The opinion of the court was delivered by: Walls, District Judge
Petitioner, John Martini, Sr. is currently on New Jersey's death row for kidnapping and murder. He now moves for writ of habeas corpus under 28 U.S.C. §2254 on the following seven grounds *fn1 (1) ineffective assistance of counsel for failure to investigate and use at trial certain mitigating evidence; (2) ineffective assistance of counsel for failure to find and use drug paraphernalia in the form of several burned screens in the guilt and penalty-phase trials; (3) violation of Petitioner's due process rights because of failure of the prosecution to turn over certain mitigating evidence discoverable under Brady v. Maryland; (4) violation of Petitioner's due process rights and right to an impartial jury for the wrongful exclusion of prospective jurors; (5) subjection to cruel and unusual punishment because of the trial court's refusal to instruct the jury as to N.J.S.A. 2C:11-3c(5)(g), that the Petitioner rendered substantial assistance to the state in the prosecution of another person for the crime of murder; (6) violation of the Petitioner's due process rights to a reliable sentencing proceeding and his subjection to cruel and unusual punishment because of the trial court's "erroneous" answer to the jury's question regarding mitigating evidence; (7) denial of Petitioner's due process rights because of state court's refusal to admit expert testimony during the post-conviction relief ("PCR") hearing.
The petition is denied on all grounds for the reasons stated below.
FACTS AND PROCEDURAL HISTORY
In 1990, a Bergen County jury convicted Martini of the kidnapping and murder of Irving Flax, a Fairlawn, New Jersey business executive. The evidence at trial established that Martini, and his co-defendant Therese Afdahl, abducted Flax and demanded ransom money from his wife. Although his wife paid the money, Martini nevertheless shot Flax three times in the back of the head and killed him.
During the trial, Martini did not dispute the fact that he kidnapped and fired the three shots that killed Flax. Instead, he asserted a diminished capacity defense based on cocaine addiction. The jury rejected that defense at both the guilt and penalty-phase trials. Martini was then sentenced to death.
Martini's conviction and death sentence were upheld by the New Jersey Supreme Court on direct appeal, State v. Martini, 131 N.J. 176 (1993) ("Martini I"), and on proportionality review, State v. Martini, 139 N.J. 3 (1994) ("Martini II"). After the United States Supreme Court denied Martini's petition for certiorari on October 2, 1995 *fn2 , the Superior Court, Law Division, issued a warrant scheduling Defendant's execution for November 15, 1995. On October 30, 1995, the Public Defender sought PCR review and a stay of execution on Defendant's behalf, even though Martini did not wish to file any further appeals. In response, the trial court entered a stay and appointed independent counsel to represent Martini. The court also appointed a psychiatrist to determine whether Martini was competent to waive PCR proceedings. Following a two-day hearing, the court concluded that Martini was competent, and that the Public Defender could not pursue PCR on Martini's behalf without his consent. The stay of execution was continued pending review by the New Jersey Supreme Court.
In State v. Martini, 144 N.J. 603 (1996) ("Martini III"), the New Jersey Supreme Court agreed with the trial court that the psychiatric evidence demonstrated Martini's competence to make the waiver decision, but granted PCR review based on an independent interest of the State to ensure the fair application of the death penalty. In addition, the court in Martini III remanded the matter to the trial court for a PCR hearing to review "a defense based on certain undisclosed information that has been imparted to the Public Defender and presumably was not disclosed to the jury below" and two other issues which are not pertinent to this appeal. Martini III, 144 N.J. at 610-11.
On remand, the Public Defender attempted to present materials Martini considered confidential, claiming the information constituted mitigating evidence erroneously omitted at the penalty-phase trial. Yet Martini expressed his continued desire to keep this evidence confidential. The court conducted an in-camera inspection of the Public Defender's submission, and ruled that Martini's interest in maintaining the confidentiality of the submitted materials prevented their use in the PCR proceeding. The Public Defender sought and obtained leave to appeal the court's decision to the New Jersey Supreme Court. That Court vacated the trial court's order, and again remanded the matter to permit the judge to "reconsider the issue of the omission of mitigating evidence from Defendant's penalty-phase trial." State v. Martini, 148 N.J. 434, 453 (1997) ("Martini IV"). The Court specifically directed the lower court to determine five issues related to the omission of this allegedly mitigating evidence, including: (1) "[w]hether the evidence was mitigating"; (2) "[i]f the evidence was mitigating, whether defense counsel's failure to obtain the evidence constituted ineffective assistance of counsel, or whether the omission of the evidence constituted a manifest injustice and a violation of defendant's constitutional rights, entitling defendant to post-conviction relief." Id. at 454.
