Moore v. Morton

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

6-22-2001

Moore v. Morton
Precedential or Non-Precedential:

Docket 98-5429

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"Moore v. Morton" (2001). 2001 Decisions. Paper 137.
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Filed June 22, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5429

CLARENCE MOORE,
Appellant

v.

WILLIS MORTON, ADMINISTRATOR;
PETER G. VERNIERO, ATTORNEY GENERAL
OF THE STATE OF NEW JERSEY

On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 97-cv-02087
(Honorable Stephen M. Orlofsky)

Argued September 16, 1999

Before: SCIRICA, RENDELL and GREENBERG,
Circuit Judges

(Filed: June 22, 2001)

PAUL J. CASTELEIRO, ESQUIRE
(ARGUED)
86 Hudson Street
Hoboken, New Jersey 07030

Attorney for Appellant
 NANCY A. HULETT, ESQUIRE
(ARGUED)
Office of Attorney General of
New Jersey
Department of Law & Public Safety
Division of Criminal Justice,
Appellate Bureau
P.O. Box 086
Richard J. Hughes Justice Complex
Trenton, New Jersey 08625

Attorney for Appellees

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Clarence Moore, who was convicted of rape and robbery
and sentenced as a persistent offender to life imprisonment
with twenty-five years of parole ineligibility, appeals from
the denial of his petition for a writ of habeas corpus under
28 U.S.C. S 2254. The principal issue at trial was the
identity of the rapist. The principal evidence was the
victim's post-hypnotic identification. The state prosecutor
made certain improper arguments during jury summation
which were addressed by the trial judge with curative
instructions. The issue on appeal is whether these improper
arguments deprived Moore of his right to a fair trial.

I.

On March 5, 1987, a jury convicted Moor e of second-
degree burglary, second-degree r obbery, robbery with intent
to commit aggravated sexual assault, and thr ee counts of
aggravated sexual assault. These essential facts wer e
established at Moore's trial.

On January 14, 1986, some time after 1:20 a.m., 25-
year-old M.A. was viciously assaulted by a man in the
bedroom of her cottage in Somers Point. M.A. went to
bed that night only to be awakened by a male who
grabbed her by the neck. The male demanded money,

2
and M.A. removed $8 from her purse and gave it to
him. When M.A. could produce no more money, the
man became angry. He ordered her to undr ess. Despite
the man's assurance she would not be hurt if she did
as she was told, the man penetrated her anally after
she complied with his directions to roll over on her
stomach and then kneel on her hands and knees. The
man then ordered her to roll over and he penetrated
her vaginally. He then forced her to per form fellatio on
him until he ejaculated. Still angered by lack of money,
the man forced her to again perfor m oral sex until he
achieved an erection. He then order ed her to kneel on
the bed and "shake" her rear in the air while someone
outside watched. He warned her if she did not do this
"he would come back and do it again or kill" her. M.A.
remained in her bed for four hours fear ful the man was
still in the house.

Finally, she arranged to have the police called and,
when the police arrived, M.A. described her attacker .
She described him as a black male, about 5'8" to 5'10"
tall, late twenties to early thirties, very muscular and
strong. . . . She also said her attacker had been
wearing blue jeans. Further, she described him as
having some facial hair on the sides of his face.

While the bedroom was dark, there was enough outside
light "to see a face." Also, although she was not
wearing her contact lenses that corrected her
nearsightedness, she stated the attacker was "very
close" to her, close enough for her to see him and his
face . . . . However, M.A. testified she could see without
her contacts, that she had driven without them, and
her vision did not prevent her from seeing things close
to her.

When M.A. could not give the police composite artist
sufficient information to develop a composite sketch,
she suggested hypnosis, thinking it "might help[her]
remember, in more detail, his face." With the aid of
hypnotically enhanced memory, she could vividly r ecall
her attacker's facial features. She ther eafter was able
to positively identify the defendant as her assailant
both in court and on three occasions in out-of-court

3
 photographic arrays. She described the hypnotic
enhancement as making her attacker's face "much
clearer" with "the features . . . more detailed." She also
testified she initially could not positively r ecognize her
assailant without the hypnosis. There is nothing in the
record to suggest either the police or the doctor
assisting the hypnosis in any way suggested what the
assailant might look like.

As a result of the hypnosis, M.A. also r ecalled her
assailant wore a tan suede jacket with dirt ar ound the
pockets. A subsequently executed search warrant at
defendant's residence turned up a tan suede sweater
jacket with pockets along with several pairs of blue
jeans.

State v. Moore, 641 A.2d 268, 270-71 (N.J. App. Div. 1994)
("Moore II") (alterations in original). At trial, M.A., a
Caucasian woman, testified and identified the jacket as the
one worn by her attacker.

A portion of the trial consisted of expert testimony on
hypnosis.1 The State's witness, Dr. Samuel Babcock,
justified his methodology and maintained that M.A.'s
memory was enhanced through hypnosis.2 Defense witness
Dr. William A. Miller testified about the shortcomings of
using hypnosis to enhance a victim's memory.
_________________________________________________________________

1. Under New Jersey law, "testimony enhanced through hypnosis is
admissible in a criminal trial if the trial courtfinds that the use of
hypnosis in the particular case was reasonably likely to result in recall
comparable in accuracy to normal human memory . . . . The trier of fact
must then decide how much weight to accord the hypnotically refreshed
testimony." State v. Hurd, 432 A.2d 86, 95 (N.J. 1981).

2. As required under State v. Hur d, a pre-trial hearing was held to
determine the admissibility of M.A.'s testimony. 432 A.2d at 95. The
Appellate Division affirmed the trial court's ruling that the testimony
was
admissible, explaining that it was "satisfied the use of hypnosis was
appropriate for the victim's fear-induced traumatic neurosis, . . . and
that the trial judge's findings as to the pr ocedures employed and
adherence to the Hurd requir ements were supported by substantial
credible evidence in the record." Moore has not raised a federal
constitutional challenge, in either state or federal court, to the
admission
at trial of M.A.'s post-hypnotic testimony.

4
Clarence Moore, an African-American male , did not
testify. His wife Cheryl Moore, a Caucasian woman, testified
on his behalf. Mrs. Moore testified that she and her
husband lived about forty-five minutes from M.A.'s home.
Although not recalling the night of the rape in particular,
Mrs. Moore testified she would have noticed if her husband
were missing for a period of two and a half to three hours
in the early morning hours. She testified her baby suffered
from a condition called "failure to thrive" which required
frequent nursing and that Mr. Moor e assisted her in
nursing the baby. Mrs. Moore also testified that at the time
of the rape, she was suffering from mastitis, a type of
breast infection.

The state trial court observed, "[T]he only r eal question in
this case is that of identity." There was no dispute that the
victim was sexually assaulted and robbed, and the only
"real question" for the jury was whether Moore was the
culprit. As the trial court found, the answer tur ned on
"whether or not the [hypnotically] enhanced or refreshed
recollection [of the victim] [wa]s of sufficient reliable
character and with such probative value that the jury
should believe [the victim] beyond a r easonable doubt."

The trial lasted more than two weeks and at the
conclusion, both the defense and the prosecution delivered
summations that lasted two to three hours. In his
summation, the prosecutor sought to explain why Mrs.
Moore's testimony buttressed the State's case stating,
"Based on the testimony of Cheryl Moore, the case is
stronger than ever, that the odds ar e that this defendant is
the perpetrator [and] . . . you have mor e reason to convict
Clarence McKinley Moore now that she has testified than
ever." The prosecutor noted that ther e were in fact "three
important things" that the jury should lear n from Mrs.
Moore's "appearance" as a defense witness.

Here's where I ask you to really concentrate on my
words because if you misunderstand what I'm saying
right now, I am going to feel real bad and foolish, and
you are too. So let's all understand it like adults.

Race has nothing whatsoever to do with this case,
right? Right. We all know that the race of the people

5
involved does not at all dictate whether he's guilty or
anything like that. I mean, let's hope that we all feel
that way, whether we are white or black or anything.
Okay? So let's clear the air that the statement that I'm
about to make has nothing whatsoever to do -- and I
hope this machine hears this-- has nothing whatsoever
to do with race.

This has to do with selection, okay? Here's what I
mean. All of us select people in life to be with based on
whatever reason, whether it's people to marry, whether
it's friends, whether it's people to associate with,
whether it's business people. We all make choices in
life that lead us to relationships with others, and those
choices may or may not be significant.

Let me show you what I mean. What if you as an
individual, whether you're male or a female, decide in
your life that you want to live your life with a blonde?
You know, you see all of these ads about blondes have
more fun and this and that and, again, whether you
are male or female or whatever--it can work both ways
--and so you become interested in being with blondes
because you prefer them. Right? Gentlemen pr efer
blondes.

Well, that can be seen, can't it, because maybe the
people that you choose to date or marry or be with all
appear to be blondes or it might be redheads or it
might be green hair. You know, nowadays I guess green
is one of the popular colors. It could be anything. You
could substitute any color hair or you could substitute
any particular trait. Right? It needn't even be color of
hair. It could be the color of eyes. It could be a person
who likes tall people. I think whoever I should be with
should be six foot four. It would make me feel terrific
to be with a woman six foot four, or vice versa, a
woman could think of a man like that.

You see my point? It's not a statement of race; it's a
question of choice, selection of who you might want to
be with, whether it is as a mate or a boyfriend or
girlfriend or victim. How about that? How about that
some people might choose a victim according to the

6
 way they look, whether they be blonde or blue or
anything else?

So I ask you this: What did we learn when we found
out that Cheryl Moore was the wife of the defendant?
I suggest to you in a nonracist way that what we found
out was that Clarence McKinley Moore made a choice
to be with a Caucasian woman --

Moore's counsel objected at that point and moved for a
mistrial arguing the reference to race was irrelevant,
inflammatory and prejudicial.3 The trial court denied the
motion for a mistrial but admonished the prosecutor at
sidebar not to refer to race.4 The court sustained the
objection and instructed the jury:
_________________________________________________________________

3. At sidebar, Moore's counsel ar gued,

Your honor, I'm going to ask for a mistrial because if there's no
reason that race should be brought into this thing at all, there's
nothing probative because of the fact that he's married to a white
woman that would suggest that he would then necessarily go out
and attack and assault a white woman.

