MEDIA

February 13, 2004

On Inaffective Assistance of Counsel, ‘State Actor’ Under § 1983

Published in: New York Law Journal | volume 231
Written by: Peter R. Schlam and Harvey M. Stone

In the U.S. District Court for the Eastern District of New York, two decisions granted writs of habeas corpus for ineffective assistance of trial counsel in state court criminal proceedings. One, by Judge Frederic Block, dealt with counsel’s inexplicable failure to use a police officer’s complaint report in cross-examining a robbery victim. The other, by Judge Jack B. Weinstein, cited counsel’s failure to call expert witnesses to rebut claims of sodomy and sex abuse. Judge Arthur D. Spatt held that a particular attorney was not a "state actor" under § 1983. In another case Judge Spatt took steps to impose restrictions on a vexatious litigant.

Ineffective Assistance

Failure to Use Prior Inconsistent Statement. In Harris v. Senkowski, 96 CV 2231 (EDNY, Jan. 8, 2004), Judge Block held that trial counsel’s failure to confront a robbery victim with her initial description of her assailant to the police amounted to such "abject" and prejudicial ineffectiveness as to warrant habeas relief.

In 1991, Ms. Punu, an Asian female, was robbed outside of her home in Queens. Within 30 minutes Police Officer Clinton took her statement. According to Clinton’s complaint report, Punu described her assailant as a 20-year-old black man standing 5 feet 4 inches tall and weighing 130 pounds. The next evening two officers drove Ms. Punu around her neighborhood in search of the robber. After 45 minutes, Ms. Punu identified petitioner as he was walking on a street. Two reports relating to the arrest describe petitioner as 26 years old, 6 feet tall and 220 pounds.

Defense counsel made no issue of the stark discrepancy between the complaint report’s description of the robber and petitioner’s actual appearance. In cross-examining petitioner at trial, counsel did not ask about this discrepancy. Nor did he introduce the complaint report into evidence or call Officer Clinton to testify. Counsel did ask Ms. Punu if the police "wrote down" what she said after she identified petitioner. She responded that she did not recall.

The sole defense theory was mistaken identity. Counsel argued in summation that there were many other black males in the area of the robbery, that Ms. Punu was "tired" and "inattentive" at the time, and that the robbery occurred in the dark.

After deliberating only three hours, the jury found petitioner guilty. He was sentenced to a prison term of 15 years to life.

The case had a long and tortuous post-conviction procedural history. On direct appeal petitioner’s new lawyer did not raise the issue of ineffective assistance. There followed a series of pro se collateral attacks in state and federal court. Eventually, petitioner filed an amended federal petition focusing clearly on his "ineffective assistance" claims. Respondent chose not to assert any procedural bar, such as failure to exhaust. Judge Block conducted a habeas hearing in late 2003. Petitioner’s trial counsel testified, trying to offer strategic reasons for not using the complaint report to undermine Ms. Punu’s credibility. The attorney general, as respondent, argued that defense counsel’s strategy, viewed in context, was reasonable.

Judge Block, however, saw no strategy that could explain counsel’s failure to confront Ms. Punu at trial with her prior inconsistent statement given to police within 30 minutes of the robbery. Judge Block also found counsel’s strategic reasons–e.g., Ms. Punu was a "strong witness," he did not want to "badger" her in front of the jury–to be "ludicrous.’

As Judge Block observed, Ms. Punu’s testimony that she "could not recall" whether the police had written anything down "provided a perfect opportunity to confront her with the complaint report to jog her recollection or, if necessary, to call Officer Clinton to testify about what she had told him." Counsel could also "have introduced the complaint report into evidence as a business record." Slip op. 33.

Judge Block reflected on what would likely have occurred if counsel had confronted Ms. Punu with the description in the complaint report:

If she denied giving that description, all counsel need to have done to totally undermine her credibility would have been to place the report in evidence or call Officer Clinton to testify, who would have presumably confirmed the accuracy of his report. If, on the other hand, she admitted giving the inconsistent description but attempted to walk away from it by explaining that it was dark or that she did not have a good view of the assailant, the certainty of her subsequent description, upon which respondent relies in arguing that the evidence was overwhelming, would likewise have been totally undermined. (Slip op. 39-40.)

In light of the risks inherent in identification testimony, particularly cross-racial identifications, counsel’s errors left Judge Block with no confidence in the reliability of the verdict.

Failure to Call Expert Witnesses. In Gersten v. Senkowski, 02 CV 3973, 03 MISC 0066 (EDNY, Jan. 15, 2004), Judge Weinstein granted habeas in a child sex abuse case, where trial counsel had failed to consult with or call an expert medical witness and a psychologist to rebut the prosecution’s expert witnesses.

Petitioner was charged with repeatedly sodomizing and sexually abusing his daughter over several years, when she was between 10 and 13. The abuse allegedly began when she was five. The daughter gave detailed testimony at trial. She first reported the alleged abuse to her mother during an angry outburst after her parents’ divorce. Petitioner’s wife admitted that she had never before been aware of the sexual abuse even though it supposedly occurred in the room adjoining the marital bedroom.

The prosecution called a clinical psychologist to testify about Child Sexual Abuse Accommodation Syndrome. The prosecution’s examining physician testified that the colposcopic slides indicated penetrating trauma to the daughter’s hymen and tearing of the anus.

The daughter’s boyfriend testified that he never had intercourse with her, though they engaged in masturbation.

The defense called no witnesses.