On remand, the trial judge, after reviewing all of the confidential evidence, determined that the evidence was not mitigating. In rejecting Martini's claims, the trial judge refused to allow two experts to testify on the mitigation value of the evidence, because he believed that to be unnecessary. Because he found the evidence was not mitigating, the trial judge determined that counsel's failure to obtain it was not ineffective assistance of counsel. He determined that even if the evidence had some mitigating value, this value would be outweighed by Martini's confidentiality interests in the evidence. In addition, the judge found that some of the evidence was damaging to Martini, and this eliminated the possibility that its omission constituted a manifest injustice to him.
The trial judge also decided additional issues raised in the PCR petition. Two of those issues are relevant to this petition. First, the judge rejected the Public Defender's argument that the State committed a Brady violation by failing to disclose the confidential information to the defense before Martini's murder trial. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct 1194, 10 L.Ed.2d 215 (1963). The trial judge concluded that the State did not have knowledge of the evidence at the time and, therefore, could not be obligated to release to Defendant what it did not know. Further, even if knowledge were imputed to the prosecutors, there was no Brady violation because Defendant himself possessed the information, yet chose not to share it with his attorneys. (10 PCR 40:8-41:5.) Second, the Public Defender also claimed ineffective assistance of counsel because of the defense counsel's failure to obtain and use two burned cocaine screens that the Public Defender argued would have strengthened Petitioner's diminished capacity defense. The judge rejected this argument determining that the evidence would not have "changed the jury's mind as to whether or not the defendant was using or not using cocaine at the time." (10 PCR 42:3-42:9.)
On appeal, the New Jersey Supreme Court in State v. Martini ("Martini V"), 160 N.J. 248 (1999), considered Martini's claims for ineffective assistance of counsel and Brady violation. The court affirmed the trial court, and held that Martini's counsel did not render ineffective assistance of counsel because the evidence was not "mitigating," and therefore it did not meet the Strickland prong of "prejudice" to the defendant, such that there was a reasonable probability that the outcome of the jury's deliberations would have been different. Id. at 265-68; see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court further held that defense counsel's conduct was not "deficient" under Strickland because: (1) the counsel's failure to discover the allegedly mitigating evidence was significantly affected by Petitioner's conduct; and (2) it was reasonable for counsel "to conclude that further investigation would not yield anything useful." Martini V 160 N.J. at 267. Second, the court rejected Petitioner's Brady claim because the information was not mitigating. Moreover, the court found that because, as determined, Defendant knew the information, the government did not have a duty to turn over to him that which he already knew. Id. at 269-270. Finally, the court dismissed Petitioner's claim for ineffective assistance of counsel for failure to discover and present the burned screens at the guilt and penalty-phase trials. The Court concluded that the burned screens would have "added only cumulative weight" to the contention that Petitioner had used cocaine around the time of the murder. Id. at 272.
Standard for Review Under 28 U.S.C. §2254
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. §2254. For any petitions filed after the effective date of AEDPA, courts are required to apply those amended standards. See Werts v. Vaughn, 228 F.3d 178, 195 (3d. Cir. 2000) (citing Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Under 28 U.S.C. §2254(a) (2001), a federal court is required to consider only petitions filed on behalf of individuals in custody pursuant to a state court judgment which are grounded on a violation of the Constitution or the laws or treaties of the United States. Moreover, the petitioner must "exhaust" all of his claims in state court before coming to federal court. See 28 U.S.C. §2254(b) (2001); Werts, 228 F.3d at 192.
