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.
The opinion of the court was delivered by: Rendell, Circuit Judge.
Before: ROTH, RENDELL and BECKER, Circuit Judges
On May 5, 1986, Robert O. Marshall ("Marshall" or "Petitioner") was convicted in New Jersey state court of conspiring to murder and procuring the commission of the murder of his wife, Maria Marshall. Almost twenty years after being sentenced to death for these offenses, Marshall petitioned for and was granted habeas corpus relief by the United States District Court for the District of New Jersey, after we remanded the case for an evidentiary hearing on Marshall's claim that counsel was ineffective during the penalty phase of his capital trial. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254; our appellate jurisdiction arises under 28 U.S.C. §§ 1291 and 2253. Before us is Respondents' appeal challenging the District Court's determination regarding counsel's ineffectiveness and Marshall's entitlement to relief. For the reasons set forth below, we will affirm the District Court's order granting Marshall's habeas petition, vacating his death sentence, and remanding to the state court for a new sentencing hearing.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As chronicled in no less than six published opinions, the procedural history of this capital conviction is extensive.*fn1 Because the issue before us is relatively narrow -- as compared to the universe of claims lodged over the years by Marshall in his numerous appeals and petitions for post-conviction relief -- we will instead provide only the procedural history and facts relevant to the instant issue concerning counsel's effectiveness at the penalty phase of trial.
Maria Marshall was murdered on September 6, 1984. The investigation into her death soon led police to Louisiana, more specifically, to three men, all of whom were somehow connected to Robert Marshall -- Robert Cumber, Billy Wayne McKinnon, and James "Jimmy" Davis. Evidence ultimately was presented at trial establishing that Cumber had met Marshall at a New Jersey party in May of 1984 and referred him to McKinnon, a former sheriff's officer, whom Marshall would pay to carry out the murder of his wife.*fn2 At trial, McKinnon testified that he was hired by Marshall to kill Maria but that another man unknown to Marshall, Larry Thompson, had actually pulled the trigger, killing Maria Marshall at a rest stop on the Garden State Parkway as she and her husband were returning from an evening at an Atlantic City casino. On September 21, 1984, investigators visited Robert Marshall in his home and questioned him for the first time about his knowledge of, and relationship with, McKinnon and Davis. The following day, Marshall contacted attorney Glenn Zeitz, and the two had an initial meeting in Zeitz's office on September 25, 1984. Within days of retaining Zeitz, Marshall checked himself into a hotel where, once alone in his room, he telephoned each of his sons -- Robert, Chris, and John -- and prepared five audio tapes: one for each son; one for his brother-in-law and family attorney, Joseph Dougherty; and lastly, one for his secretary. The calls and tapes were suicide notes of sorts -- after placing the calls and recording the tapes, still in his hotel room, Marshall mixed a large quantity of prescription sleeping pills into a soda, which he later claimed that he had intended to drink. He fell asleep before doing so.
The tapes to his secretary and his sons did not contain any incriminating statements as such. However, the Dougherty tape discussed Marshall's relationship with a paramour, 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.
The trial against Marshall and co-defendant Thompson began on January 27, 1986.*fn3 As part of its case in chief, the prosecution played for the jury the "suicide" tape Marshall had recorded at the hotel for Dougherty.*fn4 In presenting Marshall's defense, Zeitz also introduced certain of the tapes -- those made for his three sons,*fn5 on which Marshall apologized for leaving them, expressed his love for the boys, and encouraged them to pursue successful lives.*fn6 Zeitz also introduced evidence concerning Marshall's civic and charitable activities, and produced four character witnesses who testified to Marshall's general reputation for honesty and integrity. In addition, Marshall took the stand in his own defense.
Closing arguments were held on March 3, 1986. The court instructed the jury on March 4th, and the jury returned with its verdict late in the morning of March 5th, convicting Marshall of murder and conspiracy to commit murder.*fn7 Immediately thereafter, Marshall's family members, including his youngest son John, his sister Oakleigh De Carlo, and his brother Paul, left the courthouse to return to their home in Toms River, New Jersey, located roughly forty-five minutes away, apparently with no knowledge that the penalty phase was imminent.
