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Blasting New Jersey’s Supreme Court and a defense attorney, a federal judge last Thursday overturned the capital sentence of contract killer Robert Marshall – until now the state’s most death-eligible inmate. U.S. District Judge Joseph Irenas did not disturb Marshall’s conviction but concluded that he was the victim of ineffective assistance of counsel during the trial’s penalty phase. Irenas remanded the two-decade-old case, Marshall v. Hendricks, 97-5618, to state court for a new sentencing hearing within 120 days. Chuck Davis, a spokesman for Attorney General Peter Harvey, told The Star-Ledger that the state would appeal. Meanwhile, Marshall will be moved from death row to the general population at Trenton State Prison. Judges Edward Becker, Jane Roth and Marjorie Rendell of the Third U.S. Circuit Court of Appeals had remanded the penalty phase to Irenas in September 2002, two years after he denied Marshall’s petition for a writ of habeas corpus. The circuit judges said that more evidence had to be gathered before a decision could be made on Marshall’s longstanding contention that his trial lawyer, Haddonfield solo practitioner Glenn Zeitz, dropped the ball during the penalty phase in March 1986. The panel upheld Irenas’ affirmance of the murder conviction. “This court has no confidence that the penalty phase of Marshall’s trial was a genuine adversarial proceeding, the assurance of which is at the very heart of the right to counsel under the Sixth Amendment,” Irenas concluded. He characterized Zeitz’s performance as “unreasonable under prevailing professional norms in 1986, and, thus, constitutionally deficient under the Supreme Court’s holding in Strickland.” In Strickland v. Washington, 446 U.S. 668 (1984), the U.S. Supreme Court set the standard for determining ineffective representation in death penalty cases. Appellate courts may not reverse death sentences by second-guessing a lawyer’s strategy unless that strategy is not based on sound lawyering. Strickland also requires the defense to show that the errors prejudiced the defendant. Irenas’ criticism of the state Supreme Court stems from its rejection of Marshall’s habeas plea to overturn his death sentence due to Zeitz’s allegedly poor performance before the case moved into the federal courts. Irenas found the state justices’ application of Strickland unreasonable given all the evidence. Irenas also said the Court got it wrong in finding that Zeitz had engaged in adequate investigation, consultation with his client and preparation for the penalty hearing. Irenas found that Zeitz did none of those things and rejected his testimony that he presented much mitigating evidence during the guilt phase. The main evidence cited by Irenas, in fact, is Zeitz’s failure to prepare for the death penalty phase. Zeitz did not interview Marshall’s friends, family and colleagues to ascertain whether they could offer testimony as character witnesses. He made a deal with the prosecutor just prior to the hearing in which both sides agreed not to present opening statements, call witnesses or present evidence. The prosecutor agreed to drop two of three aggravating factors, while Zeitz was permitted to argue only one mitigating factor, that Marshall had no prior criminal record. ‘Blind Faith’ Murder Marshall was convicted of hiring men to kill his wife, Maria, so he could continue an affair and could claim more than $1 million in insurance. Maria was killed when the couple stopped at a rest area along the Garden State Parkway in September 1984 while returning from Atlantic City. He was indicted more than four months after the crime, and stood trial in 1986. The case was made famous by a book and television miniseries, “Blind Faith.” Marshall’s appellate lawyers, state Assistant Public Defender Joseph Krakora and Deputy Public Defender Stephen Kirsch, have long maintained that their client deserved a new sentence hearing because of Zeitz’s ineffectiveness. Last Thursday, Irenas agreed with most of their arguments and rejected those of Deputy Attorney General Robert Bonpietro. The judge faulted Zeitz for not seeking an adjournment after the guilty verdict was returned. After the verdict was rendered at about 11:30 a.m., Marshall’s relatives left the trial in Atlantic City and went home to Toms River, thinking the penalty phase would be held another day. Moreover, Marshall was overcome by the verdict and had to be transported to a nearby emergency room for treatment. The penalty phase began at 1:30 p.m., about 15 minutes after Marshall returned to court. Irenas concluded that Zeitz did not really consult with Marshall about the penalty phase. “There is little doubt that Zeitz never had a specific or definitive conversation about strategy, evidence or witnesses for a penalty phase with Marshall prior to Marshall’s return from the hospital . . . ” Irenas wrote. The judge added that Zeitz talked to Marshall for less than 15 minutes, which was inadequate “ in the wake of the devastating guilty verdict coupled with the medical incident.” For most of those 15 minutes, Zeitz discussed the agreement he had just “extracted” from the prosecutor, Kevin Kelly. “We are convinced that no reasonable attorney would have gone forward without an adjournment,” the judge ruled, saying Zeitz had no witnesses lined up and no “useful mitigating evidence” to speak of. The judge did acknowledge that Marshall was a difficult client – “strong-willed” and “challenging” – who hampered Zeitz’s ability to develop a penalty phase case; Marshall was unwilling to discuss the possibility of a conviction and had told Zeitz not to discuss that possibility with his family. “However, the fact that Marshall put up barriers to discussions of a penalty phase does nothing to relieve Zeitz of his constitutional duty as an attorney,” wrote Irenas. The key, continued Irenas, was that Marshall never suggested to Zeitz that discussing the penalty phase with family and friends would be fruitless. Citing evidence produced by Krakora, Irenas noted 16 witnesses who could have offered testimony to help save Marshall’s life. One in particular was his youngest son, John, who years later testified that he and his two older brothers would have tried to help his father on the stand. Zeitz told Irenas during the hearing last September that he did not call John because he believed the other two sons were convinced of their father’s guilt and he felt he could not put them on the stand. But the judge excoriated Zeitz for his logic, concluding that because he never interviewed the sons about the penalty phase, he never knew if they would have urged the jurors to spare Marshall’s life, even if they believed he had their mother killed. The judge also pointed out how powerful and emotional such testimony, from family members, can be compared with that from neighbors, friends or business associates. Zeitz had a professional obligation to pursue every possible witness, including a sister and brother-in-law who told Irenas last fall they too would have testified on his behalf. Zeitz had maintained that the testimony of the three sons during the trial produced mitigating evidence, but Irenas rejected that, saying the sons were limited to testifying about specific events surrounding the crime. No one pleaded for Marshall’s life; no one pleaded for mercy, said the judge, who was harsh on Zeitz for how he concluded his short statement to the jury in 1986. Zeitz told them, “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.” Said Irenas, “We cannot characterize that ‘verbal shrug of the shoulders’ as advocacy, much less find it reasonable representation.” Zeitz and Bonpietro were not in their offices and did not return messages on Friday, a legal holiday. On Thursday, Zeitz told the Associated Press, “Obviously, I’m happy for my client. I’m happy someone’s going to get a second opportunity to save his life.”

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