The AEDPA increased the deference federal courts must give to factual findings and legal determinations of the state courts. See Dickerson v. Vaughn, 90 F.3d 87, 90 (3d. Cir. 1996). Under the Supreme Court's landmark case, Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), federal habeas corpus relief is denied to any claim which was adjudicated on the merits in a state court proceeding, unless such application:
(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; 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. 28 U.S.C. §§2254(d)(1) and (2)(2001).
As stated by the Court of Appeals for the Third Circuit, the federal habeas court must first determine whether the state court decision was "contrary to" Supreme Court precedent. See Keller v. Larkins, 251 F.3d 408, 417-418 (3d. Cir. 2001). In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an unreasonable application of Supreme Court precedent. Id. The appropriate inquiry to be made under the "unreasonable application of" standard is "whether the state court's application of clearly established federal law was objectively unreasonable"; an incorrect application alone does not warrant relief. Williams, 529 U.S. at 409, 120 S.Ct. at 1521, 146 L.Ed.2d at 428.
The second prong requires the petitioner to show that the state court decision was based on an unreasonable determination of facts in light of the evidence presented at trial or at a hearing. Id. at 413; 120 S.Ct. at 1523, 146 L.Ed.2d at 430. However, factual issues determined by a state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts v. Vaughn, 228 F.3d at 196, citing 28 U.S.C. §2254(e)(1) (1997).
I. Ineffective Assistance of Counsel Because of Failure to Investigate and Present Allegedly Mitigating Evidence
Petitioner argues that the New Jersey Supreme Court's decision that he was provided effective assistance of counsel during his capital trial was an unreasonable application of Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d. at 694. Petitioner claims ineffective assistance of counsel because of his trial counsel's failure to conduct a timely and effective investigation that would have uncovered certain mitigating evidence and to use this evidence at the penalty-phase of his trial. *fn3 After conducting an in camera review of the record and the evidence at issue, this Court concludes that the New Jersey Supreme Court's dismissal of Petitioner's ineffective assistance of counsel claim was a reasonable application of the law and a reasonable interpretation of the facts.
Standard for Ineffective Assistance of Counsel
Under Strickland, the United States Supreme Court held that the test for ineffective assistance of counsel is:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id.
The standard by which the defense counsel's actions should be measured is whether the performance was deficient as seen through "an objective standard of reasonableness" under prevailing professional norms, and whether the defendant was prejudiced. Id. at 687-688, 104 S.Ct at 2064; 80 L.Ed.2d. at 693. The defendant must overcome the presumption that "under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, 104 S.Ct at 2068; 80 L.Ed.2d. at 695 (citing Michel v. Louisiana, 350 U.S. 91, 100-101, 76 S.Ct 158, 164, 100 L.Ed. 83.). "[C]counsel has a duty to make "reasonable investigations or to make a reasonable decision that makes particular investigations necessary. . .a particular decision not to investigate must be directly assessed for reasonableness in all circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. at 2068; 100 L.Ed. 695.
To establish prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d. at 698.
Is the evidence mitigating?
Petitioner argues that the state court's ruling that the evidence was not mitigating and not prejudicial was both based on an unreasonable determination of the facts and an unreasonable application of established federal law. He argues that determinations of fact and law made by the state courts were objectively unreasonable applications of Strickland and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
According to Petitioner, the evidence would have had a "profound" effect on the penalty phase of the trial. However, Defendants argue that the evidence would not have been mitigating at the penalty phase of the trial and furthermore, may have had a damaging effect because of the "double-edged" nature of the evidence. In addition, Respondents argue that the prosecution would have introduced damaging rebuttal evidence that would have reduced any mitigating effect this evidence would have had. In response to this argument, Petitioner contends that the majority of the potentially damaging evidence would not have been admitted. *fn4 See Martini V, 160 N.J. at 262.
