Yesterday, the Second Circuit issued its opinion in Gueits v. Kirkpatrick (available here). The court reversed the grant of habeas and remanded for the district court to dismiss the writ. Judge Walker wrote the opinion and he was joined by Raggi and McLaughlin.
It's a pretty disappointing opinion. The court basically finds that the district court was not deferential enough to the state court's conclusion that counsel was not ineffective.
What's most disappointing about it is the what I will call "creative" analysis that the Second Circuit engages in to find that petitioner was not prejudiced by deficient performance. There were three main cateogires of deficient performance. I won't go into the court's analysis on all three categories. The analysis on the first two were questionable, but not as bad as the third. So I'll just focus on the third.
I won't go too deep into the facts about the case. You can read about those in my prior post about the case when the district court granted habeas relief. But let me just quote, again, the following provocative paragraph from the MJ's R&R:
Gueits may well have committed or been complicit in the assault with which he was charged; at best, he was by his own account unwilling to help the Victim of that assault when she was in desperate need of his aid. Whatever the truth, it is clear that he was convicted of the crime and is now imprisoned as the result of the denial of his constitutional right to counsel. The prosecution in this case was marred by a cynical approach that produced an unreliable conviction and that ignored strong evidence that another man may have committed both the assault for which Gueits is now in prison as well as the rape that has gone unpunished. The result is not only unfair to Gueits, but also to the victim whose rapist apparently remains at large and to the public. The [prosecution's] indifference to this obvious injustice is nothing short of astonishing.
One of the main failings of defense counsel was that he unreasonably failed to introduce DNA evidence showing that the semen found in the victim matched someone in Maryland who had been accused of committing a separate rape.
The Second Circuit concludes that this allegedly deficient performance did not prejudice the defendant. Yes, you have read that correctly. The failure to admit evidence to show that an identified person had actually sexually assaulted the victim did not prejudice the defendant.
Want to know why? It's actually quite creative. The Second Circuit hypothesizes that, had defense counsel pursued the issue at trial, the trial court would have exercised its discretion to keep this exonerating evidence out of the case.* Safe to say, I have never seen an analysis like this before. The court does not say that, as a matter of law, this type of evidence would not have been admissible. It says that a court would have issued a discretionary decision against petitioner here. Just incredible in my mind.
* It's also important to point out that the Appellate Division did not reject the IAC claim on this ground. The Second Circuit simply suggests that this is one of the ways that the state court could have denied it. It's creativity on top of creativity with this argument.
The court gives various reasons why: it was sort of covered by other evidence in the case, it would have somehow confused the jury. I guess those are possible reasons a hypothetical court may have hypothetically exercised its discretion here and keep the evidence out.
Or, more likely, a hypothetical court faced with DNA evidence showing that someone else had committed the sexual assault would have hypothetically gone out of its way to allow the defendant to present that evidence. I mean, how many times do we hear courts saying how seriously they take claims of actual innocence? I have certainly heard the Second Circuit say that before. Is this just lip service? Here we have a court faced with DNA evidence pointing to actual innocence, and the court not only rejects the claim, but does so in a particularly creative way. Disappointing is a good word for it.
Yes, I understand that the actual innocence claims are not so simple as "it was somebody's else's DNA so petitioner was automatically innocent." I previously stated that it was tough to know exactly what to think about the facts. But it must also be remembered that, as the MJ pointed out, the prosecution's theory on this case shifted when the evidence began to undermine the original theory. The more that the prosecution had to change the theory, the more it begins to suggest that petitioner may not have been involved in the crime.
There is some coverage of the case today in this article (subscription only) today in the New York Law Journal. The headline says a lot: "Prisoner Loses Habeas Bid Over DNA Evidence."
I would say disheartening as well as disappointing. I truly hope the past language about actual innocence was not mere posturing, and that there is something more to this case that makes reversal of the grant less shocking.
Posted by: David Bernstein | July 16, 2010 at 08:08 AM