"Tainted Trials, Stolen Justice": a rare look at a flawed appellate court

The San Jose Mercury News has a sobering series of articles up under the title Tainted Trials, Stolen Justice." (Hat tip: Arbitrary and Capricious.) Of particular interest is the attention paid to the criminal appellate courts. From the first article in the series:

The 6th District Court of Appeal, the primary court of review for Santa Clara County cases, upheld verdicts in more than 100 cases even as it acknowledged errors had occurred. The appellate court simply concluded those errors made no difference in the outcome of the case. Sometimes those conclusions were appropriate, but a review of the appellate record and consultations with experts established that in more than 50 cases the court misstated facts, twisted logic and devised questionable rationales to dismiss the error.

In nearly all the cases, the 6th District designates its opinions as ``not to be published'' -- a distinction that means they are not to be cited as legal authority in subsequent cases, and thus have little relevance beyond the parties to a case. The Mercury News found that higher courts are extremely unlikely to review unpublished opinions, making the 6th District the final word on most criminal trials in Santa Clara County.

It is nice to see scrutiny given to every stage of the criminal process, and not just the trial itself. I do not think I have ever read another article even discussing the role of an intermediate criminal appellate court--yet the Mercury News article manages not only to shine a light on a dark area of the process, but it does so in a way that levels serious criticism in a fair manner. Well worth a read.

AD3: County Court's withholding of Sandoval ruling until after People's case reversible error

People v Cross, __ AD3d __ [3d Dept 2006] [available here]

In a decision handed down last Thursday, the Third Department held "that defendant is entitled to a new trial because County Court withheld its Sandoval determination until after the People had rested." (People v Cross, __ AD3d at __.) From the decision:

Here, despite defendant's pretrial motion and counsel's request for a ruling before opening statements, County Court did not address the Sandoval issue until after the People rested. By that time, defendant had presented an opening statement and cross-examined all of the prosecution witnesses, committing himself to a defense strategy that would appear to require defendant's testimony. After the court's Sandoval ruling, defendant declined to testify. Because the defense strategy may well have been different if the court had issued its Sandoval ruling before the trial began, we feel constrained to reverse and grant defendant a new trial.

(Id at __.)

I'm not sure how useful this decision will be--most trial courts rule on any Sandoval application before opening statements. But, not a bad arrow to have in your quiver if the situation calls for it. Also, the "defense strategy may well have been different" language could be useful for appellate defense attorneys who can raise a valid Sandoval issue but are faced with a harmless error problem.

Some other decisions of note from the Third Department's January 26 packet of decisions:

People v Jackson, __ AD3d __ [3d Dept 2006] [available here]

The defendant on direct appeal argued that his sentence was illegal because it was not "capped" pursuant to CPL section 70.30. The Court held that a direct appeal was not the proper vehicle for addressing the "cap" issue: "[t]he calculation of the aggregate sentence for consecutive sentences such as those involved here is generally done by the Department of Correctional Services, and any alleged error may be challenged in a proceeding pursuant to CPLR article 78." (Jackson, __ AD3d at __ [citations omitted].)

People v Blair, __ AD3d __ [3d Dept 2006] [available here]

The Court agreed with defendant that his kidnapping charges should have merged with the other charges: "[h]ere, defendant attempted to push the victim a very short distance and grabbed her legs, restraining her momentarily before she got away. The only evidence is that he assaulted her while he attempted to force her into the wooded area to kill her. Inasmuch as the abduction was both minimal and part of the assault and attempted murder, the merger doctrine applies and necessitates reversal of defendant's conviction of the crime of attempted kidnapping in the second degree." (Blair, __ AD3d at __.)

New Blawgs Added

Welcome to AlaskaBlawg, Blonde Justice, Gideon's Guardians, and Public Defense, all added today to the Blawgs list over to the left.

Local criminal defense attorney honored

Don Thompson, one of the best criminal defense attorneys in Rochester, will receive the Charles F. Crimi Memorial Award from the New York State Bar Association today for his superb work on behalf on indigent defendants. Don is featured prominently in a Democrat and Chronicle article about the NYSBA awards here. Some bits from the article:

Thompson's colleagues say they see similarities between him and Crimi, the late defense lawyer. Thompson, like Crimi, doesn't think the level of defense a person receives should be based on the resources he or she has.

"Don's one of those rare individuals that is committed not only to the practice of criminal law and the vigorous representation of his clients but the pursuit of the fundamental elements of justice, which the system is based on," said defense lawyer Lawrence Kasperek, who shares office space with Thompson in downtown Rochester.

