Category: Defenses

DOJ Policy Bans Waiver of Ineffective Assistance of Counsel Claims as Condition of Guilty Plea

Last week, Deputy Attorney General James M. Cole issued a memorandum to federal prosecutors advising them that they should “no longer seek in plea agreements to have a defendant waive claims of ineffective assistance of counsel, whether those claims are made on collateral attack, or, when permitted by circuit law, made on direct appeal.” As to cases in which such waivers had already been entered, the memorandum advises that federal  prosecutors should “decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.”

The U.S. Supreme Court has not ruled on the validity of such waivers. The Court has clearly held, however, that the right to effective assistance of counsel applies to guilty pleas. Missouri v. Frye, 132 S.Ct. 1399 (2012); Lafler v. Cooper, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. 356 (2010). Following these holdings, every circuit court to address the validity of a waiver of the right to effective assistance of counsel – ten of twelve circuits – has upheld the waiver. United States v. Djelevic, 161 F.3d 104 (2d Cir. 1998); United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005); United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994); Davila v. United States, 258 F.3d 448 (6th Cir. 2001); Jones v. United States, 167 F.3d 1142 (7th Cir. 1999); DeRoo v. United States, 223 F.3d 919 (8th Cir. 2000); Washington v. Lampert, 422 F.3d 864 (9th Cir. 2005); United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001). Interestingly, however, twelve state ethics opinions have held that insisting on such a waiver is unethical.  See, e.g., United States v. Kentucky Bar Ass’n, 2013-SC-000270-KB (Ky. Aug. 21, 2014), and cases cited in footnote 37 therein. In addition, in a 2013 113E Resolution, the American Bar Association declared its opposition to ineffective assistance of counsel (IAC) waivers, and in October 2012 the National Association Criminal Defense Lawyers (NACDL) has issued a formal opinion (12-02) finding it unethical for defense lawyers to participate in such waivers.

The DOJ policy is important because it is a break with the growing momentum of waiver by guilty plea:  it seems that over the years defendants have been asked to waive more and more rights as part of a plea bargain.  Ultimately, although problematic, many defendants are now required to waive the right to appeal or to appeal and collateral attack as part of a guilty plea.   The DOJ directive mark an important exception to these practices.

The DOJ policy memorandum is significant for another reason. In other jurisdictions, like the United Kingdom, internal prosecutorial procedures and policies are publicly available and provide some limitations on what would otherwise be unlimited prosecutorial discretion. This is an excellent way to create at least a presumption that the prosecution is behaving fairly.

Finally, there are those who wonder whether the prosecution (or the courts) can or should do more when confronted by deficient performance of defense counsel. See, e.g., Vanessa Merton, What Do You Do When You Meet a “Walking Violation of the Sixth Amendment” If You’re Trying to Put That Lawyer’s Client in Jail?69 Fordham L. Rev. 997 (2000). They are on the front lines, if you will; aside from the ethical obligation to report unethical conduct by other lawyers, prosecutors generally have no duty to protect a defendant from the ineffectiveness of his or her counsel. Thankfully, by virtue of the DOJ memorandum, federal prosecutors have accepted the duty not to participate in hiding these claims from review.

Caveat Chatter: Digital Communication and Mens Rea in United States v. Valle

POST WRITTEN BY: Jake B. Sher (’16), Pace Law School

JSher_valle imageIn a recent post, we discussed issues of mens rea as they related to internet search history. Digital communications, however, have also recently come under scrutiny. In the hands of an adroit prosecutor, they are equally as revealing and equally powerful evidence as an individual’s internet search history.  Yet, when the prosecution relies exclusively on online communications to prove a defendant’s mens rea beyond a reasonable doubt, a skilled defense team may be able to raise issues surrounding the actual context of the communications that may preclude a conviction.

