Pace Law’s Distinguished Fellow in Criminal Justice Mimi Rocah recently appeared on the “Law & Crime” network to discuss the government’s use of a cooperating witness with host Caroline Polisi. Ms. Rocah explained the process of using a cooperating witness in a federal prosecution. Although a cooperator must first plead guilty to the highest possible crime (and possibly other unrelated crimes), the incentive to cooperate in a federal investigation is significant. If the government finds that the cooperator has information against more culpable parties and they testify truthfully, the government will ask the judge to sentence the cooperator below the mandatory minimum under the sentencing guidelines. See the interview here.
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.
- People v. Bilal, 2016 N.Y. Slip Op. 02475 (N.Y. Mar. 31, 2016) (Court’s Official PDF).
- People v. Bilal, 118 A.D. 3d 448, 987 N.Y.S. 2d 364 (App. Div. 1st Dep’t Jun. 5, 2014).
- People v. Gray, 2016 N.Y. Slip Op. 02476 (N.Y. Mar. 31, 2016) (Court’s Official PDF).
- People v. Gray, 116 A.D. 3d 480, 983 N.Y.S. 2d 262 (App. Div. 1st Dep’t Apr. 8, 2014).
- People v. King, 2016 N.Y. Slip Op. 02278 (N.Y. Mar. 29, 2016) (Court’s Official PDF).
- People v. King, 110 A.D. 3d 1005, 973 N.Y.S. 2d 353 (App. Div. 2d Dep’t Oct. 23, 2013).
POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.
On November 23, 2015, the N.Y. Court of Appeals issued a decision in People v. Harris, 2015 N.Y. Slip Op. 08607 (Nov. 23, 2015) that split the Court 4-2 on application of the law of ineffective assistance of counsel (IAC).
The facts of the case were that in 2002 a man surreptitiously entered a dwelling where a woman was sleeping. The man masturbated nearby the woman and fled when she awoke. The woman subsequently noticed that a pair of her earrings was missing. Based on DNA evidence processed several years later, the prosecution identified defendant as the man involved and indicted him on a misdemeanor count of petit larceny (for theft of the earrings) and a felony count of second-degree burglary (for unlawfully entering a dwelling with intent to commit a crime therein).
There was just one problem with the prosecution’s case: the limitations period for the petit larceny count, even allowing for tolling, had expired more than a year before the indictment.
Nevertheless, the prosecution pursued the petit larceny charge at trial and used its underlying facts to support the burglary charge, the prosecution’s theory being that defendant had an intent to steal when he entered the dwelling. This decision would lead the Court of Appeals to comment on the need for “responsible charging practices.” But on appeal, focus would not be on the prosecutor’s decision but on the question: Why did defense counsel not seek dismissal of the time-barred larceny count?
At trial, defendant was convicted on both charges. On appeal, the defendant argued that his attorney was ineffective by failing to obtain dismissal of the larceny count. The issues were (1) whether counsel had a reasonable strategy in letting this charge go forward and (2) whether this singular error – if indeed it was such – could support an IAC claim.
As to the first issue, the majority stated that a finding of guilt on the larceny count would “as a practical matter have dictated a finding of guilt on the burglary count as well,” and so failure to obtain dismissal of the larceny count was “objectively incapable of enabling any compromise verdict.”
The dissenters noted, however, that even had the larceny count been dismissed, evidence relating to this uncharged crime would still have been admissible to support the intent element of the burglary charge – a possibility the majority did not deny. Accordingly, the dissenters concluded that counsel might have wanted to provide opportunity to convict only on this misdemeanor charge – an opportunity that would have been precluded were the charge dismissed.
As to the second issue, the Court’s precedents state the rule that an IAC claim requires assessment of counsel’s overall representation. So the question was whether a single error in otherwise unquestioned performance could support the IAC claim in Harris. The Court relied on its earlier decision in People v. Turner, 840 N.E.2d 123 (N.Y. 2005), in which it held that a singular error to obtain omission of a time-barred charge was prejudicial in a case where the time-barred count was the only one on which the jury convicted. Writing for the Court, Judge Robert Smith noted that Turner “may be the first [case] this Court has encountered” in which a singular error required a finding of constitutionally deficient performance.
The Harris majority understood Turner to create a “freestanding” exception to the overall assessment rule for cases where counsel’s only error was omission to seek dismissal of a time-barred charge. The dissenters interpreted Turner as instead upholding the overall assessment rule, while allowing that a single questionable decision of whatever sort can sustain an IAC claim only if that decision discloses ineffectiveness in overall performance.
This disagreement also implicated the issue of remedy. The majority interpreted Turner broadly to apply wherever unreasonable omission to obtain dismissal of a time-barred charge results in conviction on that charge. Accordingly, in Harris the majority granted only partial relief, reversing the larceny conviction but not the burglary conviction. The dissenters found this partial relief, grounded in “charge by charge analysis,” unprecedented. Given their understanding that focus must be on counsel’s overall performance, the dissenters stated that the proper remedy, assuming IAC is found, would have to have been comprehensive.
This week, in People v. Morales, 2013 NY Slip Op 5094, the Appellate Division, Second Department granted an application for a writ of error coram nobis and dismissed the indictment, finding that the defendant was deprived of the effective assistance of appellate counsel. The court found that the guilty verdicts were repugnant, the trial court had committed serious charge errors and omissions, and the prosecutor had committed prejudicial misconduct in his opening and closing statements. It held that trial counsel was ineffective since counsel had failed to object to these prejudicial errors without any ”objectively reasonable and legitimate trial strategy.” It then held that the defendant was deprived of the effective assistance of appellate counsel, who had failed to raise these serious trial errors as well as the ineffectiveness of trial counsel for failing to contest them.
Because the defendant had served his sentence, and because the repugnant convictions had to be dismissed in any event, the court dismissed the indictment.
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?