On Wednesday, April 28, 2010, two months after Freddie Peacock's 1976 rape conviction was vacated in Monroe County because DNA evidence established Peacock's innocence, the 1992 Monroe County murder conviction of Frank Sterling was vacated and the charge dismissed when DNA evidence and the confession of the real killer proved Mr. Sterling's innocence. (For a detailed account of the Frank Sterling case see this article and this article) The court vacated Mr. Sterling's conviction pursuant to a motion filed jointly by the Innocence Project, ETKS partner Donald M. Thompson, Dotan Weinman, of Weil Gotshal & Manges and the Monroe County District Attorney's Office.

As was the case with Mr. Peacock (see) the primary evidence against Mr. Sterling was a false confession. This confession was attacked as false at Mr. Sterling's trial at which Dr. Robert Goldstein testified that it was the product of suggestive hypnosis.

Additionally, since 1992 there was evidence that Mark Christie had accurately confessed to the murder for which Mr. Sterling was charged. And yet after Mr. Sterling was convicted, the court refused to even hold a hearing on a 330 motion based on the evidence of Mr. Christie's admissions. And then the Appellate Division, Fourth Department affirmed the conviction (209 AD2d 1006 [4th Dept 1994]), rejecting arguments that the confession was unreliable and that a hearing should have been ordered.

When more witnesses came forward with evidence that Christie had committed the murder a 440 motion was filed and denied. Again, the Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling a new trial (267 AD2d 1053 [4th Dept 1999]).

Mr. Sterling then moved, pursuant to CPL 440.30(1-a, for DNA testing. This motion was denied (6 Misc3d 712 [Mon Co 2004]), on a finding that "the defendant has failed to demonstrate that a reasonable probability exists that a more favorable outcome at trial would have been forthcoming had the results of any DNA testing of the aforementioned items been introduced at his trial." The Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling access to the evidence which would eventually help prove his innocence (37 AD3d 1158[4th Dept 2007]).

Ultimately, despite these court rulings, testing was done and Mr. Sterling's innocence was established. The courts' reliance on a false confession after a twelve hour interrogation, of which only 20 minutes were recorded, led to the repeated affirmance of a wrongful conviction. As a result, Mr. Sterling was in prison for 18 years for murder he did not commit. One continues to wonder when courts will acknowledge the obvious and develop a reluctance to credit statements obtained after unrecorded interrogations. False confessions are present in about a quarter of the wrongful convictions exonerated by DNA evidence (see).

Finally, I am proud to note that for the past 16 years Donald Thompson, my partner and hero, has been the attorney for Mr. Sterling. Don was also the attorney who successfully fought for the exoneration of Mr. Peacock and Douglas Warney (see). (In all three cases Don enlisted the excellent attorneys of the Innocence Project to join his efforts). Three innocent men incarcerated on false confessions and then freed, in part, due to Don's efforts.

On Wednesday, April 28, 2010, two months after Freddie Peacock's 1976 rape conviction was vacated in Monroe County because DNA evidence established Peacock's innocence, the 1992 Monroe County murder conviction of Frank Sterling was vacated and the charge dismissed when DNA evidence and the confession of the real killer proved Mr. Sterling's innocence. (For a detailed account of the Frank Sterling case see this article and this article) The court vacated Mr. Sterling's conviction pursuant to a motion filed jointly by the Innocence Project, ETKS partner Donald M. Thompson, Dotan Weinman, of Weil Gotshal & Manges and the Monroe County District Attorney's Office.

As was the case with Mr. Peacock (see) the primary evidence against Mr. Sterling was a false confession. This confession was attacked as false at Mr. Sterling's trial at which Dr. Robert Goldstein testified that it was the product of suggestive hypnosis.

Additionally, since 1992 there was evidence that Mark Christie had accurately confessed to the murder for which Mr. Sterling was charged. And yet after Mr. Sterling was convicted, the court refused to even hold a hearing on a 330 motion based on the evidence of Mr. Christie's admissions. And then the Appellate Division, Fourth Department affirmed the conviction (209 AD2d 1006 [4th Dept 1994]), rejecting arguments that the confession was unreliable and that a hearing should have been ordered.

When more witnesses came forward with evidence that Christie had committed the murder a 440 motion was filed and denied. Again, the Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling a new trial (267 AD2d 1053 [4th Dept 1999]).