In an opinion and order issued on June 30, 2014 Judge Paul Gardephe of the Southern District of New York conditionally granted former NYPD Officer Gilberto Valle’s motion for a new trial on his conviction for conspiracy to commit kidnapping. The prosecution relied heavily on a mountain’s worth of digital communications between Valle and his alleged co-conspirators. Unfortunately, none of the evidence against Valle had any corroboration outside of the electronic world, and Valle never finalized any of his alleged “plans.” As a result, Valle’s defense counsel contended that his online activities constituted morbid fantasy role-playing, not conspiracy. The government conceded that some of Valle’s communications were fantastical, but argued that some were manifestations of Valle’s specific intent to commit the alleged crime of kidnapping.

Judge Gardephe observed that “Valle’s depraved, misogynistic … fantasies about his wife, former college classmates, and acquaintances undoubtedly reflect a mind diseased.” United States v. Valle, No. 12 Cr. 847 (PGG), 2014 WL 2980256, 2014 U.S. Dist. LEXIS 89650 (S.D.N.Y. June 30, 2014). His observation notwithstanding, however, the judge granted Valle’s motion for a new trial. He did so based on the theory that the government neither demonstrated proof beyond a reasonable doubt that Valle’s chats reflected true criminal intent as opposed to fantasy role-play, and that the government’s evidence was insufficient to distinguish the real communications from the conceded fantasy communications. (emphasis added). In Valle, the Court wrote:

Valle’s visits to Internet sites devoted to death, violence, and kidnapping; his possession of images depicting acts of sexual violence against women; his computer searches regarding kidnapping methods; and his 89 computer folders containing Facebook images of women he knew, all graphically illustrate his depraved interests.  The Government did not, however, meet its burden … the Government offered no evidence that would have permitted a reasonable juror to determine whether someone who is truly interested in kidnapping a woman would be more likely to engage in these activities than someone who is merely interested in fantasizing about kidnapping and committing acts of sexual violence against women.

Even digital communications that may appear damningly unassailable require corroboration or further investigation. As Learned Hand once ruminated, “it does not follow, because a jury might have found [the defendant] guilty of the substantive offence, that they were justified in finding him guilty of a conspiracy to commit it.” United States v. Crimmins, 123 F.2d 271, 273 (2d Cir. 1941).

Proof of mens rea may require something more than digital evidence alone, even if a jury is convinced of a defendant’s guilt. As a result, the prosecution in Valle fell short of building their case for a conviction as a matter of law, a fact that Valle’s attorneys managed to exploit in floating an argument sufficient to warrant a re-trial.

Cases and Related Readings:

Professor Gershman Conducts Eye Witness Identification Exercise in Criminal Procedure Class

POST WRITTEN BY: Annmarie Stepancic (’15), Pace Law School

I was part of a fascinating experiment in my Criminal Procedure Class at Pace Law School, which powerfully brought home the dangers of mistaken identification and wrongful conviction. On Thursday, April 24, 2014, class began in its ordinary fashion – a student was called on to discuss the facts and holding in United States v. Wade388 U.S. 218 (1967). About ten minutes into class, we all learned that this was no ordinary criminal procedure class when a man suddenly stormed into the classroom. According to students’ accounts of the event, the man approached the Professor, Professor Bennett Gershman, and shouted, “Hey Gershman, remember me? You fucking failed me last year.” The intruder then pulled out a gun with his right hand (a “black Glock semi-automatic pistol,” according to some students), and stated, possibly two times, “Give me your wallet.” One student stood up, but the man ordered her to sit down. The man ordered everyone in the class to stay seated. The Professor gave up his wallet and the man ran out. The whole event, according to students, lasted anywhere from thirty seconds to a minute and a half.

A Pace Security guard came in moments later. Professor Gershman assured him that everything was OK. Professor Gershman asked the students not to talk to each other and to write down a brief description of what they just observed, including a description of the assailant.

After the students did so, Professor Gershman dimmed the lights, pulled down the screen, and projected a photographic array of males of similar age and facial characteristics to the intruder.   The students were asked to try to identify the intruder from the photos. Prof. Gershman specifically admonished the students that the perpetrator might or might not be in any of the photos.

