RECENT SUCCESSES
United States Court of Appeals for the Second Circuit
Conviction Vacated Because Trial Court Failed to Order Competency Examination and Hearing for Mentally Ill Client
OAD client Leon Smith was arrested on the morning of January 2, 1997, for robbery in a subway station. Just four days prior to his arrest, Mr. Smith had been released from Harlem Hospital's psychiatric unit after having been brought to the emergency room by police officers on December 26, 1996. On that date, Mr. Smith was suffering from delusions that he was being pursued by space aliens. Shortly after his release from the hospital, he was arrested and charged with robbery, arraigned, and assigned a court-appointed attorney. He explained to his attorney that he had not meant to rob the complainant, but that he believed the complainant to be a apace alien and that he took the complainant’s wallet believing it to be a ray gun. Once he realized it was not a gun, he threw it to the ground. When Mr. Smith was arrested by the police, the wallet was found nearby on the subway platform.
Leon Smith proceeded to trial without having ever been examined to determine if he was competent to understand the proceedings, despite his mental health history, a suicide attempt while in pre-trial detention, and difficulty in communicating with his attorney.
At trial, Leon Smith’s testimony was rambling, disorganized, and incoherent. At a post-trial hearing, the trial judge commented on Leon Smith’s testimony, noting, “Let’s be honest. The offer of proof of this witness was, ‘listen to him and in summation I’m going to tell you this man is delusional.’ And, to tell you the truth, speaking out of place, maybe, that witness was pretty darn convincing to this jury. Exhibit A was a very compelling argument of delusion.”
Denying Mr. Smith’s appellate claim that the trial judge had an obligation to order a competency evaluation and hearing, the New York State Appellate Division held that the trial judge’s statement did not warrant a new trial because there was no showing that the trial judge believed that Mr. Smith was incompetent. In a federal petition for a writ of habeas corpus, Mr. Smith asserted, through OAD Supervising Attorney Risa Gerson, that the Appellate Division applied the wrong standard of law, and that the trial judge had an obligation to order a competency evaluation and hearing if the trial judge had a doubt as to Leon Smith’s competency. Magistrate Judge James C. Francis IV agreed with OAD and issued a report and recommendation recommending granting the writ. United States District Court Judge Barbara S. Jones agreed with Judge Francis and issued an opinion ordering that the petition for a writ of habeas corpus be granted. The government appealed to the United States Court of Appeals for the Second Circuit, and on August 27, 2009, the Second Circuit issued a summary order affirming the District Court’s order granting the writ. The Court of Appeals reasoned that because the trial judge had sufficient doubt as to Smith’s competence to require a competency hearing before further proceedings, Smith’s conviction must be vacated, given that both the Appellate Division and the trial judge’s application of the relevant legal standards were objectively unreasonable.
Leon Smith was represented by Supervising Attorney Risa Gerson
New York Court of Appeals
Court of Appeals Reverses Conviction, Finding Trial Court Subjected Jury to Undue Pressure
People v. Aleman
Juan Carlos Aleman was convicted of possessing a large quantity of drugs and sentenced to twenty-five years to life in prison after a jury trial. The evidence against him was entirely circumstantial, in that he was one of several people in a warehouse in which drugs and cash were allegedly transferred from one vehicle to another. There was no evidence presented at trial that Mr. Aleman actually participated in the transfer or had any knowledge of it.
Given the wholly circumstantial nature of the evidence, the jury struggled in trying to reach a verdict. On the second day of deliberations, after having deliberated for approximately nine hours, the jury submitted a deadlock note advising the court that certain jurors had deemed the circumstantial evidence insufficient to support the "leap" required to return a guilty verdict. The note added that "[s]ome members of the jury also believe that the defendants have been in prison already and deserve a second chance so they can't give a decision of anything but not guilty." The note concluded that "[a] hung jury is guaranteed." In responding to the deadlock note, the trial judge delivered a stinging rebuke to the jury, in effect criticizing jurors for struggling with the weak evidence in this case. In particular, the judge scolded the jurors that they "shouldn't have allowed [themselves] to be chosen" for jury service if they "couldn't do" what they said they would do, which was decide the case. He further shamed jurors into reaching a verdict by instructing them that, if they were simply "willing to follow the rules," they would be able to return a verdict. At no time did the court caution jurors not to surrender their conscientiously held beliefs, an instruction that is typically given to a deadlocked jury.