Mr. Sterling then moved, pursuant to CPL 440.30(1-a, for DNA testing. This motion was denied (6 Misc3d 712 [Mon Co 2004]), on a finding that "the defendant has failed to demonstrate that a reasonable probability exists that a more favorable outcome at trial would have been forthcoming had the results of any DNA testing of the aforementioned items been introduced at his trial." The Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling access to the evidence which would eventually help prove his innocence (37 AD3d 1158[4th Dept 2007]).

Ultimately, despite these court rulings, testing was done and Mr. Sterling's innocence was established. The courts' reliance on a false confession after a twelve hour interrogation, of which only 20 minutes were recorded, led to the repeated affirmance of a wrongful conviction. As a result, Mr. Sterling was in prison for 18 years for murder he did not commit. One continues to wonder when courts will acknowledge the obvious and develop a reluctance to credit statements obtained after unrecorded interrogations. False confessions are present in about a quarter of the wrongful convictions exonerated by DNA evidence (see).

Finally, I am proud to note that for the past 16 years Donald Thompson, my partner and hero, has been the attorney for Mr. Sterling. Don was also the attorney who successfully fought for the exoneration of Mr. Peacock and Douglas Warney (see). (In all three cases Don enlisted the excellent attorneys of the Innocence Project to join his efforts). Three innocent men incarcerated on false confessions and then freed, in part, due to Don's efforts.

On April 12, 2010, by a 2-1 vote the Court of Appeals for the Second Circuit Court in Rosario v Ercole (__F3d_ [2d Cir 4/12/10]) found that counsel provided ineffective assistance under the Strickland standard, but that the New York's holding to the contrary was not unreasonable. Both the majority and dissent discuss issues regarding the application of the New York and federal standards for ineffectiveness of counsel.

The majority held that despite the language in the New York Court of Appeals decision,People v Benevento (91 N.Y.2d 708, 714 [1998]), that “whether defendant would have been acquitted of the charges but for counsel’s errors is
relevant, but not dispositive" under the Baldi standard such a finding is, in fact dispositive under People v Baldi (54 NY2d 137 [1981]), since "it is hard to envision a scenario where an error that meets the prejudice prong of Strickland v Washington (466 U.S. 668, 687 (1984]) would not also affect the fundamental fairness of the proceeding."

The majority's holding makes does not discuss the 2009 holding of the New York Court of Appeals in People v Borrell (12 NY3d 365, 2009 NY Slip Op 03589 [2009]) in which the Court of Appeals held

While it may ultimately be determined that [the issue not raised was meritorious], as he now contends, and that the representation at issue would have been more efficacious had the issue been raised on the appeal, the relevant and, indeed, dispositive threshold issue on this coram nobis application is not whether defendant's representation could have been better but whether it was, on the whole, constitutionally adequate. This less exacting standard was met by counsel on the appeal.

For an excellent analysis of the Rosario decision, please read this posting at the Habeas Corpus Blog.

On April 12, 2010, by a 2-1 vote the Court of Appeals for the Second Circuit Court in Rosario v Ercole (__F3d_ [2d Cir 4/12/10]) found that counsel provided ineffective assistance under the Strickland standard, but that the New York's holding to the contrary was not unreasonable. Both the majority and dissent discuss issues regarding the application of the New York and federal standards for ineffectiveness of counsel.

The majority held that despite the language in the New York Court of Appeals decision,People v Benevento (91 N.Y.2d 708, 714 [1998]), that “whether defendant would have been acquitted of the charges but for counsel’s errors is
relevant, but not dispositive" under the Baldi standard such a finding is, in fact dispositive under People v Baldi (54 NY2d 137 [1981]), since "it is hard to envision a scenario where an error that meets the prejudice prong of Strickland v Washington (466 U.S. 668, 687 (1984]) would not also affect the fundamental fairness of the proceeding."

The majority's holding makes does not discuss the 2009 holding of the New York Court of Appeals in People v Borrell (12 NY3d 365, 2009 NY Slip Op 03589 [2009]) in which the Court of Appeals held

While it may ultimately be determined that [the issue not raised was meritorious], as he now contends, and that the representation at issue would have been more efficacious had the issue been raised on the appeal, the relevant and, indeed, dispositive threshold issue on this coram nobis application is not whether defendant's representation could have been better but whether it was, on the whole, constitutionally adequate. This less exacting standard was met by counsel on the appeal.

