Marshall v. Hendricks, Civil Action No. 97-5618 (JEI).

• Decision Date: 08 April 2004
• Docket Number: Civil Action No. 97-5618 (JEI).
• Parties: Robert O. MARSHALL, Petitioner, v. Roy HENDRICKS, Superintendent, New Jersey State Prison, and John J. Farmer, Attorney General of New Jersey, Respondents.
• Court: U.S. District Court — District of New Jersey

313 F.Supp.2d 423

Robert O. MARSHALL, Petitioner, v. Roy HENDRICKS, Superintendent, New Jersey State Prison, and John J. Farmer, Attorney General of New Jersey, Respondents.

Civil Action No. 97-5618 (JEI).

United States District Court, D. New Jersey.

April 8, 2004.

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Stephen Kirsch, Esq., Deputy Public Defender, Joseph E. Krakora, Esq., Office of the Public Defender, Trenton, NJ, for Petitioner.

Robert E. Bonpietro, Esq., Deputy Attorney General, Trenton, NJ, Robert B. Leaman, Esq., Supervising Deputy Attorney General, Whippany, NJ, for Respondents.

OPINION

IRENAS, Senior District Judge.

Currently before the Court is Petitioner's application for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The application comes to the Court on remand from the United States Court of Appeals for the Third Circuit as to the sole issue of whether Petitioner's counsel was constitutionally effective at the sentencing phase of Petitioner's capital murder trial. After holding an evidentiary hearing on Petitioner's claim, we find that counsel was not effective and grant Petitioner's application for writ of habeas corpus.

I.

The procedural history of this case is extensively discussed in previous decisions of both this Court and the United States Court of Appeals for the Third Circuit. See Marshall v. Hendricks, 307 F.3d 36 (3d Cir.2002) ("Marshall V"); Marshall v. Hendricks, 103 F.Supp.2d 749 (D.N.J.2000)("Marshall IV").¹ Therefore, we will avoid an exhaustive recital of the procedural history and provide only a brief summary in order to put the current matter in context and to include the most recent proceedings. On May 5, 1986, Robert O. Marshall ("Marshall" or "Petitioner") was convicted in New Jersey state court of murder and conspiring to murder his wife, Maria Marshall, and was sentenced to death by lethal injection. Marshall IV, 103 F.Supp. at 757. Marshall's direct appeals at the state level were unsuccessful and, on October 30, 1997, he filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this Court.² Marshall's twenty-two count petition included claims of ineffective assistance of counsel at both the guilt and sentencing phase of his trial as well as requests for discovery and evidentiary hearings to explore those claims. On June 23, 2000, this Court, relying on the state court record and without holding separate evidentiary hearings, denied Marshall's application in its entirety. Id. Marshall then appealed to the Third Circuit.

On September 11, 2002, the Third Circuit affirmed this Court's denial of Marshall's application for writ of habeas corpus as to all issues except Marshall's claim of ineffective assistance of counsel during the sentencing phase of his trial. On that issue, the Third Circuit reversed and remanded, concluding that a determination of counsel's effectiveness at sentencing was impossible "without conducting an evidentiary hearing." Marshall V, 307 F.3d at 117. Pursuant to the Third Circuit's remand, this Court held an evidentiary hearing in September 2003, and heard final oral arguments on January 30, 2004, to determine the merit of Petitioner's claim that his counsel failed at every level to investigate, prepare, present, and argue a mitigation case during the penalty phase of his trial. See Br. Supp. Pet'r Robert O. Marshall's Pet. Writ Habeas Corpus at 51 [hereinafter Pet'r Br.].

II.

As with the procedural history, the facts of this case have been thoroughly discussed in prior court decisions, see Marshall V, 307 F.3d at 44-48; Marshall IV, 103 F.Supp.2d at 758-59; State v. Marshall, 148 N.J. 89, 690 A.2d 1, 23-25 (1997) ("Marshall III"); State v. Marshall, 123 N.J. 1, 586 A.2d 85, 97-114 (1991) ("Marshall I"), therefore, the Court will relate only those facts relevant and necessary to the disposition of Petitioner's claim of ineffective assistance of counsel at the penalty phase.

On the morning of March 5, 1986, after a month-long trial, Robert Marshall was convicted of murder and conspiracy to commit murder in Superior Court of New Jersey, Criminal Division, Atlantic County for hiring someone to murder his wife, Maria.³ Marshall IV, 103 F.Supp. at 757. Marshall was represented by Glenn Zeitz, a private attorney with experience defending capital cases. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 134, l. 9-22; Tr. Sept. 4, 2003, Test. of Glenn Zeitz at 4-5.⁴

