State v. Arthur , 184 N.J. 307 ( 2005 )

Justice ALBIN,

dissenting.

The most seasoned trial attorney cannot do justice to his client’s cause if he does not prepare for trial. If he fails to conduct an investigation, or interview and take statements from critical witnesses, or get those witnesses on the stand, then the attorney’s courtroom performance, however skillfully displayed, is but an illusion of adequate representation. Courtroom tactical decisions made by an attorney who has not engaged in minimal trial preparation often are distorted, rushed, wrongheaded — and at the expense of the client.

Defendant Michael Arthur likely sits in prison convicted of drug distribution charges, not because of the strength of the State’s case against him, but rather because of the ineffectiveness of his State-appointed attorneys. Arthur pled not guilty to the indictment, which alleged that he had distributed drugs on June 23, 1998. He had a formidable wrongful identification defense, but the jury never heard from the witnesses who would have corroborated that defense due to his attorneys’ failure to conduct an investigation or prepare for trial. The Public Defender’s Office and pool counsel had represented Arthur for fifteen months, and yet Arthur did not meet his assigned attorney until the pretrial conference, just two weeks before trial. Although he supplied his attorney with the names of four witnesses to support that defense, his attorney did not interview a single one before trial. His attorney did not subpoena key exculpatory witnesses for trial. Moreover, when his attorney met in the courthouse with the person who admitted to having committed the crime — the person who came to testify to Arthur’s innocence — the attorney took no statement from him, did not call him as a witness, and allowed him to leave. As a result of his defective trial preparation, the attorney called only one witness to challenge the credibility of the State’s case.

Arthur did not have the financial means to retain his own attorney. He had to rely on the State to appoint competent counsel for him. The State provided him with an attorney who, however experienced, failed to take the most basic preparatory steps to assure his client a fair trial. Because I cannot agree with the majority that Arthur received the effective assistance of counsel guaranteed to him by our federal and state constitutions, I must dissent.

I.

The trial in this case was reduced to a credibility contest between two witnesses. Detective Andre Crawford testified that on June 23, 1998, while conducting surveillance at 969 West 3rd Street in Plainfield where a group of people had congregated, he observed Michael Arthur place “some items” behind bushes. Later, Arthur retrieved an “item” from the bushes and engaged in a hand-to-hand transaction with Robin Crittenden. Believing that he had witnessed a drug sale, Detective Crawford called in backup police officers, who arrested both Arthur and Crittenden at the scene. When the police approached Crittenden, she dropped a vial of drugs. The police then found approximately forty-five additional vials in the bushes.

Arthur presented the defense of mistaken identification through Robin Crittenden, his sole witness. Crittenden testified that she was the one Detective Crawford observed purchasing drugs, but that Robert Jackson, not Arthur, was the actual seller. She added that Jackson lived at 969 West 3rd Street and that the sale occurred in Jackson’s yard. After she was taken into custody, Crittenden told the police officers that they had mistakenly arrested Arthur. She explained to the officers at the stationhouse that Arthur “didn’t serve [her], that this other guy had served [her],” but the officers “didn’t want to hear that.” Although Crittenden “kept telling them” that Arthur was the wrong man, they humored her, saying, “ ‘yeah, right.’ ” One of the arresting officers, Detective Jeffrey Carrier, testified that although he did not recall Crittenden making a statement exculpating Arthur, he would “not really” have been interested even had she made it.

At the time Crittenden pled guilty to possession of a controlled dangerous substance pursuant to a plea agreement with the State, she initially named Jackson on the record as the drug dealer. However, the prosecutor refused to accept that account as a factual basis for the plea. The prosecutor threatened to withdraw a favorable sentence recommendation unless Crittenden gave the version that the State believed to be true — that Arthur sold her the drugs. The court then called a recess. Because she was facing a five-year prison term with a three-year parole disqualifier, Crittenden stated that she “had to tell them [that the seller] was Michael Arthur.” She, therefore, falsely implicated Arthur to get the deal.¹

During Arthur’s trial, the prosecutor effectively impeached Crittenden with both her plea statement incriminating Arthur and her criminal record. The jury rejected Crittenden’s testimony, accepted that of Detective Crawford, and convicted Arthur of a number of drug offenses, including second-degree distribution of cocaine within 500 feet of a public park in violation of N.J.S.A. 2C:35-7.1. Arthur filed a post-conviction relief (PCR) petition, claiming that his attorneys denied him his federal and state constitutional rights to the effective assistance of counsel by failing to call to the stand witnesses who were available to support his defense.

