Prosecutorial Misconduct: Naming Names (Again)

As readers of this blog know, I have long and repeatedly advocated that an effective means for reducing the incidence of prosecutorial misconduct, without having to reverse the conviction -- which appellate courts are understandably reluctant to do where there is strong evidence of guilt but improper conduct by the prosecutor -- is to name the prosecutor in its decision condemning the misconduct, but affirming the conviction (see  and see). Yet, with exceptions, appellate courts still appear reluctant to do so. For example, this week, in a statement regarding the denial of certiorari in  Calhoun v United States (568 US __ [2/25/13]), Justices Sotomayor and Breyer condemned the racial  argument of the Assistant United States Attorney,  but did not name the attorney:

It is deeply disappointing to see a representative of theUnited States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark.

I call your attention to two excellent posts  (here and here) regarding the Court's failure to name the offending prosecutor and which rectify this failure by naming him (Samuel L. Ponder).









http://blog.simplejustice.us/2013/02/26/what-sam-ponder-said.aspx?

Prosecutors Will Not Be Disciplined by Their Offices For Misconduct

I strongly urge that you read this excellent (and depressing) article by Joel Rudin detailing the utter failure of  three NYC District Attorney’s offices to reprimand assistant DA’s found by courts to have engaged in misconduct: J. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies That Prove That Assumption Wrong (8 Fordham L R 537 [2011]). The article shows how these District Attorney offices have created more incentives for trial prosecutors to seek to win that they do to comply with their Brady obligations.

Need Anyone Inform Defendant of The Mandatory Consecutive Nature of Sentence To Be Imposed Pursuant To Plea Bargain?

In People v Belliard (2013 NY Slip Op 00884 [NY 2/12/13]), the Court of Appeals held that Courtsare not required to advise a defendant pleading guilty that it is mandatory that the sentence of imprisonment he will receive as a second felony offender will run consecutively to the undischarged portion of his previously imposed state sentence. With Chief Judge Lippman dissenting, the Court explained that the mandatory nature of the consecutive sentencing does not render that a direct, and not collateral consequence of the plea.

That a court is not so obligated, does not mean that defense counsel has no obligation to inform his client of the mandatory consequence of his plea. For example, in People v Cosby (82 AD3d 63 [4th Dept 2/11/11), the Appellate Division, Fourth Department held that while the trial court has no obligation to inform a defendant of his or her right to testify or to ascertain if the failure to testify was a voluntary and intelligent waiver of his or her right to do so, " 'trial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of [the] constitutional right' to testify at trial."

The Court's holding in Belliard that it is not a direct consequence of the plea that the sentence will run consecutively to the earlier sentence is far from dispositive as to counsel's obligations. For example, in Padilla v Kentucky (559 U.S. ___, 130 SCT  1473 [2010]), the Supreme Court held that regardless of whether the immigration consequences of a plea are described as direct or collateral, when deportation  is clearly a mandatory consequence, counsel has a duty to so advise. Arguably, the logic of Padilla applies to the mandatory consecutive sentence scenario considered by the Court in Bellliard.

Appellate Divisions Can Order Hearing To Determine If There Was A Strategic Basis For Failure To Raise Issue

In People v Bachert (69 NY2d 593, 600 [1987]), the Court of Appeals held that a motion for writ of error coram nobis is the means in New York to raise claims of ineffective assistance of appellate counsel  Such claims focus on  appellate counsel's failure to raise significant and obvious issues while pursuing issues that were clearly and significantly weaker. But it is often difficult to establish that there was no possible strategic basis for such omission.

In People v Lassalle (2013 NY Slip Op 00883 [NY 2/12/13]), the Court of Appeals reminded both counsel and the Appellate Divisions that when "a defendant in a coram nobis points to a clear error on the face of the [trial court] record," that was not raised as an issue on appeal "there are avenues to more fully explore potentially meritorious claims (see e.g. People v D'Alessandro, 13 NY3d 216, 220-221 [2009]; People v Bachert, 69 NY2d 593, 600 [1987])." Specifically, in Bachert, the case in  the Court  held that '[t]he Appellate Division even has the flexibility, should the need arise, to refer factual disputes for hearings to the nisi prius court or perhaps to judicial hearing officers." People v Bachert, 69 N.Y.2d 593, 600 (1987).

Thus, in drafting motions for writ of error coram nobis, counsel should expressly ask that the Court refer to the case to a hearing if it is unclear if the failure to raise a meritorious issue was the product of strategy and not simply a mistake.

Must Defense Attorneys Guess What Is Not In The Box?

The logical predicate for a requirement that a defendant be precise in framing a defect  requiring redress is that the defendant reasonably be aware of such defect. Thus, for example, in considering what a defendant must allege to obtain a suppression hearing, the Court of Appeals has held that a

factor in determining the sufficiency of a defendant's factual allegations is the degree to which the pleadings may reasonably be expected to be precise in view of the information available to defendant. The CPL expressly relieves defendant of the burden of pleading facts in support of a motion to suppress identification testimony (CPL 710.60 [3] [b]), likely because in many instances defendant simply does not know the facts surrounding certain pretrial identification procedures, such as photo arrays (People v Rodriguez, 79 NY2d 445, 452-453). It would be unreasonable to construe the CPL to require precise factual averments when, in parallel circumstances, defendant similarly does not have access to or awareness of the facts necessary to support suppression

People v Mendoza,  82 NY2d 415, 429 (1993) ("This is an instance where defendant's lack of access to information precluded more specific factual allegations. Although the Appellate Division may have been correct in *434 characterizing as “speculative” defendant's allegation about the guard's status--indeed, defendant provided no factual support for his claim--a guard's licensing status, unlike facts regarding a defendant's own actions or observations, is not something a defendant could be expected to know and thus allege with particularity." Mendoza at 433-434).

