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

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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7 Responses to The NY Court of Appeals gets its comeuppance

  1. Jeff Gamso says:

    If Fuentes was in the 6th Circuit, the berobed ones in D.C. (even without the assistance of Merrick Garland) would grant cert and reverse because, well, because the 6th can only be right when it denies relief.


  2. Could happen here too. . . we’re crowing while we can. . .


  3. ursula bentele says:

    Great piece, Appellate Squawk! I also agree with Jeff, and I even worry whether the 2d circuit might be subject to the same standard. The dissenter’s opinion could be turned into a per curiam reversal without too much trouble.


  4. ursula bentele says:

    Sorry I didn’t see your comment before I posted mine. Wish we didn’t have the same thought…


  5. Mitch Kessler says:

    Sorry to come to this so late. Just found out about your blog, and I love it. I know all about appellate courts twisting facts to fit their desired result. I’ve been doing criminal appeals in the Third Dept. since 1995. Nobody does it better than them. Just ask Michael Mosley, one of my clients, who’s doing life without parole for a double murder not only did he not commit but he could not possibly have committed (both victims badly beaten, tortured and ultimately stabbed to death, supposedly by Mike Mosley acting alone; the real perps were indicted earlier, were in the business of that sort of thing, made admissions to witnesses whom surrounding circumstances rendered credible, but the wimp DA — running for reelection at the time and having an eye on a judgeship, which he ultimately got–went after Mosley because his DNA was found at the scene, in a room separate from where the bodies were found, and not on any of the weapons of opportunity strewn about the apartment). Sorry to be so long-winded, but I have precious few opportunities to vent about this to anyone who’s willing to listen. God forbid our courageous judges should go out on a limb and not be considered “tough on crime.” Their comfort is what matters most. Just ask Marty Tankleff.


    • Thanks, Mitch – We know your long and sterling reputation. Feel free to vent here any time – we’re here to make judges and prosecutors as uncomfortable as they deserve to be.


      • Mitch Kessler says:

        Thank you. As far as my reputation being “sterling,” I’m not sure that’s deserved. By the way, do you have a name other than “Appellate Squawk?”


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