For an excellent analysis of the Rosario decision, please read this posting at the Habeas Corpus Blog.

In the past the Court of Appeals has held "a party's failure to specify the basis for a general objection renders the argument unpreserved for [that] Court's review (see, People v Dien, 77 NY2d 885, 886; People v Tevaha, 84 NY2d 879; People v Ford, 69 NY2d 775, 776)." People v Tonge, 93 N.2d 838, 839 (1999). So one might think that where counsel failed to place any objection on the record the issue was not preserved for review as a matter of law.

But that is not what the Court held in People v Caban (2010 NY Slip Op 02674 [4/1/10]) in which the People moved before trial for the admission of evidence about an earlier driving incident,

and the trial court denied the motion insofar as it related to the People's case in chief. The parties interpreted this ruling differently: The prosecutor thought she was not barred from introducing, on her case in chief, proof that defendant's license was suspended, while defense counsel thought that the court's ruling excluded that evidence also. The conversation in which the parties disagreed was off the record, but was recited to the court on the record by the prosecutor, who asked the court for clarification; the court resolved the ambiguity in the People's favor.

The Court held that it

is true that the defense lawyers never said on the record "we object to this evidence," but they did not have to, because their objection was clear from the prosecutor's summary of their position. Because the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, preservation was adequate. The Appellate Division's reversal was therefore based on a question of law that we may review.

Thus, the Court held, without citing any authority, that the District Attorney's summary of the dispute constitutes the required objection.

I expect this holding to be cited frequently by appellate counsel. And not just in cases in which, like Mr. Caban's the People are urging that the matter was preserved so that the Court of Appeals would have authority to reverse an Appellate Division's reversal (as the Court did in Mr. Caban's case).

In the past the Court of Appeals has held "a party's failure to specify the basis for a general objection renders the argument unpreserved for [that] Court's review (see, People v Dien, 77 NY2d 885, 886; People v Tevaha, 84 NY2d 879; People v Ford, 69 NY2d 775, 776)." People v Tonge, 93 N.2d 838, 839 (1999). So one might think that where counsel failed to place any objection on the record the issue was not preserved for review as a matter of law.

But that is not what the Court held in People v Caban (2010 NY Slip Op 02674 [4/1/10]) in which the People moved before trial for the admission of evidence about an earlier driving incident,

and the trial court denied the motion insofar as it related to the People's case in chief. The parties interpreted this ruling differently: The prosecutor thought she was not barred from introducing, on her case in chief, proof that defendant's license was suspended, while defense counsel thought that the court's ruling excluded that evidence also. The conversation in which the parties disagreed was off the record, but was recited to the court on the record by the prosecutor, who asked the court for clarification; the court resolved the ambiguity in the People's favor.

The Court held that it

is true that the defense lawyers never said on the record "we object to this evidence," but they did not have to, because their objection was clear from the prosecutor's summary of their position. Because the trial judge was made aware, before he ruled on the issue, that the defense wanted him to rule otherwise, preservation was adequate. The Appellate Division's reversal was therefore based on a question of law that we may review.

Thus, the Court held, without citing any authority, that the District Attorney's summary of the dispute constitutes the required objection.

I expect this holding to be cited frequently by appellate counsel. And not just in cases in which, like Mr. Caban's the People are urging that the matter was preserved so that the Court of Appeals would have authority to reverse an Appellate Division's reversal (as the Court did in Mr. Caban's case).

What is the standard for determining whether appellate counsel provided effective assistance?

In 2009, the New York Court of Appeals in People v Borrell (2009 NY Slip Op 03589, 12 NY3d 365[2009] held that the test if not whether appellate counsel failed to raise a potentially winning and potentially dispositive issue, but whether the failure of appellate counsel to raise such an issue deprived defendant of the advocacy to which he was constitutionally entitled. The Court explained that “[t]o be meaningful, appellate representation need not be perfect, and representation may be meaningful even where appellate lawyers have failed to brief potentially meritorious issues.” (One wonders if clients think that appellate counsel who failed to raise a meritorious issue was effective).

