*1 hereby is PHILIP M. be and MORELL ORDERED law; and it enjoined practicing from permanently restrained is further the Disci- M. reimburse that PHILIP MORELL
ORDERED costs. administrative Oversight appropriate plinary Committee LONG, PORITZ, Justices Justice For Disbarment —Chief ALBIN, LaVECCHIA, ZAZZALI, and RIVERA- WALLACE SOTO —7.
Opposed—None.
Judge (temporarily assigned) SKILLMAN opinion delivered the of the Court. appeal
This is an petition post-conviction from the denial aof alleged relief based on the ineffective trial assistance of prosecution the defense of a drugs. for a sale of Defendant’s primary claim is that failing his counsel was ineffective in to call as initially a defense witness Robert who told defense counsel that he was the one who sold the then but retracted this subject admission when informed he be prosecution. could We conclude counsel’s decision not call Jackson *6 buyer strategic decision because was a reasonable Crittenden, one that Jackson was the who drugs, testified Robin reasonably have drugs and defense counsel could sold her the by denying Critten- the defense case Jackson would harm believed reject defendant’s the seller. We also allegation that was den’s by provided ineffective assistance arguments that trial counsel drug or to interview failing visit the scene of transaction by call failing trial and other witnesses before potential defense drugs to did not sell who have testified defendant witnesses could Crittenden.
I cocaine, in guilty of juryA defendant of distribution found 2C:35-5(b)(3) 2C:35-5(b)(3); and N.J.S.A. N.J.S.A. of violation park, in public 500 of a violation of cocaine within feet distribution 2C:35-7.1; cocaine, of possession of in violation of N.J.S.A. 10(a)(1); with intent to possession of cocaine N.J.S.A. 2C:35— 5(a)(1) and N.J.S.A. of N.J.S.A. distribute, violation 2C:35— 5(b)(3); public 500 of possession of cocaine within feet and 2C:35— in violation of N.J.S.A. 2C:35- distribute, park the intent with defen granted the State’s motion sentence 7.1. The trial court 2C:43-6(f) N.J.S.A. pursuant term dant to an extended imprisonment, of with five fifteen-year terms imposed concurrent within 500 ineligibility, for of cocaine years parole distribution within feet of a possession of cocaine public park of a feet Appellate The Division to distribute. public park with the intent unreported in an conviction and sentence affirmed defendant’s Arthur, Apr. (App.Div. opinion, State v. No. A-1892-00T4 174 N.J. certification, 2002), petition his for and this Court denied (2002). 545, 810A.2d 64 on the post-conviction relief based petition
Defendant filed counsel, provided trial which alleged assistance ineffective potential three other supported by affidavits of Jackson and Judge at trial. counsel not call defendant’s witnesses whom did two-day Barisonek, judge, conducted who also was the trial Jackson, defendant, evidentiary hearing in which defendant’s Arthur, brother Crystal James defendant’s fiancée Ross and de- fense all presented testified. Based on evidence record, hearing Judge and the trial Barisonek concluded that defendant prove had failed to his ineffective assistance claim and petition. denied the Appellate
The opinion, Division affirmed in unreported an which provided concluded that defense counsel had ineffective assis by failing tance to call Jackson aas defense witness and also rejected arguments. granted defendant’s other This Court defen petition dant’s for certification to the limited issue whether he received N.J. ineffective assistance of trial counsel. *7 (2005).1 A .2d1031
Defendant’s primarily convictions were based on the Crawford, of Andre a detective in the Narcotics Bureau of the Department. Plainfield Police While Crawford was an conducting undercover narcotics surveillance from an undisclosed location in 23, 1998, the late on afternoon June he place observed defendant some items behind bushes located at 969 West 3rd in Street got Plainfield. Defendant then into car a that left the a area for period. returned, brief bushes, When he defendant went to the there, down to check placed bent the items he had and walked Shortly thereafter, back to the street. approached defendant was by a woman named Robin Crittenden. After defendant and spoke briefly, Crittenden bushes, defendant went to the retrieved item, Crittenden, an walked and back money who handed him in exchange the for item. Crawford testified that he had an unob- apparent structed view of the drug transaction from a of distance thirty less than feet and he observing that knew defendant before him on this occasion. argued Defendant also Division that his Appellate counsel at the
hearing on failing relief was petition post-conviction ineffective to raise Judge misconduct and prosecutorial issue that Barisonek limited improperly arguments his cross-examination of trial counsel. Those are not encompassed granting the order by certification. to the back-up unit to come the officers in his radioed Crawford immediately time and within a short The officers arrived area. there were other Because defendant Crittenden. detained area, porch them onto of 969 brought the officers people in by from his surveil- confirmed radio 3rd Street. Crawford West he had observed they persons that were the two lance location drug transaction. engage apparent in an anything. have one the officers: “I don’t said to of Crittenden hand, her dropped a vial from on here.” then going She What’s At cocaine. this to contain subsequently determined which was Crittenden under arrest. placed defendant and point, the officers he to the bushes where one of officers Crawford directed that handed to retrieve the item had defendant observed location, bag which at that officer found brown Crittenden. The Kentucky forty-five vials Fried Chicken box with contained subsequent A to be cocaine. subsequently determined what was dropped the vial of the evidence disclosed examination forty-three of the cover as had the same kind white Crittenden forty-five the bushes. vials found behind person who that the testified on defendant’s behalf
Crittenden Jackson, not but instead Robert sold her cocaine was defendant she Crittenden testified that at 969 West 3rd Street. who resided police officers told Crawford and other it” defendant, “they want to hear sold but didn’t her *8 Crittenden testified that insisting was the seller. kept defendant eventually as the seller when though named defendant even she transaction, charges in the she pled guilty on her role to based she identify required her to defen- only prosecutor so because the did plea bargain. of get the her dant to benefit cross-examination, the parts confronted with was On Crittenden as the transcript she identified defendant plea which prior three criminal acknowledged that she had also seller. She convictions. redirect,
On brought guilty out that when her taken, plea Jackson, being initially was she identified not defen- dant, However, as the the judge seller. indicated would not plea accept Crittenden, the According and declared a recess. point she identified defendant as the seller at this because she was scared that she plea bargain. would lose benefit of her completed testimony,
After Crittenden prosecutor her stat- ed that she to call that, wanted Jackson as a rebuttal witness but counsel, speaking after with defense Jackson had “left the build- ing” and was prosecutor “nowhere to be found.” The asked the delay trial court to opportunity the trial to afford her an to locate Jackson, but application. the court denied the
At hearing petition on post-conviction relief, defendant’s brought Jackson testified that defendant him to the courthouse on day the first of the trial and that he told defendant’s trial counsel he, defendant, was one drugs who sold to Crittenden. by investigator Jackson then an interviewed prose- from the Jackson, According cutor’s office. he also told investigator this drugs that he was However, the one who sold to Crittenden. on cross-examination, by investigator’s Jackson was confronted notes, signed any which did not include statement that Jackson had sold to Crittenden. Jackson also testified that on day the second of trial “pulled defense counsel me into the off, leave,” staircase told me take and that he then left the courthouse. brother, Arthur,
