Here are the details:
Whitley v. Ercole, 10-3119-pr
- Argued: 12/2/10; Decided: 6/8/11; Opinion by Livinston
- Panel: Raggi, Livingston, Chin
- Lower Ct. Info: 06-CV-10198, 2010 WL 2889124 (SDNY July 22, 2010) (AHK)
- Issues: admission of witness's prior testimony deprived prisoner of his due process and Confrontation Clause rights
ANALYSIS: In an opinion by Judge Livingston, he court reverses the grant of habeas concluding that the claim was procedurally defaulted in state court. The Appellate Division had concluded that the specific claim was unpreserved. Petitioner argued that the application of the state procedural rule in his case was not adequate. More specifically, he argued that the finding that the claim was unpreserved was an "exorbitant" application of the contemporaneous objection rule. The district court agreed. The Second Circuit disagreed. Petitioner loses.
After finding that the claim was procedurally defaulted, the court notes that it disagreed with aspects of the DJ's analysis that the error was harmful. At least one comment in this section is a bit troubling. The DJ had concluded that the evidence against petitioner was not substantial. He had pointed out that there was no physical evidence and that most of the evidence against petitioner were statements from people with criminal records. Judge Livingston concluded that the evidence against petitioner was not insubstantial. She stated, "Government cases are frequently built on the testimony of those with criminal histories, and the absence of physical evidence is hardly atypical."
That is not a persuasive argument. It is actually quite disturbing. Simply because many prosecutions are based on this type of evidence does not improve the quality of the evidence or mean that this type of evidence is any more substantial. It simply means that it's typical. Notably, a good percentage of wrongful convictions are based on jailhouse confessions, a type of evidence that falls squarely into this category of evidence.
One final note, Livingston was also the judge who wrote the dissent in the most recent Second Circuit habeas grant. That dissent argued that the constitutional violation in that case was harmless. She seems to be creating a small body of work discussing harmless error analysis.