformed statement about the true nature 

of sexual assault." Br. for Appellees at 40. 

 29 
based prosecutorial arguments have no place in our system 

of justice. See McClesky v. Kemp, 481 U.S. 279, 309-10, 

reh'g denied, 482 U.S. 920 (1987). In this regard, courts 

applying Supreme Court precedent have found that 

improper racial and ethnic references can be so prejudicial 

as to result in a denial of due process. 15 But not all racial 

_________________________________________________________________ 

15. We recognize there ar e instances where trial courts immediately 

grant a defendant's motion for mistrial because of a prosecutor's 

prejudicial comments. Typically a trial judge's grant of a defendant's 

motion for a mistrial is not reviewed on appeal, unless double jeopardy 

concerns are present. See generally United States v. Dinitz, 424 U.S. 600 

(1976). Therefore, the following sampling of appellate cases may not 

accurately reflect the range of cases wher e a prosecutor's improper 

racial 

references constituted due process violations. We also note that some of 

the following cases predate Donnelly. But to the extent these cases 

examine the prejudicial effect of impr oper racial arguments we find them 

helpful in illustrating the curability of impr oper racial arguments. See, 

e.g., United States v. Cannon, 88 F .3d 1495, 1503 (8th Cir. 1996) 

(prosecutor's reference to African-American defendants as "bad people" 

in case where evidence was not overwhelming"gave [the] jury an 

improper and convenient hook on which to hang their conduct," 

resulting in due process violation); United States v. Doe, 903 F.2d 16, 

27- 

28 (D.C. Cir. 1990) (prosecutor's statement that "Jamaican[s] [are] . . . 

coming in and they're taking over" and r epeated references to "they" and 

"them" in a drug case involving Jamaican defendants was improper 

where evidence was not "overwhelming"); McFarland v. Smith, 611 F.2d 

414, 416, 419 (2d Cir. 1979) (prosecutor's statement that AfricanAmerican officer's testimony about African-American defendant should 

be believed because it is "someone she knows and that's a member of 

her own race" was "constitutionally imper missible" because it invoked 

race for an illogical purpose and created "a distinct risk of stirring 

racially prejudiced attitudes"); Withers v. United States, 602 F.2d 124, 

125, 127 (6th Cir. 1979) (prosecutor's statement that "not one white 

witness has been produced" to support African-American defendant's 

case was prejudicial and required new trial where evidence was not so 

overwhelming as to create an "open and shut case" against defendant); 

Miller v. North Carolina, 583 F.2d 701, 707 (4th Cir. 1978) (prosecutor's 

statement that "I argue to you that the average white woman abhors 

anything of this type . . . with a black man" in a rape case involving 

African-American defendants was due process violation where no 

curative instructions were given); Kelly v. Stone, 514 F.2d 18, 19 (9th 

Cir. 1975) (prosecutor's asking jury to"[t]hink about the consequences 

of a letting a guilty man . . . go free. Because maybe the next time it 

won't be a little black girl from the other side of the tracks; maybe it 

will 

be somebody that you know," operated to deny African-American 

 30 
and ethnic references are so pr ejudicial as to constitute due 

process violations. Darden, 477 U.S. at 182; Donnelly, 416 

U.S. at 644. In other instances, courts applying Supreme 

Court precedent have held the prejudicial effect of a 

prosecutor's improper references to race or ethnicity can be 

cured with judicial instructions charging the jury to 

disregard the improper statements. 16 

_________________________________________________________________ 

defendant accused of rape the right to fair trial when combined with two 

other inappropriate comments); United States ex rel. Haynes v. 

McKendrick, 481 F.2d 152, 155, 161 (2d Cir. 1973) (prosecutor's 

statements about defense counsel's "experience with the people of the 

colored race" and his knowledge of "their weaknesses and inability to do 

certain things that maybe are commonplace for the ordinary person to 

do," combined with his statement about "the custom and habit of many 

colored people" to have "exotic hair dos" denied African-American 

defendants fair trial where evidence in case was not "overwhelmingly 

persuasive"); United States v. Grey, 422 F.2d 1043, 1045-46 (6th Cir.) 

