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Ineffective Assistance Of Counsel - Defined and Discussed!

Bad Lawyers, Attorney Misconduct And Ineffective Assistance Are Rampant In Our Justice System

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That will help bring you up to date on ineffective assistance of counsel

A brief definition

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.  Strickland v. Washington, 466 US 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984)

...and now the Rhode Island definition:

The law requires a "strong presumption" that a lawyer's conduct falls within the "wide range" of professional assistance.  In Rhode Island the standard is whether a lawyer's representation was so lacking that the trial had become a farce and a mockery of justice," - Judge Gale Prov. Journal 5-10-2006


First some "creative interpretations" of ineffective assistance...

A 1993 issue of The American Lawyer included the following collection of excerpts from rulings on appeals by clients on the grounds of "ineffective assistance” by their legal counsel.

NOT INCOMPETENT ENOUGH TO REQUIRE REVERSAL:

"Although defense counsel slept during portions of the trial, counsel provided defendant meaningful representation.”
"Proof of a defense counsel’s use of narcotics during trial does not amount to a per se violation of constitutional right to effective counsel.”

"Murder defendant was not deprived of effective assistance of counsel, though counsel was alcoholic.”

"Counsel’s … seeming indifference to defendant’s attire . . . through defendant was wearing same sweatshirt and footwear in court that he wore on the day of crime, did not constitute ineffective assistance.”

INCOMPETENT ENOUGH TO REQUIRE REVERSAL:

"Defense counsel’s closing argument that . . . admitted client’s guilt without client’s consent and argued . . . that permissive society in general, and television and rock music in particular, produced nihilistic attitudes in young people so that society should be held responsible for defendant’s conduct, constituted prejudicial ineffective assistance of counsel.”
"Counsel was himself under indictment on unrelated cocaine charges and repeatedly informed prospective jurors of that fact during voir dire.”

"Suggesting that if defendant had testified, he would have lied . . . constituted ineffective assistance of counsel.”

"[It was ineffective assistance when defense counsel failed] to challenge any prospective juror, either preemptory or for cause, with result that nine of twelve jurors had friends or relatives on various police force.”

Caught also provides the following cases where ineffective assistance and related issues are discussed: We start with Strickland v Washington and follow with SANTOS v. GREINER. Also see Wiggins v. Smith then list cases that were successful in proving ineffective assistance.

Strickland v. Washington 466 U.S. 668 (1984)

Strickland pled guilty to three counts of murder and several other charges. He was sentenced to death after a hearing before a judge. He then challenged the sentence on the ground that his attorney provided constitutionally inadequate representation at the sentencing proceeding. In the course of rejecting his claim, the Court set out standards for adjudicating ineffective assistance of counsel claims.]

II

In a long line of cases that includes Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), and Gideon v. Wainwright, 372 U.S. 335 (1963), this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Thus, a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the "ample opportunity to meet the case of the prosecution" to which they are entitled.

Because of the vital importance of counsel's assistance, this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained. That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

For that reason, the Court has recognized that "the right to counsel is the right to the effective assistance of counsel." Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. See, e.g., Geders v. United States, 425 U.S. 80 (1976) (bar on attorney-client consultation during overnight recess); Herring v. New York, 422 U.S. 853 (1975) (bar on summation at bench trial); Brooks v. Tennessee, 406 U.S. 605 (1972) (requirement that defendant be first defense witness); Ferguson v. Georgia, 365 U.S. 570 (1961) (bar on direct examination of defendant). Counsel, however, can also deprive a defendant of the right to effective assistance, simply by failing to render "adequate legal assistance," Cuyler v. Sullivan, 446 U.S., at 344 (actual conflict of interest adversely affecting lawyer's performance renders assistance ineffective).