Defendant’s James also regarding testified request defense counsel’s to Jackson to leave the courthouse: [Defense counsel] [to came outside hall next to the courtroom] like in like a something get speaking rush, like had and told me to him happened here, out of of Robert Jackson, So I said I wanted to know but I was disappear. why more like thinking, get get well, if the said out him I think I lawyer here, better him out here. I’ll find out I later. on spoke Mr. Jackson later and he had told day get here____ Mr. Jackson out of disappear, gave following Defense counsel account of his interview of Jackson and assessment of Jackson’s value as a defense witness: *9 give Originally to because he was able he looked like an excellent witness In fact I to that he was the seller. what we needed establish essentially gave I wrote it down because the a to the even prosecutor proffer prosecutor. nothing to was in indicate to what the was. There discovery wanted know proffer going him, I interviewed he was to be the seller. When that Robert Jackson for and I wrote that proffer indicated that he was prosecutor. going changed he that he was be his When learned he However, story. I know that I the seller. was there. I oh, no, he wasn’t this, said, no, suspect he was interviewed didn’t sell and it was that that Michael Arthur point although understanding I of what he told never them, Office and my Prosecutor’s just them that he didn’t was that he told discussed, basically saw the notes that you he the seller. indicate was “I what explained: [Jackson] further didn’t know Defense counsel say I want to risk.” something was didn’t going to and that was “pleased” Crit- that he was with Defense counsel also testified get guilty a not “thought going to testimony and we were tenden’s addition, testimony.” In testified that Crittenden on her he based day, selling drugs that had but told him that defendant been her. who made the sale to Jackson was one depar- following account of Jackson’s gave Defense ture from the courthouse: going I said are you out in the and out of fairness Mr. Jackson I went hallway going were Are to adhere to what told me before you you you be arrested. take about to be arrested seller? better off because are Otherwise, you you got out in I tell what and at that he you literally it’s call. can’t to do your point but building were was and the doors shut the nick of time because entire scoured didn’t find him. they downstairs cross-examination, sug- that he defense counsel indicated
On was concerned gested leave the courthouse because he Jackson a strate- rather than because he made Jackson would be arrested and wanted to gic not to call Jackson as a defense witness decision calling prevent from him as rebuttal witness: the State going out he was to stick neck wanted to be fair to him. I felt like I getting into. I wanted to make sure knew what he [defendant]. decision, that he made tactical Defense counsel also testified brother, Arthur, concurred, James not to call his which defendant two other he was call defendant’s as a witness unable Tomlinson, witnesses, Crystal because proposed Ross and Danielle bring courthouse. them the defendant did *10 Judge comprehensive Barisonek oral opinion deny- delivered ing petition. judge defendant’s The found defense testi- counsel’s mony that he did not tell Jackson to leave the courthouse but told stay instead him decide himself whether to to be incredible: I in [defense don’t believe counsel], terms of his and I don’t like to testimony, say
this about but I to be have front. That he never told lawyer, up leave, him guy get there is no doubt in mind that he told this to leave absolutely my out of going here because he was to hurt Robin Crittenden’s testimony. making In credibility finding, Judge this partly Barisonek relied testimony on James Arthur’s get that defense counsel him told Jackson out of the partly courthouse and on defense counsel’s own testimony that strategic he made a decision after Crittenden rely solely testified her defending on in the case. Judge Barisonek also that found defendant concurred with defense counsel’s decision to call Jackson as defense witness.
II
Claims of ineffective
generally
assistance of counsel are
governed by the standards set forth in
Washington,
Strickland v.
668,
2052,
(1984),
466 U.S.
104 S.Ct.
80
adopted
L.Ed.2d 674
by
interpreting
Court
Jersey
this
the New
Constitution. See
Allah,
269, 283,
(2002);
State v.
170 N.J.
319 ‘distorting under viewing performance avoid and must ” Norman, 5, 37, A.2d 151 N.J. hindsight.’ State v. effects Strickland, 689, 104 (1997) at at supra, U.S. S.Ct. (quoting 694). inherent difficulties at Because 80 L.Ed.2d her from or counsel’s tactical decisions evaluating a defense trial, strong presump indulge a during “a court must perspective range of reason falls within the wide counsel’s conduct tion that assistance; is, must overcome professional the defendant able circumstances, that, challenged presumption under the ” Strickland, strategy.’ trial considered sound ‘might action be at L.Ed.2d 694-95 104 S.Ct. at supra, 466 U.S. *11 164, 101, 158, Louisiana, 91, 76 350 U.S. S.Ct. (quoting Michel v. (1955)). 83, 93 L.Ed. alleged defi determining counsel’s In whether defense defense, enough is for not performance prejudiced “[i]t cient had conceivable effect that the errors some the defendant to show 2067, 693,104 Id. at proceedings.” at S.Ct. on the outcome of Rather, of show bears burden at 697. defendant 80 L.Ed.2d that, counsel’s probability but for ing is a reasonable that “there errors, would have proceeding unprofessional the result probability sufficient probability is a A reasonable been different. 694, at at Id. S.Ct. confidence in outcome.” to undermine Harris, 698; 181 N.J. see also State v. 80 L.Ed.2d (2004). 432, A .2d364
A.
standards,
con
is
for
Judged by
there
no basis
these
provided
ineffective assis
cluding
defendant
that defense
Initially, we
failing
a defense witness.
to call Jackson as
tance
to
amake
strate
reject
contention that counsel faded
defendant’s
Jackson
call
instead allowed
gic
not to
Jackson but
decision
stay
There
in the courthouse.
his own mind whether to
up
make
testimony concerning the circumstances
conflicting
sharply
was
Although defense coun
departure from the courthouse.
Jackson’s
say
going to
[Jackson]
“didn’t know what
was
testified that he
sel
something
risk[,]”
and that was
want
[he] didn’t
he also testified
instead,
that he did not direet Jackson to leave the courthouse but
Jackson,”
“out of fairness to
“going
Mr.
told him that he was
to be
stay.
arrested” and let Jackson
the call”
“make
whether to
How
ever,
off,
Jackson
testified
defense counsel “told
tome
take
leave,” and James Arthur testified that defense counsel “told me
get
him
out of
Judge
[Jackson]
here.”
Barisonek concluded
testimony
that defense counsel’s
did not
he
tell Jackson to
leave the courthouse was incredible and found that “[counsel] told
get
to leave and
out of
going
[Jackson]
here because
testimony.”
hurt Robin
appellate
Crittenden’s
An
court must
accept a trial
finding
supported by
court’s factual
if it is
sufficient
Locurto,
credible evidence in the record. State v.
157 N.J.
(1999).
472,
Judge
correctly
Barisonek also
concluded that defendant
that,
presumption
failed to
“overcome
under the circum
stances,”
strategic
defense counsel’s
decision not to call Jackson as
“
”
‘might
a defense witness
be
strategy.’
considered sound trial
Strickland,
689,
supra,
2065,
When that told the already the defense she had testified for Crittenden Arthur, Jackson, not was the arrest that police at the time of her said was again and that she Jackson person who sold her identifying guilty plea, only defendant at the time of her the seller reject plea judge he her would as the seller after trial stated the true that was agreement persisted if her claim Jackson she counsel, opportunity to hear Critten- had the seller. Defense who testimony her testify, “pleased” he was with den stated that on that likely acquitted be based thought was that defendant testimony. him, indicated Jackson counsel first interviewed
When defense of him as the identification Crittenden’s he would corroborate prosecutor Jackson seller, that and defense counsel informed However, testify. then retracted this admission Jackson would so changed his “[H]e not the seller: told defense counsel he was this, suspect in going he to be a story. that was When he learned oh, no, know that said, no, I there. I I the seller. was he wasn’t point and it was Arthur didn’t sell Michael Defense counsel’s by the Prosecutor’s Office —” interviewed that he was the his admission that Jackson retracted *13 supported by prosecutor’s is representations seller the in request- ing adjournment an of the trial to opportunity afford her an to locate Jackson: gave indicating It wasn’t until Counsel his witness list that Robert Jackson initially drugs
would the who be one came in and said he the one the was who sold to Miss along that he Crittenden, and would be with produced the other three for witnesses the to, State to talk then the comes, next when Mr. Jackson Counsel day “Oh, says, selling just drugs no, the was no, no, not he was the he one the was there proffer coming something and she was to visit or to that him,” effect. Thus, when defense counsel made the decision to call not Jackson witness, as a defense it was for reasonable him to assume that testify, Jackson would consistent with his second to statement counsel, Crittenden, defense that did not he sell to thus directly contradicting Crittenden’s testimony.2 trial circumstances,
Under these
was
there
a reasonable
basis
strategic
defense counsel’s
not
decision
to call
Jackson as
testimony
likely
witness because his
was more
to harm
help
than to
perception
defendant’s ease.