(prosecutor's statement about African-American defendant's AfricanAmerican character witness "running around with a white go-go dancer" 

was sufficiently prejudicial to warrant new trial), cert. denied, 400 U.S. 

967 (1970). 

16. The following is a sampling of federal cases applying Supreme Court 

precedent, see supra note 8, that have found improper prosecutorial 

references to race were not so pr ejudicial as to result in the denial of 

due 

process. Again, some of these cases predate Donnelly. But to the extent 

they illustrate the prejudicial effect of improper racial arguments, we 

find 

them helpful. See, e.g., Thomas v. Gilmore, 144 F.3d 513, 518 (7th Cir. 

1998) (prosecutor's statement that African-American defendant had prior 

arrests for sexual offenses with "young white women" was "too fleeting 

and isolated" to have denied defendant fair trial), cert. denied, 525 U.S. 

1123 (1999); Smith v. Farley, 59 F.3d 659, 663-64 (7th Cir. 1995) 

(prosecutor's reference to African-American witness as "shucking and 

jiving on the stand" and reference to African-American defendants as 

"boys" did not interfere with the impartiality of the jurors because the 

"evidence of guilt in the case was overwhelming"), cert. denied, 516 U.S. 

1123 (1996); Russell v. Collins, 944 F .2d 202, 204 n.1 (5th Cir.) 

(prosecutor's statement asking jury to imagine the fear of white murder 

victim as "three black strangers" attacked her was an "isolated reference 

to the race of the defendant" and did not deny defendant fair trial), 

cert. 

denied, 501 U.S. 1278 (1991); United States v. Chase, 838 F.2d 743, 750 

(5th Cir. 1988) (prosecutor's statement about "Colombians [sic] with their 

cautiousness" in a drug case involving Colombian defendant was not 

 31 
In this case, the trial court commendably attempted to 

cure any possible harm and prejudice resulting from the 

prosecutor's improper arguments. After refuting the

prosecutor's "selection" argument, the court specifically 

instructed the jury to disregard the pr osecutor's remarks, 

declaring that such racial references wer e invalid. As noted, 

the trial judge instructed the jury, 

 I am ordering you to disregard what the prosecutor 

 said in reference to the testimony, the appearance of 

 Mrs. Moore, she being a white person, a Caucasian, 

 and Mr. Moore being a black person, and that the 

_________________________________________________________________ 

"harmful error"); United Statesv. Cardenas, 778 F.2d 1127, 1131-32(5th 

Cir. 1985) (prosecutor's statement that defendant in a drug case was 

Colombian did not warrant a new trial); United States v. Harvey, 756 

F.2d 636, 649 (8th Cir.) (prosecutor's statement that attributed the use 

of the term "honky" to African-American defendant accused of crimes 

involving white victims was prejudicial but was cured by cautionary 

instructions), cert. denied, 474 U.S. 831 (1985); Griffin v. Wainwright, 

760 F.2d 1505, 1513, 1515 (11th Cir. 1985) (prosecutor's reference to 

victim of crime as "white" in case involving black defendant did not deny 

defendant fair trial), cert. denied, 476 U.S. 1123 (1986); United States 

v. 

Yonn, 702 F.2d 1341, 1349 (11th Cir.) (prosecutor's statement that 

defendant in drug case was Colombian did not warrant new trial), cert. 

denied, 464 U.S. 917 (1983); Thornton v. Beto, 470 F.2d 657, 659 (5th 

Cir.) (prosecutor's reference to African-American defendants as "niggers" 

during re-direct examination of victim did not deny defendants fair trial 

because defense counsel objected when remark was made and court 

instructed jury to disregard reference), cert. denied, 411 U.S. 920 

(1973); 

United States v. Horne, 423 F.2d 630, 631-32 (9th Cir. 1970) 

