Extended summary order yesterday from Second Circuit vacating lower court denial of habeas and remanding for further proceedings. That makes it a "win" in technical terms but as you will see in the analysis below, it won't lead to a habeas grant, at least in the district court.
Bell v. Ercole, 08-3539-pr, March 4, 2010, available here
- Vacating Denial of Habeas
- Panel: Leval, Straub, Wesley
- Argued: January 25, 2010 (preview here)
- Issues: Juror misconduct; evidentiary rulings; prosecutorial misconduct
ANALYSIS: Kind of an unusual summary order. Second Circuit vacates the district court denial of habeas because it was "unsatisfied" with the district court's analysis in its order denying the evidentiary rulings. The Second Circuit stated that it found it very hard to review the decision and it wanted the court's reasoning to be stated more explicitly to allow for appellate review.
But this is why it is only a "win" in the technical sense. Yes, the district court's denial was vacated. But it was basically vacated with instructions to deny it again, only this time, do a better job.
I guess there is a chance that, on remand, the district court will change its decision once it engages in a more careful analysis of the claims.
And the Second Circuit did open the door a little for a reconsideration of the harmless error analysis. The court pointed out that, in the district court's harmless error analysis, it relied on a confession of an accomplice. The court noted that it really would be improper under Bruton and the Sixth Amendment for this type of evidence to be admitted against the defendant. The Second Circuit questioned whether this type of evidence actually had been admitted against petitioner. So it asked the district court to explain a bunch of things about this supposed "accomplice confession." One, whether it was appropriate for the district court to consider the accomplice confession since it was inadmissible hearsay. Two, whether the court considered this confession on habeas review because petitioner failed to object to the district court considering it. And three whether the accomplice confession linking petitioner to the crime had been implicitly admitted at trial without objection from petitioner.
Maybe, upon reconsideration, the district court will conclude that this confession should not play a role in the harmless error analysis and find that the evidentiary errors are not harmless. Seems like the only possible course for habeas relief in the district court at this point.
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