Prologue — Cathel v. Marshall (No. 05-966)

(/] Supreme Cos “_

05-966 Jan dv 2006

No.

In The

Supreme Court of the United States

RON CATHEL,

Administrator, New Jersey State Prison:

NANCY KAPLEN,

Acting Attorney General, State of New Jersey,

Petitioners,

V.

ROBERT O. MARSHALL,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

NANCY KAPEEN

Acting Attorney General of New Jersey

ROBERT E. BONPIETRO

Deputy Attorney General

Attorney of Record

DIVISION OF CRIMINAL JUSTICE

R.J. HUGHES JUSTICE COMPLEX

P.O. Box 086

TRENTON, NEW JERSEY 08625

(609) 292-9086

January 26, 2006

i

CAPITAL CASE

QUESTIONS PRESENTED FOR REVIEW

Whether the ruling of the Third Circuit that counsel’s

preparation for and performance in the penalty phase of

respondent’s capital murder trial was deficient conflicts

with the principles announced by this Court in Strickland

V. Washington, 466 U.S. 668 (1984), and subsequent

caselaw, in that it fails to give any deference to counsel’s

strategic rationale and sets forth a series of per se rules

counsel was required to have followed.

Whether the ruling of the Third Circuit that respondent

was prejudiced by counsel’s allegedly deficient

performance cenflicts with this Court’s jurisprudence in

that the omniied mitigating evidence is merely

corroborative of that presented by counsel in the guilt

phase and is’ not relevant to respondent’s

blameworthiness or moral culpability.

LIST OF PARTIES

The parties below are listed in the caption, with the

exception that pursuant to F.R.A.P. 43(c), Nancy Kaplen,

Acting Attorney General of New Jersey, is substituted for

Peter C. Harvey, former Attorney General of New Jersey.

iii

TABLE OF CONTENTS

~

QUESTIONS PRESENTED FOR REVIEW ....

SE Ae PEAR oo ehh ee, eth Ce eS

Sas Cae GCAMUEN EE 5 000 Ce eae ees

PRTC AES: 6 COE AR OS CES A

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............

STATEMENT OF THE CASE «6 bee ceo es

REASONS FOR GRANTING THE WRIT .....

I. The Decision of the Third Circuit

; that the Performance of

Respondent’s Counsel was Deficient

Conflicts With This Court’s Sixth

Amendment Jurisprudence in that it

Pays No Deference to Counsel’s

Stated Strategy and Imposes a Set of

Per Se Rules Counsel was Required

to Mave FOHOWE? oo ik Oe ki ee

iV

II. The Decision of the Third Circuit

Conflicts With This Court’s

Jurisprudence on the Prejudice Prong of

Strickland v. Washington in that the

Omitted Mitigating Evidence was

Merely Corroborative of that Presented

By Counsel in the Guilt Phase and was

Not Relevant to Respondent’s

Blameworthiness or Culpability ........ 21

CAI isle Fer ee ees ees ee 28

INDEX TO APPENDIX

- Opinion of the United States Court of Appeals

for the Third Circuit, dated November 2, 2005 .. la

Opinion of the United States District Court for the

District of New Jersey, dated April 8, 2004 ... 46a

Order of the United States Districi Court for the

District of New Jersey, Granting Petitioner’s

Application for Writ of Habeas Corpus,

Omed AMG, ZUG oe hee ee ae 113a

Vv

TABLE OF AUTHORITIES

CASES CITED:

Bell v. Come, 335 US. GBS (20GZ) sn ce cece ss 3,9

17

Marshall v. Cathel, 428 F.3d 452 (3d Cir. 2005) ... 1,8

: 11,16

18

Marshall v. Hendricks, 313 F.Supp.2d 423

CRAIN A ee Wace ae a ae ee Be 1,10

24

Marshall v. Hendricks, 307 F.3d 36 (3d Cir. 2002),

cert. denied, 538 U.S. 911 (2003) ....... Sieger § 8

Marshall v. Hendricks, 103 F.Supp.2d 749

eae OEE OS ete eS eee 8

Penry v. Lynaugh, 492 U.S. 302 (1989) ......... 22

Roberts v. Dreike, 356 F.3d 632 (Sth Cir. 2004),

cert.denied, U.S. ___, 125 S.Ct. 1726

CR oes Se Ee le Re re oe ee 16

Rompilla v. Beard, _U.S._ _, 125 S.Ct. 2456

CEE oF hae IS Sele a Ws RU eae Hoe 23,24

Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004) .... 23

Strickland v. Washington, 466 U.S. 668 (1984) .... 2,8

13,14

16

Wiggins v. Smith, 539 U.S. 510 (2003) ........ 13,22

vi

Williams v. Taylor, 529 U.S. 369 (2000) ......... 22

Yarborough v. Gentry, 540 U.S. 1 (2004) ....... 3,19

STATUTES CITED:

Pe ith DIA ee eR LO ee er es l

ae ce SO ek Gs ke ee ees 2,26

CONSTITUTIONAL PROVISIONS INVOLVED:

5. OU. AMUN, VE iene ee ks ORES Beye ee l

OTHER SOURCES CITED:

Guidelines for the Appointment and Performance

of Defense Counsel in Death Penalty Cases

CE a kare eG ke ee ae a ee a 24

PETITIC © FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Third Circuit is reported at Marshall v. Cathel, 428

F.3d 452 (3d Cir. 2005) and reprinted in the Appendix at

la to 45a. The opinion of the United States District Court

for the District of New Jersey is reported at Marshall v.