Petitioner further argues that the New Jersey Supreme Court's rejection of the mitigating nature of the evidence because it carries with it "substantial downside potential" is an unreasonable application of Lockett v. Ohio and its progeny. According to Petitioner, "`[w]hen the ultimate issue is whether to put someone to death, it is virtually impossible for a court to determine that evidence that is dual in nature is not mitigating.'" (Petitioner's Mem. at 34 (quoting Handler's dissent, Martini V, 160 N.J. at 287.)). Petitioner goes on to cite to Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), which found that a petitioner's record of accomplishment in prison was mitigating evidence that a jury should have heard despite the damaging effect of acquainting the defendant with an earlier criminal or juvenile record. (Petitioner's Mem. at 34.)
This Court disagrees with Petitioner's application of Williams to the case at hand. In Williams, counsel had failed to introduce available evidence contained in prison records of the defendant's "nightmarish childhood" - "that dramatically described mistreatment, abuse, and neglect during his early childhood, as well as testimony that he was `borderline mentally retarded,' had suffered repeated head injuries and might have mental impairments organic in origin." Id. at 370, 120 S.Ct. at 1502, 145 L.Ed.2d 404. Furthermore, counsel failed to produce evidence of his good conduct as a prisoner and testimony that indicated the defendant's lack of future dangerousness. Instead, at the sentencing-phase, the trial counsel focused on the defendant's voluntary confession and produced testimony of three witnesses briefly describing the defendant as "a `nice boy' and a non-violent person." Id. at 369, 120 S.Ct. at 1500, 145 L.Ed.2d at 403. The juvenile records that provided this mitigating evidence may have "revealed that [the defendant] had been thrice committed to the juvenile system - for aiding and abetting larceny when he was 11 years old, for pulling a false fire alarm when he was 12, and for breaking and entering when he was 15. . . ."; however, it is quite apparent that as a whole that evidence was mitigating. Id. at 396, 120 S.Ct. at 1514, 145 L.Ed.2d at 420. Here, the mitigating value of the evidence cannot be compared to the value of the omitted evidence in Williams. The potentially damaging effect of the evidence here outweighs that in Williams. In Williams, the omitted evidence was "readily available" to defense counsel; it was their own lack of competence that prevented them from having access to this evidence. *fn5
This Court is convinced that any mitigating value of the materials is sufficiently outweighed by the potentially damaging effect that this evidence could have had for Petitioner at the penalty-phase trial. Even considering the fact that the trial judge found some of the evidence inadmissible as rebuttal evidence, there remains a significant amount of damaging evidence that the state could have produced in rebuttal. This Court concludes that overall this evidence would not be mitigating and contrariwise, would be potentially damaging to Martini. This Court finds that the New Jersey Supreme Court's determination that the evidence was not mitigating and the omission of this material not prejudicial to have been reasonable.
Was the defense counsel's performance deficient?
Petitioner contends that by failing to investigate and present the allegedly mitigating evidence, the defense counsel did not fulfill their obligation to conduct a "reasonable investigation" under Strickland. According to Petitioner, Defendant may have "deflected questions" from his trial attorneys, but he did not "purposely hid[e] information from his attorney," as described by the New Jersey Supreme Court. Martini V, 160 N.J. at 266. Petitioner further argues that there is no such thing as a `legitimate strategic reason' for choosing ignorance over knowledge. "Just as a reviewing court should not second guess the strategic decisions of counsel with the benefit of hindsight, it should also not construct strategic defenses which counsel does not offer." Harris v. Reed, 894 F.2d 871, 878 (7th Cir. 1990).
"[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not be later challenged as unreasonable." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 696. "[C]counsel has a duty to make reasonable investigations" but the "reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id., 80 L.Ed.2d at 695-96.
Here, defense counsel's decision not to investigate was reasonable because it was based on Defendant's refusal to reveal this information to his attorneys. Petitioner remained silent about the allegedly mitigating evidence although he was very well aware of its existence. When counsel attempted to ask Petitioner questions regarding the subject matter of the evidence, Petitioner responded, "it had no bearing on the case." After this response by Petitioner, counsel made the informed, reasonable decision to cut off further investigation because Defendant had given counsel reason to believe that pursuing the investigation would be fruitless. See Riley v. Taylor, No. 98-9009, 2001 WL 1661489 at *35 (3rd Cir. Dec. 28, 2001) (finding that counsel was not ineffective because of failure to present mental expert testimony when, in light of conversations with the defendant, counsel had no reason to think that a mental examination would be useful.). This Court finds that the state court's determination that "it was reasonable for his attorneys to conclude that further investigation would not yield anything useful" was a reasonable application of clearly established federal law and a reasonable interpretation of the facts. Martini V at 267.