By contrast, in Ramchair v Conway (-- F3d --, 2010 WL 1253893 [2d Cir 2/2/10] the United States Court of Appeals for the Second Circuit repeated its prior holdings that that “to establish ineffective assistance of appellate counsel, [the movant] must show that ‘counsel’s representation fell below an objective standard of reasonableness,’ and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (Forbes v 16 United States, 574 F3d 101, 106 [2d Cir. 2009] [per curiam])and that an appellant “may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker” (Mayo v Henderson, 13 F3d 528, 533 [2d Cir 1994]).

Applying this far less stringent test, the Court in Ramchair v Conway held that a New York appellant had been denied his right to effective appellate counsel when his counsel failed to raise a meritorious issue, but had raised two weaker issues, instead. Previously, the New York Court of Appeals had affirmed a rejection of that claim (People v Ramchair, 8 NY3d 313, 316 [2007]) reasoning that appellate counsel's brief to the Appellate Division had been “comprehensive,” and the arguments raised therein “strong” (Id.). The New York Court of Appeals concluded that “appellate counsel might have determined as a matter of reasonable appellate strategy that there was a greater likelihood of success pursuing the right to present a defense argument, rather than focusing on the mistrial application" (Id., 8 N.Y.3d at 317). By contrast, the Second Circuit found that raising issues that had minimal support in the law, while failing to raise the issue which a reasonable appellate court would have granted, deprived Mr. Ramchair of his right to effective assistance of appellate counsel and that the New York Court of Appeals' conclusion to the contrary was unreasonable.

Of course, pursuant to the Supremacy Clause of the United States Constitution (US Const Article VI, Clause 2) New York may not afford criminal appellants a lesser degree of protection of the right to effective assistance of appellate counsel than provided under the United States Constitution. But what is the correct standard? Ultimately, only the United States Supreme Court can answer that.

What is the standard for determining whether appellate counsel provided effective assistance?

In 2009, the New York Court of Appeals in People v Borrell (2009 NY Slip Op 03589, 12 NY3d 365[2009] held that the test if not whether appellate counsel failed to raise a potentially winning and potentially dispositive issue, but whether the failure of appellate counsel to raise such an issue deprived defendant of the advocacy to which he was constitutionally entitled. The Court explained that “[t]o be meaningful, appellate representation need not be perfect, and representation may be meaningful even where appellate lawyers have failed to brief potentially meritorious issues.” (One wonders if clients think that appellate counsel who failed to raise a meritorious issue was effective).

By contrast, in Ramchair v Conway (-- F3d --, 2010 WL 1253893 [2d Cir 2/2/10] the United States Court of Appeals for the Second Circuit repeated its prior holdings that that “to establish ineffective assistance of appellate counsel, [the movant] must show that ‘counsel’s representation fell below an objective standard of reasonableness,’ and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (Forbes v 16 United States, 574 F3d 101, 106 [2d Cir. 2009] [per curiam])and that an appellant “may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker” (Mayo v Henderson, 13 F3d 528, 533 [2d Cir 1994]).

Applying this far less stringent test, the Court in Ramchair v Conway held that a New York appellant had been denied his right to effective appellate counsel when his counsel failed to raise a meritorious issue, but had raised two weaker issues, instead. Previously, the New York Court of Appeals had affirmed a rejection of that claim (People v Ramchair, 8 NY3d 313, 316 [2007]) reasoning that appellate counsel's brief to the Appellate Division had been “comprehensive,” and the arguments raised therein “strong” (Id.). The New York Court of Appeals concluded that “appellate counsel might have determined as a matter of reasonable appellate strategy that there was a greater likelihood of success pursuing the right to present a defense argument, rather than focusing on the mistrial application" (Id., 8 N.Y.3d at 317). By contrast, the Second Circuit found that raising issues that had minimal support in the law, while failing to raise the issue which a reasonable appellate court would have granted, deprived Mr. Ramchair of his right to effective assistance of appellate counsel and that the New York Court of Appeals' conclusion to the contrary was unreasonable.

Of course, pursuant to the Supremacy Clause of the United States Constitution (US Const Article VI, Clause 2) New York may not afford criminal appellants a lesser degree of protection of the right to effective assistance of appellate counsel than provided under the United States Constitution. But what is the correct standard? Ultimately, only the United States Supreme Court can answer that.

