Sunday, March 29, 2015

One Apparently Wrongful Conviction Results in Two Important Decisions from the Second Circuit

In 1993, Hector Rivas was convicted of the 1987 murder of  his former girlfriend.  The prosecution defeated Mr.Rivas’s alibi by relying on the testimony of the medical examiner which placed the time of death as occuring on the day prior to that for which Mr. Rivas had an alibi. What was noteworthy about this testimony was that for the six years prior to trial the medical examiner had placed the time of death on the date for which Rivas had an alibi and only switched at trial. Defense counsel failed to investigate the purported basis of this switch.

Six years later Mr. Rivas brought a 440 motion claiming ineffective assistance of counsel. In support of his motion Rivas presented essentially unchallenged expert testimony from a pathologist persuasively showing that woman died on the day of his alibi and not on the date the medical examiner testified she did.  Further, the motion  presented compelling evidence that the medical examiner had perjuriously purported to base his time-of-death opinion in part on “brain slides” that, Rivas later learned, were nonexistent. Rivas also introduced evidence that, at the time of Rivas's trial, the medical examiner was under investigation by state and local agencies (including possibly the office of the prosecutor who charged Rivas) for various forms of misconduct. At trial, Rivas’s counsel failed to challenge the medical examiner’s reliance on the non-existent “brain slides,” or to cross-examine him regarding the investigations into his alleged misconduct that were pending at the very time of the prosecution of Rivas.

The 440 motion was denied and Riva’s habeas corpus petition was dismissed by the District Court as time barred.

But in 2012, in Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012), nearly 20 years after Rivas’s conviction, ,the Second Circuit re-instated the habeas petition. The Court held, for the first time, that a gateway showing of actual innocence can equitably toll the statute of limitations for the filing of petition for a writ of habeas corpus and that Rivas had made such a showing:

    Rivas has raised a credible and compelling claim of actual innocence, as those concepts are understood in the relevant habeas jurisprudence. His claim is based on new information not presented to the jury that dramatically undermines the central forensic evidence linking him to the crime of which he was convicted. In sum and substance, Rivas has shown, through the essentially unchallenged testimony of a respected forensic pathologist, that the victim was almost certainly killed at a time when he had an uncontested alibi, and not earlier, as the prosecution had contended at his trial. We are not here called to determine whether Rivas is in fact innocent. However, on the record before us, we “cannot have confidence in the outcome of [Rivas’s] trial” unless we can be assured that “the trial was free of nonharmless constitutional error.”   
        [W]e now conclude, as a matter of first impression in this Circuit, that a credible and compelling showing of actual innocence under the standard described by the Supreme Court in Schlup and House warrants an equitable exception to AEDPA’s limitation period, allowing the petitioner to have his otherwise time-barred claims heard by a federal court. Because Rivas has made such a showing, we reverse the decision of the [district court] dismissing his petition for habeas relief and remand for full consideration of his underlying constitutional claims.
        Although this hugely important decision prompted numerous inmates to file habeas corpus petitions premised on claims of actual innocence, it did not immediately help Mr. Rivas. On remand the District Court denied the petition, holding that the state court's rejection of the 440 motion  “was comprised of both reasonable factual determinations and a reasonable application of Strickland.”
    On March 11, 2015, the Second Circuit reversed and granted the petition. The Court held that the no reasonable argument could be made that the petitioner’s defense counsel satisfied his duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Moreover, the Court found that no reasonable argument can be made that defense counsel’s deficient performance did not prejudice the defense. Consequently, as a result, the state court’s conclusion to the contrary, in denying the 440 motion, involved an “unreasonable application” of  Strickland. The Second Circuit then directed the district court to issue a writ of habeas corpus in 60 days unless the state has taken concrete and substantial steps to expeditiously retry the petitioner.

    Critically, the Court held that trial counsel failed to satisfy his
    constitutional “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Considering all the circumstances, no “fairminded jurist[ ]” could agree that the quantum of evidence known to [counsel] at the time justified his decision to forego further investigation and rely instead on a critically deficient alibi and two perfunctory items of impeachment evidence that only scratched the surface of [the medical examiner’s] revised findings. Harrington, 562 U.S. at 101 (“Strickland does not establish that a cursory investigation automatically justifies a tactical decision....”).
    Thus, the Court strongly held that counsel has a constitutional obligation to investigate that may include a duty to consult with an expert.

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