Tagged: ineffective representation

Judges Quarrel About Counsel’s Silence During Prosecutor’s PowerPoint Summation

Recently, the New York Court of Appeals affirmed the conviction of a defendant accused of killing her husband’s one-year-old daughter, although she had claimed that her counsel was ineffective for failing to object to the prosecution’s questionable PowerPoint presentation during summation. People v. Santiago, NY Slip Op 01261 (2014). At trial, the prosecution claimed that the defendant, Cheryl Santiago, had suffocated her husband’s child after becoming frustrated that the child would not fall asleep. Id. at *5. An expert witness for the prosecution testified that it would have taken the defendant approximately four to six minutes to suffocate the child by using her hand to cover the child’s mouth and nose. Id. at *6.

In summation, the prosecutor presented to the jury  a six minute PowerPoint presentation that consisted of a series of slides using a postmortem photograph of the child. Alluding to the expert’s opinion regarding the amount of time it took for the child to suffocate, the prosecutor suggested to the jury that “if there’s any question in your mind how long six minutes take, take a look at this.” Id. at *7. Without objection from defense counsel, the prosecutor proceeded to play the PowerPoint slides, “with each successive slide progressively fading, until the final slide was entirely white, thus eliminating the image of the [child].” Id.  Notably, some of the slides also contained captions that described the child’s deteriorating medical condition –stating that at one and a half to two minutes- “struggle ends;” four minutes- “brain death occurs;” and four and a half to six minutes –“cardiac death.” Id.

The Court rejected the defendant’s claim that trial counsel was infective for failing to object to the PowerPoint presentation, noting that counsel’s lapse was not a “clear-cut” or “dispositive” omission. Id. at *13. The Court observed that a postmortem photograph itself was properly admitted at trial, and that “[t]he slides depicting an already admitted photograph, with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury’s emotions.”Id.

The Court did note that it did not know how the PowerPoint presentation aided the jury in its fact-finding function, or how it was relevant to the cause of the child’s death. Id. Furthermore, the Court also observed that the defendant’s failure to make a timely objection to the PowerPoint’s admission –which would have required the trial court to rule on its admissibility- precluded the Court to extend its inquiry further as to whether the trial court abused its discretion and that such error required a reversal of the judgment of conviction. Id. at *14.  In noting this observation, however, the Court implicitly suggested that its inquiry of the matter was cut short due to counsel’s failure (i.e. ineffective assistance of counsel) –and, by its own admission, an objection would have placed the trial court in an unlikely situation of finding that the PowerPoint evidence had any probative value, and even if so, that its value outweighed its prejudicial impact. Id. at *15 (conceding that the Powerpoint failed to “aid[] the jury in its fact-finding function”).

In dissent, Judge Rivera observed that the PowerPoint presentation had manipulated the evidence and was “designed to inflame the passion of the jury in order to engender prejudice against the defendant.” Id. at 1 (dissent, j. Rivera). She concluded that the Court had erred in not finding that counsel’s failure to object to the PowerPoint presentation had amounted to ineffective assistance of counsel. She noted that counsel’s lapse permitted the prosecution to taint the jury’s deliberative process –which denied the defendant a fair trial. Id. at (“The prosecutor’s use of this Powerpoint imagery was an impermissible attempt to secure a verdict based on emotion and repulsion for the defendant, rather than facts.”).

Judge Rivera was also extremely troubled by the inflammatory nature of the Powerpoint, noting that “[a]ny doubts as to the emotional responses engendered by the presentation are easily dispelled by viewing the slide show, wherein the picture of a 21 month old child, in her pink pajamas, with white froth on her lips, her body prone and lifeless, is projected over and over, fading slightly with each slide, until all that remains is a white background and the memory of her tiny body. One simply cannot be but moved by this depiction.” Id. at 3.

Notably, the ever-changing dynamics of courtroom advocacy due to the technological advances in “trial presentation” software may continue to cause issues for criminal defendants when utilized in an improper fashion by prosecutors. Although such technology can provide each party a better, faster and clearer way of presenting information than conventional trial form, it can also lead the jury away from “the four corners of the evidence” and hinder the truth seeking process. Hopefully, the courts will use caution when allowing evidence to be presented in an unconventional format, and take consideration of the fact that a juror may become more occupied with the entertainment value of the presentation rather than the relevance of the information being conveyed.

Related Readings

  • People v. Caldavado, 78 AD 3d 962 (2nd Dept. 2010) (permitting a “PowerPoint presentation as to the injuries associated with shaken baby syndrome and in allowing an expert witness to shake a doll in order to demonstrate the force necessary to inflict shaken baby syndrome.”).
  • People v. Yates, 290 AD 2d 888 (3rd Dept. 2002) (finding no error in the presentation of  a computer-generated video demonstrating the mechanics of “shaken baby syndrome.”).

Skakel Denied Bail

Michael Skakel, who was convicted 10 years ago of murdering his Greenwich, Connecticut  neighbor, 15-year-old  Martha Moxley, was recently released from prison after a judge found he was denied the effective assistance of counsel.  The case has achieved notoriety because Mr. Skakel is a Kennedy relative.  Yesterday (Nov. 6, 2013), however, he was refused bail and ordered to return to prison to await a new trial, or an appeal.  On November 6, 2014, the judge who ordered the new trial granted the prosecutor’s motion to deny bail pending appeal or a new trial. The Judge stated that any bail decision should be handled by the new judge who will preside over all subsequent proceedings.

Related Readings

Judge’s Decision
Alison Leigh Cowan, Judge Who Overturned Skakel Murder Conviction Declines Bail Request, N.Y. Times, Nov. 6, 2013.

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.


  • 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).

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.