(prosecutor's statement that "I am tir ed of [defense counsel] trying to 

let 

these people hide behind their race" and statement during closing that 

"[r]emember first, that he is a Negr o" was improper but did not affect 

African-American defendant's "substantial rights" when viewed in context 

of whole record); Brent v. White 

 , 398 F.2d 503, 505 (5th Cir. 1968) 

(prosecutor's reference to rape victim as "white girl" in case where 

defendant was African-American was not due pr ocess violation because 

victim took the stand as a witness and it was appar ent to jury she was 

white), cert. denied, 393 U.S. 1123 (1969); United States v. Douglas, 862 

F. Supp. 521, 530-31 (D.D.C. 1994) (pr osecutor's reference to Jamaican 

defendant's ethnicity in drug case did not r esult in due process 

violation), aff 'd, 70 F.3d638 (D.C. Cir. 1995), cert. denied, 516 U.S. 

1098 (1996). 

 32 
 reason, the selective process, was that he did this 

 aggravated assault because he selected a white or 

 Caucasian person. Disregard that. That's an unfair and 

 unreasonable inference to be drawn fr om the testimony 

 and I'm convinced that it's not proper ar gument to the 

 jury. 

The Appellate Division held that in the context of the entire 

trial, these curative instructions remedied the harms 

caused by the prosecutor's improper comments.17 We are 

not convinced. The prosecutor's approach in advancing his 

"selection" argument was direct and deliberate. His own 

words demonstrate the purpose of his appeal was to bolster 

the State's identification evidence. Specifically he stated, 

 Based on the testimony of Cheryl Moore, the case is 

 stronger than ever, that the odds ar e that this 

 defendant is the perpetrator [and] . . . you have more 

 reason to convict Clarence McKinley Moor e now that 

 she has testified than ever. 

The prosecutor noted there were "three important things" 

the jury should learn from Mrs. Moor e's "appearance" as a 

defense witness. He stated: 

 What did we learn when we found out that Cheryl 

 Moore was the wife of the defendant? I suggest to you 

 in a nonracist way that what we found out was that 

 Clarence McKinley Moore made a choice to be with a 

 Caucasian woman. 

In other words, the prosecutor argued Moore's "preference" 

for white women was probative evidence of whether he 

raped M.A. His disclaimer, "It's not a statement of race; it's 

a question of choice," does not mitigate his injection of race 

into the jury's deliberations ("the case is str onger than 

ever"). The trial judge immediately understood the 

_________________________________________________________________ 

17. See, e.g., Greer, 483 U.S. at 767 n.8 ("We normally presume that a 

jury will follow an instruction to disregar d inadmissible evidence 

inadvertently presented to it, unless ther e is an `overwhelming 

probability' that the jury will be unable to follow the court's 

instructions.") (quoting Richardson v. Marsh, 481 U.S. 200, 218 (1987)). 

Here, the prosecutor's improper ar guments were not inadvertently 

presented. 

 33 
implications of the prosecutor's argument. Calling the 

argument "unfair," the trial judge recognized the 

prosecutor's "selection" argument was prejudicial because it 

declared that Mrs. Moore's race was r elevant to the issue of 

Moore's guilt and could play to bias against interracial 

couples. The argument gave the jury an illegitimate "hook" 

on which to base their decision.18 

The "selection" argument had no basis in the evidence. In 

a case involving a black defendant accused of raping a 

white woman we believe this argument, although presented 

with a disclaimer, was highly prejudicial and invited the 

jury to decide the case on bias. See Miller, 583 F.2d at 707 

(prosecutor's statement that "I argue to you that the 

average white woman abhors anything of this type . .. with 

a black man" in a rape case involving African-American 

defendant was due process violation wher e no curative 

instructions were given). As noted, the trial judge had little 

doubt about the argument's impact when he admonished 

the prosecutor at sidebar to "stay away fr om the area of 

white/black because I don't think that's in the case." 

