Habeas Corpus Blog

Habeas Corpus - District Court Review - Habeas Grant!

There's been a habeas grant out of EDNY!  The name of the case is Evans v. Fischer and habeas was granted on a due process violation based on the admission of a vast amount of hearsay evidence at the trial.   

The DJ does a great summary right at the beginning of the opinion, so I'll just quote it:

The focus of the petition is the admission at petitioner's trial of an unsworn, highly detailed seven-page hearsay narrative, penned by the state's key trial witness, containing the most damaging evidence and nearly the entirety of the state's case. Admitted for its substance without a limiting instruction, the document was touted by the prosecutor during summation and furnished to the jurors, upon their request, at the outset of deliberations. Petitioner claims that the document's effect, as well as the state's objective in offering it, was essentially to supplant the witness's poor performance on the stand, and to nullify his primary defense, which consisted of a compelling impeachment of that testimony. He argues that he was denied due process because his conviction rests principally on this hearsay rather than the trial testimony.

The state appellate court held that the trial court's decision to admit the hearsay document was error in three distinct ways and not reconcilable with any extant evidentiary theory, but the appellate court nonetheless rejected petitioner's claim that the ensuing unfairness was of constitutional magnitude. Under the unique circumstances and considerations addressed below, however, I conclude that the state appellate court unreasonably applied controlling Supreme Court holdings, which have long embodied the principle that the fundamental fairness guarantee of the Due Process Clause prohibits the state from obtaining a criminal conviction in the manner in which the State secured petitioner's. As this Memorandum explains, the record reveals manifest trial error of enormously prejudicial consequences, indeed a very thwarting of the trial as a trial. Mindful of the strict limits of my jurisdiction under AEDPA, I am compelled to conclude that the state appellate court's rejection of the due process claim on these facts was not merely error but objectively unreasonable, and I accordingly grant the petition.

Really interesting stuff.  Here are the specific details:

Evans v. Fischer

• Habeas Granted
• Lower Ct. Info: 06-CV-5919, 2011 WL 4434058 (EDNY Sept. 22, 2011) (RJD)
• Issues: Due process violation based on the admission of hearsay evidence

It's been added to the Pending Second Circuit Cases page.  I am assuming that the State will appeal (they haven't yet, though).  I'll just remove it if they don't.

Habeas Corpus - District Court Review - Habeas Granted!

In the comments to my post about the Second Circuit's habeas grant in Rivera, reader DB pointed out that there had been another recent habeas grant on a depraved indifference claim in a case called Johnson v. Bellnier. I have now read it and its a really important decision.

But first, let me note that, even though I tried to keep up to date with recent habeas developments over the summer, I had not heard about the decision.  Actually, I had not yet looked through the decisions from the week in which it was issued, and that week turned out to be a pretty busy one in the district courts - a habeas grants and two COA's.  There had not been a COA in the district courts in months.  I'll put those up in a separate post.

Here, I am going to quickly talk about Johnson.  First, the details:

Johnson v. Bellnier, 09-CV-381, 2011 WL 3235708 (EDNY July 27, 2011) (KAM) (RER)

• Habeas Granted in Part
• Issues: (1) whether petitioner had shown a miscarriage of justice in order to overcome a procedural default; (2) legal insufficiency on depraved indifference
• Notes: Adopting R&R in part (available at 2010 WL 7100915)

ANALYSIS: DJ grants habeas relief concluding that the evidence was legally insufficient to establish depraved indifference murder.

But that's not what makes this an important decision.  It is the procedural default ruling that really matters.  Both the MJ in his R&R and the DJ here conclude that petitioner can overcome the procedural default (i.e. failure to raise the claim at trial) because a fundamental miscarriage of justice would result if his case is not reached on the merits.  We have seen that result before (in Petronio and Fernandez v. Smith).  This issue is now currently before the Second Circuit in a case called Garbutt v. Conway (see Pending Second Circuit Cases page).  But the DJ ruled against the petitioner on this issue in Garbutt.  So now we have another DJ going in the other direction.  That's really helpful.