Here are the results:

  • Photo #1 – 1 student (1%)
  • Photo #2 – 7 students (9%)
  • Photo #3 – 1 student (1%)
  • Photo #4 – 9 students (12%).
  • Photo #5 – 41 students (55%).
  • Photo #6 – 9 students (12%)
  • Six students reported that the assailant’s photo was not present in the array (7%).

The intruder’s photo was photo #5.

After the students made their selections, the “intruder,” was invited in along with the Greenburgh Chief of Police, Chris McEnery, a Pace Law School alum and a wide-ranging mini-symposium on the constitutional, ethical, and policy rules governing eyewitness identifications began. Specifically, the discussion focused on, as Justice Brennan famously observed in the landmark case of United State v. Wade, how

the annals of criminal law are rife with instances of mistaken identification.

A review of the student responses apparently reveals that most of the students got the prominent facts right, but varied on lots of subsidiary details, and that they omitted important facts. Even though the students were shown the photo array approximately five minutes after the event, only 55% correctly identified the perpetrator in the photo array lineup. It is critical to note, of course,  that real eyewitnesses would not be shown a lineup – corporeal or photographic – so quickly after an event, when the event is so fresh in the minds of the observer, as was the case in our class. As social science and scientific research demonstrates, memory retention – particularly the memory of an eyewitness – dissipates over time.

Impeaching Arresting Police Officers

In this primer, the author offers observations on successful strategies for impeaching an arresting police officer when your client claims innocence.

By Steve Cobb, Pace Law School Class of 2014

Nothing is more commonplace than a criminal defendant who claims  to be innocent.  But what can be done when it appears that the arresting officer’s testimony is in fact incorrect or false?  Criminal defense lawyers face a significant disadvantage when they seek to  discredit arresting officers.  Nonetheless, it can be done.  Here is a three-step approach that may be helpful.

STEP ONE: OBTAIN FAVORABLE POLICE TESTIMONY:  In order to expose false testimony, the arresting officers should be subjected to cross examination early in the case, when their memories are still fresh and they have not had a chance to be prepared by the prosecutor.  Preliminary hearings, suppression hearings, or refusal hearings give the defense attorney a good opportunity to acquire information and lock the arresting officer(s) into their testimony.  What we are looking for here are inconsistencies in the testimony, from the witness himself and between the witnesses if there are more than one.

The purpose of the pre-trial examination is not to make the officer look like a liar, but rather to gather information and find the truth.  Thus, direct or open ended questions should be used instead of leading ones, so that the witness can fully describe what happened in his own words.  Avoid arguing, and make a sincere effort to get complete testimony on the record.  If you are patient and courteous, you may be amazed at how readily the false testimony seems to reveal itself.  Remember Lieutenant Columbo?  He was an excellent interrogator – friendly, but very knowledgeable, and tenacious.    And effective!

I found a good resource in the Wisconsin Public Defender’s office, Cross Examining Police Officers and Agents:  Who’s in Control Now?   Here, the author mentions:

  1. Take away the police officer’s edge by being more familiar with the facts than he is – review the materials and visit the crime scene, if necessary.
  2. Try to establish that some element of the offense is missing.
  3. Force the police officer to commit to his/her version of events.

Once the (hopefully contradicting) testimony has been obtained, you may move for suppression or dismissal.  Should the judge deny your motion for pre-trial relief, as is likely, you may now go to trial.

STEP TWO: TRIAL.  The goal here is to highlight the inconsistencies in the police officer testimony.  Perhaps the testimony is self-contradictory or it contradicts the testimony of another officer.  You may also, as suggested by the Wisconsin Public Defender, try to establish that an essential element of the charge is missing.  When the prosecutor rests, you can move to dismiss the charges based on “legally insufficient evidence” pursuant to CPL 290.10.   Should that motion be denied, then move on and present your case.  In the event that you lose the trial, move on to Step Three, a pre-sentencing motion to set aside the verdict.