"Those people are not only rare but they're vital to the proper function of the criminal justice system."

Thompson, 46, admits that he is fueled by an insistence that the criminal justice system can operate better.

"I believe that we potentially have the best system of justice that we could hope for, but you can't just sit back and hit the cruise control and expect it to work," he said. "It's my life so I'm kind of committed to being part of a system that I can be proud of."

In recent years, Thompson has worked with the New York City-based Innocence Project to try to secure genetic testing in cases in which he contends the wrong people may have been convicted. Those cases have triggered legal clashes with prosecutors, who often maintain that the evidence against the convicted is overwhelming.

"Probably one of the biggest compliments I've ever received, and it wasn't meant as a compliment, was (when) a district attorney characterized me as a 'true believer,'" Thompson said.

Doing indigent defense work is usually a thankless job, so it is nice to see Don--one of the true good guys of the local criminal bar--get some much deserved recognition. Congratulations!

The Supremes: Greatest Hits (vol. 2)

Crawford v Washington, 541 US 36 [2004] [available here]

An instant classic, Crawford v Washington has managed to flip everyday criminal trial and appellate practice in New York on its ear. I have posted more on Crawford than any other criminal decision in the nine months or so that this blog has been up and running, simply because the fallout from Crawford is so widespread. Previously settled trial practices are being questioned. Can the People in a murder trial simply have a substitute medical examiner opine as to manner and cause of death based on an autopsy report prepared by a non-testifying medical examiner, or is the autopsy report testimonial hearsay? Can the People play a 911 tape for the jury, or is the call testimonial hearsay? Does Crawford apply at recidivist sentencing hearings in New York? Is a simple "affidavit of mailing" testimonial hearsay? The Fourth Department says yes, but it is by no means clear that the U.S. Supreme Court would reach the same conclusion. What about breathalyzer calibration records?

All great questions, and all questions Justice Scalia deliberately left for another day by not setting forth a comprehensive definition of 'testimonial' in Crawford. The Court of Appeals has recently weighed in and defined "testimonial" very broadly--a nice development for New York criminal defendants. But we will just have to wait and see if the Supremes are as generous when they get around to deciding the issue.

The Supremes: Greatest Hits (vol. 1)

Gideon v Wainwright, 372 US 335 [1963] [available here]

To combat the usual lull in posts around here that happens between the Fourth Department's terms, I've decided to post periodically on important or historical criminal decisions (both New York and federal). I thought it appropriate to start with Gideon v Wainwright, the 1963 Supreme Court decision that established the right to counsel for poor people and led to the establishment of public defender offices to provide legal services for indigent defendants. The majority opinion eloquently sets forth the justification for extending the right to counsel to poor people:

[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crimes, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.

(Gideon v Wainwright, 372 US 335, 344 [1963].)

A post over at Arbitrary and Capricious got me thinking of Gideon today; check out Skelly's great post linking to an in-depth article giving a rare glimpse into the life of a newly minted assistant public defender (warts and all).

New decisions February 3

The Fourth Department will hand down decisions for cases argued during its January term on February 3. Until then, I hope to highlight some cases of interest from the other Appellate Divisions.

WDNY: Appellate counsel ineffective for failing to raise strongest issue on appeal

Mullins v Bennett, 00-CV-0136


In a decision filed today by Magistrate Judge Bianchini, the U.S. District Court for the Western District of New York granted petitioner's writ of habeus corpus based on ineffective assistance of appellate counsel, finding that "counsel overlooked the strongest state law argument that his client had in favor of barely colorable claims" and the Fourth Department engaged in an "unreasonable application" of the federal test for ineffective assistance of counsel in resolving "the deficient-performance aspect of Mullins' ineffective assistance of counsel claim against him." (Mullins v. Bennett, 00-CV-0136.)

On direct appeal at the Fourth Department, Mr. Mullin's appellate counsel raised three issues: first, that the trial court should have granted trial counsel's motion for severance; second, that the evidence was legally insufficient; and third, that the prosecutor's misconduct deprived Mr. Mullin of a fair trial. The Fourth Department affirmed Mr. Mullin's conviction, and the Court of Appeals denied leave. Mullins subsequently filed a writ of error corim nobis on the ground that his appellate counsel was ineffective for failing to raise a properly preserved Batson argument (the trial prosecutor struck the only black member of the jury venire and offered a flimsy race-neutral explanation). The Fourth Department denied the writ, and Mullins petitioned the Western District Court for a writ of habeus corpus.

