The NY Court of Appeals gets its comeuppance

NYCA July 2016

When it comes to federal habeas petitions, never has so much been denied to so many by so few. To the prisoner, a habeas is the last bastion of hope. To the federal judish, it’s the occasion for assuring state court judges that they’re just as equal if not more so, even if they get paid less and weren’t appointed by the President.  And although the state court decision might have been a teensy bit wrong, or even very wrong, it’s never wrong enough to justify depriving the Great God Finality of its human sacrifice.

Which is why the Second Circuit’s habeas grant in Fuentes v. Griffin should be front page news. At last, a federal court has called the NY courts onto the carpet for fiddling the facts to uphold a conviction. Or, as the 2d Cir. put it, “not recognizing the actual content” of the record.

Fuentes began as a typical swearing contest where he said it was consensual and she said it was rape, and there was nothing but their word to support either story.  But things took a strange turn when defense counsel, in the middle of his closing argument, found a document among the People’s exhibits that he’d never seen before. It was a psychiatric report showing that for at least two years before encountering Mr. Fuentes, the complainant had been suffering from chronic depression, thoughts of killing herself and frequent crying spells.

Counsel moved for a sidebar and argued that if the People had turned over the report before trial – as they were supposed to do – it would have been valuable impeachment material. It would have supported his client’s testimony that the encounter was a mutual pickup, but that when he’d expressed no interest in seeing the complainant again, she became furious, made a scene in public and told him he’d be sorry. The report would also have enabled counsel to argue to the jury that the complainant’s continual crying on the witness stand wasn’t necessarily a sign that her story was true.

The prosecutor blithely admitted that she’d intentionally withheld the psych report while assuring defense counsel that she’d given him all the medical records. This is considered very bad manners, known in the trade as a Brady violation.

The court denied a mistrial, saying the report wasn’t exculpatory, although that’s not the Brady test. The jury, after deliberating for two full days, returned a guilty verdict. Mr. Fuentes got 25 years.

The Appellate Division found no Brady violation, saying that defense counsel had “a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses.” Say what? He didn’t even know about it until the middle of summation. That’s the Appellate Division for you: they just make stuff up.

The NY Court of Appeals also found no Brady problem, albeit “employing a different rationale.” That’s how higher courts tell lower courts, “Your rationale is embarrassing, but we’ll cover your judiciary (CYJ).”

The NYCA’s different rationale was to out-and-out misread the report as saying that the complainant had no history of psychiatric problems and was depressed because she was raped.  Besides, said the Court, the report didn’t say she was so out of it that she couldn’t identify the defendant. Anyway, it wouldn’t have been useful as impeachment because the defendant’s story was contradicted by the complainant’s story.

The late Judge Jones dissented, accusing the majority of engaging in a “selective marshaling of the facts.”

The Second Circuit tore the NYCA decision limb from limb, calling it sloppy, biased and circularly-reasoned. Okay, they didn’t put it quite like that. But, they said, there’s a limit to deference when the court relies on a record it hasn’t bothered to read. A radical conclusion that really ticked off the 2d Cir. dissenter, a former NYCA judge, so naturally a fan of deference über alles.

Apart from noting that the NYCA hadn’t recognized the actual content of the psych report, the 2d Cir. said that its analysis “did not reflect a careful, balanced, or fair examination of the nature and strength of the evidence presented. . . . Far from evaluating the trial testimony as a whole, the Majority ignored substantial aspects of the testimony, thereby overstating the strength of the State’s case.”

Rubbing it in some more, the 2d Cir. found that the NYCA had just plain got the issue wrong. The defense wasn’t that the complainant was too delusional to make an identification, it was that she was falsely accusing Mr. Fuentes out of anger and vindictiveness. Where the only evidence that the encounter was a rape was her word for it, the report showing her history of mood disorder would have been valuable impeachment. And it was a bit circular to denigrate the report’s impeachment value by assuming the truth of her testimony.

Will Fuentes persuade appellate courts to start recognizing the actual content of the record instead of selectively marshaling the facts? Will it make them question the assumption that appellate review just means finding a way to affirm the conviction? Or will Fuentes be just another blazing comet that briefly entered the judiciosphere and won’t be back again until 3016?