The Court has not elaborated on the meaning of the constitutional requirement of effective assistance in the latter class of cases--that is, those presenting claims of "actual ineffectiveness." In giving meaning to the requirement, however, we must take its purpose--to ensure a fair trial--as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

The same principle applies to a capital sentencing proceeding such as that provided by Florida law. We need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and standardless discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance. A capital sentencing proceeding like the one involved in this case, however, is sufficiently like a trial in its adversarial format and in the existence of standards for decision, see Barclay v. Florida, 463 U.S. 939, 952-954 (1983); Bullington v. Missouri, 451 U.S. 430 (1981), that counsel's role in the proceeding is comparable to counsel's role at trial--to ensure that the adversarial testing process works to produce a just result under the standards governing decision. For purposes of describing counsel's duties, therefore, Florida's capital sentencing proceeding need not be distinguished from an ordinary trial.

III

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

A

As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. The Court indirectly recognized as much when it stated in McMann v. Richardson, 397 U.S., at 770, 771, that a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not "a reasonably competent attorney" and the advice was not "within the range of competence demanded of attorneys in criminal cases." When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.

More specific guidelines are not appropriate. The Sixth Amendment refers simply to "counsel," not specifying particular requirements of effective assistance. It relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.

Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.

These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4- 1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function"), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).

The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.

Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.

B

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.

One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed.Rule Crim.Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."

Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Respondent suggests requiring a showing that the errors "impaired the presentation of the defense." That standard, however, provides no workable principle. Since any error, if it is indeed an error, "impairs" the presentation of the defense, the proposed standard is inadequate because it provides no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.

On the other hand, we believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profound importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence. Nevertheless, the standard is not quite appropriate.

Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.

Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, "nullification," and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel's selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge's sentencing practices, should not be considered in the prejudice determination.

The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel's errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.

In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

IV

A number of practical considerations are important for the application of the standards we have outlined. Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results. . . .

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

* * *

Justice MARSHALL, dissenting.

* * *

The opinion of the Court revolves around two holdings. First, the majority ties the constitutional minima of attorney performance to a simple "standard of reasonableness." Second, the majority holds that only an error of counsel that has sufficient impact on a trial to "undermine confidence in the outcome" is grounds for overturning a conviction. I disagree with both of these rulings.

A

My objection to the performance standard adopted by the Court is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave "reasonably" and must act like "a reasonably competent attorney," is to tell them almost nothing. In essence, the majority has instructed judges called upon to assess claims of ineffective assistance of counsel to advert to their own intuitions regarding what constitutes "professional" representation, and has discouraged them from trying to develop more detailed standards governing the performance of defense counsel. In my view, the Court has thereby not only abdicated its own responsibility to interpret the Constitution, but also impaired the ability of the lower courts to exercise theirs.

The debilitating ambiguity of an "objective standard of reasonableness" in this context is illustrated by the majority's failure to address important issues concerning the quality of representation mandated by the Constitution. It is an unfortunate but undeniable fact that a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case. Is a "reasonably competent attorney" a reasonably competent adequately paid retained lawyer or a reasonably competent appointed attorney? It is also a fact that the quality of representation available to ordinary defendants in different parts of the country varies significantly. Should the standard of performance mandated by the Sixth Amendment vary by locale The majority offers no clues as to the proper responses to these questions.

The majority defends its refusal to adopt more specific standards primarily on the ground that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." I agree that counsel must be afforded "wide latitude" when making "tactical decisions" regarding trial strategy, but many aspects of the job of a criminal defense attorney are more amenable to judicial oversight. For example, much of the work involved in preparing for a trial, applying for bail, conferring with one's client, making timely objections to significant, arguably erroneous rulings of the trial judge, and filing a notice of appeal if there are colorable grounds therefor could profitably be made the subject of uniform standards.

The opinion of the Court of Appeals in this case represents one sound attempt to develop particularized standards designed to ensure that all defendants receive effective legal assistance. . . . By refusing to address the merits of these proposals, and indeed suggesting that no such effort is worthwhile, the opinion of the Court, I fear, will stunt the development of constitutional doctrine in this area.

B

I object to the prejudice standard adopted by the Court for two independent reasons. First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government's evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel. In view of all these impediments to a fair evaluation of the probability that the outcome of a trial was affected by ineffectiveness of counsel, it seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice.

