I am happy to report that there is a new chapter in the fascinating saga of Racky Ramchair. And, just as with the prior chapters, it's a doozy.
In the newest chapter, Judge Gleeson concludes, after a hearing, that appellate counsel was ineffective, habeas should be granted, and petitioner was entitled to a new trial.
I previously discussed this truly amazing habeas case in an extended prior post.
Here's a quick recap: In 2005, Judge Gleeson issued a lengthy opinion stating that he was very much inclined to find that appellate counsel was ineffective for failing to argue on appeal that the trial court erred in denying Ramchair's request for a mistrial after the prosecutor sandbagged the defense and introduced testimony about trial counsel's silence at the pre-trial lineup. Since the court denied counsel's request to testify and explain why he did not object (in fact, he was not ethically permitted to testify), the prosecutor was able to use the silence as a defense acknowledgment that the lineup was fair. This was so prejudicial since identification was the only issue in the case and Judge Gleeson believed that there were several reasons to distrust the lineup identification.
But the IAAC claim was unexhausted, so Judge Gleeson sent it back to state court. The state courts, which included a published opinion from the New York Court of Appeals, found that counsel was not ineffective for failing to raise the mistrial claim.
Judge Gleeson then granted habeas relief on this ground holding that the Court of Appeals' decision on this claim was unreasonable. In fact, he believed that the Court of Appeals did not really even understand the nature of the claim. Judge Gleeson ordered a new trial.
On appeal, the Second Circuit vacated the order granting habeas. The court concluded that, before the district judge granted habeas on the IAAC ground, the judge should have held a hearing to allow counsel to explain her actions. The court also stated that, if the district judge should decide to grant habeas in this case after remand, the judge should explain why a new trial was the appropriate remedy and not the typical relief for an IAAC claim, namely a new appeal.
That's where we left off. The next chapter is below the fold . . .
Chapter 9 - Judge Gleeson Provides His Answer to the Second Circuit
Ramchair v. Conway, 04-CV-4241, 2009 WL 3663920 (EDNY Nov. 5, 2009) (JG)
In the newest chapter of this sage, Judge Gleeson once again grants habeas relief on the ground of ineffective assistance of counsel. And, just as before, he orders a new trial, as opposed to a new appeal.
After the remand from the Second Circuit, Judge Gleeson held a hearing at which appellate counsel testified about why she did what she did.
But before discussing her testimony, Judge Gleeson added a new wrinkle to his analysis. And, just like everything in this case so far, it's pretty extraordinary.
At the hearing, Judge Gleeson came face to face with Ramchair for the very first time in the case. What struck the judge about Ramchair was Ramchair's physical appearance. According to Gleeson, Ramchair, who is Guyanese Indian, looked South Asian. The perpetrator made clear that the fact that the perpetrator was a Guyanese Indian was important to his description. Ramchair was the only Guyanese Indian in the lineup, which consisted of three people of Hispanic background and an African-American. According to Judge Gleeson, it was not surprising, then, that the victim picked out the only Guyanese Indian in the lineup. Moreover, because of Ramchair's physical characteristics, it rendered frivolous the prosecutor's argument that the lineup was okay because all of the participants had the same skin tone.
This new wrinkle emboldened Judge Gleeson even more. He believed that, due to Ramchair's distinctive physical appearance, the prosecutor needed defense counsel's imprimatur on the lineup. According to the judge, it was obvious that none of the fillers looked South Asian. He believed that a Queens jury would be receptive to the argument that the victim simply picked out the only South-Asian looking person in the lineup. He concluded that the prosecutor knew that the most effective response to this defense was to say to the jury that even defense counsel thought the lineup was okay. In other words, this was a deliberate and calculated strategy by the prosecutor.
It's a pretty amazing analysis.
After summarizing what happened at the trial, Judge Gleeson turned to appellate counsel's explanations for failing to raise the mistrial claim. The subheading is all you need to read: "Appellate Counsel's Mistake Regarding the Preservation of the Mistrial Claim." Breaking this down a little, appellate counsel testified that she thought the mistrial claim was unpreserved. She believed that defense counsel's request for a mistrial did not specifically raise the claim in the manner that Judge Gleeson believed it did. Rather it was nothing more than an additional attempt to preserve the issue concerning the denial of defense counsel's request to testify at trial. Judge Gleeson concluded that this was a mistake. According to the judge, the mistrial claim based on the unfairness of the trial was clearly preserved.
Judge Gleeson concludes:
In sum, appellate counsel's decision not to raise the mistrial claim on appeal was founded on her belief that the claim had not been preserved in the trial court. Appellate counsel herself and the respondent characterize that decision as “strategic.” H. 34. Because the claim was in fact preserved for appellate review, I find the decision was a mistake. The testimony at the evidentiary hearing on September 30, 2009 thus confirms my earlier determinations that Ramchair received constitutionally ineffective assistance of counsel on his direct appeal, and that the New York courts' decision to reject Ramchair's coram nobis petition involved an unreasonable application of the first prong of Strickland....
Appellate counsel's deficient performance was, of course, prejudicial under Strickand' s second prong.... Had it been confronted with a challenge to denial of a mistrial, the Appellate Division would have been constitutionally compelled to find that Ramchair was deprived of his due process right to a fair trial, and that a new trial was necessary.... The decision to deny a new trial allowed Winnik's testimony that Ramchair's attorney had approved the unfair line-up to go unrefuted. The probability that a jury would reach a different result if Latimer were allowed to testify at a new trial is more than “sufficient to undermine confidence in outcome of the proceeding.” See Strickland, 466 U.S. at 694; Wilson v. Mazzuca, 570 F.3d 490, 507 (2d Cir. 2009) (writ granted where counsel's error “immeasurably undermined [petitioner's] mistaken identification defense”).
Now we turn to the issue of relief. Typically, when there has been a denial of the effective assistance of appellate counsel, the relief is a new appeal. However, Judge Gleeson points out that a habeas court has broad authority to fashion the appropriate remedy. And a new trial has been ordered in some prior cases where there was an IAAC violation.
Judge Gleeson considered three possible remedies: unconditional release, new trial, new appeal. The judge concluded that unconditional release was not appropriate since, even though the case was troubling, it was not sufficiently egregious to preclude further prosecution.
The judge then analyzed which of the two other remedies was appropriate. He decided that a new trial was the appropriate remedy. It came down to this: this case has been going for a long time. A really long time (over 12 years) with a lot of twists and turns. Sending it back to the state court for an appeal for the case to drag on even further was futile. The state courts would deny relief and it would just come back to Judge Gleeson on habeas relief and he would grant relief directly on the mistrial issue, sending the case back for a new trial. But even in that situation, it would take an affirmance from the Second Circuit before Ramchair got the new trial. Gleeson felt that the most appropriate procedure was to skip all of that and grant the new trial directly. As it stands, if the State chooses to go back to the Second Circuit, it's just one more level of review before Ramchair would get the new trial. I am guessing that the State will go back to the Second Circuit.
So stay tuned for Chapter 10. . . .
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