The WDNY noted the standard to be applied when an ineffective assistance of appellate counsel claim is grounded on appellate counsel's failure to raise a specific issue on appeal: "Whether the neglected appellate issue is based on federal or state law, the burden rests on [the defendant] to show 'that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.'" (Id.) The WDNY had no problem concluding that the issues raised by Mr. Mullin's appellate counsel on direct appeal were weak--the Court held it was "pointless for appellate counsel to have bothered raising the severance argument. The insufficiency-of-evidence and prosecutorial misconduct arguments were somewhat stronger than the severance argument, but that is not saying much." (Id.)

The part of the WDNY's decision that is interesting to me is the next part of the analysis, i.e. the Court's finding that Mr. Mullin's Batson claim would have had a "reasonable probability" of success before the Fourth Department and therefore Mr. Mullin was prejudiced by his appellate attorneys failure to raise the Batson issue on direct appeal. Don't get me wrong--I think Mr. Mullen's Batson argument is a strong one--the trial prosecutor struck the only black member of the jury venire because (and I'm paraphrasing) the prosector did not like social workers (and the venire member worked as a "food service supervisor . . . at a facility that provided mental health services") and the juror seemed "skittish". (Id.) However, the overall success rate for criminal defendants on direct appeal to the Fourth Department is dismal, clocking in at about 5% for substantive reversals (i.e. not technical errors or sentence reductions). So I think it is a touch optimistic to say that a criminal appellant raising a strong Batson argument (or any other argument) before the Fourth Department has a "reasonable probability" of success. Still and all, a good and welcome result for Mr. Mullins.

3rd Dept: photo array that "depicted [the bearded] defendant alongside five males whose facial hair appeared to be drawn in" NOT unduly suggestive

People v Colon, __ AD3d __ [available here]

The defendant in Colon sported "unusual facial hair." (People v Colon, __ AD 3d __, __ [3d Dept 2005].) So when it came time to construct a photographic array, the police put defendant's photo "alongside five males whose facial hair appeared to be drawn in." (Id.) The Third Department refused to find the array unduly suggestive, despite agreeing that "certain of the photographs could have been better altered." (Id. at __.) No word yet on whether budding police Rembrandts can legally pencil in black eyes, devil horns or cheek scars.

Sample photo array:

Upcoming Court of Appeals arguments

The Court of Appeals has many interesting criminal cases on its January calendar (you can read the case summaries for all of the January arguments here. Only one--People v DaCosta comes out of the Fourth Department. The defendant in DaCosta was convicted of manslaughter in the second degree for recklessly causing the death of a Buffalo city police officer. Essentially, the officer was killed while pursuing defendant in a footchase across a busy expressway--according to the summary, the officer "chased after DaCosta, who was running alongside the six-lane Kensington Expressway. DaCosta crossed the expressway, vaulting over a six-foot chain link fence in the median. Officer McClellan followed him safely across the three outbound lanes of the expressway, but when the officer tried to get over the median fence, he fell into the inbound lanes and was struck and killed by a morning commuter." The Fourth Department affirmed the conviction, finding that DaCosta's conduct was reckless and "set in motion and legally caused the death of the officer." The issue for the Court of Appeals is whether DaCosta's conviction for reckless manslaughter was supported by legally sufficient evidence. DeCosta argues that the so-called "triggering cause" of the officer's death--i.e. jumping off of an unstable six-foot high fence--was neither foreseen nor foreseeable. The People argue that the ultimate harm--i.e. the office getting hit by a car--was a completely forseeable outcome of DaCosta's flight and his choice "of a dangerous route believing or hoping that it was likely to either stop or slow the pursuit."

I think DaCosta has a tough argument to make here--it sounds like this is a case primarily about proximate cause. There does not seem to be any question that DaCosta engaged in the necessary risk creation--he knew he was being chased by police, and he deliberately ran across a busy expressway in order to avoid capture. That conduct almost certainly creates a substantial risk of death to those officers chasing him, and DaCosta disregarded that risk by continuing to flee thru traffic. The real question is whether that recklessness was the legal cause of the officer's death. It has admittedly been awhile since 1L torts class, but my understanding is that the precise manner of death does not have to be foreseen--it is enough that the outcome itself is foreseeable. In this case, the risk created by DaCosta's conduct is that an officer would get hit by a car and die, and that is precisely what happened. There is no disconnect between the risk created and the outcome. Add to that the procedural hole DaCosta starts in--since he is making a legal sufficiency argument, the evidence will be viewed in a light most favorable to the People--and DaCosta would seem to have an uphill battle ahead of him. That said, it will be interesting to see how the Court comes out on this one.