This Court denies Petitioner's motion based on ineffective assistance of counsel for failure to investigate and present certain mitigating evidence. The New Jersey Supreme Court's holding was a reasonable application of the law and interpretation of the facts for the following reasons: (1) the evidence itself is not mitigating because its potential to be damaging to Petitioner outweighs the limiting mitigating value it may have had; (2) any possible mitigating value is further outweighed by the potentially damaging value of the Government's rebuttal evidence; and (3) it was reasonable for Petitioner's trial counsel not to conduct any further investigation because he not only deliberately withheld this information from his attorneys but also deflected questions regarding the information.
As a result, the first prong of Strickland has not been satisfied because the lawyer's performance was not "deficient". Second, the "prejudice" prong has not been met because even if the evidence had been presented to the jury, there is not a reasonable probability that the outcome would have been different.
II. Ineffective Assistance of Counsel Because of Failure to Find and Use Drug Paraphernalia
Petitioner's second ground for a writ of habeas corpus is that his trial attorney rendered ineffective assistance of counsel by failing to adequately inspect the state's evidence to find and use drug paraphernalia in the form of several burned cocaine screens in Martini's defense during the guilt and penalty-phase trials. Petitioner argues that the state supreme court's rejection of this issue was an "unreasonable application" of Strickland and an unreasonable interpretation of the facts.
The burned cocaine screens at issue were found in Martini's and Afdahl's apartment and then placed in the State's physical evidence file. Although Martini's attorneys presented other drug paraphernalia at trial, they overlooked the burned screens and failed to present them.
The New Jersey Supreme Court concluded that counsel's failure to find the screens was inadvertent, Martini V, 160 N.J. at 272, but, that, in any event, Martini himself had presumably known of their existence although he never mentioned them. Id. The Court then analyzed whether the production of this additional evidence would have been likely to have had a substantial effect on the jury's deliberations. The Court reasoned:
Given counsel's presentation of other drug paraphernalia, including a glass cocaine pipe and a glass vial, and a certified laboratory report indicating that both the pipe and the vial contained trace elements of cocaine, the burned screens would have added only cumulative weight to the argument that Martini had used cocaine around the time of the murder. Id.
Petitioner argues that the five scorched cocaine screens which the trial counsel failed to find, could have led to a different guilt or penalty phase result. According to Petitioner, the screens would have corroborated Petitioner's diminished capacity defense and rebutted any doubts raised by the prosecutor over whether Petitioner used cocaine around the time of the Flax murder. In oral argument, Petitioner further argued that the screens would have added to evidence of "immediacy" of the cocaine use of Petitioner before the time of the Flax murder. Furthermore, the screens would have supported three mitigating factors at the penalty phase. *fn6
In addition, Petitioner argues that there is no reason that his attorneys should not have inspected the brown bag closely as Afdahl's attorneys did on her behalf. According to Petitioner, "[t]here can be few failures so basic as failing to fully examine the physical evidence. In a capital case, such a want of care is indefensible." (Petitioner's Mem. at 71.)
According to Respondents, the screens would have added at best cumulative weight to the other evidence of Petitioner's drug use that was presented at trial. Petitioner's counsel not only used a vial and a pipe seized from Martini's apartment that tested positive for cocaine to demonstrate his cocaine use but also used Martini's confession, his hospital records, the scars on his arm from drug usage, and his wife's testimony. Also, Petitioner's counsel used the expert testimony of a psychiatrist and a psychologist, as well as testimony from a psychiatric social worker to establish the effect of cocaine on his mental state and culpability.
Petitioner's counsel examined the physical evidence, including the other items of drug paraphernalia. However, the thumb-nail sized screens were in the bottom of a bag, wrapped in masking tape; the tiny taped bundle looked like "a little bit of garbage" according to Afdahl's attorney. Martini himself was aware of the drug paraphernalia that would have been in his apartment.