In a unanimous decision, the Court of Appeals reversed Mr. Aleman's conviction and sentence, finding that the trial court's response to the jury's deadlock note was unbalanced and improperly "chided" jurors for failing to "follow the rules."
Mr. Aleman was represented by Attorney-in-Charge Richard M. Greenberg in the Court of Appeals. In the Appellate Division, Mr. Aleman was represented by former Senior Staff Attorney Christina Graves.
Court of Appeals Reverses Forged Instrument Conviction Based on Legally Insufficient Evidence
People v. Bailey
After Eric Bailey was stopped and arrested for allegedly attempting to pickpocket several individuals inside restaurants, he was taken to the police precinct, where officers found three counterfeit $10 bills in his pants pocket. Although Mr. Bailey had made a statement at the time of his arrest acknowledging his awareness that the bills were fake, it was undisputed that Mr. Bailey never attempted to pass any of the counterfeit bills to any cashier, looked in the direction of a counter or menu, or even removed the bills from his pocket. Nonetheless, Mr. Bailey was convicted of criminal possession of a forged instrument in the first degree, an offense that requires an individual to knowingly possess counterfeit bills "with intent to defraud, deceive, or injure another."
The New York Court of Appeals reversed Mr. Bailey's conviction, concluding that his conviction for possession of a forged instrument was not supported by legally sufficient evidence. The Court specifically held that evidence merely of Mr. Bailey's knowing possession of counterfeit bills was not enough to establish an intent to use the bills, as the statute requires proof of the separate elements of knowledge and intent. Accordingly, the Court reversed Mr. Bailey's forged instrument conviction, for which he was serving a sentence of one and one-half to four and one-quarter years of imprisonment. Since Mr. Bailey has completed his time for his additional conviction of two misdemeanor counts of attempted grand larceny for the pickpocketing offenses, he is now free of any sentence and will be discharged from the parole he was serving for the forged instrument conviction.
Mr. Bailey is represented by John D. Kircher, of Bryan Cave LLP, as part of OAD's Volunteer Appellate Defender program, and Supervising Attorney Eunice C. Lee.
Appellate Division, First Department
Appellate Division Finds Lower Court Improperly Rejected Pro Se Motions
People v. Branham
Before entering a guilty plea to robbery charges, Todd Branham attempted to tell the court that he had a conflict with his attorney. Although the court understood that Mr. Branham was seeking new counsel, the court refused to permit him to be heard. Later, after entering the plea, Mr. Branham attempted to withdraw it on the ground that he had not been informed of a potential defense. Defense counsel disparaged the motion to the court, describing it as "a boiler-plate motion without any individual facts whatsoever." After giving the motion cursory attention, the court denied it and sentenced Mr. Branham to 20 years to life imprisonment.
The First Department unanimously vacated Mr. Branham's plea holding that "the court had no basis to deny the application [for new counsel] without hearing any explanation," and that "the court should have made further inquiry before denying defendant's pro se motion to withdraw his plea." Finally, the Appellate Division noted that "defense counsel inappropriately disparaged defendant's plea withdrawal motion."
Mr. Branham is represented by Staff Attorney Anastasia Heeger.
Appellate Division Reverses Conviction Where Critical Prosecution Witness Testified by Two-Way Television
People v. Wrotten
The prosecution and defense presented widely diverging accounts of the incident between Juanna Wrotten and the complainant. Ms. Wrotten had been a home health aide for the complainant's wife, who was an elderly woman. As she had done several times before, on the day of the incident, Ms. Wrotten went to the complainant's home so they could visit the complainant's wife in a nursing home together. According to Ms. Wrotten, the complainant made sexual advances towards her and she struck him in an attempt to stop him. The complainant denied that he had made such advances; instead, he said that Ms. Wrotten hit him with a hammer and took money from him.