Second and more fundamentally, the assumption on which the Court's holding rests is that the only purpose of the constitutional guarantee of effective assistance of counsel is to reduce the chance that innocent persons will be convicted. In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair procedures. The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process.

In Chapman v. California, 386 U.S. 18 (1967), we acknowledged that certain constitutional rights are "so basic to a fair trial that their infraction can never be treated as harmless error." Among these rights is the right to the assistance of counsel at trial. In my view, the right to effective assistance of counsel is entailed by the right to counsel, and abridgment of the former is equivalent to abridgment of the latter. I would thus hold that a showing that the performance of a defendant's lawyer departed from constitutionally prescribed standards requires a new trial regardless of whether the defendant suffered demonstrable prejudice thereby.

II

Even if I were inclined to join the majority's two central holdings, I could not abide the manner in which the majority elaborates upon its rulings. Particularly regrettable are the majority's discussion of the "presumption" of reasonableness to be accorded lawyers' decisions and its attempt to prejudge the merits of claims previously rejected by lower courts using different legal standards.

A

In defining the standard of attorney performance required by the Constitution, the majority appropriately notes that many problems confronting criminal defense attorneys admit of "a range of legitimate" responses. And the majority properly cautions courts, when reviewing a lawyer's selection amongst a set of options, to avoid the hubris of hindsight. The majority goes on, however, to suggest that reviewing courts should "indulge a strong presumption that counsel's conduct" was constitutionally acceptable, and should "appl[y] a heavy measure of deference to counsel's judgments,"

I am not sure what these phrases mean, and I doubt that they will be self-explanatory to lower courts. If they denote nothing more than that a defendant claiming he was denied effective assistance of counsel has the burden of proof, I would agree. But the adjectives "strong" and "heavy" might be read as imposing upon defendants an unusually weighty burden of persuasion. If that is the majority's intent, I must respectfully dissent. The range of acceptable behavior defined by "prevailing professional norms," seems to me sufficiently broad to allow defense counsel the flexibility they need in responding to novel problems of trial strategy. To afford attorneys more latitude, by "strongly presuming" that their behavior will fall within the zone of reasonableness, is covertly to legitimate convictions and sentences obtained on the basis of incompetent conduct by defense counsel.

The only justification the majority itself provides for its proposed presumption is that undue receptivity to claims of ineffective assistance of counsel would encourage too many defendants to raise such claims and thereby would clog the courts with frivolous suits and "dampen the ardor" of defense counsel. I have more confidence than the majority in the ability of state and federal courts expeditiously to dispose of meritless arguments and to ensure that responsible, innovative lawyering is not inhibited. In my view, little will be gained and much may be lost by instructing the lower courts to proceed on the assumption that a defendant's challenge to his lawyer's performance will be insubstantial.


SANTOS v. GREINER

New York Law Journal
September 30, 1999

SOUTHERN DISTRICT


Judge Peck

SANTOS v. GREINER QDS:02761643 Petitioner Jose Santos was convicted of rape, sodomy, sexual abuse and assault of his wife, Betzabet Gonzalez, on May 9, 1995. Santos, represented by counsel, seeks a writ of habeas corpus, alleging that (1) his due process right under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), was violated because the prosecutor failed to disclose evidence that Gonzalez recanted her grand jury testimony before trial and urged the prosecutor to drop the charges (Pet. ¶¶18-22); (2) he was denied effective assistance of counsel at trial (Pet. ¶23); and (3) the trial court's admission of Gonzalez's out-of-court statements under the "prompt outcry" hearsay exception violated his Sixth Amendment confrontation rights (Pet. ¶23).

The parties consented to disposition of this matter by a Magistrate Judge pursuant to 28 U.S.C. §636(c). (Dkt. No. 10.)

For the reasons set forth below, the petition is denied as without merit.