The prosecutor's "sexual release" ar gument was also 

improper. The comment implied that Moor e was guilty of 

raping M.A. because he was unable to have sexual 

intercourse with his wife. While improper , we believe it is 

the kind of remark usually remedied by appropriate 

curative instructions. The trial judge immediately cautioned 

the jury that there was no evidentiary basis for this 

inference. We believe the trial judge ef fectively remedied any 

possible prejudice stemming from the r emark. 

As noted, the prosecutor commented at the end of his 

summation that, "if you don't believe . . . [M.A.] and you 

think she's lying, then you've probably perpetrated a worse 

_________________________________________________________________ 

18. See, e.g., McCleskey, 481 U.S. at 309 n.30 ("If the circumstances of 

a particular case indicate a significant likelihood that racial bias may 

influence a jury, the Constitution requir es questioning as to such 

bias.") 

(citing Ristaino v. Ross, 424 U.S. 589 (1976)); Cannon, 88 F.3d at 1503 

(prosecutor's reference to African-American defendants as "bad people" 

in case where evidence against them was not overwhelming "gave [the] 

jury an improper and convenient hook on which to hang their conduct," 

resulting in due process violation). 

 34 
assault on her." This was an improper appeal to the jurors' 

passions.19 As the Supreme Court held in Berger v. United 

States, 295 U.S. 78, 85-88 (1935), overruled on other 

grounds, Stirone v. United States, 361 U.S. 212 (1960), 

 The United States Attorney is the repr esentative not of 

 an ordinary party to a controversy, but of a sovereignty 

 whose obligation to govern impartially is . . . 

 compelling . . . . He may prosecute with ear nestness 

 and vigor - indeed he should do so. But, while he may 

 strike hard blows, he is not at liberty to strike foul 

 ones. 

M.A. suffered a brutal attack and rape. By asking the 

jury to factor their understandable sympathy for the victim 

of this horrible crime into deciding Moore's guilt or 

innocence, the prosecutor made an imper missible request 

to decide guilt on something other than the evidence. 

Courts applying Supreme Court precedent have found that 

similar appeals for jurors to decide cases based on passion 

and emotion were improper.20 See supra note 8. But other 

_________________________________________________________________ 

19. See, e.g., Viereck v. United States, 318 U.S. 236, 247 (1943) 

(prosecutor's statement to jury during W orld War II that "the American 

people are relying upon you . . . for their protection against this sort 

of 

crime, just as much as they are relying upon the men who man the 

guns" was an improper appeal to passion); United States v. Cunningham, 

54 F.3d 295, 300-01 (7th Cir.) (pr osecutor's statement to jury that 

"[c]ollectively you can go back there and stop [the defendants]. You can 

make sure that [the victim] isn't going to get beat up again. Heaven 

forbid, for the witnesses that came in this courtr oom the last couple of 

days if these guys are found not guilty. Heaven forbid. Don't let that 

happen," was improper appeal to jury's emotions), cert. denied, 516 U.S. 

883 (1995); United States v. North, 910 F .2d 843, 895 (D.C. Cir. 1990) 

(prosecutor's statement comparing defendant to Adolf Hitler was 

improper appeal to passion), opinion withdrawn and superseded in part 

on reh'g, 920 F.2d 940 (D.C. Cir. 1900) (per curiam order), cert. denied, 

500 U.S. 941 (1991). 

20. See, e.g., United States v. Payne , 2 F.3d 706, 712 (6th Cir. 1993) 

(prosecutor's reference to defendant taking advantage of children at 

Christmas was improper appeal to emotion); United States v. Lee, 743 

F.2d 1240, 1253 (8th Cir. 1984) (pr osecutor's statement that "[w]hat you 

do as jurors is going to be watched her e. You can better believe that 

each and every drug smuggler is watching what happens here today," 

was an improper appeal to emotion). 

 35 
courts applying Supreme Court precedent have recognized 

that improper appeals to passion can be cur ed.21 Id. 