That is precisely what [the prosecutor] is trying to infer here,
that
because he's married to a white woman and because a white woman
has been assaulted, that that necessarily was the selection process
that went on in his mind because he couched the question in terms
of choice of victims.

There is absolutely no reason to inject race in this case. I stayed
away from it, and up until this point in time everybody stayed away
from it. The comments that were just elicited by [the prosecutor],
it's
only done for one purpose entirely, and that's to inflame this jury
and to improperly put before them the fact of race as an issue in
terms of how this defendant, if in fact he was the perpetrator,
selected the victim.

There was no testimony as to that. Ther e was no testimony that he
has assaulted other white victims before or anything of that
nature,
and all of the sudden, only because his wife is white, [the
prosecutor] is now trying to infer to this jury that this is a
selection,
that that is something probative that they can use in making a
determination, and I mean, it has no part in this trial. It is
highly
prejudicial, has no purpose for being other than the purpose that
 [the prosecutor] is trying to do, an impr oper inference to this
jury,
and I would ask the court to declare a mistrial.
4. At sidebar, the trial judge stated:

I will instruct this jury that they are not to consider for any
purpose

7
 Ladies and gentlemen of the jury, I am ordering you to
disregard what the prosecutor said in reference to the
testimony, the appearance of Mrs. Moore, she being a
white person, a Caucasian, and Mr. Moor e being a
black person, and that the reason, the selective
process, was that he did this aggravated assault
because he selected a white or Caucasian person.
Disregard that. That's an unfair and unr easonable
inference to be drawn from the testimony and I'm
convinced that it's not proper argument to the jury.

The prosecutor then argued:

I say to you that there are two other r easons why you
should find that the State's case gets str onger with the
testimony of Cheryl Moore. We lear ned that on
December 4, 1985, the defendant's wife gives birth to
a child. She further tells you that from that time on up
until the time he's arrested, she's disabled. I mean, she
has bleeding breasts.

I ask you to consider that and infer that that would
give believability to the fact that during that period of
time, that is, on January 14, 1986, right in the middle
of the time after the birth of the child and the disability
of the wife, I ask you to infer that that is a period of
time when this individual would have his greatest need
for sexual release.

Moore's counsel objected and renewed his motion for a
mistrial. He noted that there was no evidence in the record
_________________________________________________________________

any suggestion of any racial impropriety, they are not to decide
this
matter on prejudice, bias or . . . anything to do with race. I am
also
going to tell this jury to disregard that argument and I'm going to
tell the prosecutor that you are not to r efer to that area.

I am convinced that summation is to argue the facts that were
adduced from the witness stand. I am also convinced that it is not
a reasonable inference to draw from the fact that this defendant is
married to a white women that he selectively made that decision to
rape or rob, [and] . . . sexual[ly] assault, a white woman. I don't
think that's a reasonable inference that can be drawn from the
selective process, and I'm going to so instruct the jury.

8
"to even suggest that [Moore] couldn't have had sexual
relations with" his wife during the period of time in
question. The trial court denied the motion for a mistrial,
and repeated its warning to the pr osecutor "to stay away
from the area of white/black because I don't think that's in
the case."5 The court sustained the objection to the
inference and instructed the jury:

Ladies and gentlemen of the jury, I'm going to or der
you to disregard that last statement of the prosecutor.
I don't believe a reasonable inference can be drawn in
that vein, that because there was not access--and I'm
not even sure there was--but because Mrs. Moore
testified that she had this mastitis, that that would
give the defendant that impetus to do something.
That's an improper inference. You are to disregard
that.

Undeterred, the prosecutor concluded with a third
improper remark6 to the jury:
_________________________________________________________________

5. At sidebar, the trial judge stated:

I want you to stay away from the areas of white/black because I
don't think that's in the case; two, the reason that he could
possibly
rape some woman because of the wife or anything dealing with the
reason the wife-which would give reason fr om him to do something
because he was unable to satisfy his needs at home or anything in
that vein. I don't think it's part of this case.

6. Prior to this third remark, the pr osecutor told the jury that M.A. had
been victimized beyond her rape by the investigative and trial process.
Defense counsel objected to this comment and also objected to a
perceived implication that Moore did not testify in his defense. After
another sidebar conference, the trial judge issued the following curative
instruction:

Ladies and gentlemen of the jury, there has been some reference to
the fact that [the defendant] only called two defense witnesses. I
want to tell you -- and I'll tell you in the general context of my
charge later on -- that the defendant is under an obligation to do
nothing. The defendant need not call any witnesses.

I indicated that to you earlier on when we first got here. The
defendant can stand mute and not say anything and you are not to
take any unreasonable -- any inference from that at all.

9
 The last thing I have to say is that if you don't believe
[M.A.] and you think she's lying, then you've probably
perpetrated a worse assault on her.

The court dismissed the jury for the day, advising
counsel it would charge the jury the next mor ning.
Immediately thereafter, Moore's counsel raised an objection
and renewed his motion for a mistrial, ar guing the
comment regarding "perpetrating a worse assault" on M.A.,
particularly when viewed in connection with the
prosecutor's earlier comments, requir ed a mistrial.

The trial court denied the motion for a mistrial,
explaining the comment about "perpetrating a worse
assault" on M.A. was "tangentially dealing with credibility."
But the court informed counsel that, "in or der to insure
fairness," it would nevertheless instruct the jury to
disregard the remark. The court issued the following
instruction the next morning:

Before I [charge you], I want to tell you I'm going to
order you--I generally don't order people. I'm going to
order you to disregard that last r emark made by [the
prosecutor] to the effect that the last thing I have to
say to you is that if you don't believe her and you think
she's lying, then you're probably perpetrating a worse
assault on her.

Disregard that remark. I have deter mined that's
improper and you are not to consider that for any
purpose in this case.

The court charged the jury without objection. The jury
returned a verdict of guilty on all counts. At sentencing, the
trial court granted the State's motion to tr eat Moore as a
"persistent offender," and imposed an extended term of life
imprisonment with twenty- five years of par ole ineligibility.
See N.J. Stat. Ann. S 2C:44-3a (W est 2001). Moore's
sentence was predicated on a 1968 conviction for carnal
abuse, eight convictions in 1970 for burglary, and a 1976
conviction for distribution and possession with the intent to
distribute marijuana. These prior convictions, along with
his immediate conviction for burglary, r obbery and three
separate counts of aggravated sexual assault, placed him
under New Jersey's persistent offender category. State v.

10
Moore, A-1910-87Ta, slip op. at *7-8 (N.J. Super. Ct. App.
Div. April 1, 1991) ("Moore I").

On direct appeal to the Appellate Division, Moore, now
represented by the public defender , claimed among other
things, that "the prosecutor's summation exceeded the
bounds of propriety making it impossible for the defendant
to receive a fair trial." Id. at *2. In support, Moore cited the
references in the state's summation about the "selection
process," the "need for sexual release," and the remark
about "perpetrating a worse assault on the victim." The
Appellate Division rejected Moore's claim on the merits.
Although it found the prosecutor's "outrageous conduct
violated ethical principles" and "showed a disregard of the
obligation of the prosecutor to play fair and see that justice
is done," the Appellate Division ruled that, within the
context of the trial, the trial judge's "for ceful" instructions
to the jury cured the harm that was done. Id. at *4. Moore
received new counsel from the public defender's office, and
filed a petition for certification to the New Jersey Supreme
Court presenting his due process claim and additional
allegations of prosecutorial misconduct. The New Jersey
Supreme Court declined review, and denied Moore's motion
for reconsideration.

In 1992, still represented by the public defender who filed
the petition for certification, Moore filed a motion for state
post-conviction review claiming, inter alia , he was denied
his Sixth Amendment right to effective assistance of
counsel on direct appeal because counsel failed to raise due
process claims resulting from the following allegations of
prosecutorial misconduct: (1) improper r eference to matters
outside the evidence and stating his personal opinion on
the veracity of witnesses and the defendant's guilt; (2)
misstating the law and diluting the burden of proof by
informing the jury that reasonable doubt meant "the odds
are" the defendant did it; and (3) disparaging and ridiculing
the defense and defense counsel. The trial court, without
holding an evidentiary hearing, denied the petition as
procedurally barred and without merit. On appeal, the
Appellate Division highlighted some of the pr ocedural
infirmities, but chose to reject Moor e's claim on the merits.
The Appellate Division ruled that, even if Moor e's counsel

11
had properly raised every instance of alleged prosecutorial
misconduct on direct appeal, it would have concluded that
Moore had a fair trial, and was not denied ef fective
assistance of counsel. Moore II, 641 A.2d at 268. The New
Jersey Supreme Court denied Moore's petition for
certification.

In April 1997, no longer represented by the public
defender's office, Moore timely filed a counseled habeas
corpus petition under 28 U.S.C. S 2254 in the United States
District Court for the District of New Jersey. He raised the
following claim:

The deliberate and continuous misconduct by the
prosecutor which included racist rationales to justify
the conviction of the African-American petitioner of
raping a white woman, statements that reasonable
doubt meant that the `odds are' that the petitioner
committed the offense, statements that defense counsel
didn't care about justice and was only trying to `sell'
reasonable doubt and a warning to the jury that if they
acquit the petitioner they will have perpetrated an
assault upon the victim, worse than her rape, deprived
petitioner of his right to a fair trial.7

After reviewing the record, and finding the prosecutor's
conduct "offensive and unprofessional," the District Court
held that "the Appellate Division's opinions on direct appeal
_________________________________________________________________

7. In this appeal we will only address Moor e's federal due process claim
with respect to the instances of prosecutorial misconduct that he raised
at each level of review before the New Jersey courts (i.e. the
prosecutor's
"selection" argument, the "sexual r elease" argument, and the comment
regarding "perpetrating a worse assault on the victim"). The remaining
factual predicates were not fairly pr esented to the New Jersey courts in
support of his due process claim. Therefor e to the extent Moore seeks
relief based on other allegations of pr osecutorial misconduct, these
claims are unexhausted, and now procedurally defaulted. O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999) ("Before a federal court may grant
habeas relief to a state prisoner, the prisoner must exhaust his remedies
in state court."); McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.
1999) (to "fairly present" a federal constitutional claim, a petitioner
must
present the claim's "factual and legal substance to the state courts in a
manner that puts them on notice that a federal claim is being asserted")
(citing Anderson v. Harless, 459 U.S. 461 (1982)).

