State v. Marshall

O’HERN, J.,

concurring in part and dissenting in part.

With two exceptions, I agree with the comprehensive opinion and judgment of the Court dismissing defendant’s petition for post-conviction relief (PCR). I dissent from the Court’s denial of a hearing to defendant on his claim of ineffective assistance of counsel, and I dissent from its denial of access to the State’s investigative file. I join Justice Handler’s dissenting opinion insofar as he would reverse on the basis of these issues. I add only the following observations.

I

The principal thesis of the Court’s disposition of defendant’s ineffective assistance of counsel claim at the penalty phase of his death penalty trial is that counsel made a strategic decision not to present a defense and that, moreover, any defense was not likely to have affected substantially the jury’s deliberations. The latter premise is untenable.

The quality of defense representation is likely to matter in the sentencing stage of the vast majority of capital cases. Because of the breadth of the jury’s discretion and the subjectivity of its decision, the imposition of a death sentence will rarely, if ever, be a foregone conclusion. Moreover, the quality of defense representation plays a critical role because of the vast range of information relevant to the sentencing decision that the jury can learn only through defense counsel’s efforts and because of the jury’s susceptibility to persuasive argument. Thus, in capital cases, more than any other class of criminal cases, the quality of representation will make a difference — and the difference will be between life or death for the accused.

*287 [Bruce A. Green, Lethal Fiction: The Meaning of “Counsel" in the Sixth Amendment, 78 Iowa L.Rev. 433, 499 (1993).]

In this case, defendant seeks a hearing to establish that he was sentenced to death without the constitutionally-required effective assistance of counsel. In order to establish his entitlement to a hearing, defendant’s petition need only raise a prima facie right to relief. State v. Preciose, 129 N.J. 451, 462 , 609 A.2d 1280 (1992). Defendant’s petition raises an almost open and shut case of ineffective assistance of counsel. All that can possibly sustain the conviction is a hearing that might somehow lend credibility to counsel’s choice to present no ease at all. “[A] capital defense attorney’s central mission is to present the defendant’s ‘case for life’ through the introduction of mitigating evidence at the sentencing stage.” Welsh S. White, Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care, 1993 U. Ill. L.Rev. 323, 360-61 (1993). Marshall’s attorney made no case for life.

In my dissenting opinion in State v. Marshall (Marshall I), 123 N.J. 1 , 586 A.2d 85 (1991), cert. denied, 507 U.S. 929 , 113 S.Ct. 1306 , 122 L.Ed. 2d 694 (1993), I observed, as did Justice Handler, that the sentencing phase in Marshall’s case had been telescoped into the guilt phase of the capital trial.

Defense counsel relied solely on evidence presented in defense of the crime charged. There is no reason to suppose that the evidence offered by defendant at the guilt trial by way of a defense to the charges could be more than marginally helpful with respect to whether he deserved only life imprisonment.

[Id. at 242, 586 A.2d 85 (Handler, J., dissenting).]

In essence, there was no sentencing trial.

In practice, a defendant whose lawyer fails to present any mitigating evidence is little different from one who has had no legal representation at all at sentencing. The failure to present mitigating evidence is effectively equivalent to a lack of representation at sentencing because they both deny a defendant a fair penalty trial.

[Ivan K. Fong, Ineffective Assistance of Counsel at Capital Sentencing, 39 Stan. L.Rev. 461, 494-95 (1987).]

In State v. Dixon, 125 N.J. 223, 260 , 593 A.2d 266 (1991), we explained that an ineffective assistance of counsel claim in a capital case is not measured by whether the trial attorney is *288 capable of trying other types of criminal cases but, rather, whether the attorney is familiar with constitutional criminal procedure and the extraordinarily complex issues of capital cases. Reasonably competent capital counsel must be aware of the proper methods of trying capital cases.

[T]he special procedures in capital cases impose unique responsibilities on defense lawyers which include conducting an investigation prior to trial to uncover information that may be presented in mitigation of the sentence, attempting to select jurors who are least likely to impose a death sentence, and conducting the defense during the guilt phase of the trial in light of its potential impact on the jury’s sentencing decision.

[Green, supra, 78 Iowa L.Rev. at 496-97 (citing Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L.Rev. 299 (1983)).]