Rubber stamp

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Guest Post: Exoneration after 25 Years Is Great but Competent Appellate Review at the Time Would Have Been Better

Andre Hatchett after being exonerated in Brooklyn. Barry Scheck of the Innocence Project is at left. Second from right is Seeme Saifee, staff attorney with the Innocence Project, and James Brochin of Paul, Weiss, Rifkind, Wharton & Garrison

Andre Hatchett after being exonerated in Brooklyn.
Barry Scheck of the Innocence Project is at left. Second from right is Seeme Saifee, staff attorney with the Innocence Project, and James Brochin of Paul, Weiss, Rifkind, Wharton & Garrison                 Photo by NYLJ

When Andre Hatchett was exonerated after serving half his life in prison for a murder he didn’t commit, the deceptively mild-mannered Ursula Bentele, Professor Emerita of Brooklyn Law School, commented that the Appellate Division had every reason to know at the time of his original appeal that it was very likely a wrongful conviction and plainly an unfair trial. She should know: she supervised his appeal.

By treating Mr. Hatchett’s appeal “in cavalier fashion,” the court bears some responsibility for his 20 years of wrongful imprisonment. 

Twenty years ago, Michelle Flaxman, a student in the Brooklyn Law School Criminal Appeals Clinic, received disappointing news. The Appellate Division, Second Department, in a brief, one-page opinion, affirmed the murder conviction of Andre Hatchett, rejecting the three legal arguments she had raised in her brief. People v. Hatchett, 225 A.D.2d 634 (2d Dept. 1996). Michelle wrote a strong letter seeking leave to appeal to the Court of Appeals, but Judge Bellacosa denied the application. Feeling passionate about the client’s possible innocence, Michelle referred the case to the Innocence Project, hoping that lawyers there might be able to accomplish what she could not.

Last month, after almost 25 years in prison, Andre Hatchett was finally set free. With the consent of the Brooklyn District Attorney’s office, and after extensive investigations by the Innocence Project with pro bono assistance from the Paul, Weiss law firm, the court released Mr. Hatchett, vacating his conviction and dismissing the indictment. Mr. Hatchett had been wrongfully convicted based almost entirely on the questionable testimony of career criminal who claimed to have  witnessed the killing (after he had been arrested himself for a burglary). The prosecution had withheld information that this witness first identified someone else as the killer, and defense counsel at trial failed to present evidence of Mr. Hatchett’s physical and mental disabilities that would have made it virtually impossible for him to commit the crime.

None of the extensive news coverage of this exoneration has focused on how the appellate process operated in Mr. Hatchett’s case. In considering how injustices like this one might be avoided, it may be worthwhile to look at that process. The appellate brief raised three points:

The conviction for intentional murder was against the weight of the evidence.

The prosecutor improperly questioned the alibi witness about his failure to come forward with exculpatory information.

The trial court abused its discretion by not reopening the suppression hearing, at which the defendant was represented by ineffective counsel.

The case against Mr. Hatchett, who had no prior record, depended on the testimony of Jerry Williams, a man with at least 28 prior arrests. Williams claimed that on February 18, 1991, he and a female companion on her way to buy crack had witnessed a man beating the victim (whom Williams knew, as she had served as a look-out for some of his burglaries) in a Brooklyn park. They failed to contact the police about what they had seen, but when Williams was arrested for burglary a week later, he told the detective that he could identify the person who had committed the murder. Although he selected Hatchett from a line-up, the police released him, only to place him in another line-up a month later. The female companion at first either could not identify anyone, or identified one of the fillers, but ultimately picked out Hatchett, who was then arrested and charged.

At pre-trial hearings, defense counsel failed to challenge the first line-up and did not even cross-examine the single police witness. At the first trial, when the prosecution rested its case, defense counsel moved for a mistrial based on his own inadequate representation. He had, among other things, failed to provide alibi notice although Mr. Hatchett, when first interviewed by the police, had stated that he was with Tyrone Thomas at the time of the killing. The lawyer also had trouble hearing, and generally behaved inappropriately throughout the trial. The court declared a mistrial “as a matter of manifest necessity.”