probable
This
of
impact
testimony
of Jackson’s
obviously
by
on the trial was
shared
prosecutor,
who
strategic
made her own
decision to call
as
urged
Jackson
a rebuttal witness
strenuously
the trial
delay
court to
the trial to
opportunity
afford her the
to locate him.
reject
argument
We
defendant’s
that defense counsel’s decision
to
not
call Jackson as a defense witness is not entitled
ordinarily
“extreme deference”
strategic
extended
decisions
counsel, Fritz,
52,
supra,
323 the hearing The of the on investigation trial. record before counsel’s relief indicates that defense post-conviction petition on his as a witness was based not to call Jackson decision the understanding of what Jackson told his interviews of investigator, of the effectiveness assessment prosecutor’s concluding that testimony. There is no basis for of Crittenden’s strategic by defense counsel’s failure decision was affected this Therefore, pretrial investigation. his decision conduct additional any as other call is entitled the same deference not to Jackson Fritz, supra, N.J. See 105 strategic defense counsel. decision (“[T]he facing attorney in 61, 519 336 obstacles defendant’s A.2d pre inability to warrant a prepare of are insufficient terms into inquiry the for an sumption prejudice of and to excuse need Chew, trial.”); v. 179 N.J. see also State the actual conduct 255-56, (2004); 186, 211, Bey, N.J. .2d 487 State v. 161 844 A denied, 2693, 147 (1999), 1245, 120S.Ct. 530 U.S. A.2d 469 cert. 594, 616-17, (2000); Savage, v. N.J. L.Ed.2d 964 State (1990). A .2d455
B. coun reject argument that defense also defendant’s We failing to call defendant’s representation deficient in sel’s was testify did not sell Arthur to that defendant brother James one who said he was the drugs to Crittenden and that Jackson decided, he with counsel testified that drugs. Defense sold concurrence, Arthur he believed not call because defendant’s Arthur would and that had been an effective witness Crittenden not be credible witness: I felt confident [Crittenden’s] testimony. very was with pleasantly surprised
I agreed just take [defendant] with and he let’s she I talked it over after testified. was I call James Arthur reason didn’t why our chances with her testimony have a with bias. You have because, course, you traditional problems him. I found when I interviewed I find him credible brother. didn’t particularly there He was certainly that he was uncooperative. him to be wouldn’t say bit —I forthcoming with very with information. He wasn’t specific he wasn’t very but not [defendant] I testified that information. He would have surmised objective, axe to light unbiased, had no who was but in Miss Crittenden seller grind, I felt comfortable and confident with Miss but I Crittenden didn’t make the call, [defendant] final he did. calling Defense counsel also stated that he considered Arthur to testify that initially selling drugs Jackson had admitted to Critten ultimately den but to call decided not Arthur for that purpose. why Defense asked he made this decision. How jras ever, testimony such posed would strategic have obvious risks defense. Arthur’s heard he had Jackson admit sold to Crittenden would have been as a admissible interest, see N.J.R.E. against penal 803(c)(25), declaration but this *15 evidence could have aided if only jury the defense the found witness, Arthur to be a credible and defense counsel had conclud Moreover, ed that Arthur did not seem credible. if Arthur had testified that said Jackson he was the one who sold drugs the Crittenden, Judge may Barisonek have reconsidered his decision deny request the delay State’s for a in the trial to locate produce Jackson him as a rebuttal witness. And if Jackson located, not could be the testimony admission of Arthur’s that selling drugs Jackson had admitted to Crittenden would have permitted present prosecutor’s the State to investigator to testify Jackson, as a rebuttal witness that when she interviewed he had not that drugs claimed he to Crittenden. See sold Norman, N.J.R.E. 806; supra, 151 N.J. at 511. A.2d Therefore, defense counsel reasonably could have concluded that jury likely would be discredit Arthur’s that Jackson had selling admitted to Crittenden and instead testimony by prosecutor’s credit investigator that Jackson had made not such an admission.
C. argues Defendant also that defense counsel was ineffec in failing tive alleged visit the area where he was to have sold Crittenden, drugs to faffing potential to interview wit defense faffing any nesses before trial and to call defense witnesses addition to Crittenden at arguments require only trial. These brief discussion. on the defense rested
Defense counsel testified because defendant, seller testimony that not Crittenden’s testimony, pretty possible corroborative “felt and Jackson’s visiting the of the case without location preparing comfortable” in suggest how the cross- drug Defendant does not transaction. any case part of or other defense examination Crawford if counsel had visited that have more effective could been concluding that is for Consequently, there no basis location. probability [trial] ‘a ... the result “there is reasonable ” different,’ pretrial prepara if have defense counsel’s would been Fritz, 105 N.J. supra, a visit. at tion had included such Strickland, supra, at at (quoting 466 U.S. S.Ct. A.2d 336 698). 2068, 80 L.Ed.2d proposed two of defendant’s
Defense counsel interviewed witnesses, Arthur, during trial and made and James Jackson on and the course strategic decisions those interviews based In the proceedings to call them as defense witnesses. trial failure counsel’s to interview of evidence that defense absence decisions, there is trial affected those and Arthur before Jackson constituted concluding failure ineffective no basis this previously the reasons are satisfied for assistance. We also strategic to call counsel’s decisions not that defense discussed *16 not constitute ineffective assistance. or Arthur did Jackson witness list were his names on defendant’s The other two Although Crystal Tomlinson. defense fiancée Ross and Danielle trial, defendant told him them before counsel did not interview testify they present were at the Ross and Tomlinson would selling drugs. Defendant that he was not time of his arrest and control over wit [these] that “he had also told defense counsel However, at trial. presence and secure their nesses” would trial, to the when only Arthur brought Jackson and defendant Tomlinson, interviewing Ross and inquired about prosecutor Judge her and Barisonek defendant’s counsel informed defense Although testi get “I them defendant presence: couldn’t here.” relief, he did hearing petition post-conviction for fied at the on why not indicate produce he failed to Ross and Tomlinson as witnesses, as he had told defense counsel he would do. Ross stated in support her affidavit submitted in of defendant’s petition that lawyer “[defendant] told me that his I said wasn’t needed[,]” hearing and testified at petition on the that defense counsel told her after trial that she would not have been a credible Therefore, witness girlfriend. because she was defendant’s it is reasonable to infer that defense counsel made a strategic decision Moreover, not to call Ross as a witness. in view of Ross’s close personal relationship to defendant and the risk that her version of drug Crittenden’s, sale would conflict with there is no basis for concluding that objectively this decision was unreasonable or that there is a likelihood Ross’s changed would have outcome of the trial. produced
Tomlinson was not as a hearing witness at the on the petition post-conviction Consequently, relief. there is no evi dence that she was testify even available to at the time of defendant’s trial and thus no foundation for concluding that the failure to call her constituted ineffective assistance of counsel. See Santiago, 682, (2004) Commonwealth v. 579 Pa. 855 A.2d (holding that to establish ineffective assistance based on failure to witness, call defendant must show the witness was available at trial); State, (Tex.Ct. time 103, 110 Valdes-Fuerte v. 892 S.W.2d (same). App.1994)
D. In addition to the ineffective assistance of counsel claims assert- by defendant, ed the dissent contends that defense counsel was in failing ineffective signed to obtain a written confession from 345-46, 1206-07, at failing 877 A.2d at to have an infra impartial party present third at the interview of Jackson who could have original testified about Jackson’s exculpating statement defendant, at failing, A.2d in the infra party witness, absence of such a third disqualify himself as testify defendant’s counsel and himself original about Jackson’s *17 347-48, of these at 1207-08. None statement, 877 A.2d infra, at post-conviction petition in by his raised defendant claims were appellate or his relief, hearing petition on the at the arguments his brief. issues ordinarily will not consider appellate
An court court, Royal Indem. Nieder v. to the trial presented that were (1973), 229, 234, appellate and an Co., A.2d 142 62 N.J. Ins. sponte raise an issue sua hesitant to even more court should be address, see opportunity to not had an parties have (1978). If Burke, 383, 395, A.2d v. 77 N.J. Robbiani provided asserted that defense petition had defendant’s from confession failing in to obtain a written ineffective assistance present witness party a third failing either to have Jackson testify about disqualify himself or to interview of Jackson his undoubtedly statement, would prosecutor original Jackson’s to those questions relevant counsel additional defense have asked review of Therefore, appellate appropriate to confíne it is claims. assistance to the ineffective petition of defendant’s the denial asserted defendant. claims would have event, assumption that Jackson any the dissent’s
In
a written confession
counsel with
willing
provide
been
drugs to Crittenden
that he sold the
repeat his statement
or to
state-
party
speculative.