STEP THREE:  330.30 MOTION TO THE TRIAL COURT:  Now you can make use of all the inconsistent testimony you obtained!  Under CPL 330.30, a trial court has only limited authority to set aside a verdict (and dismiss the criminal charges), but one of the permissible grounds is that the conviction was based on “legally insufficient evidence,” that is, testimony that is “incredible as a matter of law.”  Pursuant to the statute, and People v. Carthrens, 171 A.D.2d 387 (1991), a trial court may not reverse a conviction based on the weight of the evidence, but it may set aside the verdict if the testimonial evidence was so contradictory and so insufficient that a rational jury could not have found, in any way, that the elements of the offense were proved beyond a reasonable doubt.

Obviously, the standard of proof required to win this motion is very high, and of the sixteen cases I researched involving a motion made on these grounds, only one of them People v. Quinones, succeeded.  There is also case law holding that a challenge based on insufficiency of evidence will not work where there is more than one prosecution witness.  See, e.g., People v. Ledwon,  46 N.E. 1046 (N.Y. 1897), People v. Delamota, 960 N.E.2d 383 (N.Y. 2011).

Will this approach work?  Well, it can’t hurt, and should the trial court deny your request for relief, at least you have established a good foundation from which to make a “weight of the evidence” argument to the Appellate Division after the conviction.

Related Readings:

Habeas Granted Based on Prosecutorial Misconduct and Ineffectiveness of Appellate Counsel

On September 4, 2013, in Williams v. Artus, Judge Gleeson of the EDNY granted habeas corpus based on prosecutorial misconduct and on ineffectiveness of appellate counsel for failing to raise ineffectiveness of trial counsel for trial counsel’s failure to object to the prosecutor’s misconduct.

In Williams, the defendant and his girlfriend, Rebecca Madigan, were involved in a high speed car chase; Williams was driving and Madigan was in the passenger seat. One of them fired a shot at the car they were chasing, causing the car to crash. One of the passengers in that car was killed. At trial, Madigan testified that Williams had fired the shot; Williams claimed Madigan had fired it. At trial, the prosecutor purposely elicited evidence from Madigan that Williams had told her he had killed before. The judge denied the motion for a mistrial and attempted to give a curative instruction that was ultimately confusing. The prosecutor returned to this in summation, erroneously stating that Madigan had testified Williams had told her he had “killed people before.” Defense counsel did not object.

Judge Gleeson granted the writ of habeas corpus based on the prosecutor’s misconduct and on the ineffectiveness of appellate counsel for failing to raise trial counsel’s failure to object to the summation comments. Interestingly, Judge Gleeson noted that this was a case that met the deferential standard for habeas set forth in the AEDPA: that the state court not only incorrectly rejected his claims but that there is “no possibility fair minded jurists could disagree that” the state court decision conflicts with Supreme Court case law.

The prosecutor committed clear misconduct in eliciting evidence of prior murders and, after objection was sustained, to return to that subject in summation. But equally important, Judge Gleeson made the very rare finding that there was no strategic reason for appellate counsel not to raise the issue of ineffectiveness of counsel on appeal. Habeas grants are rare to begin with; ineffectiveness of trial counsel claims rarely succeed; and claims of ineffectiveness of appellate counsel for failure to raise trial counsel’s ineffectiveness on appeal are extremely rare. Judge Gleeson’s opinion is a reminder that the habeas courts are still watching out for problems in state convictions.

Sources

  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 WL 4761120 (E.D.N.Y. Sept. 4, 2013).
  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 BL 237268 (E.D.N.Y. Sept. 4, 2013).
  • Williams v. Artus, No. 11-CV-5541 (JG), 2013 U.S. Dist. LEXIS 126240 (E.D.N.Y. Sept. 4, 2013).
  • William v. Artus, 11-CV-5541, NYLJ 1202618541720, at *1 (E.D.N.Y., Decided Sept. 4, 2013).