Marshall’s trial counsel did none of this. He did nothing to select jurors least likely to impose the death penalty, had no theory of defense consistent with a plea for life, and made no case for life. The ABA Standards for Criminal Justice (“The Defense Function”) clearly state that “ ‘[i]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to the facts relevant to the merits of the case and the penalty in the event of conviction.’ ” Fong, supra, 39 Stan. L.Rev. at 480-81 (quoting 1 American Bar Assoc. Standards for Criminal Justice, Standard 4-4.1, at 4-53 (2d ed.1980)) (emphasis added). Prevailing norms of practice expressly dictate the duty to investigate mitigating evidence. Id. at 480. Trial manuals for capital defense counsel employed by the Southern Poverty Law Center of California, Office of State Public Defender, describe in detail the effect and importance of investigating and presenting a case in mitigation. Ibid. See, e.g., Thomas v. Kemp, 796 F.2d 1322, 1324 (11th Cir.) (finding failure to seek mitigating evidence because defendant told counsel he did not “want anyone to cry for him” was unreasonable), cert. denied, 479 U.S. 996 , 107 S.Ct. 602 , 93 L.Ed.2d 601 (1986); Thompson v. Wainwright, 787 F.2d 1447, 1451-52 (11th Cir.1986) (finding failure to investigate defendant’s background, allegedly out of deference to client’s wishes, was unreasonable), cert. denied, 481 U.S. 1042 , 107 S.Ct. 1986 , 95 L.Ed.2d 825 (1987). Not even the *289 instructions of a defendant to ignore possible defenses can reasonably excuse counsel from the performance of that duty. See Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991), cert. denied, 504 U.S. 943 , 112 S.Ct. 2282 , 119 L.Ed.2d 207 (1992); Martin v. Maggio, 711 F.2d 1273 (5th Cir.1983), cert. denied, 469 U.S. 1028 , 105 S.Ct. 447 , 83 L.Ed.2d 373 (1984). The selection of defenses at the penalty phase must be based on investigation and evaluation, not on a mere reliance on a defendant’s statements, Blanco, supra, 943 F.2d at 1503 , or “jailhouse bravado.” Martin, supra, 711 F.2d at 1280 .

The Court accepts the decision by trial counsel to make no case for life as a strategic choice. But on this record there is absolutely nothing to indicate that Marshall’s counsel was at all aware of the function of defense counsel in capital cases. Justice Handler’s dissent thoroughly discusses the manner in which counsel mishandled the penalty phase. Post at 303-09, 690 A.2d at 108-11 (Handler, J., dissenting).

A tactical decision that is not based on a proper understanding of the law is not entitled to deference. “Representation at the sentencing hearing varies so greatly from the ordinary work of lawyers, including criminal defense lawyers, and draws on such a variety of skills and knowledge, that it would take incredible dumb luck for an ill-trained attorney to happen upon a competent approach.” Green, supra, 78 Iowa L.Rev. at 497.

Yes, it would be difficult to defend one such as Marshall. To be defended effectively, such a case requires a coherent theory of defense.

Experienced capital counsel have observed that it “does not work” to put on a “he didn’t do it” defense at the guilt stage and then a “he’s sorry he did it” defense at the sentencing stage. White, supra, 1993 U. Ill. L.Rev. at 357. What is required is a consistent theory of defense. One consistent theory of defense that has been suggested is that this was a trumped-up case against defendant with favoritism shown to the rogue killer, McKinnon, who implicated Marshall, as well as favoritism to *290 Sarann Kraushaar, who was motivated by self-interest to lay the blame on Marshall.

Can one imagine that had competent capital counsel been assembled to represent Marshall at his capital sentencing, they would not have been prepared to present any case in mitigation of a possible death sentence?

In short, the petition discloses more than a prima facie ease that defendant was denied the effective assistance of counsel. It is as though Marshall had no counsel in the penalty phase of the trial. The Court cannot, in reason, invoke the second prong of the Strickland/Fritz test. 1 Because of the complexity and individualization of capital sentencing, it is “at the sentencing stage, when the quality of lawyering does make a difference, [and] the difference is more than a matter of degree. It is a difference between a sentence of imprisonment and a sentence of death.” Green, supra, 78 Iowa L.Rev. at 434-35.

Every member of the Supreme Court agrees that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. But, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. “Thus, an inadequate *291 investigation of law or fact robs a strategic choice of any presumption of competence.” State v. Davis, 116 N.J. 341, 357 , 561 A.2d 1082 (1989).

Capital defendants are guaranteed competent capital counsel. Id. at 356 , 561 A.2d 1082 . Obviously, the measure of an advocate’s competency depends on the task to be accomplished. “The best intentions and the most devoted of efforts do not necessarily equate with capital competence. We expect capital defense counsel to have an expertise regarding the special considerations present in capital cases.” Ibid. The sentencing phase of a capital trial is the most crucial aspect of a capital case. In many capital trials, this “trial for life” is the “true focus of the trial.” Note, The Eighth Amendment and Ineffective Assistance of Counsel in Capital Trials, 107 Harv. L.Rev. 1923, 1926 (1994). The record contains nothing to indicate that defense counsel had made any preparation for the penalty phase of this trial. That is a prima facie case of ineffective assistance of counsel. The hearings held by the PCR court on this issue embraced only the decision to go ahead with the penalty phase after Marshall had fainted and the decision not to call defendant’s sons as witnesses in view of defendant’s unwillingness to submit them to the ordeal of trial. In capital cases, we have held that the proper manner in which to determine a claim of ineffective assistance of counsel based on inadequate preparation for trial is to conduct a factual hearing. State v. Savage, 120 N.J. 594, 609 , 577 A.2d 455 (1990); Dixon, supra, 125 N.J. at 262 , 593 A.2d 266 . The Court cannot escape that obligation in this case.

