Tuesday, October 18, 2005

Counsel's Failure to Consult with or Call Expert Medical and Psychiatric Witnesses Requires Vacatur of Defendant's Child Molestation Conviction

Gersten v. Senkowski, Docket No. 04-0935-pr (2d Cir. Oct. 17, 2005) (Winter, Pooler, Brieant (by designation)): A great win for the defense. This is (at least) the third case in recent memory in which the Circuit granted habeas relief to a state prisoner claiming that he received ineffective assistance of counsel at his trial for child molestation because his attorney failed to consult with, or call as witnesses at trial, medical and psychiatric experts who could have undermined the testimony of the prosecution's so-called experts. In a classic "he said, she said" case in which the prosecution won conviction by proffering now-discredited expert testimony against the defendant, defense counsel's complete ignorance of the medical and psychatric literature on child abuse, and his cavalier failure to make even the slightest effort to educate himself on these crucial matters, required vacatur of defendant's conviction even under AEDPA's highly deferential standards.

The lengthy, fact-specific opinion breaks no new ground, principally following the Court's earlier decisions in Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001), and Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001), on the salient points. (Though the Court's blistering critique of trial counsel's performance, as well as the trial judge's affidavit submitted in connection with the habeas petition, is quite enjoyable.). The opinion is worth reading, if only to learn what not to do when representing a client on such charges.

1 Comments:

Anonymous Anonymous said...

What happened to the decision? The link is bad, and a visit to Findlaw to locate the case came up empty-handed. Was the decision withdrawn?

November 23, 2005 at 4:22 PM  

Post a Comment

<< Home