is
Jackson’s
impartial third
front of an
drugs to
who sold the
he was the one
counsel that
ment to defense
of defendant’s broth-
solely
presence
in the
was made
Crittenden
upon Jackson
er,
pressure
exerted coercive
who could have
asser-
retracted this
fact that Jackson
The
make this assertion.
day
following
indicates
spoke to defense counsel
when he
tion
may have been
witness who
potential
skittish
that he was a
writing or to
inculpatory statement
reluctant
to reduce
defendant’s brother.
anyone other than
repeat
it
in front of
obtaining
Furthermore,
if
counsel had succeeded
even defense
in front of an
inculpatory statement
oral
confession or
written
impeached this admis-
have
party, the
could
impartial third
State
the admis-
retracted
of evidence that Jackson
by introduction
sion
*18
sion when defense counsel
him
interviewed
the second time and
that
not
drugs
Jackson did
claim to have sold
to Crittenden when
by
prosecutor’s
he was
investigator.
interviewed
There also is
a substantial
presented
likelihood that
if defendant had
such
evidence, Judge
granted
Barisonek would
prosecutor’s
have
application
delay
for a
in
opportunity
the trial to afford her an
produce
Therefore,
Jackson as a rebuttal
assuming
witness.
even
defense counsel had been able to obtain a written or oral confes-
Jackson,
sion from
we are unable to conclude that
there is a
probability”
“reasonable
the outcome of defendant’s trial would
Strickland,
supra,
have been different.
atU.S.
104 S.Ct.
at
We also consider it
to comment
the dissent’s
highly
assertion that “it is
unusual that three individuals would be
willing to come forward
only
and offer
exonerating a
defendant,
implicating
but also
person
neighbor-
another
in the
hood
person
[and] still more unusual that
implicated
would
actually
guilt
admit his
wrongfully charged
to clear a
defendant.”
In of Detective defense counsel his cross-examination brought that resided at the 969 West 3rd Street out Jackson allegedly drugs sell address where Crawford observed defendant any not made effort to find out who lived and Crawford had brought police had not there before trial. He also out that the bag in fingerprinted the box or brown which defendant’s RFC containing alleged drugs or the vials stash of was hidden addition, drugs. suggested that Crawford had In defense counsel him, seller, identify asking an defendant as the ulterior motive client, you say my you get you’?” ‘I I would “Did ever told responded, “no.” which Crawford Carrier, Jeffrey the officer In his cross-examination of Detective bushes, back-up in unit who recovered the behind the whether told him defendant was defense counsel asked Crittenden drugs, suggested not the who sold her that Carrier had no one hearing evidence that someone other than defendant interest was the seller: time that recall, also, Do that Miss Crittenden advised she Q. you you being guy arrested that the sold the actually by yourself your partner drugs wasn’t Mr. Arthur?
A. No sir. Is it that she told that and weren’t at the location Q. possible your partner you when she said that? A. It’s possible. that, And if she had told the seller wasn’t Mr. Arthur Q. you course, you Eight?
would have been interested hear that. A. Not really. thought I so.
Q. Carrier, cross-examining brought In also out that police bag had not retained either the KFC box or brown *20 drugs which the were located. summation, jury
In his defense counsel reminded the that the credibility essentially State’s case turned on Detective Crawford’s testimony accepted simply and that should not Crawford’s be police because he is a officer: ground [W]e don’t the officer on a we him at zero and put police pedestal, put goes either the barometer or down based on determination of his your up asking I’m And based on this case as I’ve asked credibility. particular you, you beginning judge
the to that all case, assume witnesses are and equal, okay, according them to what the reflects.... argued jury Defense counsel then that the should find Critten- den she had no motive to credible because lie about Jackson’s seller, identity repeatedly police as the and told from the she the defendant, time of her that not the arrest was seller: You have to her motives and one of the bases to assess whether she is analyze and lied to is whether or not she tried to announce credible Detective Crawford you it know it at that truth before. Did she ever do before. We she did. She did the trying something, scene and I think one of the officers indicated she was to she say doing talking a lot of and no doubt she indicated that Mr. Arthur was not the it____Plainfield drugs, who sold her no doubt about don’t want to person police agenda. It’s hear this. have then' own not for me to a They say why particular agenda grind officer has an or an axe to over and police particular suspect why would on someone rather than the who did it. I don’t pin rap person actually again but I do know that Miss Crittenden made it clear and over know, over, that, wrong guy.” ‘You have the pointed initially Defense counsel also out that Crittenden indicated pled guilty purchasing Jackson was the seller when she to the only and that she identified defendant as the after seller the prosecutor judge trial him get told her she had to name to the plea bargain: benefit of her beginning. She “It’s Robert at the indicated, Jackson,” “What do you Whoops? mean those aren’t the rules? I can’t truth”? No. say The a bréale, back, Court takes comes she confers with her and the attorney again, Prosecutor let’s this “Well, Miss Crittenden. Remember the deal says, try here? And she has a recollection that it’s Arthur who Okay”? Michael suddenly game, good game, now is the seller. It’s a that is all it it’s not a it’s not is, very something integrity which I would much I’m it ascribe because not sure has trying got wrong guy, much with truth. to do She was "I but if say, you guy get it,” need me to Arthur is the the deal I’ll but isn’t this say say ridiculous, it’s out of the mouths of babes in a is Here this innocent literally way. person through she has convictions and she’s been system, okay, prior system degree, Judge, some but she does not —she is not she is not a she is lawyer, telling something someone of limited education and she is is “There everyone, guy it,” cool here. You this is the who did but know he didn’t do this. know, you just guilt? good enough I that “Can’t admit Isn’t the State”? But it’s not. my get straight did take a break? took a break to so she
Why they They story could do the and she does the dance. It’s all this case is about and will dance, you have to make the call. addition, argued jury any In if defense counsel that had guilt testimony, doubt about defendant’s based on Crittenden’s they acquit should him because the State had the burden of proving guilt beyond a reasonable doubt: [Y]ou have a reasonable are comfortable and confident that this certainty you drugs.
man was the that sold the You have to feel have to believe that, person you him____Based that, otherwise if don’t have it cannot convict what you you upon Miss Crittenden who is what I would submit is a whistle that is what said, blower, unleashing telling is is, she she the truth about a she is basically dirty system, you obligation large talking an have this case I’m not about the you only, *21 talking man’s life I’m about how it affects this of what in society, picture happens which is the truth. him based her testimony, acquit upon
Thus, aggressive an provided defendant with defense counsel charges against him. reasonably competent defense concerning Crawford’s iden- reasonable doubt His effort to create drugs to Crittenden person as the who sold tification of defendant the actual seller that Jackson was through Crittenden’s taken the seriously if Jackson had have undermined would been Consequently, coun- was the seller. defense stand and denied he strategic decision to avoid this risk sel made a reasonable calling Jackson.