While being escorted from the courtroom after the verdict was read, Marshall fainted. An ambulance took Marshall to the hospital where he was examined at 12:30 p.m., then discharged approximately 50 minutes later. He was back in the courtroom approximately 15-20 minutes later.
During Marshall's absence, Zeitz conferred with the prosecution concerning the penalty phase, and they reached an agreement as to how they would proceed. Of the three aggravating factors charged by the prosecution -- (1) that the "defendant procured the commission of the murder by payment or promise of payment of anything of pecuniary value," N.J. Stat. Ann. § 2C:11-3(c)(4)(c); (2) murder for pecuniary gain, N.J. Stat. Ann. § 2C:11-3(c)(4)(d); and (3) the heinous nature of the offense, N.J. Stat. Ann. § 2C:11-3(c)(4)(e) -- the State agreed to argue only the first of those factors, based on its case that Marshall had hired someone to kill his wife. The prosecution further agreed to stipulate to a single mitigating factor, that Marshall had no prior criminal record, N.J. Stat. Ann. § 2C:11-3(c)(5)(f). Defense counsel would retain the right to argue the second of its two filed mitigating factors -- the "catch-all" factor set forth in N.J. Stat. Ann. § 2C:11-3(c)(5)(h), which provides that the jury may consider "any other factor which is relevant to the defendant's character or record or to the circumstances of the offense" -- but both the prosecution and the defense would waive openings and limit themselves to a single short closing statement to the jury.
Upon Marshall's return from the hospital, Zeitz briefly conferred with his client. The penalty phase convened shortly thereafter at 1:45 p.m. that same day. Outside the presence of the jury but on the record, the parties explained their agreement to the judge, who allowed them to go forward as agreed and summarized as follows:
COURT: As I understand it, what will now occur is that I will now make the usual opening statement to the jury that is made in this proceeding. I believe that the law now is I know that the law now is, expressly, that any evidence which was introduced in the trial can be considered as evidence for purposes of this proceeding. Given that, I understand that neither counsel intend[s] to introduce any further evidence in this proceeding.
KELLY: That's correct, Judge.
ZEITZ: That's correct, Judge. I would like, at least, to have the record reflect that I've had an opportunity to speak with my client, and discuss his right, if he desired, to call any witnesses with regard to the penalty phase of the proceedings, and it's his desire, and it is also my feeling, that we do not need to call any witnesses at this stage of the proceedings. And we've had, I believe, an opportunity to discuss this, and this is his intention.
Marshall VI, 313 F. Supp. 2d at 435. Per the agreement, Zeitz was first to address the jury; he offered the following statement, repeated here in its entirety:
ZEITZ: Yes. Thank you, your Honor. It would be an understatement for me to say that this is not a difficult moment for me, and I'm sure it's difficult for everyone in terms of the proceedings that we now have to deal with.
What, in essence, we are at right now at this stage is a situation where the State has agreed that there is one mitigating factor which you must find exists in the case, and that that [sic] Rob Marshall has never had any type of criminal record of any kind.
The reason why I believe, when you look to the legislative history of the death penalty when it came into New Jersey that that clearly is a mitigating factor, is because, if you will, people feel, and I think quite rightly, that if you live a law-abiding life, that at some point in time you may be in a position where you may have to ask people to allow you to draw, if you will, maybe a credit because of the fact that you've led such a life. There are people obviously who have not led law-abiding lives and have been in situations where they've been in front of a jury and the jury has convicted them of a capital offense, and the jury will hear that this person has led a life, not law-abiding, but in fact, has had a juvenile record, has had a record of other offenses and, for the most part, has lived a life that in all ways, shapes, and forms never conformed to what our society at least requires.
In this particular case it's been agreed that Rob Marshall has led a law-abiding life, and that you must consider that as a mitigating factor.