The PCR record reveals that sometime around January 1999, the Public Defender’s Office first undertook the representation of Arthur. Over the course of the next fourteen months, little, if anything, was done to prepare the case for trial. The Assistant Deputy Public Defender assigned to the case did not interview or take statements from witnesses, visit the scene of the drug sale, take photographs, or arrange for an investigator to work up the case.² Although the name “Robert Jackson” was known as early as January 1999, when Crittenden implicated Jackson as the seller in her plea colloquy, that lead went unexplored.

Approximately one month before trial, the Public Defender’s Office transferred Arthur’s case to a pool attorney. The file given to counsel did not contain any defense investigative reports, statements of witnesses, or photographs. Defense counsel first met his client at the pretrial conference on March 20, 2000. The pretrial conference, ordinarily, is the point of no return before trial — not the time for an attorney to make his initial acquaintance with his client. Rule 3:9 — 1(e) requires the court to conduct a pretrial conference and “determine[ ] that discovery is complete; that all motions have been decided or scheduled ... and that all reasonable efforts to dispose of the case without trial have been made____” On that date, the defense attorney, typically, would be required to give the State a witness list. Because of counsel’s late arrival to the case, the court gave him a week to present that list. The court, however, ordered that the trial proceed in just two weeks — on April 3 — and denied defense counsel’s request for an adjournment.

I note in passing that defense counsel does not bear sole blame for the breakdown of the system in this case. In light of his eleventh-hour entrance and the Public Defender’s Office’s fourteen-month neglect of Arthur’s file, an adjournment should have been granted. Giving defense counsel additional time to prepare would have been a small price to pay to ensure that Arthur received a fair trial.

What did counsel do with the two weeks allotted to him? At the PCR hearing, he could not recall discussing the case with anyone other than Arthur. He never consulted prior defense attorneys about their work on defendant’s case. He did not visit the crime scene. He did not request the assignment of an investigator from the Public Defender’s Office to photograph the scene or, more importantly, to take statements from witnesses who would have supported Arthur’s defense. Although Arthur provided his attorney with the names, addresses, and telephone numbers of four eyewitnesses who were ready to verify under oath that Robert Jackson was the actual seller, he did not meet with one of those witnesses before trial. Similarly, defense counsel never subpoenaed those witnesses to ensure their presence in court. He left it entirely up to his client not only to get statements from witnesses supporting his defense but also to get those witnesses to court.

Before trial, defense counsel provided the prosecutor with a list containing the names of four witnesses who were present at the time of Arthur’s arrest: Crystal Ross, Robert Jackson, Danielle Tomlinson, and James Arthur.³ Counsel spoke with Jackson and James Arthur in the courthouse only after the trial began, and only for a matter of minutes. Those four uncalled witnesses later provided affidavits, explaining that on the day of defendant’s arrest, Crittenden purchased drugs from Jackson, not Arthur.

In his affidavit, Jackson swore that “Michael Arthur was falsely accused of selling drugs to Robin Crittendon [sic], I was the one that made the transaction with Robin. I gave her drugs for money.” In his PCR testimony, Jackson stated that on the opening day of Arthur’s trial, he first met defense counsel in the hallway of the courthouse where they spoke for one to two minutes. There, he confessed to the crime, but counsel took no signed statement. Instead, he allowed Jackson to be interviewed alone by a prosecutor’s detective who then prepared a short statement, in question and answer format, which Jackson signed. In that statement, Jackson denied that the drug stash found in the bushes was his. Jackson, however, was never asked whether he sold drugs to Crittenden, and he did not volunteer that information to the detective.⁴ Jackson insisted that he always was prepared to admit that he sold the drugs to Crittenden. Jackson recalled that on the second day of trial defense counsel “pulled [him] into the staircase and told [him] to take off.”

