By MK (posted by JK)
Corby v. Artus: A “Prototypical Form of Bias?”
Last week in Corby v. Artus, No. 11-1650-pr (2d Cir. Oct. 10, 2012), the Second Circuit overturned a decision by Judge Swain of the SDNY granting a 2254 petition on the ground that the petitioner’s Confrontation rights had been violated at trial. Unless the Supreme Court grants cert (unlikely since this Confrontation issue is not of the Crawford variety), the Circuit’s decision will end a sixteen-year saga that has divided every reviewing court it has reached.
The most remarkable aspect of the decision is that it relies primarily on state trial counsel's failure to adequately object - a point which neither the New York Court of Appeals nor the district court raised in their decisions. In fact, the Circuit tread pretty lightly on the real issue in the appeal: whether the state court unreasonably applied Supreme Court precedent. More on this below - first, it helps to briefly review the facts and the appellate history of this long and divisive case.
At first glance this case is your typical drug-dealer-on-drug-dealer crime: Norcott Corby was charged with the 1996 robbery and felony murder of Yousef Mohammed, a drug dealer from San Francisco who was visiting New York City to sell Corby heroin. The drug deal was supposed to take place in the Manhattan apartment of Xanderia Burnett, whose mother had once dated Corby. Burnett, the prosecution’s star witness, testified that she agreed to let Corby use her apartment for the deal. She stated that she saw Corby and two associates disappear into a back room. When they emerged, she saw Mohammed lying on a bed, his hands tied behind his back and blood pouring from his head. Burnett testified that she helped Corby dispose of the body and steal drugs from Mohammed’s hotel room.
The Confrontation issue arose from the defense’s attempts to cross-examine Burnett. When Burnett was first questioned by police about a week after the murder, she denied any knowledge of the matter. It was not until two years later, in 1998, that accusations began to fly. First, Corby accused Burnett: he told a DEA agent that he had been in Burnett’s apartment on the night of the murder, but that he left to visit his parole officer; when he returned, he said, Mohammed was dead. Corby told the DEA agent that he helped dispose of the body but did not participate in the murder itself. The DEA agent passed this information to the NYPD, who confronted Burnett (who had since moved to Philadelphia). It was only after an NYPD detective told Burnett that Corby had accused her of the murder that Burnett “broke down” and told the detective (after being taken to a local precinct and Mirandized) that it was Corby, not she, that had committed the murder. She also told police that Corby had threatened to kill her and her family if she spoke to authorities. The District Attorney decided to go with Burnett’s version and charged Corby with robbery and murder.
At trial, the defense lawyer tried to do what any lawyer would do: confront Burnett with the fact that she had accused the defendant after two years and only after learning that the defendant had accused her. Prototypical motive for bias, right? Yet the trial court would not allow counsel to cross Burnett on the crucial issue of whether she had accused Corby only after she learned that he had accused her, reasoning that Corby’s accusation was unreliable because Corby had, according to the Second Circuit, “made it self-servingly while seeking the DEA’s help. . . .” The trial court reasoned that it was unfair to let the defense cross Burnett on this point when the prosecution could not question Corby (who was protected by the Fifth Amendment) on the same point.
A majority of the First Department panel hearing the appeal upheld the conviction. While recognizing “the centrality of Burnett's testimony to the People's case,” the majority found that, “the [trial] court's error, if any, was harmless beyond a reasonable doubt” because Burnett’s motive to accuse Corby, “her natural desire to deflect suspicion of complicity in the murder away from herself, and toward another — was already manifest to the jury without the precluded line of inquiry.” Dissenting from the majority’s decision, Justice Andrias noted that the majority’s finding of harmlessness was suspect because, “such supposedly overwhelming evidence [of guilt] is primarily based upon Ms. Burnett's self-serving account of events, which provides an even stronger reason to permit the defense to question her motives for testifying against him.” The dissent relied on the Supreme Court’s decision in Delaware v Van Arsdall, 475 U.S. 673 (1986). That decision found that a defendant “states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’”
This split continued in the New York Court of Appeals. The majority found that defense counsel had been given “wide latitude” to cross Burnett and that, “[a]ny additional evidence of Burnett's bias or motive to lie, that would have been established by the precluded line of inquiry, would have been cumulative and of little probative value to defendant's case.” It reasoned that “Burnett's interest in self-preservation was very apparent to the jury who found her credible.” Justice G.B. Smith dissented. Quoting the same language from Van Arsdall, the dissent would have held that the trial court:
prohibited defendant from engaging in appropriate cross-examination designed to show Burnett's motive for implicating defendant as Mohammed's murderer when she did (i.e., after a two-year silence and only after Detective Bourges told Burnett that defendant implicated her). As a result, the jury did not hear all of the facts necessary for it to draw all reasonable inferences regarding Burnett's reliability and credibility. . . . Moreover, in light of the fact that Burnett's testimony was the only evidence linking defendant to the crimes, there is a reasonable possibility that Supreme Court's error contributed to defendant's conviction. As such, the error is not harmless beyond a reasonable doubt.