The State has one aggravating factor which they are going to ask you to consider, and that is the fact, under the statute, this offense as you have found - and at this point, as a lawyer, I have to accept that you have found that - was procured by the payment or the thought of payment for some pecuniary gain.
The other mitigating factor that Judge Greenberg referred to deals with other circumstances and factors which a jury may consider in mitigation with regard to the death penalty. In this particular case, in addition to the fact that Rob Marshall has no prior criminal record, there's certain things, at least with regard to his life, that he has done, which he is entitled for you to consider.
He was involved in, among other things, with the Ocean County Businessmen's Association. You've heard that. He was campaign chairman for United Way, and for a number of years worked with them in community affairs, raising money for United Way. In addition to that, he served with his family on various social activities, involving the swim leagues and certain other things of a community nature.
I don't want to stand here and go through the whole litany of things that he's done in forty-six years that -either for other people or for his family or of a civic nature. Suffice it to say, the record is substantial in that area, and you have an absolute right to consider that as a mitigating factor.
As the Judge told you, now, in terms of a defense, we do not have to prove to you that the mitigating factors in some way outweigh the aggravating factor. The State has to prove to you, beyond a reasonablbe [sic] doubt, and you certainly know what that standard is, because you've been told that and you've been explained that by counsel, you have to use that standard when you determine whether or not you feel he deserves the death penalty.
One thing I have to tell you about this, which I think makes it an individual decision for each one of you, and that is that the only way that the death penalty can be imposed is if all twelve of you agree to do it unanimously. So that you, in essence, have a power in your hands that, quite candidly, I would never have in my hands, because, as a lawyer, we generally don't serve as jurors. So I have no way of knowing what it must be like.
All I can say is this, that I hope when you individually consider the death penalty, that you're each able to reach whatever opinion you find in your own heart, and that whatever you feel is the just thing to do, we can live with it.
Id. at 433-34. No documentary evidence or witnesses were presented, nor did Zeitz plead for the jury to spare his client's life. Marshall chose not to make a statement on his own behalf. After only ninety minutes of deliberation, the jury sentenced Marshall to die by lethal injection. The jury unanimously found beyond a reasonable doubt the existence of the aggravating factor, and also found evidence of the existence of both mitigating factors. However, it concluded unanimously beyond a reasonable doubt that the aggravating factor outweighed the mitigating factors.
As noted above, the proceedings have been the subject of extensive judicial review. Relevant here is Marshall's claim that Zeitz rendered ineffective assistance of counsel during the penalty phase of the trial as described above. This claim was rejected by the New Jersey Supreme Court in Marshall I, 123 N.J. at 166 ("We are unwilling to second-guess counsel's strategic decision on this issue, particularly in view of the jury's determination that both mitigating factors offered had been established."), and then revisited and rejected for a second time in Marshall III, 148 N.J. at 254 ("[T]he contention that proper investigation and preparation would have unearthed new mitigating evidence that probably would have affected substantially the penalty-phase deliberations is simply too speculative to warrant an evidentiary hearing.").
Initially, relying on the state court record, and without holding an evidentiary hearing, the District Court also denied this claim of ineffectiveness. See Marshall IV. Marshall appealed to this Court, leveling the following claims of ineffectiveness at the penalty phase: 1) The penalty phase should not have commenced immediately upon Marshall's return from the hospital; 2) Zeitz presented no mitigation evidence (even though the judge instructed the jury to decide the existence of mitigating factors based on the evidence); 3) Zeitz failed to offer evidence to humanize Marshall, such as describing his childhood, his commitment to family, and his extensive community service; 4) Zeitz's statement to the jury was extremely brief and contained no request for mercy; 5) Zeitz never discussed the penalty phase with Marshall; and, 6) Zeitz never prepared for the penalty phase and conducted no investigation. We grouped these claims into two overarching categories: (1) lack of consultation, preparation, and investigation by counsel, and (2) lack of content or substance in counsel's representation at the penalty phase. In terms of analyzing these claims, however, we lacked a sufficient record to rule. "The difficulty we encounter here is that the picture is less than complete. We cannot, and the courts before us did not, evaluate Zeitz's decisions in light of his stated strategy." Marshall V, 307 F.3d at 106. "[T]here is no record before us as to what preparation or investigation, if any, was performed by counsel in anticipation of the penalty phase, nor is there any record of why counsel chose not to undertake investigation that we know he did not -- e.g., why he chose not even to contact many of Marshall's proffered mitigation witnesses." Id. We explained that, while we knew certain pieces of information, such as that Zeitz's usual practice was to take and date notes of conversations with Marshall, Zeitz's sparse testimony on these issues had been offered in response to unrelated questions at an evidentiary hearing held for a purpose other than to discern his effectiveness.*fn8
Because the only testimony from Zeitz was restricted to the two areas discussed above, we have no evidence from Zeitz himself regarding the scope or strategy of his preparation or investigation, or the choices he made in conducting the penalty phase as he did.