Facts

Jose Santos married Betzabet Gonzalez in March 1994 when both were in their mid-30s. (Tr. 130, 132, 287.) Gonzalez, a Venezuela-born immigrant, worked as a home attendant. (Tr. 130, 132.) Santos took classes at Bronx Community College and gave guitar lessons. (Tr. 288.) Their marriage, however, was stormy, with many arguments after which Santos would move out to stay with his mother. (Tr. 187, 190-92, 240, 289-91, 308-09.) Both Santos and Gonzalez testified that until the May 9, 1995 incident that resulted in Santos's conviction, he had never struck Gonzalez. (Tr. 143, 291.)

According to Gonzalez: on the evening of Friday, May 5, 1995, she declined to have sex with Santos because her two young sons were in the room. (Tr. 133-34, 193-94.) The next day, Santos told Gonzalez that he no longer wanted to live with her, that she "was not the type of woman who would satisfy him in any sense," and that he wanted a divorce. (Tr. 134-35, 226.) Santos gave Gonzalez his keys to the apartment and moved his things out. (Tr. 135-36, 194.) Santos, however, called Gonzalez repeatedly over the next two days. (Tr. 136-37.) Gonzalez unplugged the telephone on the evening of Monday, May 8, 1995. (Tr. 137.) That night she also realized that Santos had left behind an identification card and a document from the college he was attending. (Tr. 138, 195.)

Santos testified to a different reason for his leaving Gonzalez: Santos testified that on Saturday, May 6, 1995, Gonzalez "tricked me into taking her to the airport to" pick up her friend Beverly Carabaio and "hide her out in a hotel in New Jersey." (Tr. 293.) Santos did not approve of Carabaio because he suspected she was involved in criminal activity. (Tr. 293.) Santos also testified that he had consensual sex with Gonzalez on Sunday, May 7, 1995. (Tr. 294.) Santos became angry when Gonzalez came home late that night, packed his things, gave her his keys and vowed to seek a divorce. (Tr. 294, 312.)

The May 9, 1995 Attack

Gonzalez's Version

On Tuesday morning, May 9, 1995, Gonzalez's children left for school at "about 7:35 or 7:40." (Tr. 139.) Ten minutes later, Santos rang the doorbell and Gonzalez let him in "[b]ecause [she] thought he was coming to pick up the papers that he had left behind." (Tr. 140- 41.) Gonzalez testified that Santos "looked strange, like as if he had not slept all night." (Tr. 141.) Santos asked Gonzalez where she was Monday night; when she said she was home but had not returned his calls because she did not want to talk to him, he became violent, pushing her from behind. (Tr. 141-42.)

According to Gonzalez: "He grabbed me by the neck and began saying to me that I would have to learn how to respect him, because he was my husband and that I had to do whatever he said, that this thing of mine of doing whatever I wanted was going to come to an end, and he continued to squeeze my neck." (Tr 142.) Gonzalez smelled alcohol on Santos's breath. (Tr. 144.) As Gonzalez attempted to fight Santos off, he pushed her to the floor, "[a]nd when I fell, my leg bent backwards and when I fell to the floor, I felt a horrible pain and I began to cry. ... I felt a terrible pain at the bone on my ankle." (Tr. 143, 145.) Santos threw himself on top of Jose Santos Gonzalez on the floor but she pushed him and "he got up and went to the kitchen." (Tr. 145-46.) Santos returned from the kitchen with a large knife and said he was going to kill Gonzalez. (Tr. 147-49.) As Gonzalez was crying, Santos — knife in hand — continued to talk about killing her and killing himself, and Santos went to the living room and started drinking rum from the bottle. (Tr. 149-51.) "He walked like a madman, back and forth, back and forth," still holding the knife. (Tr. 151-52.) Finally, Gonzalez managed to raise herself up from the floor onto the edge of the bed. (Tr. 152-53.)

Santos pushed Gonzalez back onto the bed, forced her clothes off "very violently," and then took his own clothes off. (Tr. 153-55, 206-08.) Santos put his mouth on Gonzalez's breasts, performed oral sex on her and then raped her. (Tr. 155-59, 199.) After the rape concluded, Santos said he was going to kill Gonzalez and plunged the knife into the bed as Gonzalez moved out of the way. (Tr. 159-60, 203, 212-13.)