12
and on post-conviction relief clearly consider ed the weight
of the evidence in evaluating Moore's claim." State v. Moore,
No. 97-2087, slip op. at *17 (D.N.J. Aug. 12, 1998) ("Moore
III"). The District Court concluded it was not an
"unreasonable application of clearly established federal law"
for the Appellate Division to hold the evidence could
support the jury's verdict and "the pr osecutor's conduct,
considered within the context of the entir e trial -- including
the judge's curative instructions, the evidence and the
correct jury charge -- did not `infect the trial with
unfairness.' " Id. at *18 (citing 28 U.S.C. S 2254(d)(1) (as
amended by the Anti-Terrorism and Ef fective Death Penalty
Act)). The District Court noted,

Were I sitting as an Appellate Court judge on direct
review of the trial below, I might well have concluded
that the prosecutor's misconduct deprived Moor e of his
right to a fair trial. Congress, however , has imposed a
much more demanding standard of review on federal
habeas corpus courts. The Appellate Division
considered the issue presented to me on two occasions
and concluded that Moore was not denied a fair trial.
After a complete review of the trial recor d, I cannot
conclude that the state court's analyses wer e "an
unreasonable application of clearly established federal
law."

Id. at *19.

II.

The District Court had jurisdiction under 28 U.S.C.
S 2254(a) and granted a certificate of appealability under 28
U.S.C. S 2253. We have jurisdiction under 28 U.S.C.
SS 1291, 2253. Because the District Court r elied exclusively
on the state court record and did not hold an evidentiary
hearing, our review of its decision is plenary. Hartey v.
Vaughn, 186 F.3d 367, 371 (3d Cir . 1999), cert. denied, 528
U.S. 1138 (2000).

III.

A state prisoner's habeas corpus petition "shall not be
granted with respect to any claim that was adjudicated on

13
the merits in State court proceedings unless the
adjudication of the claim-- (1) resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C.
S 2254(d)(1). "[S]ection 2254(d) fir mly establishes the state
court decision as the starting point in habeas r eview."
Matteo v. Superintendent, SCI Albion, 171 F .3d 877, 885 (3d
Cir.) (en banc), cert. denied, 528 U.S. 824 (1999).

In Williams v. Taylor, 529 U.S. 362, 404-06 (2000), the
Supreme Court held that "contrary to" and"unreasonable
application of " have independent, if overlapping meanings.
To hold a state court decision is "contrary to . . . clearly
established Federal law, as determined by the Supreme
Court of the United States," a federal court mustfind the
state court arrived "at a conclusion opposite to that reached
by [the Supreme] Court on a question of law," or that the
state court confronted facts "materially indistinguishable
from a relevant Supreme Court pr ecedent" but arrived "at
a result different from" that reached by the Supreme Court.
Id. at 404-09. The Court explained that "a run-of-the-mill
state-court decision applying the correct legal rule from our
cases to the facts of a prisoner's case would notfit
comfortably within S 2254(d)(1)'s `contrary to clause,' " but
that, as an example, a state court decision applying a
burden of proof other than that required by Supreme Court
precedent would be contrary to clearly established federal
law as determined by the Supreme Court. Id. at 406.

Even if a state court judgment is not contrary to
Supreme Court precedent, it may be an unr easonable
application of that precedent. Id. at 407-08. To hold that a
state court's decision is an unreasonable application of
"clearly established Federal law, as deter mined by the
Supreme Court of the United States," we mustfind that (1)
the state court identified "the correct governing legal rule
from [the Supreme] Court's cases but unreasonably
applie[d] it to the facts" of the particular case, or (2) the
state court unreasonably extended or failed to extend a
legal principle from the Supreme Court's precedent. Id. at
407. "[A] federal habeas court making the`unreasonable
application' inquiry should ask whether the state court's

14
application of clearly established federal law was objectively
unreasonable." Id. at 409. The federal court "may not issue
the writ simply because that court concludes in its
independent judgment that the relevant state court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable." Id. at 411.

"[C]learly established Federal law, as deter mined by the
Supreme Court of the United States" r efers to Supreme
Court "holdings, as opposed to the dicta," as of the time of
the relevant state court decision.8 Id. at 412. Supreme
_________________________________________________________________

8. In determining whether a state court unr easonably failed to apply
federal law, the Supreme Court instructed,

[T]he "unreasonable application" inquiry should ask whether the
state court's application of clearly established federal law was
objectively unreasonable. The federal habeas court should not
transform the inquiry into a subjective one by resting its
determination instead on the simple fact that at least one of the
Nation's jurists has applied the relevant federal law in the same
manner the state court did in the habeas petitioner's case.

* * *

The term "unreasonable" is no doubt difficult to define. That said,
it
is a common term in the legal world and, accor dingly, federal
judges
are familiar with its meaning. For purposes of today's opinion, the
most important point is that an unreasonable application of federal
law is different from an incorr ect application of federal law.

Williams, 529 U.S. at 409-10 (emphasis in original).

In interpreting the Anti-Terrorism and Effective Death Penalty Act
("AEDPA") in a different context we recently stated, "We find no
indication that AEDPA eliminated the r ole of the lower federal courts in
interpreting the effect of Supreme Court pronouncements." West v.
Vaughn, 204 F.3d 53, 62 n.10 (3d Cir. 2000) (discussing traditional
retroactivity analysis in light of AEDPA). Similarly in Matteo, 171 F.3d
890, we held,

[A]lthough AEDPA refers to "clearly established Federal law, `as
determined by the Supreme Court of the United States,' " (citation
omitted), we do not believe federal habeas courts ar e precluded
from
considering the decisions of the inferior federal courts when
evaluating whether the state court's application of the law was
15
Court precedent which would have been consider ed an "old
rule" under Teague v. Lane, 489 U.S. 288 (1989), is also
"clearly established Federal law, as deter mined by the
Supreme Court of the United States."9 Id.

IV.

With this standard of review in mind, we will examine
Moore's claims that the prosecutor's summation deprived
him of a fair trial.

A.

The conduct of the trial, including closing ar guments, is
regulated under the sound discretion of the trial judge.
Herring v. New York, 422 U.S. 853, 862 (1975). But
prosecutorial misconduct may "so infect[ ] the trial with
unfairness as to make the resulting conviction a denial of
due process." Donnelly v. DeChristofor o, 416 U.S. 637, 643
_________________________________________________________________

reasonable. See O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998)
("To the extent that inferior federal courts have decided factually
similar cases, reference to those decisions is appropriate in
assessing the reasonableness vel non of the state court's treatment
of the contested issue.") . . . . [I]n certain cases it may be
appropriate to consider the decisions of inferior federal courts as
helpful amplifications of Supreme Court pr ecedent.

9. In Hameen v. State of Delaware, we recently applied the Supreme
Court's Williams test. 212 F.3d 226 (3d Cir. 2000), cert. denied, 121
S.Ct.
1365 (2001). In Hameen we determined the Delaware Supreme Court's
application of a retroactive amendment to the state death penalty law
was not a violation of the Ex Post Facto Clause of the United States
Constitution because it was not "contrary to" clearly established federal
law. In coming to this determination we detailed at length the Supreme
Court's ex post facto precedent and stated we"simply cannot find . . .
the decision of the Supreme Court of Delawar e . . . contrary to any [of
these cases]. . . . In the circumstances, if we found an ex post facto
violation here, we surely would be unfaithful to our obligations under the
AEDPA." Id. at 246. After reviewing Supreme Court jurisprudence in this
area we also determined there was"no basis to hold that the Delaware
Court unreasonably applied the Supreme Court's ex post facto cases to
the facts of this case or unreasonably r efused to extend ex post facto
principles to this case." Id. (citing Williams, 529 U.S. 362).

16
(1974). Such misconduct must constitute a " `failure to
observe that fundamental fairness essential to the very
concept of justice.' " Id. at 642 (quoting Lisenba v.
California, 314 U.S. 219, 236 (1941)). Where "specific
guarantees of the Bill of Rights are involved,[the Supreme]
Court has taken special care to assure that prosecutorial
conduct in no way impermissibly infringes them," id. at
643, but the test remains the same. See Dar den v.
Wainwright, 477 U.S. 168, 182 (1986), reh'g denied, 478
U.S. 1036 (1986).

In Donnelly, a first-degree mur der prosecution, the Court
addressed an improper remark by a state prosecutor during
jury summation. The trial court later gave the following
curative instruction as part of the jury char ge:

Closing arguments are not evidence for your
consideration . . . . Now in his closing, the District
Attorney, I noted, made a statement: "I don't know
what they want you to do by way of a verdict. They
said they hope that you find him not guilty. I quite
frankly think that they hope you find him guilty of
something a little less than first-degree mur der." There
is no evidence of that whatsoever, of course, you are
instructed to disregard that statement made by the
District Attorney. Consider the case as though no such
statement was made.

Id. at 641.

The Supreme Court rejected the defendant's claim for
federal habeas relief, finding that an "examination of the
entire proceeding" did not support the contention that the
"prosecutor's remark . . . by itself so infected the trial with
unfairness as to make the resulting conviction a denial of
due process." Id. at 643. The Court noted that, although
the prosecutor's statement was improper , it was not so
prejudicial that its effect could not be mitigated by a
curative instruction. Finding the trial court had issued a
"strong" instruction, twice stating the prosecutor's
arguments were not evidence and dir ecting the jury to
disregard the offensive statement in particular, the Court
held any prejudice had been cured. Id. at 643-44. The
Court further explained the prosecutor's comment was

17
"admittedly an ambiguous one," id. at 645, and the case
was not one "in which the prosecutor's r emarks so
prejudiced a specific right, such as the privilege against
compulsory self-incrimination, as to amount to a denial of
that right." Id. at 643 (citing Griffin v. California, 380 U.S.
609 (1965)).

In Darden, the prosecutor made several improper
remarks during closing argument, including using defense
counsel's term "animal" to refer to the defendant and
making "several offensive comments r eflecting an emotional
reaction to the case." 477 U.S. at 180 & nn. 9-12. The state
jury convicted the defendant of murder and assault with
intent to kill and recommended a death sentence. The
Supreme Court affirmed the denial of the defendant's
federal habeas petition. Although the Court found the
closing "deserve[d] the condemnation it has received from
every court to review it," id. at 179, the Court concluded
that, when viewed in context, the comments "did not
manipulate or misstate the evidence, nor . . . implicate
other specific rights of the accused." Id. at 182. The Court
noted the trial court had "instructed the jur ors several
times that their decision was to be made on the basis of the
evidence alone, and that the arguments of counsel were not
evidence." Id. Moreover, the Supreme Court found "[t]he
weight of the evidence against petitioner was heavy; the
overwhelming eyewitness and circumstantial evidence to
support a finding of guilt on all charges, .. . reduced the
likelihood that the jury's decision was influenced by the
argument." Id. (internal quotes omitted).