After exhausting his state court remedies, petitioner filed his current federal application, alleging ineffective assistance. He attached affidavits from a pediatrician and a forensic psychologist. Each affidavit contradicted key findings of the prosecution’s experts.

Following an evidentiary hearing, Judge Weinstein found trial counsel’s performance to be constitutionally deficient in several respects. The worst error was the failure to conduct an adequate pretrial investigation into critical medical evidence. Had counsel consulted a medical expert, he could "likely" have presented expert testimony rebutting the prosecution’s medical expert. Slip op. 26. Indeed, the medical expert’s affidavit submitted with the petition concluded that none of the evidence is suggestive of "penetrating trauma.’

In Judge Weinstein’s view, no reasonable trial strategy justified counsel’s deficiency, which was highly prejudicial. By calling his own expert, counsel could have presented an additional defense–that no penetrating sexual activity had ever occurred–without undermining the defense strategy of attributing the prosecution’s medical findings to the daughter’s relationship with her boyfriend. Such a defense expert would also have damaged the daughter’s credibility.

Judge Weinstein similarly faulted the defense for not calling a psychologist to dispute the prosecution’s expert on "Accommodation Syndrome." Slip op. 29- 30.

State Actor

Section 1983 Claims. In Hom v. The Honorable Lawrence Brennan, J.F.C., 03 CV 2198 (EDNY, Jan. 29, 2004), Judge Spatt dismissed § 1983 claims against defendant Lois Grossman, supervising attorney with the Nassau-Suffolk Law Services Committee, on the ground that she was not a "state actor.’

Plaintiff, pro se, originally commenced an action in Supreme Court, Nassau County, against two Family Court judges, the supervising law clerk at the Family Court, Governor George E. Pataki and Ms. Grossman, alleging that defendants’ actions in Family Court litigation against his former spouse violated § 1983. All defendants other than Ms. Grossman had moved to dismiss the complaint in Supreme Court prior to removal to federal court, but that motion was never filed in the Eastern District of New York and could not be considered by Judge Spatt.

In the complaint, plaintiff asserted that Ms. Grossman, who represented plaintiff’s spouse, had submitted a case status report that contained allegedly incorrect information regarding an incarceration proceeding, and as a result plaintiff spent one night in jail. Plaintiff also accused Ms. Grossman of giving two boxes of donuts to an unnamed person in the law department office in exchange for a document which the plaintiff contended was his order to show cause. Plaintiff provided no specifics for his theory of Ms. Grossman’s liability.

Judge Spatt held that, as a supervising attorney with the Nassau-Suffolk Law Services, Ms. Grossman was not a state actor for purposes of § 1983, and she could be subjected to a § 1983 action only if she conspired with or willfully engaged in joint activity with the state or its agents. A claim against a private person on a § 1983 conspiracy theory must include facts demonstrating that she acted in concert with the state actor to commit an unconstitutional act. Judge Spatt concluded:

Here, the plaintiff fails to allege with particularity what the alleged conspiracy is, the purpose of the conspiracy, who was involved in the conspiracy, the existence of an act in furtherance of the conspiracy, or that he was injured as a result of the conspiracy. Slip op. 9.

Judge Spatt also denied as futile plaintiff’s six separate motions for leave to file supplemental pleadings and/or add additional defendants. Of those motions, one sought to add as a defendant the third Family Court judge assigned to plaintiff’s proceedings. Judge Spatt denied that motion based on the absolute judicial immunity afforded to judges. Denying as well plaintiff’s motions to add proposed supplemental claims seeking federal review of state court orders, Judge Spatt cited the Rooker-Feldman doctrine, which provides that a federal district court lacks subject matter jurisdiction to decide such claims. Additionally, plaintiff unsuccessfully sought to assert federal charges under 18 USC § § 241 and 371. Neither statute, Judge Spatt noted, provides a private right of action.

Vexatious Litigant

In Iwachiw v. The New York State Department of Motor Vehicles, 02 CV 6699 (EDNY, Jan. 23, 2004), Judge Spatt directed plaintiff to show cause why he should not be enjoined from bringing any future proceedings and filing any papers in any pending action in the U.S. District Court for the Eastern District of New York without prior permission from the court.

In the underlying pro se complaint, which the court dismissed in its entirety, plaintiff named as defendants The New York State Department of Motor Vehicles, New York State, New York City, NYC Parking Violations Bureau, NYC Department of Finance, NYC Mayor’s Office on Disabilities, Marshal Catherine Stringer, NYC Marshal, Martinez 131-10 Auto Corp, Diana Martinez, Diamond Towing, Governor Pataki, Mayor Michael Bloomberg, Kemper Insurance companies, Kemper Auto & Home Insurance Company, Kemper Independence Insurance Company, Lumbermans Mutual Casualty Co., and American Motorists Insurance Co. In addition, plaintiff had filed more than 15 actions in the federal and New York State courts, including 10 in the Eastern District of New York.

Judge Spatt gave plaintiff the required notice and opportunity to be heard as to why:

an order should not be issued enjoining him from bringing any future proceedings in the Eastern District of New York without prior permission of the Court and (2) why an order should not be issued enjoining him from filing any papers in connection with any other case pending in the Eastern District of New York, unless prior to any such submission: (A) he files a one-page written application to the Court for permission to file papers in this case; (B) in that one-page written application, he explains why he seeks permission to file such papers; (C) the Court grants his application in a written order; and (D) he submits a copy of the Court’s order granting him permission to file papers with the papers he has been allowed to file, unless such papers are in response to those submitted by his adversary; Slip op. 16.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the February 13, 2004, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]