Getting a jump on this week's Weekly Review, I thought I'd do a separate post on a habeas grant from last week. The case is Nelson v. Brown, 06-CV-116, 2009 WL 4282051 (EDNY Nov. 25, 2009) (JS).
It deserves its own post since the DJ granted habeas on two separate grounds. That's a first since this blog began. And the grant occurred the day before Thanksgiving. That gave someone a lot to be thankful for.
The two issues are actually pretty straightforward.
The first was ineffective assistance of counsel based on counsel's failure to ask for a remedy after a Rosario (i.e. discovery) violation. The prosecution lost notes containing a description from a robbery victim that were drafted soon after the incident. DJ says that petitioner was entitled to a remedy as a matter of law for the lost notes. Second Circuit has previously stated that it is objectively unreasonable for an attorney to not ask for a remedy in such a situation. DJ concludes that there was prejudice because "(1) the prosecution had a weak case; (2) even an adverse inference (the weakest Rosario remedy available) would have made this case weaker by challenging the only consistent, detailed physical description of the black-jacketed robber; and (3) [petitioner] presented a strong defense.
The second was the improper admission of a 1993 arrest photo of petitioner, depicting him "in a prison-issue orange jumpsuit, beside a yardstick measuring his height." The photo was admitted to supposedly rebut a defense witness's testimony that, during the time that he knew petitioner, he did not have facial hair -- an element of the description of the robber. Defense counsel had argued that the witness had only known petitioner since 1994. The trial court did not care about that little detail, saying "Close enough."
DJ concludes that the admission of the photo was constitutional error. Relying upon Supreme Court precedent, DJ states, "It is 'constitutional error' to admit evidence that is 'totally without relevance' to a criminal proceeding. . . . Moreover, if 'evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.'"
DJ finds that both elements were met here. As for relevance, the DJ provides us this classic line: "The fact that [petitioner] may have had a beard in June 1993 does not, in any way, impeach [the witness's] testimony that [petitioner] had no beard between July 1994 and July 1999 - any more than the fact that George Bush was President in October 2008 could be used to 'impeach' evidence that Barack Obama is President in November 2009." And relying upon statements from a juror who said that the photo led other jurors to believe that petitioner had a criminal record, DJ believes that the admission of the photo was "unduly prejudicial."
Nice little decision.
(Probably unnecessary) DISCLOSURE: Attorney for petitioner is on the board at where I work; however, the case has absolutely no connection to my office.