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Tuesday, November 15, 2005

Capital Habeas Case: Counsel's "Agreement" to Non-Adversarial Sentencing Proceedings A Result of Failure to Prepare

In Marshall v. Cathel, No. 04-9007 (3d Cir. Nov. 2, 2005), a capital habeas appeal, the Third Circuit affirmed the district court’s grant of sentencing phase relief.

The defendant was convicted of arranging a contract that resulted in the murder of his wife. During trial, defense counsel presented evidence of Marshall’s civic and charitable activities and four character witnesses who testified to the defendant’s reputation for honesty and integrity. Counsel also called his client and his client’s three sons to testify about tapes he left for them that were suicide notes of sorts.

Immediately after the conviction, the defendant’s family left, unaware that the sentencing phase would commence the same day. The defendant fainted and was taken to the hospital, but was back in the courtroom by the early afternoon. While the defendant was at the hospital, defense counsel conferred with the prosecutor. They reached an "agreement." The prosecutor would only pursue one of three aggravating factors, namely, that the defendant had hired someone to kill his wife. The prosecution agreed to stipulate to one mitigating factor, that the defendant had no criminal record. Also, defense counsel would retain the right to argue the "catch-all" mitigating factor. Both parties would waive openings and only make short closing arguments to the jury. After these brief proceedings, the defendant was sentenced to death, the jury finding the one aggravating factor outweighed both mitigating factors.

In the state post-conviction proceedings, the courts did not grant a full evidentiary hearing on all of Marshall’s claims and the issue of preparation for the sentencing phase was not the subject of a hearing. The New Jersey Supreme Court rejected the claim saying the court was unwilling to second guess counsel’s strategic decision because the jury found both mitigators. Also, it said that the issue of whether additional investigation would have unveiled additional mitigating evidence was too speculative to merit an evidentiary hearing.

In a prior appeal, the Third Circuit had remanded for a district court evidentiary hearing to address the preparation or investigation, if any, that counsel performed in anticipation of the penalty phase and his reasons, if any, for his actions or inactions. The district court conducted those proceedings.

The Third Circuit concluded that the New Jersey Supreme Court’s conclusion that counsel had been effective was objectively unreasonable. The Court identified several facets of its decision. One was a total failure of counsel to prepare for the sentencing phase. Next, once the verdict was in, he did not request a continuance. In addition, his closing was inadequate. In his closing, counsel recalled only a few pieces of evidence from the trial, did not even mention the defendant’s sons (whose testimony he had felt had moved the jury), and did not plead for his client’s life. The appeals court agreed with the district court that counsel put on no mitigating evidence because he had none to put on.

It did not make a difference that the defendant was a difficult client who was difficult to control. Nor did it make a difference that the community and perhaps his own sons had turned against him. Counsel still had a duty to investigate mitigating circumstances. The Court found it particularly glaring and egregious that counsel did not interview the defendant’s sons with respect to the sentencing phase specifically. While counsel did not believe the sons would plead for their dad’s life, he had nothing on which to base that belief.

The Court held that it was unreasonable for counsel to put so much stock in the evidence he presented in the guilt phase once the jury rendered its verdict. The Court concluded, "[Counsel] did not so much agree to a non-adversarial penalty phase, as he brought it on himself as a result of his own failure to have prepared for that phase of trial."

Section 2254: Counsel Ineffective For Failing to Suppress In-Court Identification

Thomas v. Varner, No. 04-2856 (3d Cir. Nov. 4, 2005). In this § 2254 proceeding, the Third Circuit affirmed the district court decision that counsel was ineffective for failing to object to an in-court identification.

The defendant was convicted of second degree murder during the robbery of a speakeasy. His conviction was based on the testimony of two identification witnesses. One witness (was was named Young) knew the defendant and originally failed to identify him, made several inconsistent statements, testified he was coerced by the police, testified he feared arrest if he did not name someone, had charges pending against him when he testified, but did identify the defendant. The second witness, Fuller, was shown more than 750 pictures of black males and did not make an identification. Later, he was shown 10-12 pictures. The detective pulled two and told him to take a "real good" look at them. Fuller testified he would not have made the identification absent the detective’s suggestions. However, Fuller could not make an identification at a pre-trial hearing. At trial, though, he identified the defendant and defense counsel failed to object.

In post-conviction proceedings, the defendant alleged his counsel was ineffective for failing to suppress the identification Fuller made at trial. The defendant received no hearing on his state post-conviction papers. He filed a habeas petition in U.S. District Court. The District Court held an evidentiary hearing and granted the petition.

Affirming, the Third Circuit held that the defendant was entitled to a hearing. He had requested, but was not given, a hearing in state court to develop the record regarding counsel’s decision not to object to Fuller’s in-court identification. The Third Circuit held that the defendant was not at fault for failing to develop in state court the factual basis for his claim.

On the merits, the Court held that counsel performed deficiently when he failed to object to the identification. Counsel testified he believed he was not permitted to object or move to suppress the trial identification once it had been made. However, Pennsylvania court rules permit a motion to suppress after trial starts if "the opportunity did not previously exist, or the interests of justice otherwise require." The Third Circuit concluded that counsel’s representation was not objectively reasonable.

Addressing prejudice, the Third Circuit analyzed whether such a motion was likely to be granted. It agreed with the district court that the photo lineup procedure was unduly suggestive. The Court further held that the totality of the circumstances showed that the identification was unreliable. While Fuller had the opportunity to see the shooter, he was only facing the shooter for a short time. Fuller was playing chess when the shooter entered the speakeasy and then Fuller tried to flee. While his initial description of the shooter was accurate, he then disavowed his line up identification at the pre-trial hearing. Finally, a significant amount of time had passed between the shooting and the trial identification. The Court found a substantial likelihood of irreparable misidentification.

The Court found the Strickland prejudice standard was met. Absent Fuller’s identification, the prosecution was left with Young’s identification, whose testimony was very questionable. Counsel’s failure undermined the reliability of the verdict.