As noted, the trial court here instructed the jury,

 I want to tell you I'm going to order you-- I generally 

 don't order people. I'm going to order you to disregard 

 that last remark made by [the prosecutor] to the effect 

 that the last thing I have to say to you is that if you 

 don't believe her and you think she's lying, then you're 

 probably perpetrating a worse assault on her . 

 Disregard that remark. I have deter mined that's 

 improper and you are not to consider that for any 

 purpose in this case. 

Given the graphic evidence of a brutal rape, we believe the 

prosecutor's "perpetrating a worse assault" comment was 

likely to improperly influence the jury's decision by 

implying that a not-guilty verdict would compound M.A.'s 

suffering.22 

Furthermore, the prosecutor's ar gument 

mischaracterized M.A.'s testimony. The principal issue at 

trial was never M.A.'s credibility in ter ms of her

truthfulness or sincerity. In fact, there can be no doubt 

about M.A.'s sincerity. The principal issue was the

reliability of M.A.'s identification, her opportunity to observe 

_________________________________________________________________ 

21. See, e.g., Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000) 

(prosecutor's statement asking jurors to put themselves in shoes of 

murder victim's family was not so prejudicial as to deny defendant right 

to fair trial when curative instructions wer e given); Walker v. Gibson, 

228 

F.3d 1217, 1243 (10th Cir. 2000) (pr osecutor's reference to murder 

victim as "cold in his grave" was impr oper appeal to emotion but not 

sufficient to render trial unfair because it was "likely the crime itself 

produced sympathy before [the] pr osecutor made [the] comments"). 

22. See, e.g., Kelly, 514 F.2d at 19 (prosecutor's asking jury to "[t]hink 

about the consequences of a letting a guilty man . .. go free. Because 

maybe the next time it won't be a little black girl from the other side of 

the tracks; maybe it will be somebody that you know," operated to deny 

African-American defendant accused of rape the right to fair trial when 

combined with two other inappropriate comments); but see Walker, 228 

F.3d at 1243 (prosecutor's refer ence to murder victim as "cold in his 

grave" was improper appeal to emotion but not sufficient to render trial 

unfair). 

 36 
and remember her assailant. To the extent that implying a 

not-guilty verdict required finding M.A. lied, the prosecutor 

manipulated the identification testimony into a question of 

veracity when the real issue was reliability. To the extent it 

was intended to buttress M.A.'s credibility (in terms of her 

ability to observe or to refute the confabulation argument), 

the argument was improper because it played to the jurors' 

emotions and suggested a not-guilty verdict r equired 

finding M.A. lied. 

Were this the only improper ar gument, we do not believe 

Supreme Court precedent would requir e finding a denial of 

due process. Taken in isolation, any pr ejudice stemming 

from the "perpetrating a worse assault" argument could be 

cured with strong instructions like those the trial judge 

issued here. But when viewed in light of the pr osecutor's 

"selection" argument, we believe due pr ocess concerns are 

implicated. Together, the prosecutor's "selection" argument 

and the "perpetrating a worse assault" ar gument were not 

only improper but prejudicial. Thr ough these arguments, 

the prosecutor asked the jury to decide the case on bias 

and emotion rather than on the evidence presented. 

Specifically, his "selection" argument asked the jury to 

infer from Mrs. Moore's race, and not fr om the credibility or 

reliability of her alibi testimony, that her husband was 

guilty. As noted by the Supreme Court in Darden, when a 

prosecutor's argument manipulates or misstates the 

evidence, the argument can be so prejudicial as to result in 

the denial of due process. 477 U.S. at 182. Her e, the 

prosecutor manipulated testimony to bolster identification 

evidence. 

We believe the trial court properly attempted to cure any 

resulting prejudice from the pr osecutor's arguments. As 

noted, its instructions directly charged the jury to disregard 

the prosecutor's improper refer ences to race and appeals to 

their emotions.23 Despite the trial court's strong 

instructions, the issue remains whether in the context of 

the entire trial and in view of all the evidence, the 

prosecutor's prejudicial remarks r esulted in a denial of due 

_________________________________________________________________ 

23. We do not believe the delay occasioned by the overnight adjournment 

is especially relevant here. 