At the PCR hearing, defense counsel confirmed that Jackson told him in a hallway interview that he was the one who had sold the drugs to Crittenden, and that Jackson then had a session with the detective. Afterwards, counsel learned from the prosecutor that “Jackson was going to be arrested.” The prosecutor told him, “[w]e feel we have enough.” Defense counsel explained that “things were unfolding very ... fast and in hindsight unfairly or fairly [he] wanted to be fair to” Jackson. If Jackson was going to stick his neck out for Arthur, counsel felt that he should “make sure [Jackson] knew what he was getting into” before he was “cuffed.”

According to defense counsel, he felt obliged to warn Jackson that he would face arrest if he testified that he was the one who sold drugs to Crittenden. Counsel stated:

I went out in the hallway and out of fairness to Mr. Jackson I said you are going to be arrested. Are you going to adhere to what you told me before that you were the seller? Otherwise, you better take off because you are about to be arrested but it’s your call. I can’t tell you what to do____

Based on those remarks, Jackson fled the courthouse.⁵

Although defense counsel was not present at Jackson’s proffer with the detective and did not review the State’s notes from that meeting, he testified that Jackson, in speaking with the detective, “changed his story.”⁶ It was counsel’s understanding that Jackson, upon learning that he was a suspect, denied having committed the crime to the detective. Of course, had defense counsel looked at the detective’s notes, he would have learned that Jackson only denied possessing the drugs found in the bushes.

The jury never got to hear Jackson’s confession because defense counsel did not get a signed statement from Jackson or move to disqualify himself from the case so that he could testify to Jackson’s confession. Accordingly, the jury never heard the piece of evidence most damaging to the State’s case — that Jackson incriminated himself and cleared Arthur.

In addition to Jackson, defense counsel had available three other witnesses to corroborate Crittenden’s testimony that Arthur did not sell the drugs. In an affidavit, Danielle Tomlinson stated that “[i]n the summer of 1998 Michael [Arthur] had gotten locked up for something he did not do. I know because I was outside and present on that date.” Shortly before Arthur’s arrest on West Third Street, Tomlinson “notice[d] a female and Robert Jackson engaged in a conversation and some sort of exchange.” While that was occurring, Arthur was seated on top of a van eating food. He later was arrested.

Similarly, at the PCR hearing, Crystal Ross, defendant’s girlfriend, confirmed that if called as a witness at Arthur’s trial, she would have testified to the information that she provided in her affidavit. Ross stated in her affidavit that she saw Crittenden “walk up to Robert Jackson who was next to” Arthur. At that point, “[Crittenden] and [Jackson] began to exchange something by hand.” Immediately following that transaction, the “nares jumped out and grabbed Michael [Arthur] and Robin [Crittenden].” While “Robert [Jackson] walked off to the corner store,” Ross witnessed Crittenden “crying and yelling, ‘why are you[] locking [Arthur] up, he didn’t give me anything.’ ” Ross was “100% sure that it was Robert Jackson who made the transaction.”

James Arthur, defendant’s brother, also testified at the PCR hearing. He recalled telling defense counsel in the courthouse that he had witnessed Jackson making the drug sale to Crittenden. James also witnessed Jackson’s hallway confession to his brother’s attorney. However, defense counsel chose not to put James Arthur on the stand in his brother’s trial. Jackson, Tomlinson, Ross, and James Arthur were witnesses whose names were known by counsel and who would have corroborated the account of the sole defense witness — Robin Crittenden.

Because defense counsel did not call any of the four witnesses who would have corroborated Crittenden’s account, the jury was left to ponder the prosecutor’s assertion in summation that Robert Jackson was someone Crittenden had “made up.” Not surprisingly, Arthur was convicted.

II.

