MEDIA

May 12, 2006

Continuance Balances Interests in Untimely Death-Penalty Notice

Published in: New York Law Journal | volume 236

In the U.S. District Court for the Eastern District of New York. Judge Nicholas G. Garaufis declined to grant collateral relief to a petitioner complaining that his guilty plea was invalid in light of his lawyer’s conflicting interests. Judge Frederic Block held that, under all the circumstances, the proper remedy for the government’s untimely death penalty notice was to adjourn the trial date. Judge David G. Trager imposed damages and legal fees on bankruptcy petition preparers for deceptive practices. Judge I. Leo Glasser granted summary judgment on liability against the government in a medical malpractice case. And Judge Denis R. Hurley denied a hospital’s motion for summary judgment in a retaliatory discharge/whistleblower action brought by a food inspector.

§ 2255: Ineffective Assistance

In LoCurto v. United States, 05 CV 1327 (EDNY, March 10, 2006), Judge Garaufis, denying a § 2255 motion, found that petitioner’s Sixth Amendment claim failed to show either a conflict of interest that he did not waive or ineffective assistance of counsel. Petitioner based his claim on his lawyer’s dual representation of petitioner and a codefendant at the time petitioner pleaded guilty, and on his lawyer’s indictment for obstruction of justice.

In March 2002 petitioner was arrested and charged with conspiring to distribute marijuana. His lawyer, Larry Bronson, represented him from that time through petitioner’s guilty plea in December 2002.

Mr. Bronson also represented petitioner’s codefendant Mr. Coppa, who was arrested in October 2002. Mr. Bronson understood that he continued to represent Mr. Coppa through December 2002, the date of petitioner’s plea. In reality, Mr. Coppa was using Mr. Bronson as his official counsel while, unknown to Mr. Bronson, Mr. Coppa was using other lawyers to represent him as ‘shadow’ counsel in secret proffer sessions starting in November and leading to a guilty plea. Mr. Coppa apparently chose this format because he wished to hide his cooperation from members of organized crime.

In light of the dual representation by Mr. Bronson, Judge Garaufis appointed another attorney as ‘Curcio counsel’ to advise petitioner of Mr. Bronson’s potential conflict of interests. Before taking petitioner’s plea, the court conducted a hearing in which petitioner waived objection to potential conflicts.

In September 2005, Mr. Bronson was indicted for obstruction of justice and contempt of court in furtherance of a racketeering conspiracy. The indictment alleged that Mr. Bronson had told members of organized crime about people he believed to be cooperating, including Mr. Coppa.

After petitioner’s guilty plea, he was indicted for racketeering in another case. That indictment listed the marijuana offense to which petitioner had pleaded guilty as a predicate act of the racketeering conspiracy. In his § 2255 petition, petitioner asserted that Mr. Bronson and the government had told him that in exchange for his plea he would not face more charges.

As Judge Garaufis observed, Mr. Bronson’s dual representation presented no actual conflict. The acts charged against petitioner were separate from those charged against Mr. Coppa. Mr. Bronson did not represent Mr. Coppa in his cooperation and was apparently unaware of it. There was no nexus between the charges against Mr. Bronson and the charges or allocution in petitioner’s plea. As to Mr. Bronson’s alleged naming of informants, the purported conversation– which took place six months after Mr. Bronson’s representation of both petitioner and Mr. Coppa had ended–did not mention petitioner or suggest any conflict between Mr. Bronson’s interests and petitioner’s. Slip op. 12.

As the court also found, petitioner’s assertion that he was misled about the protections offered by the plea was implausible and inconsistent with the plea agreement and plea proceedings. Indeed, a clause in the plea agreement, initialed by petitioner, explicitly gave the government the right to use the marijuana conviction as a predicate act in a racketeering indictment. Slip op. 15-19.

Regarding any ‘apparent conflict,’ Judge Garaufis found a knowing and voluntary waiver, and the lack of actual prejudice.

Petitioner’s remaining claims, not based on the Sixth Amendment, were not only meritless, but also untimely and procedurally barred. Slip op. 33.

Death Penalty Notice

In United States v. McGriff, 04 CR 966 (S-5) (EDNY, April 13, 2006), Judge Block denied defendant’s motion to strike the government’s untimely death-penalty notice, but granted a continuance of the trial date.

Defendant McGriff was charged in a multidefendant indictment alleging acts of murder in aid of racketeering, 18 USC § 1959. On Jan. 26, 2006, a trial date was set for April 3, 2006. On March 22, 2006, the government gave five defendants notice of intent to seek the death penalty. The next day defendants jointly moved to strike the notices because they were not filed ‘a reasonable time before trial,’ as required by 18 USC § 3593(a). The court adjourned the trial date to April 17 to allow the parties to brief the motion. On April 4, the government withdrew the notices as to all defendants except Mr. McGriff, the sole movant here.

After analyzing the statutory framework in death penalty cases, and the tiered decision-making process by the U.S. attorney and attorney general, Judge Block turned to the somewhat conflicting case law relevant to the timeliness issue. Slip op. 14-22. The court then stated that its approach would be to

determine–based on the nature of the charges, the nature of the aggravating factors, and the time remaining before a firm trial date–whether the defendant has been given an objectively reasonable amount of time to prepare a death defense. If not, then the Court must determine the proper remedy–either striking the notice or granting a continuance–by considering the length of the delay [in filing the notice], the reasons for the delay, the defendant’s assertion of the right to a timely adjudication of the charges, and the prejudice suffered by the defendant because of the delay…. Slip op. 28.

Here, the notice 12 days before trial was not ‘objectively reasonable,’ especially considering the complexity of the charges and of the aggravating factors supporting the death penalty. The record, moreover, belied the government’s assertion that the April 3 date was not ‘firm.’