 37 
process. As recognized by the Supr eme Court in Darden, 

when looking at the entire trial, the r eviewing court should 

examine the strength of the evidence against the defendant. 

477 U.S. at 182. 

E. 

Most of the evidence presented at trial focused on M.A.'s 

identification of Moore. The New Jersey courts found the 

identification evidence "more than sufficient" to support a 

finding of guilt beyond a reasonable doubt. Absent the 

prosecutorial misconduct here, we would agree. But 

whether the quantum of evidence against Moor e was 

sufficiently strong to support his conviction in light of the 

prosecutor's prejudicial arguments is a more difficult 

question. 

M.A. acknowledged that her eyes were closed during most 

of the attack. She stated that she was only able to see her 

attacker's face at "one point when he was standing over the 

bed." During this "mere glimpse," she was not wearing her 

contact lenses and was understandably extremely 

frightened. The room in which the attack occurr ed was 

dark and was only illuminated by outside str eet lights. M.A. 

stated that although she saw her attacker's face, she could 

not see it "in detail" at the time of the rape. She was only 

able to give a rough physical description of her attacker 

including his race, and his approximate height and physical 

build. It was only after undergoing hypnosis that M.A. was 

able to give a more detailed description of her attacker 

including the clothing he was wearing and the color and 

texture of his hair. The only physical evidence presented at 

trial was the jacket found in Moore's home which M.A. 

identified as the one her attacker wore the night of the 

rape. But the laboratory tests on the fibers on the jacket 

were unhelpful in the identification. 

As noted by the Supreme Court in Dar den, improper and 

prejudicial prosecutorial arguments generally are curable 

when the evidence is strong. 477 U.S. at 182. Where the 

evidence is not strong, however, the Court has found that 

highly prejudicial arguments may r esult in the denial of 

due process. See Greer, 483 U.S. at 765. As noted, there 

 38 
was no physical evidence here, with the exception of the 

jacket, to connect Moore to the rape. M.A.'s pr e-hypnotic 

identification of her attacker was vague. Her post-hypnotic 

identification was not strong because it was based on her 

recollection of her attacker resulting fr om a single brief 

view. While this evidence could properly support a finding 

of guilt, it is not as strong as those cases in which the 

Supreme Court has found highly prejudicial prosecutorial 

arguments curable. Greer, 483 U.S. at 765; Darden, 477 

U.S. at 182. 

In Darden, the Court found the pr osecutor's improper 

arguments curable in part because "the weight of evidence 

against [the defendant] was heavy; the overwhelming

eyewitness and circumstantial evidence to support a finding 

of guilt on the charges . . . reduced the likelihood that the 

jury's decision was influenced by [the pr osecutor's 

improper] argument." 477 U.S. at 182 (internal quotes 

omitted). Similarly in Greer, the Supreme Court found the 

prosecutor's prejudicial comment about the defendant's 

post-arrest silence did not infect the trial with unfairness 

because the weight of the evidence against the defendant 

was strong. The Greer Court noted the evidence "primarily 

consisting of detailed testimony [of a co-conspirator who 

had confessed to the crime] which was corr oborated by 

physical and other testimonial evidence" was important in 

finding no denial of due process. 483 U.S. at 767. In this 

case, there is no similarly strong physical, circumstantial, 

testimonial, or corroborating identification evidence linking 

Moore to the rape. 

F. 

Taking into account the prosecutor's highly prejudicial 

comments, the trial judge's curative instructions, and the 

strength of the evidence, we believe a r easonable 

application of Supreme Court precedent r equires finding 

Moore's trial was so infected with unfair ness that it was 

constitutionally infirm. See Greer, 483 U.S. at 765; Darden, 

477 U.S. at 182. The Appellate Division impr operly weighed 

the prejudicial effect of the prosecutor's references to race 

and his appeals to the jurors' sympathy for the victim in 

light of the strength of the evidence. Although the trial 

 39 
judge issued strong curative instructions, the evidence 

against Moore was not sufficiently str ong to ensure that the 

jury disregarded the prosecutor's inflammatory and highly 

prejudicial arguments and decided the case solely on the 

evidence. A reasonable application of Supr eme Court 

precedent therefore requir es finding Moore's trial was so 

infected with unfairness that he was denied due process. 

