The Court continued in relevant part: In light of the factual findings of the third PCR judge, the Court accepts that Hannah’s trial counsel had the Redd Report. The exclusion of that evidence must be considered in conjunction with the other evidence withheld — the testimony of Thomas’s mother. The mother’s damning testimony inculpating her son came in two forms — her recounting statements against interest made by Thomas and her observations of Thomas involved in drug activities seemingly linked to the murdered drug dealers. The mother’s testimony did not get before the jury, however, because of Hannah’s counsel’s failure to present the proper evidentiary argument for the testimony’s admissibility — an error magnified and multiplied by errors made by the trial court, the PCR courts, and the Appellate Division.
The Court explains that the mother’s testimony about Thomas’s statements against penal interest were admissible under N.J.R.E. 803(c)(25); that trial counsel’s failure to identify that rule to the trial court cannot be ascribed to strategy; that the Appellate Division’s determination on direct appeal that N.J.R.E. 803(c)(25) required the statement both to inculpate Thomas and exculpate Hannah was mistaken; and that the prosecutor unfairly exploited the derelictions of defense counsel when — despite her knowledge of the Redd Report and the testimony by Thomas’s mother — she told the jury in summation that there was not “a scintilla” or “a piece of evidence” linking Thomas to the murder.
One cannot hep but wonder if the Appellate Division was being results-oriented in affirming Hannah’s conviction. They are staffed with a panel of judges, professional research clerks, and law clerks. All of the skilled staff would have had access to the caselaw and treatises that explain the required elements to lay a foundation for the hearsay exception at issue. Still, they erred on this basic question.
With regard to the Court’s critique of the prosecution’s knowledge, her likely response would have been that she was being truthful in her arguments before the jury. In noting the lack of evidence, she was referencing the evidence presented at trial as opposed to all of the potential evidence that existed.
