Tagged: criminal defense

NY Appellate Court Upholds Vacatur of Conviction Based Upon DNA Evidence

On February 27, 2014, the NY Appellate Division, First Department, unanimously affirmed a prior judgment entered in Bronx County of New York (Clark, D.), vacating Tyrone Hicks’ conviction for Attempted Rape in the First Degree (PL § 110/130.35[1]) and Attempted Sodomy in the First Degree (PL § 110/130.50[1]), based upon his presentation of DNA evidence that had been unearthed by his lawyer, Professor Adele Bernhard of New York Law School. At trial, the only evidence linking Hicks to the crime was the uncorroborated eyewitness identification by the victim. The jury rejected Hicks’ alibi defense, which consisted of testimony from his son-in-law, who claimed that Hicks was home when the attack occurred.

In 2009, Professor Bernhard, who directs the NYLS Post-Conviction Innocence Clinic, successfully obtained testing of genetic material found under the victim’s fingernails that had been collected shortly after the crime. The results of such testing concluded that there was male genetic material recovered from the victim’s fingernail scrapings that did not match the defendant’s DNA. Professor Bernhard petitioned the court to vacate Hick’s conviction based upon both the DNA results, and the likelihood that Hicks had been misidentified as the assailant.

In vacating Hicks’ conviction, the Bronx County Court concluded that a new trial was warranted under CPL § 440.10 (1) (g), since the results of the DNA testing “could not have been discovered prior to [Hicks’] trial,” and were “unquestionably material to the issues of identity” – undermining the “sole evidence connecting [Hicks] to the crime.” The court observed that “the DNA test results ruling out the defendant’s genetic profile [had] pronounced forensic value where there [was] multiple differing descriptions of the perpetrator by the sole identifying witness and no physical evidence linking the defendant to the crime.” Id. at 4.  The court explained that the jury may have seen it to be “a particularly powerful piece of evidence, especially where the identity of [the] attacker was the primary issue at trial.”

The Appellate Court upheld the lower court’s decision to vacate the conviction based upon the defendant’s showing that the DNA results created a “reasonable probability that he would have obtained a more favorable verdict.” The Court also concluded that “the DNA evidence [was] material and exculpatory because it support[ed] identifying someone other than defendant as the attacker.” Notably, the Court rejected the government’s claim that the DNA results were cumulative, and not newly discovered under CPL 440.10 (g). Specifically, the Court noted that given the recent amendments to CPL 440.10, namely CPL 440.10 (1) (g-1), the defendant “no longer ha[d] to show that the results of [DNA] testing is newly discovered evidence in order to seek vacatur of a judgment of conviction.”

Related Readings

Battle of Experts: Controversy in Shaken Baby Case Set for NY Court

A New York court is set to hear testimony that will decide whether a shift in the medical community over the prognosis of shaken baby syndrome (“SBS”) constitutes newly discovered evidence under Article 440 of the New York Criminal Procedure Law. Supreme Court Justice James Piampiano has ordered a hearing in People v. Rene Bailey after being presented with strong evidence that the medical community’s standard for diagnosing shaken baby syndrome has significantly shifted over the years since Bailey’s conviction.

 Rene Bailey, once a daycare provider, was convicted of violently shaking a two year old child and causing severe brain injuries that resulted in the child’s death. At trial, the proof against Bailey rested primarily upon the testimony of a state medical examiner, who had claimed that the child’s internal brain injuries could only be caused by a violent shaking of the  body (SBS), and could not be attributed to any other cause known within the medical community at the time.

Contrary to the state’s medical examiner, medical experts for Bailey have now opined that a diagnosis of shaken baby syndrome should not have rested exclusively on the presentation of the child’s internal brain injuries, consisting of subdural hematoma, retinal hemorrhaging, and cerebral edema (“triad of injuries”). As of today, many members within the medical community no longer promote an exclusive diagnosis of SBS based solely upon the presentation of internal brain injuries, realizing that causes unassociated with shaking may be the root of the issue. Since Bailey’s conviction, medical studies have also shown that a child may suffer the “triad of injuries” as a result of impact to the brain caused by common short distance falls. Notably, as opined in an article by NY Times writer Emily Bazelon, some biomechanical engineers have raised doubts, [in the absence of external injuries], about whether it’s even possible to shake a baby to death.

