I wanted to briefly return to the in banc denial in Rosario from earlier in the week.
There are a couple of things I wanted to point out. What's most interesting is that this issue has been bubbling up for awhile. As the opinion points out, the Second Circuit has wavered back and forth as to whether the judges think that the two standards are compatible. Sometimes the court will say that they are, other times the judges will voice concern, but never actually do anything about it. The New York Court of Appeals has answered the Second Circuit's intermittent non-binding concerns with opinions strongly reaffirming the state standard.
But this was really the first time (that I can remember) where it all came completely up to the surface. It's nice to hear some judges (i.e. the dissenters) remove the veil and come right out and say that the state standard is not good enough. Not enough judges to get an en banc, but enough to show that there is real dissension on the court on the issue. I found it really interesting.
Another thing that leaps out from all of the opinions is the general conclusion that the New York State ineffectiveness standard is more "generous" to criminal defendants than the federal standard. The majority opinion, the concurring opinion and the main dissenting opinion come right out and say this. The other dissenting opinion (by Pooler) suggests that this is "generally" true (emphasis in her opinion).
Honestly, I really don't know if this is true. Why? Because it is simply impossible to know. I don't know of a situation where relief was granted under the state constitution on this ground where the court went on to say something like, "good thing for the defendant that the state test is more lenient since he would have had no chance under the Sixth Amendment!" Or something a little less weighted. Maybe it's out there somewhere. I haven't seen it.
And I have yet to see a case (obviously) where a state court says that it will grant relief under the federal constitution and not the state constitution because the state standard just wasn't generous enough.*
*I say "obviously" because if that case did exist then it would destroy the "state standard is more generous" syllogism. And probably rip a hole in the space time continuum.
But it's my sense that if the state court is going to grant relief under the state constitution, it's probably going to do it without spending any time on the federal standard. As a result, we just don't know if it is the case that one is more generous than the other.
So to keep saying this doesn't really mean anything to me. And that is particularly true where the state standard is just so vague, making it impossible to actually compare the two standards.
It's why I really liked that all four opinions urged the state courts to analyze ineffectiveness claims under both standards. I am looking forward to seeing state courts having fun grappling with both standards.
In this vein, I am going to hand it off to Judge Pooler, who concludes her dissent with this great sentence:
[Having the state courts address the claims under both standards] will likely prevent future defendants from being penalized by a lacuna* in a state standard that we have upheld because it supposedly works to their benefit.
*lacuna - An empty space or a missing part; a gap (Okay, I admit it, I had to look it up).