Tagged: trial technique

Recent #NYCA Decisions: Ineffective Assistance of Counsel

The New York Court of Appeals has been busy on the criminal procedure front. Last month it decided several cases, including three that addressed the issue of ineffective assistance of defense counsel. In one, the court held that counsel had been ineffective in failing to move to suppress a gun. In the second and third, the Court held that counsel had not been ineffective in 1) failing to move to reopen a suppression hearing when a detective changed his testimony at trial and 2) failing to object to inflammatory and improper gender based summation comments. The Court essentially found strategic justifications for counsel’s failures, but in split decisions.

In People v. Rashid Bilal, the defendant was charged with Criminal Possession of a Weapon in the Second Degree under N.Y. Penal Law § 265.03(3), based on allegations that he possessed a gun. Without any strategic or other reason, defense counsel failed to move to suppress the gun. The Court held that defense counsel’s failure amounted to ineffective assistance and remanded for a suppression hearing. This is a fairly clear-cut case.

In People v. Roy Gray, where the defendant was charged and convicted of murder in the second degree under N.Y. Penal Law § 125.25(1), the Court reached the opposite conclusion and held that it was not ineffective assistance for the defense lawyer to decline to move to reopen a suppression hearing. Judge Stein, joined by Judge Fahey, dissented.

In Gray, the defendant had moved to suppress three statements: the first, when he had told police he was going to take the blame for the murder because his brother had spent too long in jail, and a second, in writing, after additional Miranda warnings were given, inculpating himself. Both statements were suppressed because of the failure to give adequate Miranda warnings. The People appealed and the Appellate Division reversed, finding that the written statement was admissible because it was attenuated from the initial failure to give adequate Miranda warnings.

At trial, notwithstanding the suppression of the first statement, the defense stipulated that the first statement could be admitted on the theory that it cast doubt on the truthfulness of the written confession. Then, at trial, the detective who had taken the defendant’s statements changed his testimony in a way that raised the issue whether the second statement was a continuation of the first, unlawful interrogation. That is, he testified at trial  for the first time that after the first statement he continued to talk with the defendant for an hour during which time the defendant made a second statement that inculpated him – in substance the same as the subsequent written statement. Even though this testimony would have totally undermined the Appellate Division’s reasoning that the written statement was attenuated from the initial failure to give Miranda warnings, defense counsel did not move to reopen the suppression hearing; instead, he moved to have the detective’s testimony limited to what he had testified to at the hearing – that the first statement was limited to defendant’s intention to falsely confess. The Court recognized that this was a strategic decision, intended to undermine  the impact of the second and written confession, which counsel apparently believed would not be suppressed despite the change in testimony. The Court of Appeals held that this did not constitute ineffectiveness but was instead a reasonable strategic decision.

Judge Stein, in dissent, disagreed. As he saw it, the detective’s altered trial testimony undermined the basis for the Appellate Division’s decision that the second statement was attenuated. Given that the People had stipulated they did not have enough evidence to go forward without the confessions, and given that the People agreed that the written statement “was the culmination of the prior unwarned statements,” the failure to move to reopen the suppression hearing as to the second statement, and the decision to instead rely on the first statement to cast doubt on it – constituted ineffective assistance.

The dissent also disagreed with the majority’s conclusion that defense counsel had not been ineffective in failing to move to reopen because the issue was not a “winning” suppression argument. The dissent agreed that there could be no ineffectiveness where counsel failed to make a motion that has little or no chance of success, here, where “counsel fails to raise a close suppression issue,” that is so important to the proof of his client’s guilt, ineffectiveness is established. It was undisputed that the original Miranda warnings were deficient; there was now new evidence that the police had continued to question the defendant between the first and second statements and that there was “no pronounced break” between the two. Moreover, the decision was not a reasonable strategic one because defense counsel had “nothing to lose and everything to gain” by reopening the suppression hearing. All of the defendant’s statements would have been suppressed.

Finally, in People v. Urselina King, where the main issue argued on appeal concerned whether the court had improperly discharged potential jurors on hardship grounds, the Court affirmed the burglary in the first degree and assault in the second degree convictions under N.Y. Penal Law § 140.30(3) and N.Y. Penal Law § 120.05(2) respectively. With respect to ineffective assistance, the Court held that defense counsel was not ineffective for failing to object to “inflammatory gender-based” statements in the prosecutor’s summation. The effect of the statements was that the viciousness of the attack in question meant it could only have been done by a woman and, at the same time, that the victim, a different kind of woman, was more believable because she filled the “female victim” stereotype. Although finding that this double-barreled gender stereotyping was inflammatory and irrelevant, the majority concluded that the prosecutor’s remarks “were so over the top and ridiculous that defense counsel may very well have made a strategic decision not to object…out of a reasonable belief that the jury would be alienated by the prosecutor’s boorish comments.” The Court concluded that, on the whole, defense counsel rendered effective assistance.

Related Readings:

THE Mistake in Zimmerman’s Trial

As the closing arguments are being delivered in the Zimmerman trial, Prof. Bennett L. Gershman of Pace Law School takes a look at the Prosecutor’s case so far. He asserts in his most recent take on the case that the prosecution made THE mistake in the trial when it “introduced in its own case the several audio and video statements made by George Zimmerman to the police after he shot and killed Trayvon Martin” and therefore the prosecutor “allow[ed] Zimmerman’s statements to be heard by the jury, and his demeanor seen by the jury, without being able to confront and cross-examine him in court.” What do you think – will this blunder cost the prosecutor a victory?

Is the Judge’s Instruction to Disregard a Statement Counterproductive?

Prof. Bennett L. Gershman of Pace Law School continues to cover the Zimmerman trial. This time he focuses on the judge’s instruction to the jury to disregard a witness’ testimony that Zimmerman had testified truthfully. As often occurs during trials, statements that should have not been made are made, and the jury hears them. The judge then follows with a simple instruction that tells the jury to “disregard the statement.”

However, Prof. Gershman asks, “Are juries capable or willing to follow such instructions?” In fact, as he points out, it isn’t just that something improper was said but also that it was followed by the explicit instruction to disregard that something.  This instruction makes it even more difficult for the jury to, as Prof. Gershman puts it, “un-ring the bell.”

What do you think? Will the jury in Zimmerman trial be able to disregard the witness’ statement about Mr. Zimmerman testifying truthfully? But more generally, does a judge’s instruction to disregard evidence make it  harder for the jury to disregard it?