V. 

For the foregoing reasons, we will r everse the District 

Court's judgment and remand this matter with directions to 

grant the writ of habeas corpus. The State of New Jersey 

may retry Moore. The writ will be issued conditioned upon 

a retrial within 180 days from the date on which the 

District Court enters its order. 

 40 
RENDELL, Circuit Judge, concurring: 

I join Judge Scirica's opinion, but I write separately to 

note my view that the prosecutor's remarks in his closing 

statement to the jury were not merely, as the Majority 

describes them, "irrelevant, illogical, and offensive." Maj. 

Op. at 29. They were, in fact, outrageous in their direct 

appeal to the jury to decide the case on impr oper grounds 

and abandon the standards that our system of justice 

requires. 

The prosecutor's inflammatory remarks clearly were 

calculated to divert the jury from its swor n duty to focus on 

the evidence presented in the case. Indeed, her e the 

prosecutor not only manipulated and misstated the 

evidence, but actually attempted to fabricate evidence that 

did not exist. And in such circumstances, it goes without 

saying that it is the defendant who suf fers harm from the 

prosecutor's misconduct, not the state. Certainly, we 

cannot assume -- as the dissent does -- that given the 

egregious nature of the prosecutor's remarks, the jury 

would automatically recognize the misconduct and 

therefore be more likely to acquit the defendant. Under that 

curious theory, the worse the prosecutorial misconduct, the 

better off the defendant, and the less likely there is to be a 

due process violation. By that reasoning, one is left to 

wonder how prosecutorial misconduct could ever violate 

due process. 

Furthermore, it bears emphasis that the curative 

instructions issued by the trial court were mediocre at best, 

and certainly did not cure the prejudicial effect of the 

prosecutor's outrageous remarks. Rather than, as in

Donnelly, taking "special pains" to corr ect the prosecutor's 

improper remarks, Donnelly, 416 U.S. at 644, here the trial 

judge made no effort to remove the thin veil from the 

prosecutor's racist arguments by telling the jury that these 

arguments were, in fact, improper appeals to racial

prejudice, and that such appeals should have no bearing 

on the case whatsoever. Moreover , the trial judge never, at 

any time during the trial, used the word "race" in his 

instructions to the jury, and the effect of the prosecutor's 

invidious appeals to racial prejudice, viewed in the context 

of the trial as a whole, could in no way be cur ed by 

 41 
instructions that made no reference to race as a factor that 

the jury must exclude from its deliberations. 

Finally, what makes the prejudicial impact of the 

prosecutor's misconduct in this case so clear is that the 

evidence of Clarence Moore's guilt was uniquely 

underwhelming. Judge Scirica's opinion sets forth in detail 

the problems inherent in M.A.'s identification of Moore -- 

which was the only relevant evidence of guilt in the entire 

trial -- and thus I see no need to repeat his excellent 

analysis here. However, I think it is worth noting that the 

use of hypnotically-induced identifications is controversial 

at best, and any concerns that we might have about the 

use of such identifications is heightened in a case such as 

this, where the identification is entir ely uncorroborated. 

E.g., Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir. 1978) 

(noting that "[c]enturies of experience in the administration 

of justice have shown that convictions based solely on 

testimony that identifies a defendant previously unknown 

to the witness is highly suspect. Of all the various kinds of 

evidence it is the least reliable, especially where

unsupported by corroborating evidence"); see also United 

States v. Wade, 388 U.S. 218, 228 (1967) (observing that 

"[t]he vagaries of eyewitness identification are well-known; 

the annals of criminal law are rife with instances of 

mistaken identification"). 