The proper remedy for the untimely notice was a severance and continuance. The average interval between death penalty eligibility and the filing of death-penalty notice is about eight months. The intervals in Mr. McGriff’s case, which involved two murders, were above average, a factor weighing slightly in his favor.

As to the reasons for the delay, Judge Block credited the government’s explanation that, during the interval between the murder charges and the meeting of the U.S. Attorney’s Death Penalty Committee on Jan. 12, 2006, there was an ongoing investigation into Mr. McGriff’s role. The superseding indictments corroborated the government’s explanation.

The court found Mr. McGriff responsible for a good portion of the time it took the U.S. attorney to recommend the death penalty to the attorney general. Mr. McGriff did not submit his mitigation memorandum until Dec. 9, 2005, almost 11 months after he was indicted. The Death Penalty Committee met just one month later. Mr. McGriff, however, bore no responsibility for the six weeks that elapsed before the U.S. attorney made her recommendation.

Only one month elapsed between that recommendation and the filing of the death-penalty notice on March 22, 2006. This delay was not too long given the gravity of the attorney general’s deliberations.

Mr. McGriff’s death penalty counsel made no demands on the government to speed up its decision-making process until Jan. 24, 2006, when he argued that any death-penalty notice would be untimely.

Judge Block concluded that a continuance would properly balance the competing interests, including prejudice to the defendant. Slip op. 33-34.

Deception by Bankruptcy Petition Preparer. In In re Tomlinson, 05 CV 4271 (EDNY, April 19, 2006), Judge Trager affirmed the decision of the Bankruptcy Court, which found that the debtor’s bankruptcy petition preparers violated § 110(i)(1) by committing fraudulent, unfair and deceptive acts in preparing Doreen Tomlinson’s petition. Judge Trager imposed damages and fees in accordance with the statute. Slip op. 20-28

As Judge Trager noted, the purpose of the statute is to remedy widespread fraud and unauthorized practice of law by nonattorneys who prepare bankruptcy documents for consumer debtors. Here the evidence showed unauthorized practice of law by the preparers in advising as to which debts could be included in the petition, in filling out the petition and in providing materials and information on the bankruptcy code and procedures. The preparers also falsely stated to Ms. Tomlinson that they were not giving legal advice when they were really doing so. Finally, there were three violations of the statute in hidden charges which exceeded both the advertised charges and charges represented to the debtor.

Medical Malpractice

In Hutchinson v. United States, 01 CV 1198 (EDNY, April 28, 2006), a medical malpractice case, Judge Glasser granted summary judgment for plaintiff on liability. Plaintiff’s mother, Freda Lewis, had been treated for ovarian cancer by the Brownsville Community Development Corp. d/b/a/Brownsville Multiservice Family Health Center (BMS). Mrs. Lewis first complained to medical personnel at BMS in May 1996 of symptoms connected with later-diagnosed ovarian cancer. Because of lack of follow up and communication between Mrs. Lewis and the medical staff, she was not diagnosed until April 1998. She had surgery and chemotherapy, but died in May 1999. Even the government’s expert agreed that defendants had deviated from standard medical practice, decreasing Mrs. Lewis’s chance of survival and contributing to her death.

Judge Glasser rejected the government’s statute of limitations defense: ‘Because Lewis was under the continuing care of the defendants, and it would be unreasonable to expect her to have discovered that Defendant’s negligence was contributing to her injury at the time, she is entitled to a tolling of the statute of limitations through the end of her treatment by Defendants in May of 1998.’ Slip op. 13-14.

As Judge Glasser found, plaintiff met the burden of showing that defendants had departed from accepted standards of medical care and that the departure substantially caused Mrs. Lewis’ injuries. Pointing to the government’s expert’s opinion, the court stated: ‘No reasonable interpretation of his preliminary report could conclude other than that his opinion is wholly consistent, on the factual questions that determine liability, with Plaintiff’s experts.’ Slip op. 15. Judge Glasser excluded defendants’ other expert because his report did not cover the relevant time period.

Whistleblower

Retaliatory Discharge. In Calabro v. Nassau University Medical Center, 04 CV 0094 (EDNY March 27, 2006), Judge Hurley denied defendant’s motion for summary judgment in a retaliatory discharge/whistle-blower action.

Plaintiff was nominally the sole Food Inspector for the defendant hospital, but his actual duties did not involve the inspection of food. Plaintiff complained to his superiors of unsanitary conditions he encountered while working on the loading dock. Nothing was done about his complaints.

In May 2003, defendant’s CEO asked supervisors to identify and eliminate positions that were ‘unnecessary/inappropriate.’ Defendant’s head of human resources identified plaintiff’s position of food inspector for elimination and, on June 19, the Civil Service Commission (CSC) responded that, ‘[s]hould the position be abolished, [plaintiff] would be laid off as he has no bump or retreat rights.’

Between human resource’s recommendation and the CSC’s response, plaintiff appeared on a local news broadcast. Asked why, as food inspector, he ‘was permitting food to pass through such an unsanitary loading dock,’ plaintiff told the reporter that ‘he had not been permitted to inspect food for years.’

Defendant argued that its identification of plaintiff’s position for elimination before the broadcast precluded plaintiff’s retaliatory discharge claim. As Judge Hurley noted, (1) the final decision to terminate plaintiff was made after the broadcast, and (2) defendant’s conduct in the course of discharging plaintiff suggests that animus toward him ‘because of his protected conduct was a motivating factor in his termination.’ Because a ‘factfinder is in the best position to evaluate’ defendant’s motives, summary judgment was denied. Slip op. at 11-12, 17.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the May 12, 2006, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]