Hopefully, this case will be heard with Garbutt (assuming the State appeals).  At the very least, this decision is now out there and could have an influence on the court.

 

Habeas Corpus - HUGE Habeas Grant from Second Circuit [Updated]

Been extremely busy with stuff, so haven't had a chance to post around here.  But the blog is still on.  Hopefully, I will be able to start posting more regularly in the near future.

Today, the Second Circuit published an opinion granting habeas on a depraved indifference/legal insufficiency claim.  So it's not just a habeas win, but a habeas grant!  It's a case that I have had my eye on from the moment I read the district court's decision.  I wrote about that decision here.  I was upset about two things: (1) the DJ got the procedural question all wrong, way wrong; and (2) the DJ did not grant a COA.  But as I had hoped, the Second Circuit did grant a COA.  And now the court has reversed the DJ and granted the petition.  Makes me very happy.

First, here are the details:

Rivera v. Cuomo, 10-224-pr

• Argued: 5/13/11; Decided: August 9, 2011; published opinion by McLaughlin
• Panel: McLaughlin, Pooler, Parker
• Lower Ct. Info: 05-CV-1699, 2009 WL 4929264 (EDNT Dec. 21, 2009) (SLT)
• In Circuit: Circuit Court COA
• Issues: whether, under the law as it existed when Appellant’s conviction became final, the evidence was legally sufficient to support a conviction for depraved indifference murder in violation of New York Penal Law § 125.25(2)

ANALYSIS: I haven't had a chance to make it through all of the opinion.  I actually am not too familiar with the merits of the case.  But all that really needs to be quoted here is the opening paragraph of the opinion:

Petitioner-Appellant John Rivera (“Rivera”) was convicted of one count of depraved indifference murder in violation of New York Penal Law § 125.25(2).     He now appeals from a judgment   entered in the United States District Court for the Eastern District of New York (Townes, J.) denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.  On appeal,Rivera argues that the district court erred in holding that the applicable law of depraved indifference murder was the law in  effect when Rivera was convicted on September 19, 1997.    We agree, and hold that the district court should have applied the law as it existed at the time Rivera’s conviction became final, i.e., once the period in which Rivera’s time to file a writ of certiorari to the United States Supreme Court expired.    Rivera also argues that, in July 2004, the evidence adduced at trial was legally insufficient to support a conviction for depraved indifference murder.   Again, we agree, and hold that, at the time Rivera’s conviction became final in July 2004, no reasonable jury could have found Rivera guilty of depraved indifference murder.  Accordingly, the judgment of the district court is REVERSED and REMANDED with instructions to grant Rivera’s petition for a writ of habeas corpus.

Update: Reader JE just submitted a great comment which I thought should be moved up here so that nobody misses it:

Another big part of the decision is that Hafeez and Gonzalez were found to be substantive changes in the law rather than mere fact-specific applications of Register. Pretty much every district court to consider the issue thus far has ruled the other way. No more.

Habeas Corpus - District Court Review - Pinholster Must Cut Both Ways

Blood beginning to boil again . . .

In the last District Court Review, I discussed a recent habeas grant in Harrison v. Cunningham.  Unfortunately, upon reconsideration, the DJ has withdrawn the habeas grant.  And I believe that the withdrawal was completely inappropriate.

Here's what happened: in the original decision, the DJ granted habeas on IAC grounds.  The judge relied upon statements that the attorney made about his actions that were a part of the state court record.

In their reconsideration motion, the State argued that the DJ acted prematurely as it is the typical practice in the Second Circuit to hold what's known as a Sparman hearing to give an attorney a chance to explain his actions before holding the attorney ineffective.  The DJ agreed with the State, withdrew the habeas grant, and ordered the trial attorney to submit an affidavit within 10 days of the order, if the attorney so desired. 

That just cannot be right.  As the Second Circuit acknowledged the other day in a summary order, federal courts hands are tied here.  Under the restrictive decision of Pinholster, the court can only look to the factual record in the state court.  A court cannot consider new evidence presented in the habeas proceeding.