To this date we have no information from counsel, or anyone else for that matter, that addresses the issues Marshall raises and from which we could make an informed assessment as to the reasonableness of counsel's actions -- and, even more important -- as to what counsel's decisions actually were at the time.
Id. at 108. Accordingly, we remanded the case to the District Court in order that an evidentiary hearing be held regarding these issues. The District Court held such a hearing and heard final oral arguments from the parties, after which it concluded that Zeitz's penalty phase representation had been constitutionally ineffective, granting Marshall a writ of habeas corpus pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254.
II. THE EVIDENTIARY HEARING
Pursuant to our remand order in Marshall V, the District Court conducted an evidentiary hearing over the course of September 2003, during which Zeitz testified at length concerning his representation of Marshall. The testimony elicited at the hearing bears directly upon the questions that formed the basis for our remand, namely, what did Zeitz do to prepare for the penalty phase, and why did he conduct himself as he did during the penalty phase. Zeitz's hearing testimony, by itself, provides the answer to our inquiries -- Zeitz did nothing in preparation, leaving him with no options during the penalty phase.
At the outset of his representation of Marshall, in 1984, Zeitz had defended clients who faced the death penalty. His testimony at the evidentiary hearing establishes that, based on his experience, he thought it probable, if not certain, that the State's case against Marshall would indeed implicate the death penalty:
RESPONDENTS' COUNSEL: Mr. Zeitz . . . when you commenced representing Robert Marshall, were you mindful of the fact that there would be potentially a penalty phase or mitigation phase of this case?
RESPONDENTS' COUNSEL: And what sensitized you to that realization that there could be a penalty phase of Marshall's case?
ZEITZ: Well, obviously it was a death penalty case, and obviously I knew if he was convicted in the guilt phase I'd be confronted with a penalty phase.
RESPONDENTS' COUNSEL: Did you know that from the first time you became involved with the Marshall case, sir?
ZEITZ: I -- the only way I can answer is as follows. When I first met him and interviewed him initially, and he told me what his version was of certain events, and answered certain specific questions that I had, I knew that at least in the first interview that this case clearly had the capacity of becoming a death case.
(Test. of Glenn Zeitz at A266.) Not only might it be a death penalty case, it was fast becoming a difficult case. Zeitz testified that he had, at that first meeting with Marshall, admonished Marshall "to keep his mouth shut" about his role in the ongoing investigation. (Id.) Notwithstanding this warning, as described above, within a few days Marshall checked himself into a hotel room, with the apparent plan of killing himself, where he made a series of recordings for important people in his life, including his brother-in-law, Joseph Dougherty. According to Zeitz, the Dougherty tape was nothing short of "devastating": "[I]t was my client in his own words making statements that later became consistent with, and almost in some ways, the foundation of . . . the State's case against him." (Id. at A333.)
Facing such "devastating" evidence of his client's guilt, Zeitz testified that his focus became portraying Marshall to the jury as a likeable man:
ZEITZ: So the hope was that I could -- in his direct I would humanize him, I could show him to the jury as being someone that loved his children, and create this image ... the perception, if you will, that he and the three sons still ...