The jury rendered its verdict at approximately 11:30 a.m.⁵ See Marshall V, 307 F.3d at 48 (stating that the verdict came in "shortly before noon"); Marshall III, 690 A.2d at 108 (Handler, J., dissenting) (stating that the jury returned its verdict "at approximately 11:30 a.m."). Immediately thereafter, Marshall's family members, including his youngest son John, his sister Oakleigh, and his brother Paul, left the courthouse to return to their home in Toms River, New Jersey, which is located roughly forty-five minutes away. Tr. Sept. 3, 2003, Test. of Douglas DeCarlo at 142, l. 10-18; Tr. Sept. 4, 2003, Test. of John Marshall at 133, l. 5-25. They did not return for the sentencing phase; indeed, nothing in the record indicates that they knew or understood that the penalty phase would be held that same day. Tr. Sept. 4, 2003, Test. of John Marshall at 133, l. 17-25; 134, l. 1; Tr. Sept. 8, 2003, Test. of Richard Ruffin, Jr. at 19, l. 15-21 (indicating that Oakleigh DeCarlo "rushed John, the youngest son, out of the courtroom in order to avoid the press and the activity and she thought that the penalty phase would follow in a few days and she was very surprised that the penalty phase went on in her absence"); Tr. Sept. 3, 2003, Test. of Douglas DeCarlo, at 143, l. 2-7 (stating that he "couldn't imagine" that his wife Oakleigh would have left the courthouse and not been present for the penalty phase had she known about it).

At approximately the same time, Marshall fainted while being led from the courtroom by Sheriff's officers. Marshall V, 307 F.3d at 48; Marshall III, 690 A.2d at 108 (Handler, J., dissenting). An ambulance was called at 11:36 a.m. and medical personnel took Marshall to a nearby hospital where he was treated by an emergency room physician at approximately 12:30 p.m. Marshall V, 307 F.3d at 48; Marshall III, 690 A.2d at 109 (Handler, J., dissenting). The hospital discharged Marshall at approximately 1:15 p.m., at which time Sheriff's officers returned him to the courthouse. Marshall V, 307 F.3d at 49; Marshall III, 690 A.2d at 109 (Handler, J., dissenting). Marshall arrived at the courthouse at approximately 1:30 p.m., fifteen minutes before the penalty proceeding began. Marshall V, 307 F.3d at 49.⁶

While Marshall was being treated at the hospital, Zeitz met with the prosecution regarding the penalty proceeding. Zeitz testified that he "extracted" an agreement from the prosecution as to how the penalty phase would be conducted. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 20, l. 12-25. The parties agreed that: (1) both the prosecution and the defense would waive openings, refrain from presenting evidence and limit themselves to a single short closing statement to the jury; (2) the prosecution would dismiss two of the three aggravating factors charged;⁷ and (3) the prosecution would stipulate to a single mitigating factor namely, that Marshall did not have a prior criminal record.⁸ Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 19-20; see also Tr. Sept. 8, 2003, Test. of Kevin Kelly at 151.

In arranging this agreement, Zeitz relied on information he had gathered in his investigation for the guilt phase. Prior to May 5, 1986, Zeitz had not specifically prepared for a potential penalty hearing. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 75-79, 82, 111. Neither Zeitz nor his investigator, Russell Kolins, ever had a targeted conversation with individual family members, friends, neighbors, or business associates to determine: (1) if any of those individuals would be willing to testify at a penalty phase should Marshall be found guilty; or (2) what those persons might say if called to testify. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 75, l. 8 to 76, l. 16; 82, l. 8-19; 126, l. 4-13.⁹ Moreover, Zeitz had not hired a mitigation specialist, social worker, or psychologist¹⁰ to evaluate Marshall, to interview potential witnesses, to investigate his school or medical records, or to conduct an investigation into the existence of any potentially mitigating information. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 111, 119-120. Therefore, at the end of the guilt phase, Zeitz did not have a draft list of potential mitigating factors, penalty phase discovery, or penalty phase witnesses. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 64-66.¹¹

Regardless, Zeitz prepared to go forward with the penalty phase that afternoon. In the fifteen minutes between Marshall's return to the courthouse and the start of the sentencing hearing, Zeitz had two conversations with his client regarding how to proceed. Tr. Sept. 3, 2003, Test. of Glenn Zeitz at 22, l. 2-12; 24, l. 1-13; 25, l. 1-9. The first conversation focused on the agreement made with the prosecution and whether Marshall's sons should testify in the penalty phase. Id. at 25, l. 1-9; 35-36. In that discussion, Marshall stated that he did not want his sons to testify and that he approved the agreement. Id. The second conversation confirmed with Marshall that they would proceed as per the agreement. Id. Zeitz claims that he told his client that they could request a continuance, but Marshall did not want to wait. Id. at 26, l. 3-25. In fact, Marshall said that he just wanted to get it over with. Tr. Sept. 9, 2003, Test. of Robert Marshall at 28, l. 13-18 (indicating that upon his return from the hospital, Zeitz told him they could "do this now or later. What do you want to do" and that Marshall replied, "[l]et's get it over with"). Zeitz, therefore, did not...