Habeas Corpus - Interesting Summary Order

Summary order from the Second Circuit today.  It was in Bennett v. Miller, 09-3471-pr. The order is here.

The court concluded that there were two constitutional errors -- improper admission of an impermissibly suggestive identification and prosecutorial misconduct based on the prosecutor's repeated reference to false evidence.  Disappointingly, the court concludes that both errors were harmless.  Rather than give my own analysis, I am just going to cut and paste the court's analysis on the identification issue after I give the details.  The court did not go into too much analysis about the prosecutorial misconduct, other than calling it "egregious."

Bennett v. Miller, 09-3471-pr  [updated 3/04/11]   

• Affirming Denial of Habeas
• Argued: 3/2/11; Decided: 4/1/11 (summary order)
• Panel: Jacobs, Leval, Raggi
• Lower Ct. Info: 06-CV-1488 (EDNY Aug. 4, 2009) (SLT) (unpublished)
• Issues: (1) whether the admission of eyewitness identification evidence was impermissibly suggestive or unreliable to consitute a due process violation; (2) whether the prosecutor's misconduct in summation in which the prosecutor misstated the evidence, deprived petitioner of a fair trial

Impermissible suggestive identification evidence:

The circumstances surrounding Ellis’s identification were extremely suggestive. Ellis never identified Bennett prior to trial; he twice failed to make an in-court identification while on the stand; and only after he watched from the galley when the prosecutor identified Bennett as the shooter did Ellis undertake to make an in-court identification. These circumstances made it “all but inevitable that [Ellis] would identify [Bennett].” Foster v. California, 394 U.S. 440, 443 (1969).

“[R]eliability is the linchpin in determining the admissibility of identification testimony,” Manson, 432 U.S. at 114; even an unduly suggestive identification may satisfy due process if it was nevertheless reliable. The reliability factors in Biggers guide the inquiry, see Biggers, 409 U.S. at 199-200, even though they are not the only hallmarks of due process, see Brisco v. Ercole, 565 F.3d 80, 94 (2d Cir. 2009). As a bouncer, Ellis had a good vantage point and a duty to be attentive; but these factors are outweighed by [1] the vague description of the young men he gave to officers on the night of the shooting, [2] the one-year gap between the shooting and the identification he made at trial, [3] his inability to make an identification during his first appearance on the stand, and [4] the “corrupting effect of the suggestive identification itself.” Manson, 432 U.S. at 114.