At the second trial, when questioned about the line-up, Jerry Williams mentioned “people picked out of the mugshot book,” although no notice of any photo identification had been given. His female companion did not testify at either trial.

Andre Hatchett testified that on February 18, 1991, he was using two crutches and had a cast as a result of having been shot in the leg and throat. He had trouble talking. (Williams described the killer as yelling or shouting.) He had spoken to the victim at her home earlier in the day, but did not spend time with her in the evening. Rather, he went with Tyrone Thomas to his girlfriend’s house. Thomas confirmed that Hatchett was with him that evening, and that he was using crutches and had his cast in a bag because it was raining. On cross-examination, the prosecutor was permitted, over objection, to question Thomas about whether he had gone to the police with his information about Mr. Hatchett. Thomas explained that Hatchett was “getting locked up back and forth,” so that he could not go with him to tell the police about the alibi. He had in fact told Thomas’s first attorney in March 1991 that Thomas was with him that night. The jury deliberated overnight, finding Hatchett guilty after having the testimony about whether Thomas had gone to the police reread. The judge imposed the maximum sentence of 25 years to life, after the prosecutor noted that the defendant expressed no remorse. Defense counsel explained that his client had always maintained his innocence, and when asked whether he had anything to say before being sentenced, Mr. Hatchett said: “I didn’t do it.”

The appellate court rejected the weight of the evidence claim in two sentences: “Although the witness who claimed to have seen the defendant beating the victim in a park had an extensive criminal record, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions for the jury, which saw and heard the witnesses. Its determination should be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record.” (citations omitted)

The court asserted that the claim regarding questioning of the alibi witness had not been preserved, despite several objections raised by defense counsel. The court added: “In any event, there is no merit to the defendant’s claim (see People v. Dawson, 50 N.Y.2d 311).” Dawson, of course, is the case in which the Court of Appeals established the rule that, without a good faith basis and proper foundation, a prosecutor may not question an alibi witness about his failure to come forward with exculpatory knowledge. The court gave no reason for its conclusion that this claim had “no merit.”

Here, the prosecutor had been present at the first trial when a mistrial was declared, in part, because defense counsel failed to provide the required alibi notice, despite Mr. Thomas having come forward with information that Hatchett was with him the evening of the killing. Yet the prosecutor questioned Thomas as though his current testimony were a recent fabrication.

The court dismissed appellant’s third claim in a similarly cavalier fashion: “The defendant’s claim that the court should have reopened the Wade hearing is also unpreserved for appellate review and, in any event, without merit.” (citation omitted) While this claim was indeed unpreserved as a matter of law, it presented a particularly appropriate case for the exercise of the court’s interests of justice jurisdiction. The lawyer who handled the first trial, in which the court was forced to declare a mistrial due to his incompetent performance, was the same lawyer who represented the defendant at the Wade hearing.

The court was well aware of that fact, and even without a motion by the new defense attorney, the interests of justice required that the Wade hearing should be reopened so that competent counsel could explore the key question of the reliability of Williams’s identification.

New York law guarantees to criminal defendants a single appeal as of right to the appellate divisions. After that appeal, defendants must rely on volunteer assistance to try to rectify any injustices. It should therefore be incumbent on the appellate courts to look particularly carefully at cases that suggest, or indeed strongly signal, that the defendant might be innocent. If that had occurred in Mr. Hatchett’s case, he could have been saved 20 years of wrongful imprisonment.


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Justice Ginsburg speaks her mind. . . and is sorry.

Ginsburg leaning

Millions of Americans who were ready to vote for Trump abruptly changed their minds after Justice Ginsburg publicly stated that if he were president, “I can’t imagine what the country would be.”  “He says whatever comes into his head at the moment,” she added.

Trump rallies across the country had to be canceled for lack of attendance. “We were looking forward to waving signs saying, “America for Americans,” said Darlene Sixpack, standing in front of her trailer with her husband Joe.  “But after hearing Justice Ginsburg’s comments, we decided to stay home and read Noam Chomsky instead.”

“I contributed 5 million dollars to Trump’s campaign,” said J.P. Monopoly, speaking from his private jet. “But gosh darn it, I never thought about what the country would be like if he were elected. Thanks to Justice Ginsburg, the wife and I sat down and did some imagining. And it didn’t look good.”