As I have vociferously complained about, that rule is unfair.  However, the ruling in Pinholster is broad and obviously must cut both ways.  The State should not be allowed to rely on new facts to show that the state court decision was not unreasonable.  If Pinholster is going to be unfair to one side, it simply has to be unfair to both. 

I mean, I know the deck is stacked against habeas petitioners, but if Pinholster is read as only a restriction on petitioners, then it would be as if the State is also allowed to deal from the bottom of that stacked deck.  This just cannot be right.

 

Habeas Corpus - District Court Review - Habeas Grant/COA Grants/Habeas Denied

I know, the title is too long.  But it's been awhile since I checked in on the district courts.  And this seems to be the peak season for habeas cases in the district courts.  At least one of the two or three peak seasons (the summer time also seems like a busy time for habeas).

Rather than break this up into four posts, I'll just put them all here.  Gives me an excuse to keep it short on each case.  There was a habeas grant in a case where the MJ had recommended that habeas be denied.  That is exceedingly rare.  In a less rare 180, there were two habeas denials in cases where the MJ had recommended a habeas grant.  In one of them, a COA was denied (which disappointed me greatly) and in the other a COA was granted.  And there was a COA in an additional case.  That one is a pretty remarkable one.  Just to note, the latter three cases all involve the MJ who has granted habeas relief four times this year.  Could have been five and six . . .

Let's get to the action:

1. Habeas Grant

Corby v. Artus, 06-CV-15291, 2011 WL 1118691 (SDNY Mar. 24, 2011) (LTS) (KNF)

• Habeas Granted
• Issue: Improper curtailment on cross-examination of sole inculpatory witness against petitioner
• Notes: Counseled; Rejecting R&R

ANALYSIS: As mentioned above, this is a rare habeas grant where the MJ recommended that the petition be denied.  The DJ seems to focus on two factors that led it to reject the recommendation. First, there was petitioner's strong and clarifying objection to the MJ's conclusion:

Contrary to the Magistrate Judge's Report and Recommendation, the trial court's preclusion of petitioner's cross-examination of the sole witness to inculpate him regarding her belatedly developed hostility toward him that, after two years of silence for the first time gave her motive to falsely accuse him in particular and deflect blame from herself to petitioner for the crimes, violated petitioner's due process rights to confront the witness against him.

Second, after the MJ issued his R&R, the Second Circuit decided Brinson v. Walker 547 F.3d 387 (2d Cir. 2008), which was highly favorable to petitioner's position.  I guess this means that the R&R has been pending for a long time. 

On the merits, the DJ concluded that:

although the record was sufficient to enable to the jury to perceive several potential grounds for bias on the part of Burnett (the sole inculpatory witness), the exclusion of evidence regarding the alleged accusation (that Burnett was actually involved in the crime) eliminated a specific, prototypical ground for bias from the jury's consideration. This retaliation-based bias, and/or bias stemming from a desire to shift blame specifically to her alleged accuser, is distinct from other grounds suggested by the trial record, such as fear-based bias stemming from threats the defendant made against the life of Burnett's son, and greed-based bias rooted in the expectation that, if Corby were sent to jail, Burnett could keep the money she had stolen from him.

The DJ further concluded that the error was not harmless.

Just to note, this case also was unusual in that, while in the state courts, petitioner received a dissenting opinion in his favor in both the Appellate Division and the Court of Appeals.

2. Habeas Denial - Rejecting R&R Recommending Habeas Grant

Wallace v. Artus, 06–CV–464, 2011 WL 1302228 (NDNY Mar. 31, 2011) (FJS) (VEB)

• Habeas Denied
• Issues: IAAC based on counsel's failure to raise an IAC claim based on trial counsel's failure to make a for-cause challenge to an allegedly biased juror
• Notes: Counseled; Rejecting R&R; COA denied

ANALYSIS: Not too much to say.  The issue itself pretty much says it all about the claim.  I am just pointing it out since this seems like the quintessential situation where a COA should be granted: reasonable jurists disagreed about the outcome.  Even if the DJ believed that the MJ got it way wrong, it would have, at the very least, been more respectful to grant a COA, unless the DJ believes that the MJ is not a reasonable jurist.  Let's see what the Second Circuit does with a COA application.

