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?