Fox News announced that the right-wing channel would sharply cut down on coverage of Trump. “We’d never noticed that he says whatever comes into his head at the moment,” said a spokesperson who asked not to be named. “We thought everything was carefully prepared. Now that Justice Ginsburg has exposed his true nature, we’re throwing our support behind Clinton.”

Justice Ginsburg admitted to the press that her comments were “ill-advised.”  Knowing, of course, that when a court finds a judicial remark “ill-advised,” it’s code for, “and what are you going to do about it?”

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Punishing misconduct: Prosecutors can dish it out but can’t take it

Once again the NY State District Attorney lobby has strongarmed the Legislature into not even voting on a bill that would hold prosecutors accountable for misconduct (NY Law Journal 6/22/2016).

The idea of “subjecting already busy prosecutors to investigations and hearings at the whim of a disgruntled defendant, victim or member of the public!” fumed the head honcho.

“We are going to spend the vast majority of our time defending every judgment call that we make,” howled an upstate DA. “Are we going to have to be responsible for every mistake we make?

“We can be easy targets at times,” whined the Bronx DA. “When we do our work, there are always unhappy customers.”

The DA’s assured the Legislature that a commission was quite unnecessary because prosecutors are deterred from wrongdoing by “oversight by trial judges.”

It’s true that members of the public get disgruntled about being dragged through the system by busy prosecutors. Like the unhappy customer put on trial for rape by a Bronx ADA who was too busy to disclose that the complainant had told the police it was consensual. Or the dissatisfied Bronx customer who spent three years at Rikers awaiting trial for a murder she didn’t commit; and was then prosecuted for breaking a “body cavity search chair” in jail.  Woman Could Go to Jail for Something She Did While in Jail for Something She Didn’t Do.

Yessiree, a Commission will put an end to all that prosecutor hanky-panky just like the Civilian Complaint Review Board put an end to police brutality.

Here’s what a Commission to investigate prosecutor misconduct would look like:

Scene: The Honest John Prosecutor Blue Ribbon Independent Integrity Commission. Members consist of five DA’s, a judge who used to be a DA and the head of an institutional defender organization who never shows up. 

Chair: Now that we’ve had our lunch – my goodness, 4 o’clock already! We’d better start spending the vast majority of our time being easy targets for disgruntled customers. My, that’s a big stack of complaints you have there!

Clerk: It’s only one complaint. The form is 75 pages long, not counting the required DNA profile and consent to random search of the person, home, car and place of business of everyone sharing at least 10 of the petitioner’s alleles.

Chair: Yes, we have to verify the petitioner’s identity before we can take their case. I’m glad to see the form has been translated into Chinese for his or her benefit. We accommodate every disgruntled crank – I mean, customer – regardless of race, creed and/or national origin – –

Clerk: We print all the forms in Chinese. Weeds out frivolous complaints. All you need to read is the People’s response.

Chair: Of course. (Reading) “Defendant, a known criminal, proffered certified records showing he was in jail in Florida at the time of the shooting he was charged with in the Bronx. The prosecutor properly exercised her discretion to prosecute and successfully moved to have the evidence precluded as unfairly prejudicial to the People’s case and confusing to the jury. The Appellate Division affirmed and the Court of Appeals denied leave. Man served 20 years in prison before being exonerated  (To the others). Well, we – I mean, they – can’t be responsible for every mistake they make.

Clerk: I guess that’s what’s meant by judicial oversight.




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Court of Appeals to Squawk: Drop Dead

Sigh. Another drop-dead letter from the NY Court of Appeals, the second one this week.  The first denied leave to appeal where our client got 107 years after a trial that he spent mostly down in the courthouse pens because the judge was pissed off at him. That’s not like sending a bad child to his room, yo. To justify kicking an accused out of his trial, his conduct has to be so disruptive that it’s impossible to continue with him in the courtroom. Even Bobby Seale wasn’t kicked out, just gagged.  Here, the judge wouldn’t even let our guy watch his trial over closed circuit t.v.  Must be a dangerous lunatic, you say? Yes he is, and he’s still on the bench.