When Corby’s habeas petition came before the district court, SDNY Magistrate Judge Kevin Fox sided with the state court majorities. Judge Fox recommended denying the petition on the ground that the NY Court of Appeals correctly held that the cross-examination restrictions placed on Corby were imposed for legitimate reasons and that defense counsel was granted sufficient latitude during his cross-examination of Burnett. Judge Fox concluded that the state court’s decision was not contrary to Supreme Court precedent, “which recognizes the right of a trial court to place restrictions on a litigant's ability to cross-examine a witness." Judge Swain, however, declined to adopt Judge Fox’s recommendation. Instead, the Court found that the NY courts had unreasonably applied applicable Supreme Court precedent:
In sum, because all inquiry into one prototypical form of bias was prohibited, the defendant's constitutional rights under the Confrontation Clause were violated. In reviewing this case, the New York Appellate Division and Court of Appeals cited the correct precedents — primarily Van Arsdall . . . and [Davis v. Alaska, 415 U.S. 308 (1974)] — but unreasonably applied that standard when they upheld the complete preclusion of questions regarding a distinct form of bias material to the jury's determination of the witness' credibility.
(Davis v. Alaska, like Van Arsdall, held that “regardless of other biases held by the witness that may have been presented to the jury, when defense counsel was prohibited from asking the witness about his probation status, the trial court violated the defendant's constitutional right to confront witnesses.”)
Judge Swain also pointed out that, following Magistrate Judge Fox’s Report and Recommendation, the Second Circuit had decided Brinson v. Walker, 547 F.3d 387 (2d Cir. 2008). In that case, an African-American defendant charged with robbery had been prohibited from cross-examining the victim about whether he had been fired from his job after the robbery for refusing to serve African-American patrons. As explained by Judge Swain:
The Second Circuit affirmed the district court’s decision that the state trial court had violated the defendant's Confrontation Clause rights when it barred defense counsel from cross-examining the witness regarding the witness' alleged intense racial bias. The Brinson Court held that, ‘[g]iven the intensity and extremity of the bias on which Brinson sought to examine [the witness], and the likelihood that one possessing a bias of such intensity might distort his testimony against an object of his bias on account of it, we find that it was not within a trial court's reasonable discretion to preclude this cross-examination,’ and that the state court's ruling was not a reasonable application of federal law.
In reversing Judge Swain’s decision last week, the Second Circuit primarily relied on an entirely new ground: Corby had not raised retaliation bias at trial:
At the sidebar regarding Corby’s cross-examination of Burnett, Corby’s lawyer did not argue that the sought cross-examination would be relevant to prove retaliation bias. Instead, he contended that (1) he wanted to ask about the relayed accusation against Burnett to prove that she had a motive to shift blame away from herself, and (2) he wanted the jury to know that the accusation came from Corby because in that case, Burnett’s motive to lie would be greater, as she would fear that the authorities would believe an accusation coming from someone who had witnessed the events in question. Later, Corby’s lawyer even proposed a compromise that would have foreclosed any retaliation argument: he would forgo specifying that Corby was the person who had accused Burnett if he could ask only whether some unidentified person had accused her.
This fine-parsing of the state court trial record is rare on habeas review, which appropriately focuses on whether state appellate courts reasonably applied Supreme Court precedent. In addition, the Circuit's use of trial counsel’s “compromise” position to foreclose Corby’s habeas claim is pretty startling: defense counsel was reacting on the fly to an adverse ruling by the trial court, not thinking about what a federal appeals court might rule more than a decade later.
In the alternative, the Circuit held that defense counsel had sufficiently conveyed Burnett’s retaliation bias to the jury "by implication:”
[T]he plain implication of [Burnett’s testimony] was the substance of that which Corby argues he was unable to present to the jury: that Burnett believed Corby had implicated her in Mohammed’s murder when she first accused him. It therefore cannot be said that Corby was precluded from ‘expos[ing] to the jury the facts from which the jurors could appropriately draw inferences relating to the reliability of’ Burnett, specifically as to whether she accused him in retaliation for his accusation against her.” (quoting Van Arsdall, 475 U.S. at 680).
Notably, the Second Circuit did not discuss Judge Swain’s reliance on the Circuit’s 2008 Brinson decision. True, it was not obliged to. As noted, the question on habeas review is whether the state courts reasonably applied Supreme Court, not Second Circuit, precedent. Indeed, Brinson was several years in the future at the time the NY Court of Appeals decided Corby’s appeal. Nevertheless, it is strange and disappointing that the Second Circuit would not tie up this glaring loose end in a decision which has generated so much disagreement in both the state and federal courts. While the world will probably not long weep for Mr. Corby, the Second Circuit’s resolution of this important issue is far from a satisfying one.
The Second Circuit's focus on preservation was not only bizarre, it was deeply troubling. By suggesting now that defense counsel must be so acutely specific about the particular sub-category of bias in order to preserve a 6A claim for habeas purposes, the court places a huge new burden on trial counsel (and obstacle to habeas petitioners already in the 2254 pipeline).
Posted by: David Bernstein | October 18, 2012 at 07:22 AM