# Marshall v. Hendricks

> Court of Appeals for the Third Circuit · September 11, 2002 · 307 F.3d 36

URL: https://www.frixlaw.com/law-library/cases/3012034

## Case

- **Full name:** Robert O. MARSHALL, Appellant v. Roy L. HENDRICKS, Administrator, New Jersey State Prison; John J. Farmer, Attorney General, State of New Jersey
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** September 11, 2002
- **Citations:** 307 F.3d 36; 2002 WL 31018600
- **Precedential status:** Published
- **Opinion:** Opinion by Rendell
- **Judges:** Becker, Roth, Rendell
- **Cited by:** 179 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3012034

## How later opinions describe it (automated extraction)

- finding non-disclosure of immunity agreement for impeachment immaterial where the witness’ statement to police prior to and after that agreement was the same, and where no evidence that witness, when giving the initial statement to police immediately after the crime, was even …
- recognizing “that the stronger the evidence against the defendant, the more likely that improper arguments or conduct have not rendered the trial unfair, whereas prosecutorial misconduct is more likely to violate due process when evidence is weaker.”
- holding that, while the prosecutor improperly opined on a witness’ credibility during closing argument, that he believed a government witness was telling the truth constituted improper vouching, the error did cause incurable prejudice
- finding that a petitioner’s challenge | - to his obligation to make restitution payments through the. BOP’s inmate financial responsibility program was cognizable under 28 U.S.C. § 2241
- recognizing that “the impeachment value of the immunity agreement is inextricably tied to the self- incriminating evidence that was provided after the immunity agreement was executed.”

## Opinion text

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

9-11-2002

Marshall v. Hendricks
Precedential or Non-Precedential: Precedential

Docket No. 00-9004

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Marshall v. Hendricks" (2002). 2002 Decisions. Paper 561.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/561

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Volume 1 of 3

PRECEDENTIAL

Filed September 11, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-9004

ROBERT O. MARSHALL,
Appellant

v.

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

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

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

Argued March 21, 2002

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

(Filed: September 11, 2002)

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

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

OPINION OF THE COURT

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

I. Facts

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

2

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

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

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

3

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

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

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

In a rambling narrative, the Dougherty tape discussed Marshall’s
relationship with Kraushaar, including his plans to leave Maria, his
escalating debt that had spiraled to almost $200,000, and his concerns
that the police suspected his involvement in Maria’s murder because he
had hired McKinnon to find five or six thousand dollars that was
missing. Marshall also explained that Maria had hired an investigator
who had disclosed his affair to others. At one point in the tape, Marshall
stated, "The . . . thought that comes to mind is that if . . . anybody, who
knew about it . . . the attorney who he told who is a friend of mine, or
any of the people who the attorney told . . . if they had said something
to me, this entire thing would not have happened . .. because we

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

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

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

5

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

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

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

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

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

6

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

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

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

7

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

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

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

8

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

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

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

9

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

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

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

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

10

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

Marshall then petitioned for state post-conviction relief,
which was denied. Marshall had requested a "complete
evidentiary hearing to support the claims raised in the
petition through the presentation of testimonial and
documentary evidence" and had "planned to amend the
petition based on the evidence adduced at the hearing."
State v. Marshall, 690 A.2d 1, 26 (N.J. 1997) ("Marshall II").
However, the Court granted a full evidentiary hearing as to
only five of Marshall’s claims, all of which related to defense
counsel’s promising, as part of his opening statement, that
Marshall would take the stand, and to whether Marshall
was competent to participate in the penalty phase, given
his collapse following the verdict. For the remainder of the
issues, the parties were required to submit documentary

11

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

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

II. Jurisdiction and Standard of Review

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

12

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

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

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

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

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

13

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

III. Discussion

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

I. Penalty Phase Ineffectiveness of Counsel

II. Denial of the Evidentiary Hearing

III. Brady Violations

IV. Guilt Phase Ineffectiveness of Counsel

V. Violation of the Right to Counsel

VI. Prosecutorial Misconduct

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

VIII. Search and Seizure Violations
_________________________________________________________________

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

14
IX. Denial of Discovery

X. Willful Nondisclosure of Brady Material

XI. Cumulative Error

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

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

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

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

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

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

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

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

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

15

A. Government Failures to Disclose

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

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

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

16

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

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

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

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

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

17

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

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

1. Kraushaar

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

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

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

18

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

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

Kraushaar was first interviewed on September 7, 1984,
_________________________________________________________________

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

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

19

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

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

20

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

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

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

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

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

21

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

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

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

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

22

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

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

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

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

23

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

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

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

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

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

24

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

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

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

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

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

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

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

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

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

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

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

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

26

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

A. No, sir.

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

A. No, sir.

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

A. No.

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

A. No.

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

A. I didn’t know --

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

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

27

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

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

Id. at 179-80.

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

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

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

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

28

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

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

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

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

Id. at 2596a.

a. The Expense Letters

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

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

29

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

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

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

30

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

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

31

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

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

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

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

32

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

3. Combined Impact

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

B. Prosecutorial Misconduct

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

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

33

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

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

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

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

34

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

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

a. The Improprieties

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

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

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

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

35

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

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

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

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

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

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

36

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

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

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

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

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

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

37

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

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

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

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

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

38

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

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

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

Id. at 169-70.

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

. . . .

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

Id. at 171.

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

39

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

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

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

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

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

40

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

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

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

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

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

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

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

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

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

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

42

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

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

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

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

43

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

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

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

44

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

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

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

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

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

45

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

2. Violations of Specific Constitutional Rights

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

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

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

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

46

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

a. Right to Counsel

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

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

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

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

47

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

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

DECARLO: Yes, I did.

PROSECUTOR: You did?

DECARLO: Yes.

PROSECUTOR: Answer their questions?

DECARLO: He answered a question.

PROSECUTOR: A question?

DECARLO: A question.

PROSECUTOR: One question?

DECARLO: One question.

PROSECUTOR: Then the conversation ended: is that
correct?

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

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

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

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

48

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

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

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

Id.

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

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ii. Was the Error Nonetheless Harmless?

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

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

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

52

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

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

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

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

53

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

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

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

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

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

55

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

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

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

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

Griffin, 380 U.S at 610-11.

27. The relevant prosecutorial questions are as follows:

56

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

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

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

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

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

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

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

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

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

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

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

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

57

be, guilty. Such an inference might certainly tend to cause
the jury to disbelieve

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3012034. Public record. Not legal advice.