In a criminal case, the accused is guaranteed the effective assistance of counsel by the Sixth Amendment of the United States Constitution. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). “The purpose” of that guarantee “is simply to ensure that criminal defendants receive a fair trial.” Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. To make out a case of ineffective assistance of counsel, a defendant must comply with a two-part test. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The defendant must show first that his attorney “made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment!,]” and second “that the deficient performance prejudiced the defense.” Ibid.⁷

There is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” because of the recognition that “[t]here are countless ways to provide effective assistance in any given ease.” Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95. In that regard, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable____” Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. On the other hand, “strategic choices made after less than complete investigation” are not entitled to the same degree of deference. Id. at 690-691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” id. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, and the “failure to do so will render the lawyer’s performance deficient,” State v. Savage, 120 N.J. 594, 618, 577 A.2d 455 (1990).

“Ineffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have 'made a strategic choice against pursuing a certain line of investigation when s/he has not yet obtained the facts on which such a decision could be made.” United States v. Gray, 878 F.2d 702, 711 (3d Cir.1989). For example, “[t]he complete failure to investigate potentially corroborating witnesses” cannot be attributed to trial strategy. United States v. Debango, 780 F.2d 81, 85 (D.C.Cir. 1986); see also Hoots v. Allsbrook, 785 F. 2d 1214, 1220 (4th Cir.1986) (“Neglect even to interview available eyewitnesses to a crime simply cannot be ascribed to trial strategy and tactics.”). To be entitled to deference, a decision not to pursue a particular line of investigation must be based on reason, not dereliction of duty.

Federal courts have not hesitated to overturn convictions for ineffectiveness of counsel when so-called strategic trial decisions were based on inadequate or deficient pretrial investigation or preparation. See, e.g., Wiggins v. Smith, 539 U.S. 510, 536, 538, 123 S.Ct. 2527, 2543, 2544, 156 L.Ed.2d 471, 494, 495 (2003) (reversing denial of habeas petition and refusing to defer to attorneys’ decisions because “counsel were not in a position to make a reasonable strategic choice” without reasonable investigation); Williams v. Taylor, 529 U.S. 362, 367, 396, 120 S.Ct. 1495, 1499, 1514, 1515, 146 L.Ed.2d 389, 402, 419, 420 (2000) (reversing denial of habeas and finding that failure to conduct a thorough investigation, contact witnesses, and introduce helpful evidence constituted ineffective assistance); United States ex rel. Hampton v. Leibach, 347 F.3d 219, 251-53, 255, 260 (7th Cir.2003) (affirming grant of habeas on ineffective assistance grounds because counsel acted objectively unreasonably in failing to contact witnesses whose names defendant provided, and in failing to make effort to locate other eyewitnesses); Lord v. Wood, 184 F.3d 1083, 1093, 1095 (9th Cir.1999) (holding that failure to conduct more than “cursory investigation” of three potential witnesses, and to call them to stand, “constitute[s] deficient performance” by counsel prejudicing defendant), cert. denied sub nom. Lambert v. Lord, 528 U.S. 1198, 120 S.Ct. 1262, 146 L.Ed.2d 118 (2000); Sanders v. Ratelle, 21 F.3d 1446, 1455-57 (9th Cir.1994) (holding that representation was ineffective because counsel “failed to conduct even the minimal investigation that would have enabled him to come to an informed decision about ... whether to call” confessing witness, “did not attempt to obtain a statement from” the witness, and then “directed [the witness] to leave the courthouse as quickly as possible”).

A case with striking similarities to the present one is United States v. Gray, supra, 878 F.2d 702 (3d Cir.1989). In that case, the Third Circuit overturned a possession of a firearm conviction because counsel’s inadequate pretrial investigation violated the defendant’s Sixth Amendment right to the assistance of counsel. Id. at 714. In Gray, supra, the police found the defendant in possession of a gun and bullets outside a bar. Id. at 704-05. The defendant admitted that he had the gun and bullets in his pocket, but claimed that he had taken the weapon and ammunition from a person with whom he had been fighting moments before the police arrived on the scene. Id. at 704-05, 706-07. Although the defendant and his brother testified to that account, there were other available witnesses to corroborate the story. Id. at 706-08.