IV attorney’s opinion not be read to condone defense This should day prospective witnesses until the of failure to interview defense responsibility repre- attorney assigned An the solemn trial. professional senting person charged with a serious crime has prospective witnesses and conduct other obligation to interview trial to appropriate pretrial investigation a sufficient time before strategy accused the best a defense that affords the formulate acquittal. Although an the record possible opportunity to secure responsibility indicate whether defense counsel bears sole does not potential or for his failure to interview Jackson other systemic that failure reflects witnesses before trial or whether office, Defender’s the Public Defender problems within the Public responsibility assuring that criminal defendants has ultimate provided adequate representation. are pretrial preparation though
But
defense counsel’s
even
professional
to which the Public De
fell short of the
standards
adherence,
require
purpose
of the constitutional
fender should
improve
of counsel “is not to
guarantees of effective assistance
Strickland, supra, quality
legal representation.”
U.S.
689, 104
purpose
simply
is
338
lawyers
what
what the best
would have done. Nor is the test even
done____We
in
good lawyers would have
are not interested
most
grading lawyers’ performances;
are interested in whether the
we
trial,
fact,
adequately.”) (quoting
process
adversarial
at
worked
(11th
1218,
Cir.1992),
Singletary, 972
1220-21
cert.
White v.
F.2d
denied,
1131,
2008,
(1995)),
115 S.Ct.
Justice justice attorney most seasoned trial cannot do to his client’s The prepare if If an cause he does not trial. he fails conduct investigation, wit- or interview and take statements from critical nesses, stand, attorney’s get or those witnesses on the then the skillfully displayed, an performance, courtroom however is but adequate representation. illusion of Courtroom tactical decisions attorney engaged in trial made an who has not minimal distorted, rushed, preparation wrongheaded at the often are —and expense of the client. likely prison drug Defendant Michael Arthur sits convicted of strength charges, distribution not because of the of the State’s him, against case but rather because of the ineffectiveness of his State-appointed attorneys. pled guilty Arthur to the indict- ment, alleged that he had distributed on June which defense, wrongful but 1998. He had a formidable identification from witnesses who would have corrobo- jury never heard attorneys’ failure to conduct an due to his rated that defense Defender’s Office investigation prepare or for trial. The Public months, pool represented Arthur for fifteen counsel had attorney pretrial assigned until the yet Arthur did not meet his conference, just Although supplied his two weeks before trial. defense, attorney support that with the names of four witnesses to attorney single trial. His did not interview one before *23 attorney subpoena key exculpatory witnesses for trial. did not Moreover, attorney met in the courthouse with the when his having person person who admitted to committed the crime—the testify attorney took no came to to Arthur’s innocence —the who him, witness, him him from did not call as a and allowed statement preparation, As a result of his defective trial to leave. credibility attorney only challenge one witness to of the called case. State’s
Arthur did not have the financial means to retain his own attorney. rely appoint competent on the He had State who, provided attorney him with an counsel for him. The State preparatory experienced, however failed to take the most basic steps agree a fair trial. Because I cannot with to assure his client majority that Arthur received the effective assistance of constitutions, guaranteed to him our federal and state I must dissent.
I. credibility in The trial this case was reduced to a contest Detective testified that between two witnesses. Andre Crawford conducting surveillance at 969 West 3rd on June while group people congregated, had Street Plainfield where place Arthur La- observed Michael “some items” behind bushes. ter, engaged in a Arthur retrieved an “item” from the bushes and Believing that hand-to-hand transaction with Robin Crittenden. sale, drug called in back- he had witnessed a Detective Crawford officers, up police who arrested both Arthur and Crittenden at the Crittenden, police approached dropped a scene. she When forty-five approximately police found drugs. The then vial of in the bushes. additional vials through of mistaken identification presented the defense
Arthur Crittenden, that she testified his sole witness. Crittenden Robin drugs, purchasing but Crawford observed was the one Detective Arthur, She added was the actual seller. that Robert the sale Street and that lived at 969 West 3rd that Jackson custody, yard. was taken into After she occurred Jackson’s mistakenly they arrest- police officers that had told the Crittenden explained officers at the stationhouse Arthur. to the ed She [her],” [her], guy served that this other had Arthur “didn’t serve Although that.” Crittenden officers “didn’t want to hear but the man, wrong they humored Arthur “kept telling them” that “ ” officers, arresting her, saying, ‘yeah, right.’ One Carrier, although not recall Jeffrey he did testified Detective Arthur, exculpating he would “not making a statement Crittenden she made it. really” interested even had have been a controlled pled guilty possession At time Crittenden State, agreement with the pursuant plea to a dangerous substance drug as the dealer. initially on the record she named Jackson as a However, accept that account prosecutor refused *24 prosecutor threatened to withdraw plea. The basis for the factual gave the unless Crittenden recommendation a favorable sentence Arthur sold her to be true —that that the State believed version was Because she then called recess. drugs. The court disqualifier, three-year parole five-year prison term with a facing a [that seller] to tell them that she “had Crittenden stated She, therefore, get falsely implicated Arthur Arthur.” Michael the deal.1 trial, effectively impeached Crit- prosecutor
During Arthur’s incriminating Arthur and her plea her statement tenden with both testimony, ac- jury rejected Crittenden’s The criminal record. ... that Crittenden told majority counsel testified states that "defense 1The engaged drug-dealing in the area of and Jackson were both [Arthur] him that Crawford, cepted that of Detective and convicted Arthur of a offenses, including drug second-degree number of distribution public park in cocaine within 500 feet of a violation of N.J.S.A. (PCR) post-conviction petition, 2C:35-7.1. Arthur filed a relief claiming attorneys him his denied his federal and state rights by failing constitutional to the effective assistance of counsel to call support to the stand witnesses who were available to defense. January
The PCR record reveals that sometime around representation the Public Defender’s Office first undertook the months, little, Arthur. Over the course of the next fourteen if anything, prepare was done to the case for trial. The Assistant Deputy assigned Public Defender to the case did not interview or witnesses, sale, drug take statements from visit the scene of the photographs, arrange investigator up take or for an to work Although case.2 early the name “Robert Jackson” was known as as day drug 969 West 3rd Street on the sale to her.” Ante at 877 A.2d at fact, 1196. Yet Crittenden never testified to that effect. In her in no seller, way implicates drug person drugs Arthur as a much less as who sold contrary, exculpated police, to her. To Crittenden Arthur to the at the start plea, given girlfriend, of her in a letter to Arthur's and at the trial. portion majority presumably The of the record on which the relied was There, counsel, testimony. passing, defense counsel's PCR testified thing you may that ”[o]ne not know is that the main witness in the case who did defense, Crittenden, testify selling for the Robin indicated Michael Arthur was day, just Although didn't conduct this sale.” counsel's remark purportedly by reinforced that Arthur was not involved in the sale witnessed Crawford, Detective he did not elaborate on when or where Crittenden made the concerning drugs. statement Arthur's involvement in Counsel never testified personally drug that Crittenden told him that Arthur was a dealer. One could fairly improper infer that defense counsel's remark was based on an recollection all, testimony. difficulty remembering of Crittenden's trial After counsel had client, testifying initially when he first met his that he was introduced to Arthur day Only being on the of trial. after corrected the PCR court did counsel meeting recall that his first with his client was two weeks before trial. 2Notably, any independent investigation. the PCR court "did not see In other words, anything any [it not] did see from detectives from the Public Defender's they physically people.” Officewhere went out and did interviews of *25 in implicated the seller January when Jackson as Crittenden unexplored. colloquy, that went plea her lead trial, Defender’s one before the Public Approximately month given pool attorney. to a The file transferred Arthur’s case Office any investigative reports, not defense to counsel did contain first witnesses, photographs. or Defense statements The pretrial conference on March 2000. his client at the met conference, point before pretrial ordinarily, is the of no return attorney acquaintance make the time for an his initial trial —not 1(e) requires Rule the court to conduct his client. with 3:9— discovery complete; pretrial that is “determine[ ] conference and ... that all motions have decided or scheduled that all been case have been dispose efforts to of the without trial reasonable made____” date, be attorney, typically, would On the defense list. counsel’s late required give the State a witness Because of case, present him that list. gave a week to arrival to the court court, however, just proceed the trial two The ordered request for an April defense counsel’s 3—and denied weeks —on adjournment. not bear sole blame passing