To the extent that we may discern, ther efore, Supreme
Court precedent counsels that the reviewing court must
examine the prosecutor's offensive actions in context and in
light of the entire trial, assessing the severity of the
conduct, the effect of the curative instructions, and the
quantum of evidence against the defendant. Ther e are
"some occurrences at trial [that] may be too clearly
prejudicial for . . . a curative instruction to mitigate their
effect."10 Donnelly , 416 U.S. at 644; cf. Bruton v. United
_________________________________________________________________

10. Other courts of appeals have set forth tests for determining whether
prosecutorial misconduct violates a defendant's right to due process.

18
States, 391 U.S. 123, 135 (1968) (admission of
codefendant's inculpatory confession too prejudicial to be
cured through jury instruction). In making this
determination, Supreme Court precedent requires the
reviewing court to weigh the prosecutor's conduct, the effect
of the curative instructions and the strength of the
evidence. Darden, 477 U.S. at 182; Donnelly, 416 U.S. at
163.

B.

1.

We now examine whether the Appellate Division's
judgment was contrary to clearly established federal law as
determined by the Supreme Court of the United States or
an unreasonable application of federal law as determined
by the Supreme Court of the United States. Williams, 529
U.S. at 404-09. The Supreme Court has noted that in
addressing whether or not prosecutorial misconduct has
denied a defendant of a fair trial, "the pr ocess of
constitutional line drawing . . . is necessarily imprecise."
Donnelly, 416 U.S. at 645. Here, the New Jersey Appellate
Division examined each of the prosecutor's challenged
arguments and, although finding them impr oper, held that
when examined in light of the entire trial and the trial
court's curative instructions, Moore had not been deprived
of a fair trial. This was the correct analysis under Supreme
Court precedent. Darden, 477 U.S. at 183; Donnelly, 416
_________________________________________________________________

See, e.g., United States v. Melendez, 57 F.3d 238, 241 (2d Cir. 1995)
(examining severity of misconduct, curative instructions and evidence);
United States v. Capone, 683 F.2d 582, 585 (1st Cir. 1982) (looking at
severity of conduct, whether it was purposeful, ef fect of curative
instruction, and strength of evidence). Some courts have also discussed
"incurable errors." See, e.g.,Floyd v. Meachum, 907 F.2d 347, 356 (2d
Cir. 1990) (granting habeas petition under pr e-AEDPA standard in part
because prosecutor's remarks that defendant was a liar and her repeated
references to the Fifth Amendment wer e incurable error under Donnelly).
But under Williams, 529 U.S. 362, we must determine whether the
reviewing courts unreasonably applied federal law as determined by the
Supreme Court.

19
U.S. at 163. Furthermore, because we have found no
Supreme Court cases with facts "materially
indistinguishable" from those at hand, we hold the state
court's decision was not contrary to clearly established
federal law. Williams, 529 U.S. at 404-09.

2.

Whether the Appellate Division unreasonably failed to
apply clearly established federal law as deter mined by the
Supreme Court is a more difficult question. The Appellate
Division twice concluded that there was sufficient evidence
to support Moore's conviction. See Moor e I, slip op. at *11
("In ruling on the motion for a new trial the trial judge
made a careful analysis of the evidence with r espect to the
ability of the victim to have seen and identify her assailant.
An examination of the record fully substantiates his recital
and satisfies us that the conviction is supported by
substantial credible evidence . . . ."). Specifically addressing
the credibility of M.A.'s post-hypnotic identification, the
Appellate Division stated, "There is nothing in the record to
suggest either the police or the doctor assisting the
hypnosis in any way suggested what the assailant might
look like." Moore II, 641 A.2d at 271.

Addressing the prosecutorial misconduct claims in
particular, the Appellate Division held,"An examination of
the [prosecutor's] summation in its entir ety shows that the
complained of comments represented a small portion of an
extremely lengthy summation, are too br oadly characterized
by defendant and were in each case promptly and
appropriately dealt with by a forceful curative instruction."
Moore I, slip op. at *4. As to the pr osecutor's argument that
the jury should infer that Moore selected a white woman to
rape because his wife is white, the Appellate Division
explained that "the impropriety of the suggestion was
forcefully expressed" by the trial judge when he told the
prosecutor at sidebar that the inference was unreasonable.
Id. The Appellate Division noted the trial judge"immediately
gave a forceful and complete curative instruction which not
only told the jury to disregard the pr osecutor's remarks but
told them it was an unfair and unreasonable inference and
an improper argument." Id. at *5. The court was "satisfied

20
that [the trial judge's action] prevented the prosecutor's
statement from substantially prejudicing defendant's right
to a fair trial." Id.

As to the prosecutor's argument that Moor e committed
the rape because he had his "greatest need for sexual
release" while his wife was ill, the Appellate Division noted
that the trial judge issued a "curative instruction in which
he told the jury to disregard the pr osecutor's statement;
that it was an unreasonable and improper inference." Id. at
*5-6. The Appellate Division was "satisfied that any possible
prejudice was fully removed by the trial judge's prompt
action." Id. at *6. And as to the final remark-- that the jury
would probably perpetrate a "worse assault" on M.A. if they
failed to believe her testimony-- the Appellate Division
noted that "[o]nce again the jury was instructed to
disregard the comment, that it was impr oper." Id. at *6-7.
The court was "satisfied the judge's action her e, as with the
previous improprieties, prevented the prosecutor's
statements from substantially prejudging the defendant."
Id. at *7.

In conclusion, the Appellate Division noted the following:

Although we are persuaded that the prosecutor's
comments did not deprive defendant of a fair trial, we
would be derelict if we did not express our disapproval
in the strongest terms. The summation showed a
disregard of the obligation of the pr osecutor to play fair
and see that justice is done. [citation omitted]. Our
role, however, is not to supervise or punish
prosecutorial misconduct. It is to examine the trial for
fairness. Fortunately, the judge, unlike the prosecutor,
was sensitive to the need for a fair trial and pr omptly
and forcefully delivered curative instructions to the
jury.

Id. The Appellate Division noted its view that "the
prosecutor's outrageous conduct violated ethical
principles," and "urge[d] the Attorney General to bring the
matter to the attention of the appropriate ethics body." Id.

The State maintains the Appellate Division's judgment
"cannot be seen as unjustified" or unr easonable under
Donnelly and Darden. Br. for Appellee at 37. Although the

21
Appellate Division correctly identified the governing federal
law for prosecutorial misconduct claims, see Darden, 477
U.S. at 182; Donnelly, 416 U.S. at 644, the question is
whether it failed to reasonably apply that law to the facts of
this case.

The sole issue at trial was the identity of the rapist. It is
undisputed that M.A.'s initial description of her attacker
was vague. The morning after the rape she told police that
she had only seen him "from the light outside" her
apartment which came from street lights on the road and
from lights in a hospital parking lot half a block away. M.A.
acknowledged at trial that she had her eyes closed most of
the time during the attack and that she was "scar ed to
death." She also testified that her attacker told her to keep
her eyes closed and that he "kept telling me that he had a
knife and if I didn't do what he said that he would hurt
me." She noted that she only had a "very fleeting
opportunity" to see her attacker, but at"one point when he
was standing over the bed, I saw his face." M.A. stated he
was "close enough to see, but not in detail." She stated that
even though she was not wearing her contact lenses during
the attack, her attacker was "very close" to her - close
enough for her to see him and his face. She stated that she
could see certain things without her contact lenses- that
she had driven without them and that her vision did not
prevent her from seeing things close to her.

Although in her initial statement to police the day after
the rape she stated her attacker "may have been black," in
a written statement to police that same day she described
her attacker as "black, about 5'10", 175 lbs., late 20's to
mid 30's. Short hair, short beard close to his face. He was
wearing blue jeans." She also stated, "Y ou could tell he was
black" because of his "tough street talk." She described her
attacker's build as "medium, muscular. Not bulky, just
muscular."

Because of her limited opportunity to view her attacker,
M.A. suggested to police that she might be able to
remember him in more detail if she wer e hypnotized. Three
weeks after the rape, the Somers Point Police arranged an
appointment with Dr. Samuel Babcock, a clinical
psychologist, for M.A. to be hypnotized. Befor e the hypnotic

22
session with Dr. Babcock, M.A. had not identified Moore as
her attacker. M.A. testified that the police did not show her
photographs of potential suspects before the hypnotic
session. In accordance with New Jersey law, Dr . Babcock
taped his meeting with M.A. The transcript of his meeting
was produced at trial and portions of the audio tape were
played for the jury. Part of this evidence consisted of M.A.'s
pre-hypnotic description to Dr. Babcock of her limited
ability to see her attacker. She said, "There's not much
[light], some, a little bit of light comes thr ough the window
but there was no light in my house, no lights were on it's
pretty dark." When asked how much light came through
her window she stated, "Ah, not very much, its enough to
see like shadows and stuff, but not . . . . Like outlines of
things, you know, but uhm, nothing really you know, not
like ahm, nothing in detail." In her pre-hypnotic interview
with Dr. Babcock, she also stated that her attacker's face
was "round, . . . he had a short bear d, meaning facial hair
as though he hadn't shaved in a few days. He was about
five-foot-eleven."

After undergoing hypnosis, M.A. was able to r ecall that
her attacker's skin color was "medium." She testified that
"[w]hen I was hypnotized, I saw his face again just like I
had seen it, but it was much clearer." Immediately after the
hypnotic session, M.A. met with a state police sketch artist
and described her attacker. The sketch artist testified that
as a result of the hypnosis, M.A.'s memory was"definitely
enhanced" and she was "surer of particular . . . information
. . . . [S]he told me that she remember ed better." He said
M.A.

described the person or the perpetrator of the crime as
being a Negro male, approximately twenty-eight years
old, approximately one hundred eighty pounds,
approximately five[-]foot[-]eleven, muscular build,
medium complexion. She remembered his eyes as
approximately being dark. She remember[ed] stubble
on his face and the hair as being black and short with
tight texture.

