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.


About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
This entry was posted in Criminal Defense Appeals, Criminal law, Law and tagged , , , . Bookmark the permalink.

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

  1. cowgirl says:

    This is infuriating. What can be done about it?


    • Every criminal defense appellate lawyer has at least one infuriating case like this. What can be done? More transparency in the appellate process, more accountability, and a full frontal attack on the rubber-stamp process laughably called appellate review.


      • cowgirl says:

        Yeah, but how? What about this?:
        In anticipation of Election Day 2017 − when for the first time in two decades New Yorkers will have the opportunity to vote on whether there should be a convention held to amend the New York State Constitution − Chief Judge Janet DiFiore today announced her appointment of the Judicial Task Force on the New York State Constitution. A group of leading judges, attorneys and academics from around the state, the Task Force will conduct a thorough review of Article VI of the New York State Constitution, which establishes the structure, organization and jurisdiction of New York’s Judiciary, and propose for Chief Judge DiFiore’s consideration possible revisions that may advance the work of New York’s state court system, making it more modern, efficient and accessible.


      • Well, Judge DiFiore oughta read Appellate Squawk.


      • Phil Rothschild says:

        Amen my friend. I’ve lived through it for a quarter of a century and can cite to multiple screw ups from the idiots in black robes.


  2. JMRJ says:

    Judge Easterbrook of the 7th circuit says that criminal trials sort out the innocent from the guilty pretty well, “…if imperfectly”. But then he also says that trials can’t do a very good job of imposing civil liability on rogue prosecutors, because the legal system is “…neither quick nor infallible.”

    So immunity.

    He says both these things in the same opinion – indeed on the same page of that opinion. Buckley v. Fitzsimmons, 919 F.2d 1230 at 1233 (7th Cir., 1990)

    This may provide some insight into why appellate courts routinely sign off on obviously wrongful convictions: they explicitly employ a double standard favoring the government.

    Then again, it is perhaps some comfort that in a recent concurring opinion Judge Posner, who sits on the same court as Easterbrook, asked “Why, in short, are the dice so heavily loaded against [criminal] defendants?”

    Of course, he was concurring in affirming a criminal conviction, so we can’t run too far with that.



Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.