At a post-trial hearing, defense counsel admitted that he relied on the defendant to find potential witnesses. Id. at 708-09. The attorney did not visit the scene, attempt to locate potential witnesses on his own, or hire an investigator to search for and interview witnesses. Id. at 709. Nor did he subpoena witnesses to trial. Ibid. Defense counsel expected two favorable witnesses to appear at trial, but on “ ‘the day of the trial they weren’t there.’ ” Ibid. Accordingly, the trial went forward, and the defendant was convicted by a jury unaware that a number of witnesses possessed exculpatory information. Id. at 704, 712-13.

The Third Circuit held that counsel’s representation of the defendant was ineffective. Id. at 714. The court noted that the defendant’s “counsel had the names of at least four witnesses, including [one] who had witnessed the altercation [at issue], yet he made no effort to contact any of these known witnesses.” Id. at 712. Moreover, the court held that the defendant’s “reluctance to subpoena witnesses ... did not absolve [counsel] of his independent professional responsibility to investigate what information these potential witnesses possessed, even if he later decided not to put them on the stand.” Ibid. “Counsel offered no strategic justification for his failure to make any effort to investigate the case, and indeed he could have offered no such rationale.” Id. at 711. Ultimately, the Third Circuit held that “counsel’s behavior was not colorably based on tactical considerations but merely upon a lack of diligence,” and determined that defendant should be granted a new trial. Id. at 712, 714.

On another recent occasion, the Third Circuit has found inadequate preparation to constitute ineffective representation, entitling the defendant to federal relief. See Marshall v. Hendricks, 307 F.3d 36, 102, 109 (3d Cir.2002) (overturning district court’s rejection of Strickland claim where defense attorney “fail[ed] to contact witnesses who were prepared and willing to provide relevant mitigating evidence” and state court’s opinion unreasonably “assume[d] that counsel had prepared and investigated”), cert. denied, 538 U.S. 911, 123 S.Ct. 1492, 155 L.Ed.2d 234 (2003); see also Marshall v. Hendricks, 313 F.Supp.2d 423, 428, 443-44 (D.N.J. 2004) (noting in same case on remand that counsel’s “failure to investigate [was] particularly troubling given the apparent plethora of potentially useful mitigation witnesses available[,]” and holding that habeas grant was warranted).

In light of those principles, it should be clear the decisions made by defense counsel in this case were neither reasonable nor strategic.

III.

Because of his failure to prepare for trial, counsel’s purported “strategic choice” not to call four corroborating witnesses, including one who had confessed to the crime, was robbed of its “presumption of competence.” State v. Chew, 179 N.J. 186, 218, 844 A.2d 487 (2004) (internal quotations omitted).

Defense counsel’s ineffectiveness becomes clear when measured against what a minimally competent criminal defense attorney would have done under like circumstances. First, such an attorney would have met with his witnesses before trial and obtained signed written statements.⁸ See Sanders, supra, 21 F.3d at 1457 (finding ineffective assistance where counsel “failed to do what any competent lawyer would do when a witness indicates directly or indirectly that he, and not the lawyer’s client, is guilty. He did not attempt to obtain a statement from [the confessor] confirming his admission of guilt.”). That oversight was particularly critical with respect to Jackson, who confessed to committing the crime and who predictably might have had second thoughts when contemplating the penal consequences. Had defense counsel taken a signed statement from Jackson, his confession could have been admitted into evidence under N.J.R.E. 803(a)(1)(A) regardless of whether Jackson later disavowed it on the stand. Jackson’s confession also would have been admissible under N.J.R.E. 803(c)(25) as a statement against interest, even if Jackson had not been called as a witness. Statements against penal interest “are deemed inherently trustworthy and reliable” because individuals ordinarily will not assert or admit to facts that will subject them to a criminal prosecution unless they are true. State v. White, 158 N.J. 230, 238, 729 A2.d 31 (1999). Defense counsel should have realized the importance of recording Jackson’s confession in the event that he got cold feet.