Gonzalez told Santos that if he took her to the hospital, she would not "tell them" what he had done to her. (Tr. 162-63.) Eventually, Santos called an ambulance, which took Gonzalez to the hospital to treat her injured leg. (Tr. 168-70, 213.) Because Santos was with her, Gonzalez told the ambulance crew that she fell down the stairs. (Tr. 169.)

Santos's Version

Santos disputed Gonzalez's account. Santos testified that on the morning of May 9, 1995, Gonzalez asked him to come in when he arrived to pick up his papers. (Tr. 295.) Gonzalez came at him with a knife from the kitchen, but she "stepped over a shoe at the entrance of the room and she slipped towards me. ... I grabbed her by the hand and I threw her over the bed. When I threw her on the bed, the knife buried itself in the mattress, and then I took the opportunity to take it away." (Tr. 296; see also Tr. 325-27, 331.) Because Santos saw that her foot was swollen, he called an ambulance to take her to the hospital. (Tr. 296-300, 322-24, 331.)

Gonzalez's Statements at the Hospital

When the couple arrived at Columbia Presbyterian Hospital, Gonzalez called a friend, America Martinez, who was not home, so she asked Martinez's daughter to call Martinez at work to ask her to come to the hospital. (Tr. 171-72, 219-20.) Martinez arrived, asked what happened, and Gonzalez said she would tell her later, because Santos was there. (Tr. 172-73, 222-24.) Gonzalez testified about her statement to a social worker and to Martinez:

Q. ... Did you speak to the social worker who came down?

A. Yes.

Q. Was anybody with you when you spoke to the social worker?

A. No.

. . .

Q. Did you tell the social worker that the defendant had pushed you onto the floor?

MR. PAISLEY [defense counsel]: Objection.

THE COURT: Overruled.

A. Yes.

Q. And that he raped you?

A. Yes.

MR. PAISLEY: Hearsay, Judge. Objection.

THE COURT: Overruled.

Q. And after you saw the social worker, did you tell Ms. Martinez also what had happened?

A. Yes.

Q. And did you tell Ms. Martinez that the defendant had raped you?

A. Yes.

(Tr. 174-75.) Defense counsel did not object when the prosecutor asked Gonzalez whether she had told Martinez that Santos had raped her. (Tr. 175.)

Outside the jury's presence, the trial judge explained that the defense's "objections were overruled on the grounds they are prompt outcries, which are exceptions to the hearsay rule." (Tr. 180.)

Later in the trial, Martinez testified, corroborating Gonzalez's testimony: "[Gonzalez] told me that [Santos] had hit her and had raped her and pushed her on the floor." (Tr. 237.) Defense counsel did not object to this testimony. (Tr. 237.)

Gonzalez's Testimony About Her Call to Santos's Defense Counsel

On cross-examination, defense counsel brought out that Gonzalez had called him and indicated that she did not want to send Santos to jail:

Q. Do you still love [Santos]?

A. Yes.

Q. Didn't you call me once?

A. Yes.

Q. And tell me that you didn't want to see him go to jail?

A. Yes.

Q. Have you made an attempt to drop the charges, yes or no?

A. No.

(Tr. 227.) Defense counsel did not follow up further on this topic. (Tr. 227-28.)

On re-direct, the State had Gonzalez explain her phone call to defense counsel:

Q. Did you call [defense counsel] Mr. Paisley on the telephone once?

A. Yes.

Q. Would you tell us why?

A. Because Jose's mother would call me a lot and she went to my house and she told me, crying, to please drop the charges against Jose, to do it for her, that he had — he was very remorseful, that he was changing and that he would never do that to me again. And so I told her that I would speak to the District Attorney to see what we can do about it. She told me, "This is Jose's attorney's phone number. Call him and see what he can tell you about dropping the charges against Jose."

(Tr. 230.) Defense counsel did not pursue the matter further. (Tr. 230.)