In addition to recalling more specific features of her
attacker during hypnosis, M.A. remember ed her attacker
had worn jeans and a tan suede jacket with a zipper.

23
Several days later she also recalled ther e was dirt or a stain
near one of the pockets of her attacker's jacket.

With the assistance of M.A.'s "sketch," the police
arranged a photo line-up of possible suspects that included
a photograph of Clarence Moore. Police included Moore in
this line-up because he was a suspect in two other sexual
assault cases in Somers Point. Moore was also awaiting
trial on sexual assault charges in Cape May County.

M.A. immediately recognized the photograph of Clarence
Moore during the photo line-up. But the two other sexual
assault victims from Somers Point could not identify him.
In a written statement to police following this photo line-up,
M.A. stated,

On February 5, 1986, at 12:40 A.M., I was shown a
photo line-up consisting of six photographs of black
men by Capt. Lukasiewicz and Sgt. Kaufman. After
carefully viewing these photographs, I picked photo #2
[the photo of Clarence Moore] as the man who sexually
assaulted me. I am absolutely sure of this
identification.

After this initial photo identification, the police executed
a search warrant at Moore's home. They found a pair of
jeans and a jacket with a suede front and "sweater
material" on the collar, back and sleeves. The jacket had
stains on the front. M.A. had not mentioned to police that
her attacker's jacket had sweater material on the sleeves.
Additionally, M.A. described the jacket as "tan," but a state
police laboratory that conducted tests on the jacket said it
contained "orange fibers."

On October 9, 1986, almost nine months after the initial
identification of Moore, M.A. again met with the Somers
Point Police and the Atlantic County Prosecutor's office and
was shown a series of different photographs of suspects
including a more recent photograph of Clar ence Moore (the
previous photograph had been taken two years earlier). The
officers present at this viewing testified that M.A.
immediately identified Clarence Moore as her attacker. After
this identification, the officers showed M.A. a third series of
photographs from a live line-up of suspects that were in a
different order from the suspects in the previous

24
photographs. M.A. again identified Clarence Moore as her
attacker.

The investigating officers and those present during M.A.'s
out of court identifications testified at trial. Defense counsel
cross-examined these witnesses about the identification
procedures. The officer who conducted the first photo line-
up described the procedures he employed in selecting
photographs for the identification stating,

I obtained five other photographs of people that
appeared similar in physical appearance [to Moore].
With those I then photographed all six separately so
they would all be of the same general size and color
hue. I then placed them into a folder that has squar es
cut out so that only the face was showing.

He also testified that he chose the photographs in the line-
up by going through a large stack of photographs at the
police station and that he "tried to pick out the pictures
that most closely resembled Mr. Moor e." He testified that
during the identification, M.A. immediately picked out
Moore's photo and said, " `I'm sur e that's him. I'll never
forget his face. I see it every time I close my eyes.' "

Dr. Samuel Babcock testified at trial about the
procedures he employed in hypnotizing M.A. During cross-
examination, Dr. Babcock was questioned about his
methodology, specifically whether his procedure relied on
suggestive forms of questioning to enhance r ecall.11
_________________________________________________________________

11. Defense counsel questioned Dr. Babcock about confabulation, where
a person under hypnosis may unconsciously fill in memory gaps with
suggested information. Defense counsel suggested that authorities
within the scientific community believed the mor e assertive and
dominant the hypnotist, the greater likelihood the hypnotized subject
would experience confabulation. Defense counsel questioned Dr.
Babcock about how assertive he was with his patients. He also
questioned Dr. Babcock about the age r egression technique of hypnosis
he employed in hypnotizing his clients, and whether he was aware that
some authorities believed this technique resulted in a greater number of
subjects experiencing confabulation. Dr. Babcock responded to these
questions by acknowledging the scholarly criticism of suggestive
questioning and its impact on confabulation. However , he stated,

25
At trial M.A. testified that when she was sexually
assaulted she was able to look at the person who attacked
her and was able to see his face. She stated she was able
to see him "clearly," and that after being hypnotized, "I saw
his face again just like I had seen it, but it was much
clearer." In describing her identification of Moore at the
initial photo line-up, M.A. testified, "As soon as I saw
number two [Moore], I recognized him." In testifying about
the second photo identification, M.A. said, "I immediately
recognized the man who assaulted me." She testified that
the other photographs in the line-up did not look very
different from Moore but she knew Moore because "that is
the same face that I saw that night. I recognize that face,
everything about it." Finally, M.A. identified Moore during
an in-court identification stating there was no question
whatsoever in her mind that he was her attacker .

The state recovered physical evidence, including various
articles of clothing and blankets from M.A.'s apartment,
and sent this evidence to a crime laboratory for DNA
testing. The laboratory also examined hair, saliva and blood
samples from both M.A. and Moore. After testing this
material, the laboratory issued a report stating, "An
insufficient amount of high molecular weight human DNA
was isolated from the vaginal swabs, fitted sheet, beige
blanket, yellow blanket and the light blue comforter
therefore no comparisons could be made with blood from
Clarence Moore."

C.

As noted, the quantum or weight of the evidence is
crucial to determining whether the prosecutor's arguments
during summation were so prejudicial as to result in a
denial of due process. Darden, 477 U.S. at 182; Donnelly,
_________________________________________________________________

I keep low key, I do not lead the person. I only ask them to
continue
their own narrative, asking questions within their narrative but
without pressure. If I feel that they'r e not giving an answer,
I'll back
off the question. Perhaps I may come back to it later, but I do not
do it in any kind of a pressure situation.

26
416 U.S. at 644. The Appellate Division analyzed the
"incurability" of the prosecutor's r emarks within the context
of the entire trial and specifically examined the weight of
the evidence.12 Moore I, slip op. at *11; Moore II, 641 A.2d
at 124. Although M.A.'s identification of Moor e was post-
hypnotic, the New Jersey courts have validated this form of
identification.13 The New Jersey courts reviewed this
_________________________________________________________________

12. M.A.'s description of Moore as her attacker cannot be corroborated
by other witnesses. But corroborating witnesses are usually unavailable
in cases involving sexual assault. It is the duty of the fact finder to
assess the credibility and reliability of the victim's testimony. Moore's
attorney cross-examined M.A. on her identification and the jury found
her identification reliable. The trial court and Appellate Division held,
if
the jury found M.A.'s identification reliable, there was sufficient
evidence
to sustain Moore's conviction. Moor e II, 641 A.2d at 124-25.

13. As recently as 1996, the New Jersey Supr eme Court declined to
adopt a per se rule prohibiting hypnotically induced testimony. State v.
Fertig, 668 A.2d 1076, 1081-82 (N.J. 1996). The court reasoned that
although many state courts prohibit hypnotically induced testimony,
other courts have evaluated post-hypnotic testimony under a totality of
the circumstances test or have consider ed other factors, including
"procedural safeguards similar to those in Hurd to determine case-by-
case whether hypnotically-refreshed testimony is admissible." Id. at
1081. The court noted that twenty-six courts have found hypnotically
refreshed testimony per se inadmissible while only four states, North
Dakota, Oregon, Tennessee and Wyoming, find it generally admissible.
The court also noted that the expert whose r ecommendations they relied
upon in Hurd to determine the admissibility of hypnotically induced
testimony now believes that "procedural safeguards cannot fully protect
against the admission of [some improper] testimony . . . . [Therefore]
hypnosis should not be used to prepare a witness to testify in court, . .
.
in an attempt to improve the recall of a previously unreliable or
uncertain witness." Id. (quoting Martin T . Orne, et al., Hypnotically
Induced Testimony in Eyewitness Testimony: Psychological Perspective
171, 205 (Gary L. Wells & Elizabeth F . Loftus, eds. 1984)). But the New
Jersey Supreme Court commented that many federal courts, including
the Courts of Appeals for the Fourth, Fifth, Seventh, Eighth and
Eleventh Circuits, and several state courts, including courts in Alabama,
Colorado, Florida, Mississippi, New Mexico, South Dakota and
Wisconsin, determine on a case-by-case basis whether hypnotically
refreshed testimony is sufficiently r eliable to be admissible. Id. at
1081.
The New Jersey Supreme Court stated, "These courts recognize, as we
did in Hurd, that a per se inadmissible rule may exclude otherwise

27
evidence and found nothing in the recor d suggested that
either the police or Dr. Babcock suggested what the
assailant looked like. Moore I, slip op. at *10. The Appellate
Division noted,

Following a thorough Hurd hearing, the trial judge
found that all the standards set forth by the[New
Jersey] Supreme Court had been fully complied with.
We are satisfied the use of hypnosis was appropriate
for the victim's fear-induced traumatic neur osis, and
that the trial judge's findings as to the pr ocedures
employed and adherence to the Hurd requirements
were supported by substantial credible evidence in the
record.

Id.

The Appellate Division concluded the evidence was"more
than sufficient" to support a finding of guilt. Moore I, slip
op. at *11; Moore II, 641 A.2d at 124. But finding the
evidence "more than sufficient" for conviction does not
necessarily end the constitutional inquiry. Although the
jury found Moore guilty beyond a reasonable doubt, the
Supreme Court requires the reviewing court to factor the
prejudicial effect of the prosecutor's improper remarks into
the jury's finding of guilt and then assess its impact.
Taking into consideration the quantum of evidence properly
presented, the due process inquiry r equires the reviewing
court to determine whether the prosecutor's remarks were
so prejudicial, even in light of the curative instructions, as
to result in the denial of the right to a fair trial. When the
evidence is strong, and the curative instructions adequate,
_________________________________________________________________

reliable evidence." Id. In Fertig, however the court added an additional
procedural safeguard stating, "When trial courts admit hypnotically-
refreshed testimony, they should instruct the jury of the effect that
hypnosis may have on that testimony." Id. at 1082.

In this case, the trial court conducted the appr opriate Hurd hearing to
determine the admissibility of M.A.'s post-hypnotic identification and
instructed the jury that they could consider this testimony if they found
it reliable. Of course, Fertig's requirement that the jurors be instructed
about the effect hypnosis may have on testimony was inapplicable at the
time of Moore's trial.