In sum, viewed through the lens of the Supr eme Court's 

teachings on the implications of improper pr osecutorial 

remarks, there is no doubt that Clar ence Moore was denied 

due process. Indeed, when I consider the facts of this case 

-- the egregious prosecutorial misconduct, the lack of 

effective curative instructions, and the insubstantial 

evidence of guilt -- I can hardly imagine a more compelling 

case for reversal given the dictates of established Supreme 

Court precedent. As such, the trial process was infected 

with unfairness, and the New Jersey courts unr easonably 

applied this precedent by not granting Moor e a new trial. 

 42 
GREENBERG, Circuit Judge, dissenting: 

I respectfully dissent but do so reluctantly as I recognize 

that the court has made a careful study of this case and 

that it has reached its result only after thoughtful 

deliberation. Nevertheless, there can be no doubt that the 

Appellate Division of the Superior Court of New Jersey on 

two occasions went through a similar pr ocess with no less 

an awareness of its obligations and yet r eached a result 

opposite than that the court reaches her e. In the final 

analysis, then, this case involves a choice of two different 

views of the effect of the prosecutor's misconduct and the 

trial court's efforts to remedy the situation. 

I do not reiterate the background of this case as the 

court fairly sets it forth. Nor do I discuss the controlling 

legal authorities at length as the court lays them out. 

Rather, I merely state the overar ching legal principles 

involved here. Under the AEDPA when a federal court

considers a state prisoner's habeas corpus petition, the 

underlying decision of the state court with r espect to any 

claim that was adjudicated on the merits must contr ol 

unless, as germane here, it "was contrary to, or involved an 

unreasonable application of, clearly established Federal 

law, as determined by the Supreme Court of the United 

States." 28 U.S.C. S 2254(d)(1). Inasmuch as this court 

acknowledges that this case does not implicate the 

"contrary to" prong of section 2254(d)(1), the court must 

determine whether the state decisions wer e an 

unreasonable application of Federal law as determined by 

the Supreme Court. I am satisfied that they were not and, 

in fact, were correct. Indeed, I believe that, if anything, the 

prosecutor's comments which resulted in the admonitions 

and directions of the trial court prejudiced the state at the 

trial. After all, the jury could not possibly have failed to 

recognize that the prosecutor was making an improper 

appeal to it. In this regard, I point out that this is not a 

situation in which the prosecutor suggested to the jury that 

he had important evidence pointing to the defendant's guilt 

which for some reason he had not presented to the jury. 

Thus, while the prosecutor made arguments not supported 

by the evidence they were merely impr oper on the basis of 

the evidence of which the jury was aware. Mor eover, I see 

 43 
no reason to believe that the jury would have had any 

difficulty carrying out the judge's instructions to disregard 

the improper comments. 

It is also important to remember that the Appellate

Division reviewed this matter not once but twice and thus 

the court makes reference to both of its decisions. Actually, 

two separate panels of the Appellate Division consisting of 

five different judges considered this case, once on direct 

appeal and once in post-conviction relief pr oceedings and 

came to the unanimous conclusion that the pr osecutor's 

conduct did not require a reversal of the convictions.1 It 

also is important to recognize that these pr oceedings are 

remedial, not punitive, so that if, as I think is clearly the 

case, the verdict was not influenced by the prosecutor's 

improper remarks, we should deny Moor e relief. 

Finally, I point out that under the AEDPA we are in the 

unfamiliar position of being obliged to make a highly 

deferential review of a state court's decisions of law for 

ordinarily our review of legal deter minations is plenary. 

Thus, we must guard against the possibility that our result 

is driven by our mere conclusion that the state court erred 

as the AEDPA requires more for the granting of habeas 

corpus relief. 

For the foregoing reasons I respectfully dissent. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

1. Moore contended that his right to a fair trial had been violated in the 

post-conviction relief proceedings as an aspect of an argument that he 

was entitled to a new trial because counsel had been ineffective. 

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