The other case being argued before the Appeals in January that caught my interest is People v Burns. The question in Burns is whether a validly executed waiver of right to appeal precludes an appellant from arguing that his sentence was harsh and excessive before the Appellate Division. The appellants are arguing that "the waiver does not divest the Appellate Division of its constitutional power to reduce a 'rare' or 'extraordinary' or 'grossly excessive' sentence in the interest of justice." Not a terribly sexy issue, but it is one of enormous practical significance for everyday appellate practitioners (especially assigned counsel). Often, the only viable issue on a plea appeal is that a sentence is harsh and excessive, and as it stands the Appellate Divisions are refusing to entertain a harsh and excessive argument if defendant executed a valid waiver of right to appeal.

"Good, you picked out the right guy"

I'm preparing for an upcoming oral argument where my main point is that the police irrevocably tainted an eyewitness identification by telling the eyewitness (immediately after she tentatively identified my client from a photographic array) that she had in fact picked the right guy . This police practice actually has a name--positive postidentification feedback. Researchers have conducted studies that show giving positive postidentification feedback (i.e. witnesses are told after picking a suspect out of a lineup or array that they have indeed correctly identified the suspect) can have a profound adverse impact on the reliability of an eyewitness's subsequent identification of a suspect. Articles by the leading researcher into the effects of positive postidentification feedback can be found here. The reason I like this issue so much is that the conduct at issue--a police officer telling an eyewitness that he or she has identified the correct suspect--is completely gratuitous and serves only to reduce the reliability of any subsequent identification. I have posted an excerpt from my appellate brief below that summarizes the research and sets up the argument that an eyewitness who has been tainted by positive postidentification feedback should be precluded from making an identification at trial.

____________________

Traditionally, courts have focused on the way a lineup is constructed and conducted to determine if an eyewitness' identification of a suspect is tainted by undue suggestion. For example, it is by now well-settled that a photographic array or live lineup must be conducted in a manner that is fair and not unduly suggestive. (Simmons v US, 390 US 377, 384 [1968]; Wade, 388 US at 228-229; Point I, supra.) However, there is a growing body of empirical research that suggests the police conduct immediately after a pretrial identification can have a profound adverse impact on the reliability of an eyewitness' subsequent identification of a suspect.

Specifically, a 1998 study by researchers at the Iowa State University suggests that "giving feedback to eyewitnesses can result in their recalling that they were more confident in the identification than they really were at the time." (Wells & Bradfield, "Good, You Identified the Suspect": Feedback to Eyewitnesses Distorts Their Reports o the Witnessing Experience, 83 J App Psych 360, 360 [1998].) The researchers described the experiment as follows:

Research participants were shown a grainy security camera video from a Target Store in which a man is shown entering the store. They were told to notice the man as they would be asked questions about him later. After viewing the brief video, they were informed of the fact that the man murdered a security guard moments later. Participants did not see the murder itself on the video. They were then asked to identify the gunman from a photospread. The photospread was the same one used in the actual criminal case, except that we removed the gunman's photo. As shown in prior research, absence of the actual target from a lineup or a photospread leads to a high rate of misidentification, especially when eyewitnesses are not specifically warned that the actual culprit might not be in the lineup. In fact, our procedure was successful in getting every participant to make a false identification. Following the false identification, the experimenter gave confirming feedback ("Good. You identified the actual suspect."), disconfirming feedback ("Actually, the suspect was number ___î), or no feedback. A short time later, the participant-eyewitnesses were asked a number of questions, including how certain they were at the time of their identification decision, how good of a view they got of the gunman's face, how long it took them to identify the gunman from the photospread, and so on.

(Id. at 363.)

The results of the experiment were clear; as explained by the researchers,

This work demonstrates that a casual comment from a lineup administrator following eyewitnesses' identifications can have dramatic effects on their reconstructions of the witnessing and identification experience. A confirming-feedback remark not only inflates eyewitnesses' recollections of how confident they were at the time, it also leads them to report that they had a better view of the culprit, that they could make out details of the face, that they were able to easily and quickly pick him out of a lineup, that his face just "popped out" to them, that their memorial image of the gunman is particularly clear, and that they are more adept at recognizing faces of strangers. These effects were very robust, with effect sizes that exceed what are normally considered large effects in psychology.