3. COA Granted - Rejecting R&R Recommending Habeas Grant

Wright v. Duncan, 02–cv–508, 2011 WL 1239773 (NDNY Mar. 28, 2011) (GLS) (VEB)

• Habeas Denied; COA Granted
• Issues: Due process/right to present a defense violation based on the exclusion of exculpatory evidence on hearsay grounds
• Notes: Rejecting R&R

ANALYSIS: Once again, not much to say on the merits.  Just pointing out that, in contrast to the DJ in the prior case, this DJ granted a COA, even though he had strong disagreements with the MJ.  It really is the appropriate thing to do under these circumstances.

4. COA Granted - The Remarkable One

Seda v. Conway, 07–CV–6609, 2011 WL 1344240 (NDNY Apr. 8, 2011) (VEB)

• COA Granted on Reconsideration
• Issues: whether the NY persistent felony offender statute violates Apprendi
• Notes: counseled

ANALYSIS: As I have stated a couple of times already, this COA grant is remarkable.  As everyone knows by now, the Second Circuit concluded in the en banc decision in Portalatin v. Graham that the state court decisions upholding the constitutionality of the persistent felony offender statute were not unreasonable under the AEDPA.  The Supreme Court denied cert.  That would seem to be the end of the story, right?

Well, there still is the pending cert. petition in People v. Battles in which the Chief Judge of the New York State Court of Appeals wrote a "blistering dissent."  The dissent could have an effect on the Supreme Court's decision to review the case.  And, if the Court reviews the case and finds the statute unconstitutional, the Second Circuit could choose to revisit Portalatin.  Although the MJ does not put it this way, a decision from the Supreme Court in Battles could easily not state a new rule, but simply be a straightforward application of clearly established precedent.  In that situation, Battles would apply on collateral review.  Consequently, the MJ concludes, "In light of Judge Lippman's dissent in Battles and the pending petition for a writ of certiorari in that case, I conclude that Seda has met the "substantial showing" requirement with regard to his claim that his sentence under New York's persistent felony offender statute was unconstitutional."

So it appears that maybe the fight over this statute is not quite over on habeas review.

Habeas Corpus - District Court Review - Habeas Granted Outside of WDNY! - CORRECTED

So far this year, there have been four habeas grants in the district courts in New York.  And all four were from the same judge in WDNY.

I am happy to report that there has been another habeas grant in the district courts and this one was from outside of WDNY.  It happened in EDNY.  And for some reason this one made me very happy. 

Actually, I know the reason: the state court undermined a basic concept in the system.  As a criminal defense attorney at the appellate level, there are certain pillars on which you base your representation.  One of those is that, if we pursue a client's legal remedies on appeal (or in a collateral proceeding) and challenge the legality of the sentence, that client won't end up with a worse sentence.  Of course, there are exceptions, and attorneys should always be sure to advise a client of a foreseen risk.  But in a typical case, appellate attorneys feel comfortable telling a client not to worry.  A win will not put him in a worse position.

It's based on the due process concept that any increase in a sentence after a defense victory is presumptively vindictive.  This was established in the Supreme Court case of North Carolina v. Pearce, 395 U.S. 711 (1969).  One of the main policies behind it is that a defendant should not be punished for pursuing his legal rights.  There are limited circumstances where an increase in sentence would not be considered vindictive.  One important situation is where new facts that were not available at the original sentencing proceeding come to light at the resentencing (e.g. defendant committed bad acts after original sentencing or prior criminal conduct that nobody knew about at the original sentencing).  But, all things being equal, a sentence should not go up if a defendant is successful in utilizing his post-conviction remedies in challenging his sentence.

Unfortunately, that's what happened to petitioner here.  And I simply cannot believe that the state courts allowed this to happen.