I that defense counsel does note system light in this In case. for the breakdown four- and the Public Defender’s Office’s eleventh-hour entrance file, adjournment have neglect of an should Arthur’s teen-month prepare Giving counsel additional time to granted. defense been that Arthur price pay ensure would have been small a fair trial. received At the to him? did counsel do with the two weeks allotted
What discussing anyone hearing, case with he could not recall PCR attorneys prior Arthur. never consulted other than He crime on case. He did not visit the their work defendant’s about request assignment investigator from of an He did scene. or, more photograph the scene Public Defender’s Office have to take from witnesses who would importantly, statements Although provided Arthur his attor- Arthur’s supported defense. names, addresses, four telephone numbers of ney with *26 eyewitnesses ready verify who were under oath that Robert seller, Jackson was the actual he did not meet with one of those Similarly, witnesses before trial. subpoe- counsel never naed those presence witnesses to ensure their in court. He left it entirely up only to his client get statements from witnesses supporting his get defense but also to those witnesses to court. trial,
Before provided defense counsel prosecutor with a list containing the names of four present witnesses who were at the Ross, time of Crystal Jackson, Arthur’s arrest: Robert Danielle Tomlinson, and James Arthur.3 spoke Counsel with Jackson and James Arthur in only the courthouse after began, the trial only for a matter of minutes. Those four uncalled witnesses later provided affidavits, explaining day that on the of defendant’s arrest, purchased drugs Crittenden from not Arthur. affidavit,
In his Jackson swore that falsely “Michael Arthur was [sic], selling drugs accused of to Robin Crittendon I was the one that made the transaction gave with I Robin. her money.” In testimony, his PCR Jackson stated that on the opening day trial, of Arthur’s he first met defense counsel in the hallway of the they courthouse spoke where for one to two There, crime, minutes. he confessed to the but counsel took no signed Instead, statement. he allowed Jackson to be interviewed prosecutor’s alone detective prepared who then a short precisely It is unclear from the record when Arthur handed the list over to counsel. Arthur claims that he did so at the March 2000 conference. receiving Defense counsel did not recall the list until the trial date. Even if correct, however, counsel were potential Jackson’s name was identifiable as a year witness over a before supra, the trial. As discussed at Crittenden’s 1999 session, plea originally she drug identified Jackson as the seller. Defense counsel could have early learned about Jackson’s existence in simply by reading plea transcript. the co-defendant’s Counsel also indicated at hearing lay the PCR that "there police report," were three witnesses listed on the providing yet investigated another source he could have had he wanted to facts, light interview precise witnesses before Arthur's trial. In of those date on which important, counsel received the witness list becomes less and his meeting ineffectiveness for not with Jackson before Arthur's trial becomes self- evident. format, statement, signed. question which and answer Jackson statement, drug in the denied that the stash found In that Jackson Jackson, however, he never whether was his. asked bushes Crittenden, volunteer informa drugs to did not sold always was Jackson insisted that he tion to detective. drugs to Jackson to admit that he sold the Crittenden. prepared day “pulled of trial defense counsel on the second recalled *27 told take off.” [him] into the staircase and to [him] hearing, confirmed that Jackson defense counsel At PCR one had sold hallway in a interview that he was the who told him Crittenden, then had with drugs to Jackson a session Afterwards, prosecutor learned from the detective. counsel prosecutor The told going to be arrested.” that “Jackson was him, enough.” explained counsel feel have Defense “[w]e we hindsight unfairly or unfolding very ... “things were fast and going If fairly fair to” Jackson. Jackson was [he] wanted to be Arthur, “make that he should his neck for counsel felt stick out was getting what he into” before he knew was [Jackson] sure “cuffed.” counsel, obliged to
According to felt warn Jackson defense he who if he that he the one would arrest testified was that he face drugs to Counsel stated: sold Crittenden. going to I are out in the and out of fairness to Mr. Jackson said you I went hallway going were told me that you to adhere to what before you
be arrested. Are you arrested take are about to be better off because Otherwise, you the seller? you do____ call. I can’t tell what but it’s your you remarks, those Jackson fled the courthouse.5 Based on proffer present at Jackson’s Although counsel defense from that and did not review the State’s notes with the detective that he Crittenden, he Although [4] was the Jackson denied both owner of the stash steadfastly in the statement maintained drugs found to the that he had sold the by detective police. and in his affidavit drugs majority judicial that an notice inherent takes of “the improbability The think his defense counsel would such as attorney criminal experienced outweighed obligation to an warn client was potential his loyalty duty
meeting, Jackson, speaking detective, testified that with the ”6 “changed story. It understanding was counsel’s that Jack son, upon learning suspect, that he was a having denied committed course, the crime to the detective. Of had defense counsel looked notes, at the detective’s he would have learned that only Jackson denied possessing found in the bushes. jury got
The never to hear Jackson’s confession because defense get signed did not statement from Jackson or move to disqualify himself from the case so that testify he could Jackson’s Accordingly, confession. jury never piece heard the of evidence damaging most to the State’s case—that Jackson incriminated himself and cleared Arthur.
In addition to defense counsel had available three other witnesses to corroborate Crittenden’s that Arthur drugs. affidavit, did not sell the In an Danielle Tomlinson stated that “[i]n the summer of 1998 Michael gotten [Arthur] had locked up something he did not do. I know because I was outside and present on Shortly that date.” before Arthur’s arrest on West Street, Third Tomlinson “notice[d] female and Robert Jackson engaged in a conversation and some sort of exchange.” While *28 occurring, was Arthur was top seated on of a van eating food. He later was arrested.
Similarly, at the PCR hearing, Crystal Ross,
girl-
defendant’s
friend, confirmed that if called as a
trial,
witness at Arthur’s
she
defense witness that he could be arrested."
320,
Ante at
Because defense account, jury who would have corroborated Crittenden’s prosecutor’s in summation that Robert ponder left to assertion surprising- up.” “made Not Jackson was someone Crittenden had ly, Arthur was convicted.
II. case, guaranteed effective the accused is In criminal of the United of counsel the Sixth Amendment assistance 668, Washington, 466 685- Strickland v. U.S. States Constitution. (1984). 86, 2052, 2063, 674, 692 “The 104 S.Ct. 80 L.Ed.2d guarantee simply “is ensure that criminal purpose” at 104 S.Ct. at a fair trial.” Id. defendants receive at To make out case of ineffective assistance L.Ed.2d 694. counsel, comply two-part test. Id. a defendant must with *29 2064, The at 80 at defendant must show 104 S.Ct. L.Ed.2d 693. 342 attorney
first that his “made that [he] errors so serious was not functioning guaranteed as the ‘counsel’ the defendant the Sixth Amendment!,]” performance preju and second “that the deficient diced the defense.” Ibid.7 strong
There is “a
presumption that
conduct
counsel’s
falls
range
professional
within the wide
of reasonable
assistance” be
recognition
cause of the
that
ways
“[t]here are countless
provide
689,
in any given
effective assistance
at
ease.” Id.