(Id. at 374 [emphasis added].)

As the Iowa researchers noted, the practical implications of their findings are profound. "These findings mean that extramemorial factors, having nothing to do with the actual quality of their view or the uncertainty that they actually felt at the time, can distort the eyewitnesses" judgments. This, in turn, means that criteria used to evaluate identification evidence (e.g., the Biggers criteria of certainty, opportunity to view) can actually be driven by the behavior of the agent administering the lineup, in particular the agent's decision regarding whether to give feedback to the eyewitness or not." (Id. at 367.)

This experiment has been repeated numerous times with the same result. (Bradfield, Wells & Olson, The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J App Psych 112 [2002]; Wells, Olson & Charman, Distorted Retrospective Eyewitness Reports as Functions of Feedback and Delay, 9 J Exp Psych 42 [2003]; Semmler, Brewer & Wells, Effects of Postidentification Feedback on Eyewitness Identification and Nonidentification Confidence, 89 J App Psych 334 [2004]; see also, Doyle, Stories of Eyewitness Error, 27 Nov Champ 24 [2003].) Thus it seems clear from the research that positive post-identification feedback essentially destroys whatever reliability an eyewitness's identification may have had, causing even a witness who made a patently false identification believe strongly that the identification was correct, and to exaggerate his or her ability to observe the suspect. "[T]he sensory traces left in memory are, just like blood, drug or semen evidence, subject to contamination. The crucial differences in the memory trace evidence are that if the memory trace is contaminated, there is no uncontaminated sample of the trace left to test, and the contamination may never be proved or disproved by further testing." (Doyle, 27 Nov Champ at 27.)

As caustic an effect as positive post-identification feedback has, it is also a completely unnecessary phenomenon. Unlike some factors that can effect the reliability of an in-court identification, positive post-identification feedback is entirely within the control of the police and thus utterly avoidable:

[p]ostidentification feedback is under the control of the justice system because it is usually given by the person who administers the lineup. That person, usually a detective, knows who the suspect is and, therefore, can give a witness information about the "accuracy" of his or her identification.

(Bradfield, Wells & Olson, The Damaging Effect of Confirming Feedback on the Relation Between Eyewitness Certainty and Identification Accuracy, 87 J App Psych 112, 113 [2002].)

The harmful effect of the type of distortion produced by positive post-identification feedback cannot be overstated. Jurors believe eyewitnesses who are confident in their identification. (Wells, 83 J App Psych at 361 ["There is good empirical evidence to indicate that the confidence with which eyewitnesses give identification testimony is the most important single quality of testimony in terms of whether participant-jurors will believe that the eyewitness correctly identified the actual perpetrator"].) But as the research shows, an eyewitness's confidence has little or nothing to do with the actual accuracy of his or her identification where an investigator immediately confirms the witness's identification of the suspect from a lineup or photographic array. Thus, the police inflate the eyewitness's confidence by confirming an identification, and jurors believe the eyewitness at trial based on that false confidence.

What not to say at sentencing

People v Thomas, __ AD3d ___ [3d Dept 2005]

The defendant in Thomas was sentenced as a persistent felony offender to 25 years to life for throwing a cup of his own waste at a correction officer; according to the decision, as the correction officer passed defendant's cell, "a cup of liquid flew out from the cell and hit him on the right side of his body. Purportedly, defendant stated, 'There, take that.' The substance was later determined to be a combination of urine and fecal matter." (People v Thomas, __ AD3d __.) Gross and not even remotely hygienic--but 25 to life? Well, the Court points out in a footnote some comments made by defendant at sentencing:

At sentencing, defendant stated, 'If I had to do it again, I would do it all over again. He is lucky that I couldn't get to his ass where I could shove a shank in his f**ing neck.'

(Id. [asterisks in original].)

Proving once again that a defendant's right to address the sentencing court is not all it is cracked up to be.

New Year's Housekeeping

I have added some new Blawgs over to the left for the New Year--welcome to Appellate Law & Practice, Second Circuit Blog, Second Opinions (all three useful even to those criminal appellate lawyers representing clients primarily before state appellate courts [because with the dismal success rate for criminal defendants before New York appellate courts, it does not hurt to raise federal issues that can be pursued after state remedies have been exhausted]), New York Civil Law (because you never know when an Article 78 or other civil remedy will be necessary) and Defensology. Also, thanks to Crimlaw and Sui Generis for generously linking to posts here at I.I. (and driving up traffic!). Happy New Year!