II

The refusal of the prosecutor to disclose to court or counsel the contents of the State’s file with respect to any exculpatory materials also requires further proceedings. I dissented in Marshall I, supra, 123 N.J. at 208 , 586 A.2d 85 , because I believed that nondisclosure of the promise of immunity to Sarann Kraushaar sufficiently undermined confidence in the penalty phase of that *292 trial to warrant reversal of the death sentence. The additional evidence of nondisclosure of items relevant to the defense ante at 180-183, 690 A.2d at 46-48, convinces me that in the circumstances of this case the Court should require disclosure of the State’s investigative file to the trial court or to a court-appointed master to determine whether there are any relevant exculpatory materials in the file.

Moore v. Illinois, 408 U.S. 786 , 92 S.Ct. 2562 , 33 L.Ed.2d 706 (1972), establishes that the obligation to release exculpatory evidence under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), does not require the prosecution to deliver its entire file to the defense. However, when a trial is concluded and a pattern of prosecutorial misconduct has been shown, a court should exercise its discretion to require a supervised review of the State’s investigative file. We noted a number of instances of such misconduct in our earlier decision in this case. See Marshall I, supra, 123 N.J. at 155, 161 , 586 A.2d 85 . The Court’s response to defendant’s request is that the State has agreed to furnish to defendant any documents he can identify as being in the State’s possession. There is a Kafkaesque air of unreality to this analysis. See Franz Kafka, The Trial (1937). Like the accused in The Trial, who was forced to defend himself without being told the charges against him, Marshall is denied access to possibly exculpatory evidence unless he can first identify that evidence.

Federal district courts have the authority to authorize discovery in order to provide an adequate inquiry into habeas corpus claims. 2 In Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), the Supreme Court concluded that a district court may use “suitable discovery procedures” to elicit facts necessary to dispose of a habeas corpus claim. Id. at 290 , 89 S.Ct. at 1086 , 22 L.Ed.2d at 285 . The Court ruled in Harris that, although the discovery provisions of the Federal Rules of Civil Procedure did not extend to habeas proceedings, a district court may fashion procedures *293 based on these rules in habeas corpus cases. Id. at 299 , 89 S.Ct. at 1090 , 22 L.Ed. 2d at 291 .

The rules governing federal habeas corpus now incorporate Harris , and entitle a defendant in post-conviction relief proceedings to discovery procedures available under the Federal Rules of Civil Procedure. These procedures include, at the discretion of the court, production of documents for inspection and other purposes. See 28 U.S.C. § 2254 , Rule 6.

Some states, within their own habeas corpus framework, have given trial courts similar latitude. See, e.g., State v. Harris, 227 Conn. 751 , 631 A.2d 309 (1993) (affirming trial court’s independent obligation to examine file and release relevant evidence).

Procedures in other jurisdictions permit criminal defendants pursuing post-conviction relief access to the government’s investigative files. See, e.g., Fla. Stat. § 119.07(k)(l) (1996) (exempting from disclosure only those records concerning imminent investigations or prosecutions); Ga.Code Ann. § 50-18-72(a)(4) (1996) (exempting from disclosure only those records concerning pending prosecutions and appeals). It is disturbing to think that New Jersey would do less than such jurisdictions when the matter involves life or death.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the standard set forth in Strickland v. Washington 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), which we adopted in State v. Fritz, 105 N.J. 42, 58 , 519 A.2d 336 (1987). Under the Strickland/Fritz standard, the first prong is whether counsel’s performance was deficient. Strickland, supra, 466 U.S. at 687 , 104 S.Ct. at 2064 , 80 L.Ed.2d at 693 . The second prong of the Strickland/Fritz test is whether there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694 , 104 S.Ct. at 2068 , 80 L.Ed.2d at 698 . In the case of capital sentencing, the Court interprets the inquiry to be whether the deficient performance of counsel would have substantially affected a jury’s deliberation.

Habeas corpus under 28 U.S.C. § 2254 is the federal analogue to post-conviction relief. Preciose, supra, 129 N.J. at 459 , 609 A.2d 1280 .