Monday, April 03, 2006

No Strickland Violation Because Counsel's Errors Would Not Have Affected Outcome

Lynn v. Bliden, Docket No. 04-6280-pr (2d Cir. March 30, 2006) (Miner, Raggi, Karas (by desig'n)): The Circuit reverses the district court's grant of Lynn's § 2254 petition in this opinion, concluding essentially that there was no Strickland violation because trial counsel's errors did not create a reasonable probability of a different result. This Blog is skeptical. Although the opinion does not contain enough information to evaluate fully the soundness of this determination, the fact remains that (1) Lynn was convicted solely on the testimony of two alleged eyewitnesses, and (2) counsel's errors concern (largely) his failure to discredit the eyewitnesses' testimony by their prior inconsistent statements (in which one witness told the police after the shooting that he could not recognize the shooter, and the other witness failed to select Lynn's picture from a photo array the first time he was shown an array). But it is a largely fact-specific question, and those interested will have to read the opinion and decide for themselves.

The essential facts are thus. Two people were shot on a street in the Bronx. One died, one survived (though the survivor disappeared by the time of trial). When the police arrived, a crowd had gathered and was chasing one Arriaga, whom the crowd believed (for unknown reasons) to have been the shooter. A police officer arrested Arriaga after pulling him out from under a car (where he was hiding from the mob). Arriaga was eventually charged with the shooting.

The police interviewed among others Quinones and Patterson, both of whom lived near the scene. Quinones repeatedly denied knowing anything about the shooting, and specifically told the police that he "could not recognize" the shooter. Op. 5. Several months later, however, he told the district attorney prosecuting Arriaga's case that the real shooter was Lynn. Quinones picked Lynn's photo from a photo array. The DA dropped the charges against Arriaga and charged Lynn with the shooting.

Patterson also initially denied seeing the shooting. Later, however, he said he was simply "too scared" to come forward with information, and claimed to be an eyewitness. Nonetheless, he failed to select Lynn's photo when initially presented with a photo array. He selected Lynn's photo only when presented a second time with an array.

Both Quinones and Patterson then selected Lynn from a line-up.

Before trial, Lynn's attorney moved for a Wade hearing challenging the admissibility of the witness's identifications. At the time, no one knew that Patterson had been shown an array twice, and that he had failed to select Lynn the first time. The court denied the Wade motion and allowed the prosecutor to introduce the ID testimony from both witnesses.

During trial, however, the prosecutor learned about the first array shown to Patterson and so informed the court. But nothing came of this new information. Defense counsel, especially, stood silent and did not request a reopening of the Wade hearing. Nor did he, apparently, cross Patterson about his failure to identify Lynn when shown an array the first time. Counsel elicited only the more general information that Patterson "previously had indicated to police that he did not witness the shooting." Op. 20.

Regarding Quinones, he admitted at trial that "he did not want to get involved at first because he was afraid for himself and his family." Op. 20. However, the jury never heard about his statement to the police (made shortly after the shooting) that he "could not recognize" the shooter. Defense counsel did not elicit this statement on cross.

Finally, defense counsel tried to introduce into evidence a police report describing Arriaga's arrest. (The report was helpful for Lynn because it described how a crowd was chasing Arriaga, believing him to be the shooter). The court denied the request on the ground that the report was hearsay, since most of it recorded statements from witnesses. Defense counsel failed to tell the court, however, that the portion of the report describing how the arresting officer rescued Arriaga from the crowd by pulling him from under a car was not hearsay, since it was based on the officer's personal observation.

Lynn was convicted of murder and attempted murder. The state appellate courts affirmed his conviction, and he thereafter filed a § 2254 petition in the SDNY. He raised three Strickland claims in the petition -- that counsel rendered constitutionally ineffective assistance by (1) failing to move to reopen the Wade hearing after learning that Patterson failed to ID Lynn when first shown an array; (2) failing to cross Quinones about his prior statement to the police that he "could not recognize" the shooter; and (3) failing to argue successfully that the portion of the arrest report detailing the police's "rescue" of Arriaga from the crowd was not hearsay and should have been admitted. As noted, the district court granted the motion, but the Circuit reversed.

Regarding the failure to move to reopen the Wade hearing, the Court concluded that even if counsel had made such a motion, Patterson's identification testimony would not have been suppressed. Op. 19. "There is simply no evidence in the Record regarding improper police conduct pertaining to the out-of-court identification procedures -- only 'inconsistent statements' resulting from the two arrays shwon to Patterson." Op. 20. And while inconsistent statements regarding identification may be appropriately elicited on cross examination, the mere fact of inconsistency is not sufficient for suppression under Wade (requiring showing of impermissibly suggestive procedures rendering ID unreliable).

The problem, though, is that while counsel "did conduct cross-examination to establish that Patterson previously had indicated to police that he did not witness the shooting," Op. 20, nothing (at least in the Court's opinion) indicates that counsel actually crossed Patterson about his first, failed attempt to select the shooter from a photo array. This more specific, un-elicited fact would surely have been more persuasive to a jury (that Lynn was not the shooter), and not the same as the general fact that Patterson previously told the police that he did not witness the shooting.

The Court also found that counsel's failure to specifically cross Quinones about his prior statement to the police that he "could not recognize" the shooter did not prejuice Lynn. At trial, Quinones testified generally that he "did not want to get involved at first" because he was afraid. And he admitted on cross that he initially told the police that he didn't known anything about" the shooting. Op. 21. In light of this, the Court concluded, counsel's failure to specifically elicit one prior inconsistent statement did not give rise to a reasonable probability of a different result: "The jury was aware that Quinones had changed his story several times and that he had lied to the police when he said he didn't know anything about the shooting." Op. 22.

Finally, the Court rejected the Strickland claim based on counsel's failure to successfully argue for the introduction of the portion of the police report describing how arresting officers rescued Arriaga from an angry mob in the aftermath of the shooting. No prejudice flowed from this failure, the Court explained, because the jury was aware generally that Arriaga had originally been charged with the shooting, and the fact that "he was pulled out from underneath a car, or that a crowd had assaulted him, was of no material significance." Op. 25.


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