First, here are the details:

Somerville v. Hunt

• Habeas Granted; Resentencing Ordered before Different Judge
• Lower Ct. Info: 08-CV-1307, 2011WL 795073 (EDNY Feb. 28, 2011) (NGG)
• Issue: whether petitioner's increase in sentence after his original sentence was vacated as illegal was presumptively vindictive

I anticipate that this will be a long post, so I'll drop the analysis under the fold . . .

 

Habeas Corpus - Media Coverage

Unfortunately, I haven't had much of chance to keep up to date on media coverage of habeas stuff.  But I did just stumble across some media coverage of habeas grant #3 in WDNY.  That's the Young v. Conway case.

The article was in the Rochester Democrat and Chronicle: Rudy Young's 1992 robbery sentence reduced

The article had some interesting details.  Turns out, Young has actually had some success in the legal system.  In one case, he was acquitted of murder charges after a jury trial.  In a different case, his convictions were overturned by an appellate court and then he was acquitted of some of those counts after a retrial.  I would look at those as 3 big victories.  Of course, he did also lose big and he received a very long sentence.  But then he just won again in federal court.  That's a fourth big win.

Habeas Corpus - District Court Review - Habeas Grant Number 4

In my last District Court Review post, I had mentioned habeas grant number 4 from MJ Bianchini out of the WDNY.  The Law Journal actually had coverage of the grant today.  The article has inspired me to put something up about the case.

Young v. Zon

• Habeas Granted
• Lower Ct. Info: 04-CV-363, 2011 U.S. Dist. LEXIS 16472 (WDNY Feb. 18, 2011) (VEB)
• Issues: IAC during plea negotiations
• Notes: Counseled; parties consented to proceed before MJ

ANALYSIS: This case holds a lesson for attorneys - always be careful of what you put in a letter to a client.

Petitioner was convicted after trial of attempted murder and sentence to 20 years.  According to the MJ, the evidence against him was pretty overwhelming, and this was obviously clear to everyone before trial.

According to petitioner, prior to trial, the prosecution extended a plea offer of 7 years to petitioner's attorney.  Petitioner stated that he rejected the offer as a result of not receiving adequate advice from his attorney.  Petitioner wrote to his attorney and asked for him to provide a detailed account of his advice that he gave on the plea offer.

Counsel wrote him back and stated, "As to any plea offered, it is always presented to the Client for either approval or rejection.  When the possible sentence carries with it a significant period of incarceration, I usually did not make any recommendation to accept or not." 

Uh oh.  As the MJ points out, counsel is not supposed to sit back and not give advice to a defendant about a plea offer.  Rather, it is counsel's affirmative duty to provide the advice.

The MJ seizes upon this statement in the letter and concludes that counsel provided deficient performance.  And the judge agreed with petitioner's assertions that, had he been properly advised about the merits of the plea offer, he would have accepted it.  So habeas relief granted.

Now, I hate to say this, but there are some potential problems with the opinion.  First, I think that it was dicey to grant habeas relief here without first holding a Sparman hearing.* While the letter is highly telling, it isn't a sworn statement.  I think that counsel probably should have been given a chance to explain himself under oath.  I doubt that counsel would be able to get out from under the letter, but the Second Circuit has routinely required courts to give counsel a chance to explain himself in court before concluding that counsel's performance was deficient (see, for example, what they did in my favorite case).

*To oversimplify, a Sparman hearing is a hearing held on an IAC claim to give counsel an opportunity to explain the reasons for his or her conduct.

Another potential problem is the court's factual finding on the issue of whether the prosecution had actually made the plea offer.  The state courts had concluded that no plea offer had actually been made.  The MJ concludes that petitioner showed, by clear and convincing evidence, that such an offer had indeed been made.  This was mostly (but not entirely) due to a letter from an attorney who worked for trial counsel and assisted him with the trial.  She stated that an offer of "7, 10, or 12" years was made to him.  I think that the judge's decision is right, but I would feel more comfortable if this finding had been made after a hearing.