Second, prudence and common sense suggest that a third person should be present when an attorney takes a statement from a witness who is admitting to a crime and who might have reason to change his story later. In State v. Dayton, the Appellate Division “express[ed its] concern as to why defense counsel would interview [key witnesses to an] alleged offense without the presence of an investigator or some third party (other than defendant) who could be called to testify as to exculpatory information they conveyed.” 292 N.J.Super. 76, 86, 678 A.2d 299 (App.Div.1996). Had defense counsel reduced Jackson’s confession to writing in the presence of a third person, it would have been admissible through that person, and Jackson’s flight could have been explained as the act of a man fleeing the arm of justice.

Having failed to take any of those measures, counsel had yet another opportunity to salvage his client’s ease — by stepping down and making himself a defense witness.⁹ He possessed the most powerful evidence in defense of his client, Jackson’s confession. Because counsel had information vitally important to the success of his client’s case and because he made himself a necessary witness as a result of not having an impartial person present when Jackson confessed, he should have withdrawn as counsel. See Dayton, supra, 292 N.J.Super. at 86, 678 A.2d 299; see also RPC 3.7. Both federal and state courts have recognized that attorneys have a duty to step down as counsel when their testimony becomes critical to a client’s case. See, e.g., United States v. Kliti, 156 F.3d 150, 156 (2d Cir.1998) (“When faced with an attorney as a sworn or unsworn witness, the proper recourse is to disqualify the attorney, not to exclude the testimony.”); United States v. Vereen, 429 F.2d 713, 715 (D.C.Cir.1970) (holding that where defendant could impeach victim’s harmful statements only through testimony of defendant’s trial counsel, counsel’s withdrawal “was manifestly appropriate”); State v. Blake, 157 Conn. 99, 249 A.2d 232, 234 (1968) (reversing conviction where trial court refused to permit defendant’s attorney, who wished to testify on defendant’s behalf, to withdraw from case); Gradsky v. State, 243 Miss. 379, 137 So.2d 820, 822 (1962) (“[R]efusal to permit defendant the right to introduce his attorney as a witness when he had vital evidence in favor of the defendant was reversible error.”); People v. Tillman, 179 A.D.2d 886, 579 N.Y.S.2d 197, 198 (1992) (holding that counsel’s failure to question witness about prior admission that defendant never sold him drugs was prejudicial error, and noting that, if witness had refused to acknowledge admission before jury, “defense counsel could have sought ... disqualification and ... testified concerning the statement made to him”).

The prejudice resulting from the lack of investigation and preparation by Arthur’s attorneys, including the Public Defender’s Office, is obvious. Had Jackson testified or given a statement, the jury would have learned about his confession that cleared Arthur of selling drugs to Crittenden.¹⁰ A confession that is exculpatory towards a defendant is of such importance to a defendant’s fair trial rights that its improper exclusion has been held a denial of due process. State v. Jamison, 64 N.J. 363, 378, 316 A.2d 439 (1974) (citing Chambers v. Mississippi 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). In Jamison, supra, we expounded on the significance of a witness’s confession exculpating a defendant and of the overarching need to place that evidence before the jury, even if it cannot be done through live testimony. Id. at 374, 316 A.2d 439. We recognized that although a confession read to a jury lacks the dramatic force of an in-person admission of guilt, it nevertheless would be essential to drive home that another person “had once admitted ... that he, not defendant, had” committed the crime. Ibid. It is difficult to understand why this basic principle was lost on defense counsel. The most likely explanation is that, due to his own lack of preparation, the compressed time in which he had to make decisions caused him to make grievous errors. In the end, the jury was deprived of highly probative evidence that exonerated Arthur.

IV.

At trial, Arthur reaped the bitter harvest of his counsel’s inadequate preparation. Despite the availability of four witnesses to buttress Arthur’s case, defense counsel left the jury to judge a credibility contest between a convicted drug user and a police detective. It is hardly surprising that the jury believed the detective’s version over Crittenden’s uncorroborated testimony. Defense counsel conducted virtually no investigation. He spoke with no witness before the trial date with the possible exception of Crittenden. He did not subpoena key exculpatory witnesses. He made Arthur shoulder the burden of producing witnesses, including Jackson, who faced incarceration if he testified favorably for the defense. Then, at the courthouse, defense counsel did not have Jackson sign a written confession or ensure that Jackson’s admissions were made in the presence of a third person. Nor did he step down as counsel so that he could testify to Jackson’s statements exonerating his client.

