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Perry v. State12/10/1999
t prove not only that the Fourth Amendment claim is meritorious but, to establish the required prejudice under Strickland, that "there is a reasonable probability that the verdict would have been different absent the excludable evidence." Kimmelman, supra, 477 U.S. at 375, 106 S. Ct. at 2583, 91 L. Ed. 2d at 319.
Having reached that Conclusion, the Kimmelman Court then turned to the Strickland analysis. The District Court, acting before Strickland was decided, had granted relief by applying a Dorsey v. State-type of harmless-beyond-a-reasonable-doubt standard and concluding that Morrison had been prejudiced. The Third Circuit Court of Appeals, applying Strickland, concluded that counsel had been grossly deficient but remanded for further consideration of the prejudice issue. The Supreme Court had no difficulty on the record before it in holding that counsel's performance was Constitutionally deficient, and it was urged to rule upon the prejudice issue as well. It declined to do so, however, and affirmed the remand, noting that no evidentiary hearing had been held on the merits of the Fourth Amendment claim, that the State was entitled to an opportunity to establish that the seizure was lawful, and that, even if it was not, Morrison "may be unable to show that absent the evidence concerning the bedsheet there is a reasonable probability that the trial Judge would have a reasonable doubt as to his guilt." Id. at 391, 106 S. Ct. at 2591, 91 L. Ed. 2d at 329 (Emphasis added).
Justice Powell, joined by Chief Justice Burger and then-Justice Rehnquist, filed a Concurring opinion in which he posed a question not raised by the parties or addressed by the Court - whether the admission of reliable, but unlawfully seized, evidence could ever, of itself, satisfy the prejudice prong of Strickland. Justice Powell expressed the view that the harm suffered by Morrison "is not the denial of a fair and reliable adjudication of his guilt, but rather the absence of a windfall," and that " ecause the fundamental fairness of the trial is not affected, our reasoning in Strickland strongly suggests that such harm does not amount to prejudicial ineffective assistance of counsel under the Sixth Amendment." Id. at 396, 106 S. Ct. at 2594, 91 L. Ed. 2d at 333. He explained that admission of the bedsheet harmed Morrison "only in the sense that it helped the fact-finder make a well-informed determination of respondent's guilt or innocence," and, in his view, nothing in Strickland compelled a Conclusion that such an injury establishes prejudice for purposes of the ineffective assistance claim. Powell concurred in the remand because neither the parties nor the lower courts had considered that question and because it was not encompassed in the petition for certiorari. Id. at 397, 106 S. Ct. 2594, 91 L. Ed. 2d at 334.
On remand, New Jersey decided not to contest the illegality of the seizure, but asserted Justice Powell's view that the introduction of reliable evidence can never satisfy the prejudice prong of Strickland, even if that evidence was inadmissible because it was unlawfully obtained. The District Court expressly rejected that argument, pointing to the statement in the majority opinion that approved of habeas corpus review of an ineffective assistance claim "where counsel's primary error is failure to make a timely request for the exclusion of illegally seized evidence - evidence which is `typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.'" Morrison v. Kimmelman, 650 F. Supp. 801, 805 (D. N.J. 1986) (quoting from Kimmelman, supra, 477 U.S. at 379, 106 S. Ct. at 2585, 91 L. Ed. 2d at 322). The Judge noted also that "were petitioner precluded, as a leg
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