Some other interesting aspects of the case also worth mentioning:

In the next term, the Supreme Court is going to be addressing IAC claims in the plea context in two separate cases, which will include the issue of whether relief is possible if the defendant went to trial.  A decision in those cases will most likely have a direct impact on this case, assuming that it is still pending when those decision.  Here, the MJ ordered specific performance on the sentence offer.  But there was some uncertainty in the record as to what the offer actually was.  So the judge did something clever -- he took the median value of the three possible sentencing lengths (7, 10, 12).  Even better, the MJ included a footnote explaining how to calculate the median value.  As a math B.S.'er (in other words, I was a math major in college), I have to say that I really loved this.  It is so rare to see math fun in a habeas opinion.

Since petitioner has served over 10 years in prison, specific performance means that petitioner was immediately eligible for release from custody.  And the judge ordered just that.  He stated that the sentence would be reduced to time served and ordered petitioner's immediate release.  At the same time the judge refused to grant a stay pending appeal.  That's a big real world impact.

 

Habeas Corpus - District Court Review - Habeas Granted!

As I mentioned in my last District Court Review post, an MJ out in WDNY has issued three habeas grants so far in 2011.  This is number 3.  It's an enjoyable read as the MJ not only finds that the state court decisions were unreasonable, but points out that the Court of Appeals completely whiffed on the Wade issue.

Young v. Conway

• Habeas Granted
• Lower Ct. Info: 07-CV-6047, 2011 WL 240578 (WDNY Jan. 27, 2011)
• Issue: Improper admission of tainted identification evidence
• Notes: parties consent to proceed before MJ; pro se petitioner

ANALYSIS: This was a home-invasion robbery.  Two people were in the house at the time, Mr. and Mrs. Sykes.  One of the robbers,who was later identified as petitioner, was wearing a scarf that covered the bottom half of his face.  Mr. Sykes was never able to identify as this particular robber.  After the robbery, Mrs. Sykes told the police that she would not be able to assist them in creating a sketch since she did not see the entire face.  She later viewed a photo array containing petitioner but did not identify him as the robber.  At a lineup, she identified petitioner as the robber.

On appeal, the Appellate Division reversed the conviction.  It held that the lineup was the fruit of an unlawful arrest and should have been suppressed.  It ordered an independent source hearing (a hearing at which the prosecution would attempt to show that the victim's in-court testimony had a source independent of the illegal, suppressed lineup identification).

At the hearing, Mrs. Sykes stated that her independent source was the long time that she stared at the perpetrator's eyes during the robbery.  The trial court concluded that there was an independent source.  Later on appeal, a three-judge majority upheld that conclusion, but a two-judge dissent believed that there was no independent source.  The Court of Appeals accepted review of the case, but declined to address the merits of this question, stating that it was a question of fact, which it was not authorized to review.  In dissent, one judge did address the merits and stated that there was no independent source.

On habeas review, the MJ states that Wade is the controlling law.  Where there has been an illegal lineup, in-court identification testimony is only admissible where the in-court testimony is not an exploitation of the illegality but, instead, is based on means sufficiently distinguisable to be purged of the primary taint.

Here's where the MJ points out a flaw in the Court of Appeals decision.  According to the MJ, the Supreme Court in Wade stated that this conclusion is a mixed question of law and fact.  He points out that the Court of Appeals was incorrect in deferring to the Appellate Division on this question.  However, due to the Court of Appeals failure to address the issue, the MJ stated that he had to look at the Appellate Division's decision to see if that decision was unreasonable.

He concluded that it was.  The MJ analyzes the Wade factors -- opportunity to view, discrepancy between pre-lineup descriptions and defendant's description, did the witness identify anyone else as the perpetrator, did the witness identify the defendant from photographs, the eyewitness failed to identify defendant on prior occassion, and lapse of time between incident and identification -- and concludes that they weigh heavily in favor of petitioner.  He states that the state court acted unreasonably in concluding otherwise.  Further, the error was not harmless.

In fact, the MJ believed that the error was so crucial to the case that, in the remedy section, it BARRED the prosecution from retrying petitioner on the charges.  According to the MJ, without the identification, there was not legally sufficient evidence to support the conviction.  That's a pretty big step.