The second blow was when the Court blew off our due process/scientific challenge to the so-called Risk Assessment Instrument (RAI) used in SORA hearings. The RAI is so bogus and so universally rejected by the relevant scientific community that not even the People can manage to dig up an “expert” to defend it. It’s totally skewed towards finding sex offenders likely to recidivate, like a drug test that gives only positive results.  But the Court has elevated it into a presumptively accurate measure, shifting the burden to the defendant to somehow prove he’s not as dangerous as the RAI makes him out to be. How does he do that? Maybe with a scientifically validated instrument? The Court doesn’t want to hear about that either.

Well, nuts to them all.

Ford to City drop dead New York survived this one.

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Is a Parrot’s Statement Testimonial?

Grey parrot testifying

A  prosecutor is considering whether the words of a pet parrot could be used to try the woman accused of killing his owner. Bud, a 19-year-old African grey parrot, has been repeating the phrase “don’t fucking shoot” ever since his owner, Martin Duram, was shot multiple times and killed in May 2015. – The Guardian 6/27/2016.

Scene: Gotham City DA’s Office. Enter DA Vandal.

DA Vandal: Consarn it, Fothergill, why is my desk all covered with cracker crumbs?

Fothergill:  Sorry, boss. We were using your office to prep an important witness while you were out exonerating the wrongfully convicted.

DA Vandal: How many times do I have to tell you not to say “wrongfully convicted”? It’s a contradiction in terms.

Fothergill: Sorry, I meant, “looking into convictions resulting from errors made under the previous District Attorney.”

DA Vandal: That’s better.

Summer Intern: What about Jesus? Wasn’t he wrongfully convicted?

DA Vandal: Certainly not. He was loitering in Gethsemene Park after sunset. With 11 other males, no less.

Summer Intern: But he got the death penalty!

DA Vandal: Can’t use half measures when it comes to protecting public safety. And Fothergill, if I catch you eating crackers in my office again, I’ll have you demoted to the Appeals Bureau.

Fothergill: No, no, anything but that! Let me explain –

DA Vandal: What’s this on my chair? Looks like bird shit!

Fothergill: (Wiping it off with his sleeve). We were prepping Bud the Parrot in that big Duram murder case.  You know, the witness who gave the statement, “Don’t fucking shoot!”

DA Vandal:  What good is that? We know the guy was shot. We need a parrot that says, “Don’t fucking shoot, O Adelaide!” Or whatever the suspect’s name is.

Fothergill: That’s why we need to prep Bud, sir. If you know what I mean. But he just keeps demanding crackers. I don’t see how we can put him on the witness stand.

DA Vandal: That’s ridiculous, you can’t put a parrot on the witness stand!  Who knows what he might blurt out on cross?  And what if the defense starts giving him crackers? No, we put on a cop to say what the parrot said. Just like we have K-9 cops testify about what their dog said.

Fothergill: You mean, have a cop testify that Bud said, “Don’t fucking shoot, O Adelaide”?

DA Vandal: Of course. It’s admissible as past recollection presently uttered. Now bring in that fucking parrot and open the window.

Tip o’ the hat to Fred the Red.

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Time for courts to put their money where their mouth is about eyewitness misidentification

Judges singing with caption

Courts make a lot of chin music about the perils of eyewitness misidentification.  But when it comes to scrutinizing the suggestiveness of lineup procedures. . .

Cop taking oath with crossed fingers

. . . everyone is expected to take the cops’ word for it that they didn’t tell the witness who the suspect is.

Showing photo array

When the cops have other evidence – a DNA match, for example – they see no reason not to help the witness i.d. the “right” guy.

Purple People Eaters in lineup

Courts frequently chuckle that “police stations are not theatrical casting offices.”  Or that the fillers don’t have to be the suspect’s “identical twins.”A difference in skin color, for example, is only one factor to be considered and doesn’t make the lineup suggestive.

Paper bag lineup

If the suspect has a distinguishing feature — a moustache, for example — which the fillers don’t have, the police can cover up the difference. Courts are firmly convinced that height differences are invisible if everyone is sitting down. Apparently they never go to the movies.




Posted in Criminal law, Humor, Judges, Law, Law & Parody, Satirical cartoons | Tagged , | 1 Comment