104
2065,
at
“strategic
S.Ct.
80
at
In
regard,
L.Ed.2d
694-95.
thorough
choices made after
investigation of law and facts relevant
plausible options
virtually
690,
unchallengeable____”
are
Id. at
2066,
hand,
“Ineffectiveness is
clear in the context of complete
investigate
failure
hardly
because
can
said
be
to have
strategic
'made a
against pursuing
choice
a certain line of investi
gation
yet
when
has not
obtained the facts on which such a
s/he
decision
be
Gray,
could made.” United
v.
States
878 F.2d
(3d Cir.1989).
complete
For example,
investigate
“[t]he
failure to
potentially corroborating witnesses” cannot be attributed to trial
strategy.
(D.C.Cir.
Debango,
United
v.
States
780 F.2d
1986);
Allsbrook,
(4th
see also Hoots v.
785 F. 2d
Cir.1986) (“Neglect
eyewitnesses
even to interview available
ato
tactics.”).
simply
crime
cannot be ascribed to trial strategy deference,
To be entitled to
pursue
particular
decision not to
Fritz,
In State
we
v.
federal
to ineffective
adopted
assistance
approach
(1987).
42, 58,
counsel. 105 NJ.
343 reason, on not dereliction of investigation line must be based of duty. to overturn convictions for courts have not hesitated
Federal
strategic trial decisions
of
when so-called
ineffectiveness
counsel
inadequate
pretrial
investigation or
or deficient
were based on
Smith,
510, 536, 538,
See, e.g., Wiggins v.
539 U.S.
preparation.
(2003)
494,
2543, 2544,
471,
2527,
156
495
123
L.Ed.2d
S.Ct.
refusing
petition and
to defer to
(reversing
denial
habeas
position
in a
to
attorneys’
“counsel were not
decisions because
investiga
strategic
without reasonable
make a reasonable
choice”
362,
396,
1495,
367,
tion);
Taylor,
120 S.Ct.
v.
529 U.S.
Williams
419,
(2000)
1514,
389, 402,
1499,
1515,
(reversing
420
146 L.Ed.2d
finding
thorough
that failure to conduct
denial of habeas
witnesses,
helpful evidence
and introduce
investigation, contact
assistance);
Hampton
ex
States
rel.
constituted ineffective
United
(7th Cir.2003)
Leibach,
251-53, 255,
(affirming
219,
260
v.
F.3d
347
grounds because counsel
grant
on ineffective assistance
of habeas
unreasonably
failing
contact witnesses
objectively
acted
failing
effort to
provided, and
make
names defendant
whose
Wood,
1083, 1093,
F.3d
eyewitnesses); Lord v.
184
locate other
Cir.1999)
(9th
more than
(holding that failure to conduct
1095
witnesses,
potential
call
“cursory investigation” of three
stand,
performance” by
deficient
“constitute[s]
them to
Lord,
defendant),
v.
sub nom. Lambert
prejudicing
cert. denied
(2000);
v.
S.Ct.
A with similarities case (3d Cir.1989). case, F.2d In that Gray, supra, v. States possession firearm conviction of a the Third Circuit overturned inadequate pretrial investigation because counsel’s violated right defendant’s Sixth Amendment the assistance counsel. Gray, supra, police Id. at 714. In found the defendant in possession gun of a and bullets outside a Id. The bar. at 704-05. gun pocket, defendant admitted that he had the and bullets in his but weapon claimed that he had taken the and ammunition from a person fighting police with whom he had been moments before the *31 704-05, Although arrived on the scene. Id. at 706-07. account, defendant and his to brother testified there were story. other available to witnesses corroborate the at Id. 706-08. post-trial hearing, At a defense counsel admitted that he relied potential on the defendant to find Id. at witnesses. 708-09. The scene, attorney attempt did not visit the to potential locate wit- own, nesses on his or investigator hire an search and subpoena interview witnesses. Id. at Nor he 709. did witnesses expected to trial. Ibid. Defense counsel two favorable witnesses “ appear trial, day they at on but ‘the of the trial weren’t ” forward, Accordingly, there.’ Ibid. the trial went and the jury defendant was convicted unaware a number of 704, possessed exculpatory witnesses Id. information. 712-13. representation The Third Circuit held that counsel’s defendant was ineffective. Id. at 714. The court noted that the witnesses, defendant’s “counsel had the names of at least four including issue], yet who had witnessed the [one] [at altercation any made no effort to contact of these known witnesses.” Id. at Moreover, 712. the court held that the defendant’s “reluctance to subpoena ... indepen- witnesses did not absolve of his [counsel] professional responsibility dent investigate what information potential possessed, these witnesses even if he later decided not to put on them the stand.” strategic Ibid. “Counsel offered no justification for any investigate his failure to make effort to case, and indeed he could have offered no such rationale.” Id. at Ultimately, 711. the Third Circuit held that “counsel’s behavior colorably was not merely based on tactical upon considerations but should be diligence,” and that defendant lack of determined 712, 714. trial. Id. at granted new occasion, has found inade the Third Circuit another recent On entitling representation, constitute ineffective quate preparation to Hendricks, 307 v. to federal relief. See Marshall the defendant (3d Cir.2002) rejec 36, (overturning district court’s F.3d attorney to contact “fail[ed] claim where defense tion of Strickland willing provide relevant prepared and who were witnesses unreasonably “as opinion and state court’s mitigating evidence” de investigated”), cert. prepared had that counsel sume[d] (2003); 1492, 155 nied, 911, 123 see also L.Ed.2d 234 S.Ct. U.S. (D.N.J. Hendricks, F.Supp.2d 443-44 v. Marshall 2004) that counsel’s “failure (noting in case on remand same apparent pletho investigate particularly troubling given the [was] available[,]” hold mitigation potentially witnesses ra of useful warranted). grant was ing that habeas made clear the decisions light principles, of those it should be In nor reasonable in this case were neither by defense counsel strategic.
III. trial, purported to for counsel’s prepare of his failure Because witnesses, corroborating includ “strategic to call four choice” not crime, its of was robbed had confessed to ing one who Chew, 179 N.J. competence.” State v. “presumption of omitted). (2004) (internal quotations A.2d 487 844 clear when measured ineffectiveness becomes Defense counsel’s attorney minimally competent criminal defense against what First, attor such an like done under circumstances. would have and obtained before trial ney would have met with his witnesses Sanders, supra, 21 at F.3d See signed written statements.8 to majority counsel's failure did not raise defense contends that Arthur The of assistance an element of his ineffective a statement from Jackson as take (finding any ineffective where do assistance counsel “failed to what competent lawyer directly would do when witness indicates or he, client, indirectly lawyer’s guilty. that and not the is He did attempt confirming to obtain a confessor] statement from [the guilt.”). oversight particularly his of admission That was critical Jackson, respect committing with to who confessed to the crime predictably might who thoughts have had second when con penal templating consequences. Had defense counsel taken signed statement from his could confession have been 803(a)(1)(A) regardless admitted into evidence N.J.R.E. under whether Jackson later it disavowed on the stand. Jackson’s confession also would have been admissible under N.J.R.E. 803(c)(25) against interest, aas statement even if Jackson had not as a against penal been called witness. Statements interest “are inherently trustworthy deemed and reliable” because individuals and, therefore, 326-27, ignored counsel claim it be should now. Ante at brief, however, sufficiently A.2d at 1195. Arthur’s PCR touches the issue to bring it this before Court. His brief submitted to PCR court contains following passage: [¡immediately prior trial to the defendant on his own contacted the wit- Among nesses and made them available to counsel. the witnesses was Robert Jackson who that he admits "served” Robin Crittenden the possession. were present found in her Mr. Jackson was in court days waiting testify request for two at No defendant. statement prior showing up was taken this witness nor was interviewed from day court on the trial. added).] (Emphasis [ proceeds argue The brief then was counsel's assistance ineffective Strickland, supra. under Furthermore, delegating responsibility defense counsel’s client his taking hearing. witness statements discussed at the PCR The State knew investigate prepare that defense counsel’s overall failure to for trial was disadvantaged by addressing the heart of PCR claim and is not this Court’s However, sub-issue, precise the obvious. if even Arthur had not raised this we required put appellate would not be on blinders. Defense counsel’s ineffective generally inadequate preparation particular unques- assistance —and —are tionably plain before this We are Court. also entitled to “notice error not *33 brought appellate to the attention the trial of or court.” R. 2:10-2. This court ignore manifestly acceptable should not counsel’s conduct that fell below stan- performance dards of and that denied Arthur fair trial.