To say the least, it is highly unusual that three individuals would be willing to come forward and offer testimony not only exonerating a defendant, but also implicating another person in the neighborhood. It is still more unusual that the person implicated would actually admit his guilt to clear a wrongfully charged defendant. Those circumstances lend credibility to Arthur’s claim that exculpatory witnesses vital to his defense were withheld from the jury.

Not even the distorting effect of hindsight can transform defense counsel’s many serious omissions into reasonable strategic decisions. The only plausible explanation for counsel’s keeping from the jury four witnesses who would have corroborated Crittenden’s testimony was his grossly inadequate preparation. It is not enough even for experienced counsel to just show up for trial and make decisions on the fly. A minimum amount of investigation and preparation is required.

Counsel’s defaults amounted to “errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Arthur has shown that there is a reasonable probability that the outcome of his trial would have been different had his counsel engaged in reasonable preparation and presented the exculpatory witnesses at trial. I do not believe that Arthur received a fair trial or that we can regard the jury verdict as reliable. I also fear that the Court has set the constitutional bar for acceptable performance by criminal defense counsel at a dangerously low level. Because I would reverse the decision of the Appellate Division, I must dissent.

Justices ZAZZALI and WALLACE join in this dissent.

For affirmance — Chief Justice PORITZ, Justices LaVECCHIA and RIVERA-SOTO, and Judge SKILLMAN (Va) — 4.

For reversal — Justices ZAZZALI, ALBIN and WALLACE — 3.

1 The majority states that "defense counsel testified ... that Crittenden told him that [Arthur] and Jackson were both engaged in drug-dealing in the area of 969 West 3rd Street on the day of the drug sale to her.” Ante at 328, 877 A.2d at 1196. Yet Crittenden never testified to that effect. In fact, her testimony in no way implicates Arthur as a drug seller, much less as the person who sold drugs to her. To the contrary, Crittenden exculpated Arthur to the police, at the start of her plea, in a letter given to Arthur's girlfriend, and at the trial.

The portion of the record on which the majority presumably relied was defense counsel's PCR testimony. There, defense counsel, in passing, testified that ”[o]ne thing you may not know is that the main witness in the case who did testify for the defense, Robin Crittenden, indicated Michael Arthur was selling drugs that day, he just didn't conduct this sale.” Although counsel's remark reinforced that Arthur was not involved in the sale purportedly witnessed by Detective Crawford, he did not elaborate on when or where Crittenden made the statement concerning Arthur's involvement in drugs. Counsel never testified that Crittenden personally told him that Arthur was a drug dealer. One could fairly infer that defense counsel's remark was based on an improper recollection of Crittenden's trial testimony. After all, counsel had difficulty remembering when he first met his client, testifying initially that he was introduced to Arthur on the day of trial. Only after being corrected by the PCR court did counsel recall that his first meeting with his client was two weeks before trial.

2 Notably, the PCR court "did not see any independent investigation. In other words, [it did not] see anything from any detectives from the Public Defender's Office where they physically went out and did interviews of people.”

3 It is unclear from the record precisely when Arthur handed the list over to counsel. Arthur claims that he did so at the March 20, 2000 conference. Defense counsel did not recall receiving the list until the trial date. Even if counsel were correct, however, Jackson’s name was identifiable as a potential witness over a year before the trial. As discussed supra, at Crittenden’s 1999 plea session, she originally identified Jackson as the drug seller.

Defense counsel could have learned about Jackson’s existence in early 1999 simply by reading the co-defendant’s plea transcript. Counsel also indicated at the PCR hearing that "there were three lay witnesses listed on the police report," providing yet another source he could have investigated had he wanted to interview witnesses before Arthur's trial. In light of those facts, the precise date on which counsel received the witness list becomes less important, and his ineffectiveness for not meeting with Jackson before Arthur's trial becomes self-evident.