28
the Supreme Court has held the prosecutor's prejudicial
conduct does not deprive a defendant of a fair trial. Greer
v. Miller, 483 U.S. 756, 767 n.8 (holding evidence "primarily
consisting of detailed testimony [of a co-conspirator who
had confessed to the crime] which was corr oborated by
physical and other testimonial evidence" was str ong enough
to support conviction despite prejudicial comments), reh'g
denied, 483 U.S. 1056 (1987); Darden , 477 U.S. at 182
(holding "the weight of evidence against the[defendant] was
heavy; the overwhelming eyewitness and circumstantial
evidence to support a finding of guilt on the char ges . . .
reduced the likelihood that the jury's decision was
influenced by the [prosecutor's] impr oper argument"). We
must assess then the prosecutor's improper remarks, the
curative instructions and the weight of the evidence.

D.

The prosecutor's challenged arguments at the very least
were irrelevant, illogical and offensive. His "selection"
argument appeared to be based on the per ception that rape
is an expression of sexual desire rather than violence.14 In
fact it is generally understood the opposite is true,
Lieberman v. Washington, 128 F .3d 1085, 1098 (7th Cir.
1997) (citing authorities), and the trial court advised the
jury of the invalidity of the prosecutor's theory in its
curative instruction. To the extent the pr osecutor's theory
implicitly represented that a black man's attraction to a
white woman is an identifying characteristic, the trial court
countered it was "unfair and unreasonable" to infer that the
selection of a white victim would help identify Moor e. The
trial court also invalidated the prosecutor's"sexual release"
argument by instructing the jury that the inference was
unreasonable and improper and ther e was no evidence of
lack of sexual access.

The prosecutor's "selection" argument cited Moore's
marriage to a white woman, arguably raising biases against
miscegenation and ugly stereotypes. Racially or ethnically
_________________________________________________________________

14. The State acknowledges, "The Appellate Division properly saw this
remark as an ignorant and uninformed statement about the true nature
of sexual assault." Br. for Appellees at 40.

29
based prosecutorial arguments have no place in our system
of justice. See McClesky v. Kemp, 481 U.S. 279, 309-10,
reh'g denied, 482 U.S. 920 (1987). In this regard, courts
applying Supreme Court precedent have found that
improper racial and ethnic references can be so prejudicial
as to result in a denial of due process. 15 But not all racial
_________________________________________________________________

15. We recognize there ar e instances where trial courts immediately
grant a defendant's motion for mistrial because of a prosecutor's
prejudicial comments. Typically a trial judge's grant of a defendant's
motion for a mistrial is not reviewed on appeal, unless double jeopardy
concerns are present. See generally United States v. Dinitz, 424 U.S. 600
(1976). Therefore, the following sampling of appellate cases may not
accurately reflect the range of cases wher e a prosecutor's improper
racial
references constituted due process violations. We also note that some of
the following cases predate Donnelly. But to the extent these cases
examine the prejudicial effect of impr oper racial arguments we find them
helpful in illustrating the curability of impr oper racial arguments. See,
e.g., United States v. Cannon, 88 F .3d 1495, 1503 (8th Cir. 1996)
(prosecutor's reference to African-American defendants as "bad people"
in case where evidence was not overwhelming"gave [the] jury an
improper and convenient hook on which to hang their conduct,"
resulting in due process violation); United States v. Doe, 903 F.2d 16,
27-
28 (D.C. Cir. 1990) (prosecutor's statement that "Jamaican[s] [are] . . .
coming in and they're taking over" and r epeated references to "they" and
"them" in a drug case involving Jamaican defendants was improper
where evidence was not "overwhelming"); McFarland v. Smith, 611 F.2d
414, 416, 419 (2d Cir. 1979) (prosecutor's statement that African-
American officer's testimony about African-American defendant should
be believed because it is "someone she knows and that's a member of
her own race" was "constitutionally imper missible" because it invoked
race for an illogical purpose and created "a distinct risk of stirring
racially prejudiced attitudes"); Withers v. United States, 602 F.2d 124,
125, 127 (6th Cir. 1979) (prosecutor's statement that "not one white
witness has been produced" to support African-American defendant's
case was prejudicial and required new trial where evidence was not so
overwhelming as to create an "open and shut case" against defendant);
Miller v. North Carolina, 583 F.2d 701, 707 (4th Cir. 1978) (prosecutor's
statement that "I argue to you that the average white woman abhors
anything of this type . . . with a black man" in a rape case involving
African-American defendants was due process violation where no
curative instructions were given); Kelly v. Stone, 514 F.2d 18, 19 (9th
Cir. 1975) (prosecutor's asking jury to"[t]hink about the consequences
of a letting a guilty man . . . go free. Because maybe the next time it
won't be a little black girl from the other side of the tracks; maybe it
will
be somebody that you know," operated to deny African-American

30
and ethnic references are so pr ejudicial as to constitute due
process violations. Darden, 477 U.S. at 182; Donnelly, 416
U.S. at 644. In other instances, courts applying Supreme
Court precedent have held the prejudicial effect of a
prosecutor's improper references to race or ethnicity can be
cured with judicial instructions charging the jury to
disregard the improper statements. 16
_________________________________________________________________

defendant accused of rape the right to fair trial when combined with two
other inappropriate comments); United States ex rel. Haynes v.
McKendrick, 481 F.2d 152, 155, 161 (2d Cir. 1973) (prosecutor's
statements about defense counsel's "experience with the people of the
colored race" and his knowledge of "their weaknesses and inability to do
certain things that maybe are commonplace for the ordinary person to
do," combined with his statement about "the custom and habit of many
colored people" to have "exotic hair dos" denied African-American
defendants fair trial where evidence in case was not "overwhelmingly
persuasive"); United States v. Grey, 422 F.2d 1043, 1045-46 (6th Cir.)
(prosecutor's statement about African-American defendant's African-
American character witness "running around with a white go-go dancer"
was sufficiently prejudicial to warrant new trial), cert. denied, 400 U.S.
967 (1970).

16. The following is a sampling of federal cases applying Supreme Court
precedent, see supra note 8, that have found improper prosecutorial
references to race were not so pr ejudicial as to result in the denial of
due
process. Again, some of these cases predate Donnelly. But to the extent
they illustrate the prejudicial effect of improper racial arguments, we
find
them helpful. See, e.g., Thomas v. Gilmore, 144 F.3d 513, 518 (7th Cir.
1998) (prosecutor's statement that African-American defendant had prior
arrests for sexual offenses with "young white women" was "too fleeting
and isolated" to have denied defendant fair trial), cert. denied, 525 U.S.
1123 (1999); Smith v. Farley, 59 F.3d 659, 663-64 (7th Cir. 1995)
(prosecutor's reference to African-American witness as "shucking and
jiving on the stand" and reference to African-American defendants as
"boys" did not interfere with the impartiality of the jurors because the
"evidence of guilt in the case was overwhelming"), cert. denied, 516 U.S.
1123 (1996); Russell v. Collins, 944 F .2d 202, 204 n.1 (5th Cir.)
(prosecutor's statement asking jury to imagine the fear of white murder
victim as "three black strangers" attacked her was an "isolated reference
to the race of the defendant" and did not deny defendant fair trial),
cert.
denied, 501 U.S. 1278 (1991); United States v. Chase, 838 F.2d 743, 750
(5th Cir. 1988) (prosecutor's statement about "Colombians [sic] with their
cautiousness" in a drug case involving Colombian defendant was not

31
In this case, the trial court commendably attempted to
cure any possible harm and prejudice resulting from the
prosecutor's improper arguments. After refuting the
prosecutor's "selection" argument, the court specifically
instructed the jury to disregard the pr osecutor's remarks,
declaring that such racial references wer e invalid. As noted,
the trial judge instructed the jury,

I am ordering you to disregard what the prosecutor
said in reference to the testimony, the appearance of
Mrs. Moore, she being a white person, a Caucasian,
and Mr. Moore being a black person, and that the
_________________________________________________________________

"harmful error"); United Statesv. Cardenas, 778 F.2d 1127, 1131-32(5th
Cir. 1985) (prosecutor's statement that defendant in a drug case was
Colombian did not warrant a new trial); United States v. Harvey, 756
F.2d 636, 649 (8th Cir.) (prosecutor's statement that attributed the use
of the term "honky" to African-American defendant accused of crimes
involving white victims was prejudicial but was cured by cautionary
instructions), cert. denied, 474 U.S. 831 (1985); Griffin v. Wainwright,
760 F.2d 1505, 1513, 1515 (11th Cir. 1985) (prosecutor's reference to
victim of crime as "white" in case involving black defendant did not deny
defendant fair trial), cert. denied, 476 U.S. 1123 (1986); United States
v.
Yonn, 702 F.2d 1341, 1349 (11th Cir.) (prosecutor's statement that
defendant in drug case was Colombian did not warrant new trial), cert.
denied, 464 U.S. 917 (1983); Thornton v. Beto, 470 F.2d 657, 659 (5th
Cir.) (prosecutor's reference to African-American defendants as "niggers"
during re-direct examination of victim did not deny defendants fair trial
because defense counsel objected when remark was made and court
instructed jury to disregard reference), cert. denied, 411 U.S. 920
(1973);
United States v. Horne, 423 F.2d 630, 631-32 (9th Cir. 1970)
(prosecutor's statement that "I am tir ed of [defense counsel] trying to
let
these people hide behind their race" and statement during closing that
"[r]emember first, that he is a Negr o" was improper but did not affect
African-American defendant's "substantial rights" when viewed in context
of whole record); Brent v. White
, 398 F.2d 503, 505 (5th Cir. 1968)
(prosecutor's reference to rape victim as "white girl" in case where
defendant was African-American was not due pr ocess violation because
victim took the stand as a witness and it was appar ent to jury she was
white), cert. denied, 393 U.S. 1123 (1969); United States v. Douglas, 862
F. Supp. 521, 530-31 (D.D.C. 1994) (pr osecutor's reference to Jamaican
defendant's ethnicity in drug case did not r esult in due process
violation), aff 'd, 70 F.3d638 (D.C. Cir. 1995), cert. denied, 516 U.S.
1098 (1996).

32
 reason, the selective process, was that he did this
aggravated assault because he selected a white or
Caucasian person. Disregard that. That's an unfair and
unreasonable inference to be drawn fr om the testimony
and I'm convinced that it's not proper ar gument to the
jury.