A reminder: In 1986 the Court of Appeals held that a party seeking a missing witness instruction has the burden of making the request "as soon as practicable" (People v Gonzalez, 68 NY2d 424, 428 [1986]). So , if an attorney doesn't not make a reuesst for such a chargeas early as practicable a coourt may proeprly deny the request,e ven if the requirements of the charge are otherwise met.

In People v Carr (2010 NY Slip Op 02677 [NY 4/1/10]) the Court explained that

Whether such a request is timely is a question to be decided by the trial court in its discretion, taking into account both when the requesting party knew or should have known that a basis for a missing witness charge existed, and any prejudice that may have been suffered by the other party as a result of the delay.

In Carr, where the defendant knew at the outset of the trial that the People did not intend to call three of the victim's relatives who were present at the time of the alleged crime, the Court held that the trial did not abuse its discretion in holding that defendant's request for a missing witness charge, made more than a week after the People provided their witness list, and after the People had rested their case in chief, came too late.

A reminder: In 1986 the Court of Appeals held that a party seeking a missing witness instruction has the burden of making the request "as soon as practicable" (People v Gonzalez, 68 NY2d 424, 428 [1986]). So , if an attorney doesn't not make a reuesst for such a chargeas early as practicable a coourt may proeprly deny the request,e ven if the requirements of the charge are otherwise met.

In People v Carr (2010 NY Slip Op 02677 [NY 4/1/10]) the Court explained that

Whether such a request is timely is a question to be decided by the trial court in its discretion, taking into account both when the requesting party knew or should have known that a basis for a missing witness charge existed, and any prejudice that may have been suffered by the other party as a result of the delay.

In Carr, where the defendant knew at the outset of the trial that the People did not intend to call three of the victim's relatives who were present at the time of the alleged crime, the Court held that the trial did not abuse its discretion in holding that defendant's request for a missing witness charge, made more than a week after the People provided their witness list, and after the People had rested their case in chief, came too late.

Strip Searching Everyone At a Search Warrant Execution

Today in People v Mothersell (2010 NY Slip Op 02677 [NY [4/1/10]) the Court of Appeals struck down the use of a search warrant which permitted the search of "all persons present" to justify 'visual' body cavity searches (I think this means the search was limited to visible body cavities) of persons at the scene of the search warrants execution who were not arrested and were searched solely based on the search warrant. It did not hold that "all persons present" search warrants are always invalid, but it did hold that the SW must demonstrate probable cause to search each person authorized for a search. The ruling would require substantial factual allegations regarding a location before permitting the conclusion that everyone there must be involved in drug activity.

Outside of such intrusive searches based on such limited justification, the language of the decision may be particularly useful as it ignored the "pages of boilerplate allegations" and instead focused on the "few relevant particulars", which in this case was was a couple of drug purchases from the apartment in question.

The court also rejected as insufficient to meet the "substantially probable" threshold an allegation that it is "not uncommon" that those present at an apartment where drugs are sold "could reasonably be expected to conceal cocaine". Finally, the court reaffirmed that substantial proof is required to justify a body cavity search, even the ones you can see.

Strip Searching Everyone At a Search Warrant Execution

Today in People v Mothersell (2010 NY Slip Op 02677 [NY [4/1/10]) the Court of Appeals struck down the use of a search warrant which permitted the search of "all persons present" to justify 'visual' body cavity searches (I think this means the search was limited to visible body cavities) of persons at the scene of the search warrants execution who were not arrested and were searched solely based on the search warrant. It did not hold that "all persons present" search warrants are always invalid, but it did hold that the SW must demonstrate probable cause to search each person authorized for a search. The ruling would require substantial factual allegations regarding a location before permitting the conclusion that everyone there must be involved in drug activity.

Outside of such intrusive searches based on such limited justification, the language of the decision may be particularly useful as it ignored the "pages of boilerplate allegations" and instead focused on the "few relevant particulars", which in this case was was a couple of drug purchases from the apartment in question.

The court also rejected as insufficient to meet the "substantially probable" threshold an allegation that it is "not uncommon" that those present at an apartment where drugs are sold "could reasonably be expected to conceal cocaine". Finally, the court reaffirmed that substantial proof is required to justify a body cavity search, even the ones you can see.