4 Although Jackson steadfastly maintained that he had sold the drugs to Crittenden, he denied both in the statement to the detective and in his affidavit that he was the owner of the stash of drugs found by the police.

5 The majority takes judicial notice of “the inherent improbability that an experienced criminal defense attorney such as defense counsel would think his duty of loyalty to his client was outweighed by an obligation to warn a potential defense witness that he could be arrested." Ante at 320, 877 A.2d at 1191. However, when reviewing a PCR petition, we do not assume that counsel prepared and investigated a case. See Marshall v. Hendricks, 307 F.3d 36, 109 (3d Cir.2002), cert. denied, 538 U.S. 911, 123 S.Ct. 1492, 155 L.Ed.2d 234 (2003). We examine the evidence to determine whether counsel was ineffective. Likewise, there is no basis to assume that defense counsel complied with his professional responsibilities, particularly in light of a record that strongly suggests otherwise.

6 Contrary to the suggestion in the majority opinion, ante at 321-22, 877 A.2d at 1192, there was no direct testimony that Jackson told defense counsel that he was not the seller.

7 In State v. Fritz, we adopted the federal approach to ineffective assistance of counsel. 105 NJ. 42, 58, 519 A.2d 336 (1987).

8 The majority contends that Arthur did not raise defense counsel's failure to take a statement from Jackson as an element of his ineffective assistance of counsel claim and, therefore, it should be ignored now. Ante at 326-27, 877 A.2d at 1195. Arthur’s PCR brief, however, sufficiently touches the issue to bring it before this Court. His brief submitted to the PCR court contains the following passage:

[¡immediately prior to trial the defendant on his own contacted the witnesses and made them available to defense counsel. Among the witnesses was Robert Jackson who admits that he "served” Robin Crittenden the drugs that were found in her possession. Mr. Jackson was present in court for two days waiting to testify at the request of the defendant. No statement was taken from this witness nor was he interviewed prior to showing up in court on the day of trial.

[ (Emphasis added).]

The brief then proceeds to argue that counsel's assistance was ineffective under Strickland, supra.

Furthermore, defense counsel’s delegating to his client the responsibility for taking witness statements was discussed at the PCR hearing. The State knew that defense counsel’s overall failure to investigate and prepare for trial was at the heart of the PCR claim and is not disadvantaged by this Court’s addressing the obvious. However, even if Arthur had not raised this precise sub-issue, we would not be required to put on appellate blinders. Defense counsel’s ineffective assistance generally — and his inadequate preparation in particular — are unquestionably before this Court. We also are entitled to “notice plain error not brought to the attention of the trial or appellate court.” R. 2:10-2. This court should not ignore counsel’s conduct that manifestly fell below acceptable standards of performance and that denied Arthur a fair trial.

9 In fact, there was another option available to defense counsel apart from taking the extreme step of removing himself from the case. He could have presented the testimony of defendant's brother, James Arthur. James Arthur was a witness to both the drug transaction involving Crittenden and to Jackson's later confession and flight from the courthouse. Of course, James Arthur would have been testifying for his brother and ripe for impeachment. For that reason, the better option, and perhaps only option, would have been for counsel to step down and become a witness.

10 The majority characterizes Jackson as "a skittish potential witness" and rejects the possibility that he would have signed a written confession on Arthur’s behalf had defense counsel made that request. Ante at 327, 877 A.2d at 1195. The majority likewise suggests that Jackson would not have testified favorably for defendant had he been called to the stand at trial. That argument flies in the face of what we know did occur. Jackson gave a sworn statement in the form of an affidavit admitting that he sold the drugs to Crittenden and stood by his confession in his testimony at the PCR hearing, thereby subjecting himself to a possible perjury prosecution. If Jackson was willing to give statements under oath accepting culpability for the sale to Crittenden, evidently knowing the penal risks, I see no reason for the majority to speculate that he would not have testified similarly at defendant's trial had he been called to the stand.

The majority further speculates that Jackson's original courthouse confession to defense counsel might have been the product of pressure exerted by James Arthur. Ante at 327, 877 A.2d at 1195. There simply is not a shred of evidence in the record to support that supposition.