The Appellate Division held that in the context of the entire
trial, these curative instructions remedied the harms
caused by the prosecutor's improper comments.17 We are
not convinced. The prosecutor's approach in advancing his
"selection" argument was direct and deliberate. His own
words demonstrate the purpose of his appeal was to bolster
the State's identification evidence. Specifically he stated,

Based on the testimony of Cheryl Moore, the case is
stronger than ever, that the odds ar e that this
defendant is the perpetrator [and] . . . you have more
reason to convict Clarence McKinley Moor e now that
she has testified than ever.

The prosecutor noted there were "three important things"
the jury should learn from Mrs. Moor e's "appearance" as a
defense witness. He stated:

What did we learn when we found out that Cheryl
Moore was the wife of the defendant? I suggest to you
in a nonracist way that what we found out was that
Clarence McKinley Moore made a choice to be with a
Caucasian woman.

In other words, the prosecutor argued Moore's "preference"
for white women was probative evidence of whether he
raped M.A. His disclaimer, "It's not a statement of race; it's
a question of choice," does not mitigate his injection of race
into the jury's deliberations ("the case is str onger than
ever"). The trial judge immediately understood the
_________________________________________________________________

17. See, e.g., Greer, 483 U.S. at 767 n.8 ("We normally presume that a
jury will follow an instruction to disregar d inadmissible evidence
inadvertently presented to it, unless ther e is an `overwhelming
probability' that the jury will be unable to follow the court's
instructions.") (quoting Richardson v. Marsh, 481 U.S. 200, 218 (1987)).
Here, the prosecutor's improper ar guments were not inadvertently
presented.

33
implications of the prosecutor's argument. Calling the
argument "unfair," the trial judge recognized the
prosecutor's "selection" argument was prejudicial because it
declared that Mrs. Moore's race was r elevant to the issue of
Moore's guilt and could play to bias against interracial
couples. The argument gave the jury an illegitimate "hook"
on which to base their decision.18

The "selection" argument had no basis in the evidence. In
a case involving a black defendant accused of raping a
white woman we believe this argument, although presented
with a disclaimer, was highly prejudicial and invited the
jury to decide the case on bias. See Miller, 583 F.2d at 707
(prosecutor's statement that "I argue to you that the
average white woman abhors anything of this type . .. with
a black man" in a rape case involving African-American
defendant was due process violation wher e no curative
instructions were given). As noted, the trial judge had little
doubt about the argument's impact when he admonished
the prosecutor at sidebar to "stay away fr om the area of
white/black because I don't think that's in the case."

The prosecutor's "sexual release" ar gument was also
improper. The comment implied that Moor e was guilty of
raping M.A. because he was unable to have sexual
intercourse with his wife. While improper , we believe it is
the kind of remark usually remedied by appropriate
curative instructions. The trial judge immediately cautioned
the jury that there was no evidentiary basis for this
inference. We believe the trial judge ef fectively remedied any
possible prejudice stemming from the r emark.

As noted, the prosecutor commented at the end of his
summation that, "if you don't believe . . . [M.A.] and you
think she's lying, then you've probably perpetrated a worse
_________________________________________________________________

18. See, e.g., McCleskey, 481 U.S. at 309 n.30 ("If the circumstances of
a particular case indicate a significant likelihood that racial bias may
influence a jury, the Constitution requir es questioning as to such
bias.")
(citing Ristaino v. Ross, 424 U.S. 589 (1976)); Cannon, 88 F.3d at 1503
(prosecutor's reference to African-American defendants as "bad people"
in case where evidence against them was not overwhelming "gave [the]
jury an improper and convenient hook on which to hang their conduct,"
resulting in due process violation).

34
assault on her." This was an improper appeal to the jurors'
passions.19 As the Supreme Court held in Berger v. United
States, 295 U.S. 78, 85-88 (1935), overruled on other
grounds, Stirone v. United States, 361 U.S. 212 (1960),

The United States Attorney is the repr esentative not of
an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is . . .
compelling . . . . He may prosecute with ear nestness
and vigor - indeed he should do so. But, while he may
strike hard blows, he is not at liberty to strike foul
ones.

M.A. suffered a brutal attack and rape. By asking the
jury to factor their understandable sympathy for the victim
of this horrible crime into deciding Moore's guilt or
innocence, the prosecutor made an imper missible request
to decide guilt on something other than the evidence.
Courts applying Supreme Court precedent have found that
similar appeals for jurors to decide cases based on passion
and emotion were improper.20 See supra note 8. But other
_________________________________________________________________

19. See, e.g., Viereck v. United States, 318 U.S. 236, 247 (1943)
(prosecutor's statement to jury during W orld War II that "the American
people are relying upon you . . . for their protection against this sort
of
crime, just as much as they are relying upon the men who man the
guns" was an improper appeal to passion); United States v. Cunningham,
54 F.3d 295, 300-01 (7th Cir.) (pr osecutor's statement to jury that
"[c]ollectively you can go back there and stop [the defendants]. You can
make sure that [the victim] isn't going to get beat up again. Heaven
forbid, for the witnesses that came in this courtr oom the last couple of
days if these guys are found not guilty. Heaven forbid. Don't let that
happen," was improper appeal to jury's emotions), cert. denied, 516 U.S.
883 (1995); United States v. North, 910 F .2d 843, 895 (D.C. Cir. 1990)
(prosecutor's statement comparing defendant to Adolf Hitler was
improper appeal to passion), opinion withdrawn and superseded in part
on reh'g, 920 F.2d 940 (D.C. Cir. 1900) (per curiam order), cert. denied,
500 U.S. 941 (1991).

20. See, e.g., United States v. Payne , 2 F.3d 706, 712 (6th Cir. 1993)
(prosecutor's reference to defendant taking advantage of children at
Christmas was improper appeal to emotion); United States v. Lee, 743
F.2d 1240, 1253 (8th Cir. 1984) (pr osecutor's statement that "[w]hat you
do as jurors is going to be watched her e. You can better believe that
each and every drug smuggler is watching what happens here today,"
was an improper appeal to emotion).

35
courts applying Supreme Court precedent have recognized
that improper appeals to passion can be cur ed.21 Id.

As noted, the trial court here instructed the jury,

I want to tell you I'm going to order you-- I generally
don't order people. I'm going to order you to disregard
that last remark made by [the prosecutor] to the effect
that the last thing I have to say to you is that if you
don't believe her and you think she's lying, then you're
probably perpetrating a worse assault on her .
Disregard that remark. I have deter mined that's
improper and you are not to consider that for any
purpose in this case.

Given the graphic evidence of a brutal rape, we believe the
prosecutor's "perpetrating a worse assault" comment was
likely to improperly influence the jury's decision by
implying that a not-guilty verdict would compound M.A.'s
suffering.22

Furthermore, the prosecutor's ar gument
mischaracterized M.A.'s testimony. The principal issue at
trial was never M.A.'s credibility in ter ms of her
truthfulness or sincerity. In fact, there can be no doubt
about M.A.'s sincerity. The principal issue was the
reliability of M.A.'s identification, her opportunity to observe
_________________________________________________________________

21. See, e.g., Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000)
(prosecutor's statement asking jurors to put themselves in shoes of
murder victim's family was not so prejudicial as to deny defendant right
to fair trial when curative instructions wer e given); Walker v. Gibson,
228
F.3d 1217, 1243 (10th Cir. 2000) (pr osecutor's reference to murder
victim as "cold in his grave" was impr oper appeal to emotion but not
sufficient to render trial unfair because it was "likely the crime itself
produced sympathy before [the] pr osecutor made [the] comments").

22. See, e.g., Kelly, 514 F.2d at 19 (prosecutor's asking jury to "[t]hink
about the consequences of a letting a guilty man . .. go free. Because
maybe the next time it won't be a little black girl from the other side of
the tracks; maybe it will be somebody that you know," operated to deny
African-American defendant accused of rape the right to fair trial when
combined with two other inappropriate comments); but see Walker, 228
F.3d at 1243 (prosecutor's refer ence to murder victim as "cold in his
grave" was improper appeal to emotion but not sufficient to render trial
unfair).

36
and remember her assailant. To the extent that implying a
not-guilty verdict required finding M.A. lied, the prosecutor
manipulated the identification testimony into a question of
veracity when the real issue was reliability. To the extent it
was intended to buttress M.A.'s credibility (in terms of her
ability to observe or to refute the confabulation argument),
the argument was improper because it played to the jurors'
emotions and suggested a not-guilty verdict r equired
finding M.A. lied.

Were this the only improper ar gument, we do not believe
Supreme Court precedent would requir e finding a denial of
due process. Taken in isolation, any pr ejudice stemming
from the "perpetrating a worse assault" argument could be
cured with strong instructions like those the trial judge
issued here. But when viewed in light of the pr osecutor's
"selection" argument, we believe due pr ocess concerns are
implicated. Together, the prosecutor's "selection" argument
and the "perpetrating a worse assault" ar gument were not
only improper but prejudicial. Thr ough these arguments,
the prosecutor asked the jury to decide the case on bias
and emotion rather than on the evidence presented.

Specifically, his "selection" argument asked the jury to
infer from Mrs. Moore's race, and not fr om the credibility or
reliability of her alibi testimony, that her husband was
guilty. As noted by the Supreme Court in Darden, when a
prosecutor's argument manipulates or misstates the
evidence, the argument can be so prejudicial as to result in
the denial of due process. 477 U.S. at 182. Her e, the
prosecutor manipulated testimony to bolster identification
evidence.

We believe the trial court properly attempted to cure any
resulting prejudice from the pr osecutor's arguments. As
noted, its instructions directly charged the jury to disregard
the prosecutor's improper refer ences to race and appeals to
their emotions.23 Despite the trial court's strong
instructions, the issue remains whether in the context of
the entire trial and in view of all the evidence, the
prosecutor's prejudicial remarks r esulted in a denial of due
_________________________________________________________________

23. We do not believe the delay occasioned by the overnight adjournment
is especially relevant here.

37
process. As recognized by the Supr eme Court in Darden,
when looking at the entire trial, the r eviewing court should
examine the strength of the evidence against the defendant.
477 U.S. at 182.

E.

Most of the evidence presented at trial focused on M.A.'s
identification of Moore. The New Jersey courts found the
identification evidence "more than sufficient" to support a
finding of guilt beyond a reasonable doubt. Absent the
prosecutorial misconduct here, we would agree. But
whether the quantum of evidence against Moor e was
sufficiently strong to support his conviction in light of the
prosecutor's prejudicial arguments is a more difficult
question.