347 subject to that will them to ordinarily or admit facts will assert White, v. they true. 158 prosecution unless are State a criminal (1999). 230, 238, should have A2.d 31 Defense counsel N.J. 729 recording confession importance of Jackson’s realized the he cold got event that feet.
Second, that a third prudence suggest common sense and attorney a statement present when an takes person should be might who have admitting to a crime and from a witness who is story Dayton, Appel In v. change his later. State reason to why as to defense counsel “express[ed its] concern late Division alleged [key offense without an] interview witnesses would (other party than investigator of or some third presence an defendant) exculpatory testify as to infor who could called be A.2d they conveyed.” N.J.Super. 299 mation counsel reduced Jackson’s confes (App.Div.1996). Had defense person, it have presence of a third would writing sion to flight Jackson’s could through person, and been admissible justice. fleeing the arm of explained have as the act of man been measures, yet had any counsel Having of those failed take salvage stepping down opportunity his client’s another ease — possessed He the most making defense witness.9 himself a client, of his Jackson’s confession. powerful in defense evidence important to the success vitally had counsel information Because necessary himself a made of his client’s case and because present person when having impartial of not an as result witness confessed, as counsel. See have withdrawn he should Jackson 299; see also RPC Dayton, supra, N.J.Super. 678 A.2d recognized attorneys have Both and state courts 3.7. federal to defense counsel from fact, was available apart In there another option removing case. could have taking himself from the He the extreme step Arthur. James Arthur brother, defendant's James presented involving drug Crittenden and to Jackson's transaction a witness to both flight course, Arthur would the courthouse. Of James later confession and from reason, testifying For that for brother and for have been ripe impeachment. would have been step only better option, perhaps option, a witness. down and become *34 348 duty testimony to step
have
down as counsel when their
becomes
See,
Kliti,
e.g.,
critical to a
case.
v.
client’s
United States
156 F.3d
(2d Cir.1998) (“When
150,
attorney
156
faced with an
as a sworn
witness,
or
proper
disqualify
unsworn
recourse is to
Vereen,
attorney, not to
testimony.”);
exclude the
United
v.
States
713,
(D.C.Cir.1970) (holding
429 F.2d
715
that where defendant
impeach
testimony
could
only through
victim’s harmful statements
counsel,
of
manifestly
defendant’s trial
counsel’s withdrawal “was
Blake,
99,
232,
appropriate”);
v.
State
157 Conn.
249 A.2d
234
(1968) (reversing
permit
conviction where trial court
to
refused
attorney,
behalf,
testify
defendant’s
who wished to
on defendant’s
case);
State,
379,
to
Gradsky
withdraw from
v.
243 Miss.
137
820,
(1962) (“[R]efusal
So.2d
822
permit
right
to
defendant the
to
attorney
introduce his
as a witness when he had vital
evidence
error.”);
Tillman,
favor of the
People
defendant was reversible
v.
886,
(1992)
197,
179 A.D.2d
579
(holding
N.Y.S.2d
198
that coun
question
prior
sel’s failure to
witness about
admission that defen
error,
that,
dant
drugs
prejudicial
never sold him
noting
and
if
acknowledge
witness had refused
jury,
admission before
sought
“defense counsel could
... disqualification
have
and ...
him”).
concerning
testified
the statement made to
prejudice resulting
The
from the lack
investigation
of
by
preparation
attorneys, including
Arthur’s
the Public Defender’s
Office,
statement,
is
Had
given
obvious.
Jackson testified or
jury would have learned about his confession that cleared Arthur
selling drugs
A
exculpatory
Crittenden.10
confession that is
majority
The
"a
characterizes
Jackson as
skittish
witness" and
potential
rejects
signed
that he would have
a written confession on
possibility
Arthur’s
behalf had defense
327,
counsel made
Ante at
877 A.2d at
request.
1195.
majority
suggests
The
likewise
that Jackson would not have testified favorably
argument
for defendant had he
been called to
stand
trial. That
flies in the
gave
face of
we
what
know did occur. Jackson
a sworn statement in the form of
admitting
an affidavit
that he
sold
Crittenden
stood
hearing,
subjecting
confession in his
at the PCR
himself to a
thereby
perjury
give
willing
Jackson was
possible
If
statements
prosecution.
under
accepting
knowing
oath
Crittenden,
for the
sale
culpability
evidently
penal
fair
importance to
defendant’s
is of such
a defendant
towards
been held a denial
improper
its
exclusion has
rights that
trial
Jamison,
378,
IV. his counsel’s trial, harvest of reaped Arthur the bitter At availability of four witnesses Despite the inadequate preparation. case, judge jury left to defense counsel the Arthur’s to buttress drug police and a credibility convicted user contest between jury hardly that believed surprising It is detective. testimony. uncorroborated version over Crittenden’s detective’s virtually investigation. spoke He no conducted Defense counsel possible exception of no the trial date with with witness before key He subpoena exculpatory witnesses. He not did Crittenden. risks, speculate majority would have he not reason I see no for similarly called the stand. at trial had he been testified defendant's original majority speculates courthouse confession that Jackson's The further pressure might product James of exerted have been the to defense counsel simply is a shred evidence at There not 877 A.2d 1195. Arthur. Ante supposition. support the record to witnesses, producing made Arthur shoulder the burden of includ- ing favorably who faced incarceration if he testified for Then, courthouse, the defense. at the defense counsel did not sign have Jackson a written confession or ensure that Jackson’s presence person. admissions were made of a third Nor did step down testify as counsel so that he could Jackson’s exonerating statements his client. least, say highly
To it is unusual that three individuals would willing only be to come forward and offer exonerat- defendant, ing a implicating person but also another neigh- in the borhood. It is still more person implicated unusual that the would actually guilt wrongfully admit his charged clear defendant. credibility Those circumstances lend to Arthur’s claim that excul- patory witnesses jury. vital his defense were from withheld distorting hindsight
Not even the effect can transform de- many fense counsel’s strategic serious omissions into reasonable only plausible explanation decisions. The keeping counsel’s jury from the four witnesses who would have corroborated Crit- *36 grossly tenden’s inadequate preparation. was It is not enough experienced just even up counsel to show for trial and on A fly. make decisions minimum of investiga- amount tion preparation required. and is
Counsel’s defaults
amounted
“errors so serious that
[he]
functioning
guaranteed
not
as the
‘counsel’
the defendant
Strickland,
687,
Sixth Amendment.”
supra,
Justices PORITZ, Justices LaVECCHIA Justice For affirmance—Chief (Va) RIVERA-SOTO, Judge SKILLMAN —4. ZAZZALI, ALBIN and WALLACE—3. For reversal—Justices A.2d JERSEY, PLAINTIFF-RESPONDENT, OF NEW STATE HRYCAK, v. DEFENDANT-APPELLANT. OLGA July May Argued 2005. 2005 Decided