Aside from new medical testimony, the Court will also entertain evidence that has been discovered by her attorney, Professor Adele Bernhard of New York Law School, which shows that her client may be factually innocent. The evidence presented by a new witness appears to support Bailey’s continuous declaration that she had not shaken the alleged victim, and further corroborates the observation of another child, who was present at the time of the occurrence and had initially stated to the police that the alleged victim had jumped off a chair and hit her head on the ground.  Justice Piampiano has also reserved judgment upon whether further discovery will be ordered in the matter, including whether Bailey’s request for the State to produce notes from an interview of a third child eyewitness will be granted. According to court papers, a third child may have also been present at the time of the alleged occurrence, and the child may have made exculpatory declarations to police consistent with Bailey’s version of the event  that were never disclosed to trial counsel.

Related Readings:

 

Counsel Ineffective for Failure to Present Psychiatric Evidence at Pre-Trial Hearing

On June 6, 2013, the New York Court of Appeals affirmed the Appellate Division, First Department order vacating George Oliveras’s murder conviction.  In 1999, Mr. Oliveras voluntarily went to a police station when he heard police were looking for him in connection with a murder.  Even though Mr. Oliveras’s mother informed police prior to the interrogation that he suffered from mental illness, detectives interrogated Oliveras for six and a half hours – eliciting statements that were the only direct evidence connecting him to the crime. The description provided by a 911 caller did not match Oliveras and bullets found at the scene did not connect him to the crime.

Defense counsel moved to suppress Oliveras’ in-custody statements as false and coerced.  But, counsel failed to conduct the investigation and analysis necessary to succeed in his strategy. Trial counsel failed to subpoena his client’s mental health records, and did not hire an expert. Oliveras was convicted.

Post-conviction, the Office of the Appellate Defender brought a C.P.L. 440.10 motion to vacate, arguing trial counsel was ineffective.  After a hearing, the trial court dismissed the motion, but the Appellate Division First Department reversed and ordered a new trial. The Court of Appeals affirmed, explaining that counsel failed to pursue the minimal investigation required under the circumstances.

The strategy to present defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after counsel’s investigation of the fact and law, which required review of the records.

New York Courts are finally looking beyond the record on appeal and requiring counsel to undertake investigation demanded by the facts of the case.

To read the decision, click here.

Court Finds Counsel Ineffective as a Result of Fee Conflict

Tomorrow marks the 50 year anniversary of Gideon v. Wainwright – the Supreme Court decision guaranteeing free counsel to all persons charged with a serious crime felony.  In the years since Gideon, the criminal justice system has grown exponentially. More people are arrested, prosecuted, sentenced and imprisoned than the Court could possibly have imagined in 1963.  In 2006 the FBI estimated that approximately 14 million arrests occurred nationwide.  States struggle with the responsibility to pay for the provision of counsel and to ensure quality of counsel.

When defenders accept too many cases, their quality of work suffers and they risk violating their ethical obligation to provide competent services.  Propelled by the need to process cases, state courts rarely concern themselves about whether counsel are overwhelmed with responsibility or whether workload issues impact quality of lawyering.  In an unusual decision the Supreme Court of Kansas, reversed a murder conviction because the defendant’s lawyer, a solo practitioner with a “high volume” law practice requiring near daily court appearance, was more devoted to cases whose billable hours were more likely to produce actual income than to the client charged with capital murder who would never be able to pay for his services.  The court found the financial disincentive discouraged counsel from investigating, adequately preparing, and from withdrawing as counsel so that he could testify for his client as an alibi witness.

To read the case, click here: http://www.kscourts.org/Cases-and-Opinions/Opinions/SupCt/2013/20130125/95800.pdf

 

Story Telling in a DWI case

Creating a compelling narrative is a crucial part of building a defense.  Pace Law School Adjunct Professor Steve Epstein specializes in DWI cases and he talks about how to tell a story in those most challenging situations. The article was published in the New York State Association of Criminal Defense Lawyers magazine, Atticus.  the current issue can be downloaded here:  http://www.nysacdl.org/wp/wp-content/uploads/2010/09/NYSACDL_Atticus_Spring_2013.pdf