M.A. acknowledged that her eyes were closed during most
of the attack. She stated that she was only able to see her
attacker's face at "one point when he was standing over the
bed." During this "mere glimpse," she was not wearing her
contact lenses and was understandably extremely
frightened. The room in which the attack occurr ed was
dark and was only illuminated by outside str eet lights. M.A.
stated that although she saw her attacker's face, she could
not see it "in detail" at the time of the rape. She was only
able to give a rough physical description of her attacker
including his race, and his approximate height and physical
build. It was only after undergoing hypnosis that M.A. was
able to give a more detailed description of her attacker
including the clothing he was wearing and the color and
texture of his hair. The only physical evidence presented at
trial was the jacket found in Moore's home which M.A.
identified as the one her attacker wore the night of the
rape. But the laboratory tests on the fibers on the jacket
were unhelpful in the identification.

As noted by the Supreme Court in Dar den, improper and
prejudicial prosecutorial arguments generally are curable
when the evidence is strong. 477 U.S. at 182. Where the
evidence is not strong, however, the Court has found that
highly prejudicial arguments may r esult in the denial of
due process. See Greer, 483 U.S. at 765. As noted, there

38
was no physical evidence here, with the exception of the
jacket, to connect Moore to the rape. M.A.'s pr e-hypnotic
identification of her attacker was vague. Her post-hypnotic
identification was not strong because it was based on her
recollection of her attacker resulting fr om a single brief
view. While this evidence could properly support a finding
of guilt, it is not as strong as those cases in which the
Supreme Court has found highly prejudicial prosecutorial
arguments curable. Greer, 483 U.S. at 765; Darden, 477
U.S. at 182.

In Darden, the Court found the pr osecutor's improper
arguments curable in part because "the weight of evidence
against [the defendant] was heavy; the overwhelming
eyewitness and circumstantial evidence to support a finding
of guilt on the charges . . . reduced the likelihood that the
jury's decision was influenced by [the pr osecutor's
improper] argument." 477 U.S. at 182 (internal quotes
omitted). Similarly in Greer, the Supreme Court found the
prosecutor's prejudicial comment about the defendant's
post-arrest silence did not infect the trial with unfairness
because the weight of the evidence against the defendant
was strong. The Greer Court noted the evidence "primarily
consisting of detailed testimony [of a co-conspirator who
had confessed to the crime] which was corr oborated by
physical and other testimonial evidence" was important in
finding no denial of due process. 483 U.S. at 767. In this
case, there is no similarly strong physical, circumstantial,
testimonial, or corroborating identification evidence linking
Moore to the rape.

F.

Taking into account the prosecutor's highly prejudicial
comments, the trial judge's curative instructions, and the
strength of the evidence, we believe a r easonable
application of Supreme Court precedent r equires finding
Moore's trial was so infected with unfair ness that it was
constitutionally infirm. See Greer, 483 U.S. at 765; Darden,
477 U.S. at 182. The Appellate Division impr operly weighed
the prejudicial effect of the prosecutor's references to race
and his appeals to the jurors' sympathy for the victim in
light of the strength of the evidence. Although the trial

39
judge issued strong curative instructions, the evidence
against Moore was not sufficiently str ong to ensure that the
jury disregarded the prosecutor's inflammatory and highly
prejudicial arguments and decided the case solely on the
evidence. A reasonable application of Supr eme Court
precedent therefore requir es finding Moore's trial was so
infected with unfairness that he was denied due process.

V.

For the foregoing reasons, we will r everse the District
Court's judgment and remand this matter with directions to
grant the writ of habeas corpus. The State of New Jersey
may retry Moore. The writ will be issued conditioned upon
a retrial within 180 days from the date on which the
District Court enters its order.

40
RENDELL, Circuit Judge, concurring:

I join Judge Scirica's opinion, but I write separately to
note my view that the prosecutor's remarks in his closing
statement to the jury were not merely, as the Majority
describes them, "irrelevant, illogical, and offensive." Maj.
Op. at 29. They were, in fact, outrageous in their direct
appeal to the jury to decide the case on impr oper grounds
and abandon the standards that our system of justice
requires.

The prosecutor's inflammatory remarks clearly were
calculated to divert the jury from its swor n duty to focus on
the evidence presented in the case. Indeed, her e the
prosecutor not only manipulated and misstated the
evidence, but actually attempted to fabricate evidence that
did not exist. And in such circumstances, it goes without
saying that it is the defendant who suf fers harm from the
prosecutor's misconduct, not the state. Certainly, we
cannot assume -- as the dissent does -- that given the
egregious nature of the prosecutor's remarks, the jury
would automatically recognize the misconduct and
therefore be more likely to acquit the defendant. Under that
curious theory, the worse the prosecutorial misconduct, the
better off the defendant, and the less likely there is to be a
due process violation. By that reasoning, one is left to
wonder how prosecutorial misconduct could ever violate
due process.

Furthermore, it bears emphasis that the curative
instructions issued by the trial court were mediocre at best,
and certainly did not cure the prejudicial effect of the
prosecutor's outrageous remarks. Rather than, as in
Donnelly, taking "special pains" to corr ect the prosecutor's
improper remarks, Donnelly, 416 U.S. at 644, here the trial
judge made no effort to remove the thin veil from the
prosecutor's racist arguments by telling the jury that these
arguments were, in fact, improper appeals to racial
prejudice, and that such appeals should have no bearing
on the case whatsoever. Moreover , the trial judge never, at
any time during the trial, used the word "race" in his
instructions to the jury, and the effect of the prosecutor's
invidious appeals to racial prejudice, viewed in the context
of the trial as a whole, could in no way be cur ed by

41
instructions that made no reference to race as a factor that
the jury must exclude from its deliberations.

Finally, what makes the prejudicial impact of the
prosecutor's misconduct in this case so clear is that the
evidence of Clarence Moore's guilt was uniquely
underwhelming. Judge Scirica's opinion sets forth in detail
the problems inherent in M.A.'s identification of Moore --
which was the only relevant evidence of guilt in the entire
trial -- and thus I see no need to repeat his excellent
analysis here. However, I think it is worth noting that the
use of hypnotically-induced identifications is controversial
at best, and any concerns that we might have about the
use of such identifications is heightened in a case such as
this, where the identification is entir ely uncorroborated.
E.g., Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir. 1978)
(noting that "[c]enturies of experience in the administration
of justice have shown that convictions based solely on
testimony that identifies a defendant previously unknown
to the witness is highly suspect. Of all the various kinds of
evidence it is the least reliable, especially where
unsupported by corroborating evidence"); see also United
States v. Wade, 388 U.S. 218, 228 (1967) (observing that
"[t]he vagaries of eyewitness identification are well-known;
the annals of criminal law are rife with instances of
mistaken identification").

In sum, viewed through the lens of the Supr eme Court's
teachings on the implications of improper pr osecutorial
remarks, there is no doubt that Clar ence Moore was denied
due process. Indeed, when I consider the facts of this case
-- the egregious prosecutorial misconduct, the lack of
effective curative instructions, and the insubstantial
evidence of guilt -- I can hardly imagine a more compelling
case for reversal given the dictates of established Supreme
Court precedent. As such, the trial process was infected
with unfairness, and the New Jersey courts unr easonably
applied this precedent by not granting Moor e a new trial.

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GREENBERG, Circuit Judge, dissenting:

I respectfully dissent but do so reluctantly as I recognize
that the court has made a careful study of this case and
that it has reached its result only after thoughtful
deliberation. Nevertheless, there can be no doubt that the
Appellate Division of the Superior Court of New Jersey on
two occasions went through a similar pr ocess with no less
an awareness of its obligations and yet r eached a result
opposite than that the court reaches her e. In the final
analysis, then, this case involves a choice of two different
views of the effect of the prosecutor's misconduct and the
trial court's efforts to remedy the situation.

I do not reiterate the background of this case as the
court fairly sets it forth. Nor do I discuss the controlling
legal authorities at length as the court lays them out.
Rather, I merely state the overar ching legal principles
involved here. Under the AEDPA when a federal court
considers a state prisoner's habeas corpus petition, the
underlying decision of the state court with r espect to any
claim that was adjudicated on the merits must contr ol
unless, as germane here, it "was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States." 28 U.S.C. S 2254(d)(1). Inasmuch as this court
acknowledges that this case does not implicate the
"contrary to" prong of section 2254(d)(1), the court must
determine whether the state decisions wer e an
unreasonable application of Federal law as determined by
the Supreme Court. I am satisfied that they were not and,
in fact, were correct. Indeed, I believe that, if anything, the
prosecutor's comments which resulted in the admonitions
and directions of the trial court prejudiced the state at the
trial. After all, the jury could not possibly have failed to
recognize that the prosecutor was making an improper
appeal to it. In this regard, I point out that this is not a
situation in which the prosecutor suggested to the jury that
he had important evidence pointing to the defendant's guilt
which for some reason he had not presented to the jury.
Thus, while the prosecutor made arguments not supported
by the evidence they were merely impr oper on the basis of
the evidence of which the jury was aware. Mor eover, I see

43
no reason to believe that the jury would have had any
difficulty carrying out the judge's instructions to disregard
the improper comments.

It is also important to remember that the Appellate
Division reviewed this matter not once but twice and thus
the court makes reference to both of its decisions. Actually,
two separate panels of the Appellate Division consisting of
five different judges considered this case, once on direct
appeal and once in post-conviction relief pr oceedings and
came to the unanimous conclusion that the pr osecutor's
conduct did not require a reversal of the convictions.1 It
also is important to recognize that these pr oceedings are
remedial, not punitive, so that if, as I think is clearly the
case, the verdict was not influenced by the prosecutor's
improper remarks, we should deny Moor e relief.

Finally, I point out that under the AEDPA we are in the
unfamiliar position of being obliged to make a highly
deferential review of a state court's decisions of law for
ordinarily our review of legal deter minations is plenary.
Thus, we must guard against the possibility that our result
is driven by our mere conclusion that the state court erred
as the AEDPA requires more for the granting of habeas
corpus relief.

For the foregoing reasons I respectfully dissent.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

1. Moore contended that his right to a fair trial had been violated in the
post-conviction relief proceedings as an aspect of an argument that he
was entitled to a new trial because counsel had been ineffective.

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