Hendricks, 313 F.Supp.2d 423 (D.N.J. 2004) and is

reprinted in the Appendix at 46a to 112a.

JURISDICTION

The Third Circuit’s judgment was entered on

November 2, 2005. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1). z

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

UNITED STATES CONSTITUTION,

AMENDMENT VI

In all criminal prosecution, the accused shall enjoy the

right to a speedy and public tria!, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

- cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of

Counsel for his defense.

2

28 U.S.C. § 2254(d)(1)

(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.

3

STATEMENT OF THE CASE

This case involves a Third Circuit Court of Appeals

ruling granting a habeas petition on ineffective assistance of

counsel in the penalty phase of a capital murder trial. The

court’s decision is in direct conflict with this Court’s Sixth

Amendment jurisprudence in several respects. First, the

lower court paid absolutely no deference to trial counsel’s

explanation regarding his. preparation for a mitigation case

and his decision to limit mitigation evidence to that presented

in the guilt phase, and in fact wrongly found that there had

been no preparation whatsoever. In addition, the court’s

opinion creates a per se rule that counsel in a capital case

must specifically interview particular witnesses in advance of

a penalty phase, despite respondent's direction that the subject

not be broached with these witnesses. Moreover, the court of

appeals found that counsel was required to have presented

mitigating evidence in the penalty phase itself, contrary to this

Court’s holdings otherwise. Finally with respect to counsel’s

_ performance, the circuit court ignored recent precedent, Bel] ~

v. Cone, 535 U.S. 685 (2002), and Yarborough v. Gentry,

540 U.S. 1 (2004), and held that counsel was required to have

begged the jury to spare his client’s life rather than give a

strategically low-key presentation designed to emphasize the

State’s heavy burden of proof and mute an aggressive

prosecutor.

This case also presents an important question regarding

the Third Circuit’s ruling on prejudice - that is, whether the

inclusion of mitigating evidence not relevant to moral

culpability and merely corroborative of that already presented

in the guilt phase would have resulted in a reasonable

probability that the result would have been different.

In early 1984, respondent was a successful Toms River,

New Jersey, insurance salesman, married to Maria Marshall,

and the father of three teenaged sons. At the same time,

respondent was carrying on an affair with Sarann Kraushaar,

4

and was seriously in debt. In order to be with Sarann and

free himself from debt, respondent decided to have Maria

killed and collect the insurance on her life. A chance meeting

with Louisiana hardware store co-owner Robert Cumber at a

party in Point Pleasant Beach led respondent to the man who

would arrange for the hit. Under the guise of “investigating”

respondent’s wife, Cumber put respondent in contact with

Billy Wayne McKinnon, known to respondent as “Jimmy

Davis.” In the months that followed, respondent and

McKinnon plotted Maria’s murder, through numerous

telephone calls between New Jersey and Louisiana and

meetings in Atlantic City; McKinnon ultimately received

$20,000 to $22,000 for his efforts, with the promise of up to

$65,000 more. At about the same time, respondent was

dramatically increasing the amount of life insurance on his

non-working spouse, to a total of $1.4 million at the time of

her murder.

On September 6, 1984, the scheme was -put into action.

By agreement with McKinnon, on the way home to Toms

River from an evening with Maria in Atlantic City, petitioner

was to feign trouble with his car and pull into a secluded

picnic area on the Garden State Parkway. When petitioner

did so, at about 1:00 a.m., a gunman was waiting.’ Maria

Marshall was killed with two shots from a_ .45-caliber

handgun; her husband suffered, also by prearrangement with

McKinnon to make it look as if he were the victim of a

robbery, a slight head wound requiring five stitches to close.

McKinnon and the other man fled, ultimately arriving back in

Louisiana.

Investigators quickly picked up the trail and learned of

McKinnon and “Davis.” After being questioned on

September 21, 1984, about his knowledge of these names,

Larry Thompson, named by McKinnon as the triggerman, was

acquitted.

5

respondent retained Glenn Zeitz, Esq., an experienced

criminal trial lawyer for ten years in both New Jersey and

Pennsylvania. Zeitz knew from the outset that this case was

a potential capital prosecution, and prepared the case

accordingly.

Circumstances would greatly affect how Zeitz prepared.

First, two days after he hired Zeitz, respondent appeared to

attempt to commit suicide in the same hotel room he used to

share with Sarann, mixing sleeping pills with soda, but falling

asleep before drinking it. Zeitz consulted with a

psychologist, and ultimately had respondent placed in a

psychiatric hospital for examination, both for a potential guilt

phase mental defense and for mitigation. This bore no fruit;

not only was respondent indifferent to treatment, he was

found to be narcissistic, manipulative, and engaging in

sexually provocative behavior in the hospital.

Several tape recordings made by respondent just before

the suicide “attempt” would also affect Zeitz’s strategy. One,

to respondent’s brother-in-law, an attorney, was devastating;

in it, respondent acknowledged the affair with Sarann as well

as the size of his escalating debt. However, three other tapes,

one to each son, would figure prominently in Zeitz’s plans,

both for guilt and penalty.

After McKinnon decided to cooperate and named

respondent as chief orchestrator of the plot to kill Maria,

respondent was arrested in late December 1984 and indicted

for capital murder in early January 1985. In the months

leading to trial, Zeitz became aware of an- increasing

negativity toward respondent in the community, including that

of two of his three sons, who by the time of trial believed

their father guilty. In addition, respondent himself made

things difficult, insisting on a total focus on his ultimate

vindication, and effectively forbidding discussion of any other

result, including a possible penalty phase.