At Ms. Wrotten's trial on assault and robbery charges, the complainant, having moved to California, was unwilling to return to New York to testify in person. Over strenuous defense objection, however, he was permitted to testify by live, two-way television. Though the jury acquitted Ms. Wrotten of robbery, it accepted part of the complainant's account, and convicted Ms. Wrotten of second degree assault.
On appeal, the Appellate Division majority held that Ms. Wrotten was denied a valuable component of her Sixth Amendment right to confront her accuser and that the trial court had no authority to deviate from the fundamental practice that prosecution witnesses must come to court to testify and to instead permit testimony by live two-way television. Accordingly, given the pivotal nature of the complainant's testimony, the court reversed Ms. Wrotten's conviction and ordered a new trial.
Deputy Attorney-in-Charge Daniel Warshawsky and former OAD Senior Staff Attorney Jonathan Marvinny represented Ms. Wrotten in the Appellate Division. This case is now pending in the Court of Appeals.
Sentence Reduced Based on "Unusual Circumstances" of Client's Serious Diabetes and Other Mitigating Evidence
People v. DeJesus
In the fall of 2006, Benjamin DeJesus was a 42-year-old high school graduate working as a delivery truck driver for a flower store. He had a strong family life in Manhattan with his wife of thirteen years and his teenage stepson, and his mother lived a few blocks away. But, Mr. DeJesus's very serious diabetes was growing worse. On September 17, 2006, Mr. DeJesus was arrested for an assault on his wife, an uncharacteristic and rash act of violence. He later accepted responsibility for his actions by pleading guilty in court.
When Mr. DeJesus pleaded guilty, his attorney noted that throughout the proceedings Mr. DeJesus had been "wheelchair bound as a result of diabetes and it's gotten worse since he's been incarcerated." At sentencing, the attorney urged the judge to impose the minimum of three years in prison in light of the mitigating evidence in Mr. DeJesus's case, and again noted that his health had continued to worsen. The court undercut the prosecutor's recommendation of five years and imposed a four and one-half year sentence.
On appeal, OAD argued that four and one-half years in prison was excessive for a man in Mr. DeJesus's condition because this sentence was in effect closer to the maximum term. The Appellate Division agreed, holding that even though Mr. DeJesus had been convicted of a serious assault, "[u]nder the unusual circumstances presented herein, we find the sentence excessive," and reduced it to four years. He will be eligible for release early next year.
Mr. DeJesus is represented by Staff Attorney Lily Goetz.
A-1 Felony Conviction Reversed Where Trial Counsel's "Overall Performance Was Prejudicially Deficient"
People v. Fleming
In 2002, Delroy Fleming was a guest at an apartment in the Bronx when he answered the door and signed for a package addressed to a different person at that apartment. Unbeknownst to Mr. Fleming, the package in question was the subject of a "controlled delivery," as it had been found to contain cocaine during a random inspection by customs officials in Puerto Rico. He was arrested immediately and indicted on class "A-1" felony drug charges. At that time, the minimum sentence for an A-1 conviction was fifteen years to life in prison, and Mr. Fleming did not have any prior criminal history. Mr. Fleming's lawyer, however, declined a pretrial offer of a "B" felony and a three- to nine-year sentence, and took the case to trial.
Although there was a straightforward defense to the charges - that Mr. Fleming was not guilty because he did not know the illegal contents of the package - the Appellate Division held that "[c]ounsel completely and prejudicially misunderstood and mishandled this issue, and defendant was deprived of a fair trial as a result." Throughout the course of trial, the court held, counsel engaged in "persistent frivolous conduct," which revealed her "lack of basic comprehension of criminal law and procedure." The Appellate Division described everything that counsel did, including her "pretrial motion practice, a purported interlocutory appeal, the suppression hearing, requests for jury instructions, posttrial motions and sentencing," as fundamentally incompetent. Given the incredibly high stakes for Mr. Fleming, and the fact that he had a viable defense to these charges, counsel's ineffectiveness had catastrophic consequences.
In its decision, the Appellate Division expressed its strong disapproval of counsel's performance, holding that her "woeful lack of knowledge approached the traditional 'farce and a mockery of justice' standard." It reversed Mr. Fleming's conviction and granted him a new trial.
Mr. Fleming is represented by Senior Staff Attorney Jenny Eisenberg.