Respondents further argue that Martini was not prejudiced by the omission of the screens from the trial and/or the penalty phase because: (a) "[t]he screens may never have been tested by the police lab, insofar as they were submitted to the lab along with the pipe, and the lab report indicated that only one item was tested"; (b) "[t]he screens, even if they tested positive for cocaine, do not prove Martini used cocaine"; (c) nor do "[t]he screens, even if positive for cocaine, [indicate] when the cocaine was burned"; and (d) "[t]he defense case was replete with expert testimony, lay testimony, medical reports, Martini's confession, and a positive lab report indicating that cocaine was detected on the paraphernalia found in Martini's apartment." (Respondent's Mem. at 17.)
In denying post-conviction relief, the trial court judge concluded:
There was so much evidence heard by this Court and by the jury that I'm firmly convinced that the failure to find those screens would not have changed the jury's mind as to whether or not the defendant was using or not using the cocaine at the time.
This Court agrees with the New Jersey Supreme Court that the burned cocaine screens was at best cumulative evidence of Petitioner's cocaine use around the time of the murder. Not only was other drug paraphernalia that tested positive for cocaine used but also Martini's confession, his hospital records, the scars on his arm from drug usage, his wife's testimony, expert testimony of a psychiatrist, a psychologist, and a psychiatric social worker were used to establish his drug use or the effect of cocaine on his mental state and culpability. Nor do the burned screens prove that Petitioner himself used cocaine or the time the cocaine was used. Consequently, this additional evidence would not have substantially affected the jury's deliberations -- the prejudicial prong would not be satisfied under Strickland. It is also apparent that the omission of the thumbnail-sized burned screens was inadvertent and a reasonable oversight by Petitioner's counsel. Counsel's representation was not "below an objective standard of reasonableness." Strickland, 466 U.S. at 687-688, 104 S.Ct at 2064; 80 L.Ed.2d. at 693.
Because the state supreme court's determination of the facts and application of clearly established federal law was reasonable, this Court denies relief on this ground.
III. Violation of Petitioner's Due Process Rights Because of Prosecution's Failure to Turn Over Allegedly Mitigating Evidence to the Defense as required by Brady v. Maryland
Petitioner argues that the New Jersey Supreme Court's conclusion that certain evidence was not "material" for purposes of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), was contrary to and an unreasonable application of Brady and its progeny. This Court rejected this argument in its February 9, 2001 Opinion denying Petitioner's motion for evidentiary hearing and discovery. After reconsideration, this Court maintains the position expressed in that opinion.
The New Jersey Supreme Court correctly applied the following standard for materiality: "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is one that is `sufficient to undermine confidence in the outcome.'" U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct 3375, 3383, 87 L.Ed.2d 481, 494 (1985) (citation omitted).
The New Jersey Supreme Court argued that it was not reasonably probable that disclosure of the omitted evidence would result in a different outcome because "although the evidence has some mitigating value, it poses a `clear risk of an adverse jury reaction'" Martini V, 160 N.J. at 269 (quoting Marshall III, 148 N.J. at 258). As discussed previously with regard to the ineffective assistance of counsel claim, the court found that not only does this material itself have potential to adversely affect a jury but also the presentation of such evidence would give the prosecution the opportunity to present potentially damaging rebuttal evidence.
Brady v. Maryland held that due process forbids a prosecutor from suppressing "evidence favorable to an accused upon request. . .where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1196-7, 10 L.Ed.2d at 218. As the Court of Appeals for the Third Circuit summarized:
Brady thus requires disclosure by the government of evidence that is both exculpatory and material. Exculpatory evidence includes material that goes to the heart of the defendant's guilt or innocence as well as that which might well alter the jury's judgment of the credibility of a crucial prosecution witness. Evidence impeaching the testimony of a government witness is exculpatory when the credibility of the witness may be determinative of a criminal defendant's guilt or innocence. If the exculpatory evidence `creates a reasonable doubt' ...