Thursday, May 26, 2005

Circuit Grants Habeas on IAC Claim, and Suggests Need for En Banc Review of Whether New York's IAC Standard Is "Contrary to" the Strickland Standard

Henry v. Poole, Docket No. 03-2884 (2d Cir. May 24, 2005) (Oakes, Kearse, Sack) (Op. by Kearse): This probably happens once in a blue moon: Judge Weinstein denies habeas, but the Circuit reverses and grants habeas. But, alas, that is what occurred in this case. The Circuit, by Judge Kearse, ruled that state trial counsel was ineffective for advancing a "fallacious" alibi defense at trial. The decision also has an interesting discussion on whether New York State's IAC standard, see People v. Benevento, 91 N.Y.2d 708, 697 N.E.2d 584 (1998), is "contrary to" the federal Strickland standard for purposes of AEDPA deference. Although the Circuit held in an earlier case that the two standards are not contrary to each other, see Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001), both Judge Kearse and Judge Sack, in a separate concurrence, apparently disagree with that earlier case and suggest that en banc review of the question may be required in an appropriate case. This case is not that case, however, because the Court ruled that habeas should be granted even applying AEDPA deference to the state court's decision on the IAC question.

The opinion is classic Judge Kearse -- very long & detailed. But the essential facts are as follows. Victim is a livery car driver who was robbed at gunpoint by several men shortly after midnight on August 10th. Three weeks later, petitioner Henry is arrested on an unrelated charge, and for unknown reasons put in a lineup for the earlier robbery. Victim IDs Henry the robber with the gun, even though Henry doesn't come close to fitting the discription given earlier by the victim. At trial, the sole evidence against Henry was the driver's shaky ID.

Defense counsel thoroughly challenged the victim's ID of Henry. Additionally, counsel promised to the jury that his client had an alibi, and then called the defendant's girlfriend to testify on this point. The girlfriend testified that the defendant was with her during the day and into the late evening of August 10th -- which is of course about 24 hours after the robbery. Although the prosecutor noticed this on cross, and demonstrated that the girlfriend's evidence did not actually consitute an alibi, defense counsel somehow did not. Counsel continued to characterize the girlfriend's testimony as an alibi during his summation.

The prosecutor exploited this mistake during his summation. After pointing out the obvious fact that the girlfriend's testimony was irrelevant to whether defendant robbed the victim shortly after midnight on August 10th, the prosecutor turned the defense's blunder against the defendant. He argued that this "false" testimony was fabricated by the defendant, and suggested that this was evidence of consciousnes of guilt. (This argument really does not make much sense: The girlfriend's testimony was not "false" in any way, but simply irrelevant. Her testimony would constitute "fallacious" alibi evidence only if she claimed to be with the defendant at the time of the robbery, and this claim proved to be inaccurate. Here, the girlfriend testified truthfully (or at least was not contradicted on this point) that she was with the defendant about 24 hours after the robbery. Again, this is not false, but simply irrelevant.). Defense counsel did not object to this line of argument.

The Circuit concluded that defense counsel's presentation of "fallacious" alibi evidence constituted ineffective assistance. The difficult point was the prejudice component of the Strickland test -- after all, if counsel did not even have to raise an alibi defense, how does his failed attempt to present alibi evidence harm the defendant? After all, counsel (concededly) attacked the victim's ID testimony aggressively and thoroughly, and this line of defense stood independent of the failed alibi defense. Judge Weinstein relied on this point in denying habeas. Nonetheless, Judge Kearse concluded that counsel's error created a reasonable probability of a different result, finding that "the State's weakened case was bolstered . . . by the false alibi evidence." The Court noted that the prosecutor "capitalized on counsel's reliance on the fallacious alibi evidence by arguing that the alibi was fabricated and suggesting that" this was evidence of consciousness of guilt by the defendant. The Court thus concluded that counsel's blunder in presenting "false" alibi evidence prejudiced his client in a case with weak evidence of his guilt. The Court also concluded that the New York Court of Appeals's contrary determination on this question was an "unreasonable application" of Strickland.

One suspects that the outcome of this case depended heavily on the serious doubt concerning Henry's guilt, which was established solely by very shaky ID testimony. Additionally, although the opinion purports to apply AEDPA deference to the New York court's determination that Henry had not demonstrated a Sixth Amendment violation, that is a bit hard to swallow. More likely, the Panel's clear belief that the New York IAC standard is in fact "contrary to" the Strickland IAC standard informed its purported application of AEDPA deference.

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