Of course, the impact of that is minimized in one crucial way.  Petitioner received a persistent felony offender sentence in this case.  That sentence is now vacated.  However, this sentence was running consecutively to another persistent sentence imposed in a separate case.  Thus, petitioner will still have to serve a maximum term of life.  But there remains an advantage to petitioner (as far as I can tell) -- he should now be eligible for parole a tad earlier.

Habeas Corpus - District Court Review - Habeas Granted!

I wished I had covered this earlier, but there was another habeas grant in WDNY on the same day as the big Jackson v. Conway opinion (actually, there has been another habeas grant out of the WDNY, but I'll cover that in another post).  In fact, it was the same judge who granted habeas in both cases (actually, it's the same judge in all three cases).

Here are the details of the other habeas grant from January 10, 2011:

Valentin v. Mazzuca, 05-CV-0298, 2011 WL 65759 (WDNY Jan. 10, 2011) (VEB)

• Habeas Granted
  
• Issue: Brady violation based on the prosecution's failure to disclose criminal record of one of a prosecution witness
• Notes: consented to proceed before MJ; pro se habeas grant

ANALYSIS: This case is a robbery where the prosecution called a single eyewitness to the robbery, John Kemp.  The prosecutor did not disclose that the eyewitness had a criminal background.  In fact, the prosecutor made a point at trial to inform the judge that he steadfastly refused to look into whether his witness had a criminal history.  Odd, in this day and age, for a prosecutor to make such a public display of refusing to follow his ethical obligations. 

Not surprisingly, the Appellate Division concluded that there was a Brady violation, but that it was not material, namely that there was no reasonable probability of a different result had the criminal background been disclosed.  The MJ concluded that the Appellate Division's decision on materiality was unreasonable.

There was a wacky aspect to this case: the conflicting stories from the eyewitnesses.  There were two eyewitnesses, Kemp and another man named McLaren.  Kemp said that petitioner was the gun man, while McLaren stated in the GJ that another man, Arroyo, was the gun man.  The indictment against Arroyo was dismissed because the identification evidence was unreliable.  At Valentin's trial, the prosecutor announced that McLaren was out of the jurisdiction and not available.  So only Kemp testified.

The MJ concluded that it was unreasonable to conclude that there was no reasonable probability that the impeachment material would not have had an effect on the outcome.  According to the MJ, the criminal history was not "insubstantial."  And while Kemp had other credibility issues, the prosecutor relied heavily on his testimony and used many tactics to bolster his credibility.  The MJ concluded that the impeachment material would clearly have had an impact.

Here's what the MJ stated:

Where, as here, the prosecution's case was more akin to a house of cards than a foundationally sound structure, it is more than reasonably possible that Kemp's criminal record could have been the card that toppled the house. It bears emphasizing that Kemp's testimony about Valentin having the gun and being the “lead robber” was not corroborated by any independent evidence. This Court finds, after reviewing the entirety of the record, that had the prosecution complied with its Brady obligations by disclosing Kemp's criminal record, his credibility would have been significantly more compromised. Non-disclosure of this non-cumulative impeachment evidence has seriously undermined my confidence in the outcome of Kemp's trial. Thus, I conclude that the information was “material,” and that Valentin has demonstrated a true Brady violation.

One final interesting thing to this decision: the relief.  Petitioner had already been released from custody and was serving time on parole.  The court ordered that "Respondent is accordingly directed to expunge Valentin's convictions for first degree robbery and second degree robbery and release him from parole supervision within sixty days. This judgment is not stayed pending completion of appeal proceedings, if any." 

Two notable things: the court did not order a new trial.  Instead, the court ordered basically a dismissal of the charges.  Even though he had finished serving his time in prison, I don't think that means that the convictions should necessarily get expunged.  The typical remedy would be a new trial.  Thinking about that remand in Ramchair last year (I am referring to the end of that long post), I wonder if the MJ should have done a more thorough job explaining why that particular relief was warranted.

As for the denial of a stay, that makes sense in the face of the relief that was ordered.  If the judge thinks that the convictions should be expunged, petitioner will suffer irreparable harm during the appeal.  But it is still notable that a stay was denied.  Doesn't always happen that way.