2011 gets off to a great start with a big habeas decision up in WDNY in a sexual assault case.
It's big for several reasons. First, habeas was granted on two issues: IAC and a Miranda violation. Although there was a habeas grant, petitioner did not receive relief on all of the counts for which he was convicted. Petitioner was convicted of sexually assaulting three different women. Habeas was granted on the counts related to only one of the women. The remaining convictions remain in place.
However, the judge granted a COA on a second IAC claim related to the convictions that remain in place despite the habeas grant.
Another reason why this decision is big is more literal: the decision itself is massive. I was given a pdf of the decision and it numbers 146 pages! That's equivalent to 65 pages on Westlaw -- without headnotes. That's crazy long.
The issue that really captured my attention was the Miranda issue. It's an unusual factual situation, but not so novel that it went beyond clearly established law on Miranda. The judge makes a very convincing argument that the state courts' analysis was unreasonable. In fact, the judge shows that those courts did not even consider the relevant standards.
Here are the details:
Jackson v. Conway, 05-CV-0571, 2011 WL 65943 (WDNY Jan. 11, 2011) (VEB)
- Habeas Granted; COA Granted
- Issues: Habeas Grant: IAC based on counsel's failure to consult medical expert in sexual abuse case; Miranda violation based on un-Mirandized statements given to a child protective services caseworker made while petitioner was in custody; COA Grant: IAC based on counsel's failure to introduce favorable laboratory and DNA reports
- Notes: counseled; parties consented to proceed before MJ
ANALYSIS: The facts were pretty odd. Petitioner was charged with sexually assaulting his wife, his ex-wife and his teen-aged daughter, referred to in the decision as CJ, on the same night in the same apartment.
At the precinct, police officers questioned petitioner after giving him Miranda warnings, but he invoked his right to remain silent. He was placed in a holding cell. Soon afterwards, one of the detectives facilitated an interview between a child protective services caseworker and petitioner. During the interview (which officers watched), petitioner made inculpatory statements "regarding his extremely unconventional sexual relationship with his wife and ex-wife and his belief that he was the "Alpha Male" of the family." In addition, petitioner had agreed with the caseworker that it was "'possible he was so drunk that he wouldn’t have remembered if he raped [CJ]' and that '[h]e said it was a possibility . . . he said he could have been the one to rape [CJ].'" These statements were admitted at trial.
Defense counsel never consulted, nor called, a medical expert to assist the defense in interpreting CJ's medical records, which indicated that she had an "abrasion" (which was at one point in the records described as an "irritation") to her "vaginal introitus." In addition, counsel did not admit into evidence laboratory and DNA reports that indicated that no physical or medical evidence linked petitioner to the sexual assaults of his wife and ex-wife.
In addition, at trial, the prosecution presented "surprise" expert medical testimony. In other words, the prosecution called an un-noticed expert witness to interpret the medical records, even though the prosecution had told the defense before trial that there would be no expert medical testimony.
The state courts summarily rejected petitioner's IAC claims. As for Miranda, the hearing court concluded that the case worker was not acting as a law enforcement agent. The Appellate Division concluded that the filing of a child abuse petition did not trigger petitioner's right to counsel.
In the habeas petition, the MJ granted habeas relief as to the CJ convictions on the grounds of IAC and Miranda. The judge concluded that counsel was ineffective for failing to consult, or call, a medical expert. Not only would an expert have helped the defense interpret the ambiguous medical findings, which the MJ showed were not necessarily consistent with a sexual assault, but it would have helped the defense rebut, or at least be prepared for, the prosecution's surprise expert witness.* The MJ concluded that this deficient performance prejudiced the defense.
*The MJ described the prosecutor's actions in calling the surprise medical expert "disturbingly unethical misconduct."
On the other hand, the MJ concluded that counsel's failure to admit the favorable reports did not prejudice the defense with respect to the wife and ex-wife since the reports would not have "sufficiently strengthened the defense's case, or undermined the prosecution's proof," particularly since the wives both testified that petitioner did not ejaculate and had trouble maintaining an erection. However, the MJ granted a COA on this issue.
The MJ also granted habeas relief on the CJ convictions as to the Miranda issue. I found this issue to be really interesting. The MJ framed the question under the Miranda rule as whether the case worker was "'aware of the potentially incriminatory nature of the disclosures sought' . . . that is, whether she possessed the requisite 'investigative intent.'" After reviewing the relevant Supreme Court decisions discussing the applicability of Miranda to non-law enforcement questioners, the MJ stated that the case worker clearly was aware that she was seeking to obtain inculpatory, investigative information from petitioner:
the investigating officers in Jackson's case arranged and facilitated the meeting between Jackson and Caseworker Bonisteel, which took place in the jail where Jackson was being detained in custody. The inference is inescapable that the purpose was to elicit an incriminating response from the suspect who had just hours before, specifically invoked his Fifth Amendment privilege against self-incrimination and refused to talk about the alleged crime. Caseworker Bonisteel-not Jackson-mentioned the crime and specifically questioned Jackson about it with the clear intent of eliciting information from him. Both Caseworker Bonisteel, and the Greece Police Department officers who were eavesdropping on the conversation, knew that Caseworker Bonisteel's visit was reasonably likely to elicit an incriminating response from Jackson-indeed, that is why they were eavesdropping on the interview, and their eavesdropping demonstrated planning. Furthermore, I find that clear and convincing evidence, 28 U.S.C. § 2254(e)(1), rebuts the presumption typically accorded to the state courts' factual determinations. I also find that the state court unreasonably applied clearly established federal law, namely, Mathis v. United States and Estelle v. Smith, and Rhode Island v. Innis, insofar as the state courts concluded that Jackson was not subjected to the functional equivalent of interrogation by an agent of law enforcement. Indeed, the state courts' conclusions were “contrary to” the clearly established Supreme Court precedent of Mathis v. United States, a case which is squarely on point with the instant matter.
It's a really fascinating analysis. If you decide to read any part of this lengthy decision, I'd suggest reading the subsection entitled "2. Applicability of Miranda to the Interview with the Caseworker."
So a good start to 2011. This case will be added to the Pending Second Circuit Cases page.
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