In contrast to this holding, the Appellate Division, Fourth Department, in People v Madera (2013 NY Slip Op 00812 [4th Dept 2/8/2013]), held that  refused to consider defendant's (meritorious - see) claim that the evidence before the grand jury was legally insufficient to support the indictment on the count of assault in the first degree, because the defendant

failed to preserve that contention for our review inasmuch as his omnibus motion . . . failed to set forth the specific grounds for dismissal now set forth on appeal, i.e., that the evidence was insufficient to establish . . . the element of [serious physical injury]. (People v Agee, 57 AD3d 1486, 1487, lv denied 12 NY3d 813; see People v Becoats, 71 AD3d 1578, 1579, affd 17 NY3d 643, cert denied ___ US ___, 132 S Ct 1970; People v Cobb, 72 AD3d 1565, 1565-1566, lv denied 15 NY3d 803).

  The problem with requiring specific and precise allegations regarding the insufficiency of the evidence at the grand jury is that the defendant rarely has access tot he grand jury minutes before filing such motions. Thus, counsel is left to guess what elements were not proved at the grand jury. Under the logic of Mendoza, broad allegations of insufficiency would be enough to  preserve the issue. But given the holding in Madera, it would seem that an omnibus motion should separately list each element of each charged crime and allege that the proof was insufficient to establish that element. Perhaps even that will be held to  be inadequate, since, without access to the grand jury minutes, the motion cannot say why the proof was inadequate. It is difficult to understand the justification for a preservation rule predicated on defense counsel precisely complaining about the content of proceedings as to which counsel is not given information.

A Shot In The Chest Is Not Necessarily Sufficient To Establish Serious Physical Injury

People v Madera (2013 NY Slip Op 00812 [4th Dept 2/8/2013]), is another case demonstrating how important it is for counsel to read the statutory provisions defining the crime for which a client is charged. As described below, appellate counsel, successfully made a counter-intuitive augment, not made by trial counsel in the motion for a trial order of dismissal, based on the statutory language.

Although a shot the chest leaving bullet fragments sounds like a serious physical injury, a determination of whether a defendant charged with assault in the first degree by, with intent to cause serious physical injury to another person, caused such injury to that person or to another person by means of a deadly weapon or a dangerous instrument  requires, in part,an examination of the statutory definition of "serious physical injury" and the proof.

Serious physical injury, as defined in the Penal Law, "means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ" (§ 10.00 [10]). In Madera, there was no evidence that the victim sustained serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ. The issue on appeal was whether the proof was sufficient to establish that the victim's injuries created a substantial risk of death. As the Court summarized

The evidence at trial concerning the victim's injury consisted of the victim's testimony and medical records. That evidence established that the bullet entered and exited the victim's body around his right nipple; it was not near any vital organs; and it grazed the victim's right arm either as it entered or exited his body. Although a tiny fragment of the bullet remained in the victim's chest, the People presented no medical testimony to explain what, if any, risk that fragment posed to the victim. No sutures were needed and the victim's self-reported pain level was low. The victim was kept in the hospital overnight for pain management and observation, but he remained in the hospital for another day due to his expressed intent to retaliate against defendant.

Exercising its power to address the unpreserved issue of the sufficiency of proof, as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), the Court held that

[v]iewing that evidence in the light most favorable to the People, we conclude that no " rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' " (People v Contes, 60 NY2d 620, 621). The People presented no evidence establishing that the victim faced a substantial risk of death (see e.g. People v Nimmons, 95 AD3d 1360, 1360-1361, lv denied 19 NY3d 1028; People v Tucker, 91 AD3d 1030, 1031-1032, lv denied 19 NY3d 1002; People v Ham, 67 AD3d 1038, 1039-1040; People v Gray, 30 AD3d 771, 773, lv denied 7 NY3d 848).

Mr. Madera is fortunate that his appellate counsel, Mary Davison, raised this unpreserved issue and persuaded the Court. Yet one is left to wonder why was there not a specific motion for a trial order of dismissal on this ground.

Timing Matters and Reading Is Essential

If there is one lesson that I have learned in more than three decades of practicing law, is that one must not assume anything about a case.

Just because the indictment charges a particular crime does not mean that the conduct alleged, if proved,  established the actual elements of the crime. A defense attorney cannot assume that the prosecutor read the statute in the light most favorable to your client. Rather, in every case you must read the language of the charged crime and try to determine both what that language means and whether the charged conduct fits within that definition.

Similarly, at sentencing one cannot assume that the probation department, prosecutor or court have correctly determined what sentences can or must be imposed in your client's case. Rather, it is incumbent on defense counsel to read the statutory language to independently determine the applicable sentencing options. People v Bush (2013 NY Slip Op 00854 [4th Dept 2/8/13]) is an example of how courts may err on sentencing.  In Bush, the defendant urged on appeal that the portion of his sentence imposing a three-year conditional discharge and an ignition interlock device requirement is illegal inasmuch as he committed the offense prior to the effective date of the statute imposing those requirements.  The Appellate Division, Fourth Department, agreed, and therefore modified the judgment by vacating those provisions.The Court explained that "[p]ursuant to the Laws of 2009 (ch 496, § 15), the amendments to, inter alia, Vehicle and Traffic Law § 1198 are not applicable to defendant because he committed his offense before November 18, 2009, the date of the enactment of those amendments." People v Bush (2013 NY Slip Op 00854). Thus, attentive counsel noticed what the sentencing court did not - the effective date of those sentencing provisions.