The Verdict and Sentencing

The jury found Santos guilty of first degree rape, sodomy and sexual abuse and second degree assault. (Tr. 420-24.) On December 20, 1995, the trial court sentenced Santos to ten to twenty years imprisonment on the rape charge and lesser concurrent sentences on the other charges. (12/20/95 Sentence Tr. at 12-13.)

Santos's Direct Appeal

Santos appealed to the First Department, arguing that the trial court erroneously admitted Gonzalez's hearsay testimony (Aff. of ADA Tiffany Foo, Ex. 6: Santos 1st Dep't Br. at 20-28), and that his sentence should be reduced in the interest of justice (id. at 29-34).

The First Department held that the trial court had not abused its sentencing discretion and that Gonzalez's statements were properly admitted under the prompt outcry hearsay exception "since they were made at the first suitable opportunity and because only the fact of a complaint was elicited. ... Moreover, the seriatim outcries to two different listeners were admissible since they were both prompt under the circumstances." People v. Santos, 243 A.D.2d 276, 276, 662 N.Y.S.2d 318, 318 (1st Dep't 1997).

Santos applied for leave to appeal to the New York Court of Appeals, asserting "one narrow issue," whether "the hearsay testimony of the complaining witness ... [was] correctly admitted as 'prompt outcry' testimony." (Foo Aff. Ex. 8: 11/21/97 Leave to Appeal Letter.) The New York Court of Appeals denied leave to appeal on December 1, 1997. People v. Santos, 91 N.Y.2d 880, 668 N.Y.S.2d 578 (1997).

Santos's First CPL §440.10 Motion

On May 30, 1996, Santos moved to vacate the judgment pursuant to CPL §440.10, arguing that: the prosecutor withheld evidence that Gonzalez had recanted her grand jury testimony; Santos had received ineffective assistance of trial counsel for counsel's failure to advise the court that Gonzalez had recanted; and prosecutorial misconduct causing Gonzalez to commit perjury and not recant. (Pet. Ex. C: Santos's 5/30/96 CPL §440.10 Motion, Santos Aff. ¶¶1, 4-5.) Santos attached to his motion a May 28, 1996 affidavit from Gonzalez stating that Santos had not raped her:

1. That on May 9, 1995, I consented to have sexual intercourse with my husband.

2. That on May 9, 1995, there was not penetration oral or anal or intent to do so.

3. That on May 9, 1995, there was not physical abuse.

4. That the fracture I suffered in my ankle on May 9, 1995, was accidental.

5. That I contacted defense counsel before trial, and I informed him that I wanted to withdraw the charges against my husband. Defense counsel informed me that in order to withdraw the charges it has to be done through the prosecutrix.

6. I contacted the prosecutrix to withdraw the charges. The prosecutrix informed me that it was too late to withdraw the charges and that this case have [sic] to be prosecuted. I agree [sic] to testify at trial, because I never thought the sentence would be too harsh.

(Pet. Exs. C & K: Gonzalez 5/28/96 Aff.)

On August 5, 1996, the trial court denied the motion, finding that: Gonzalez's affidavit was unreliable; its content was inconsistent with Santos's trial testimony that he did not have sex with Gonzalez at all on May 9, 1995; the prosecutorial misconduct and ineffective assistance of counsel claims were without merit; and "nowhere in her affidavit does [Gonzalez] state that she told either lawyer that the charges against the defendant were untrue." (Pet. Ex. I: 8/5/96 Opinion at 1-2.) Santos did not appeal this decision to the First Department. (See Foo Aff. Ex. 5: 7/10/97 DA Letter to 1st Dep't at 2.)

Santos's Second CPL §440.10 Motion

Santos filed his second CPL §440.10 motion on December 17, 1996, reiterating his prosecutorial misconduct and ineffective assistance claims. (Pet. Ex. D: Santos 12/17/96 CPL §440.10 Motion Papers at 4.) Santos based his renewal of the motion on Gonzalez's poor command of English and his own legal inability. (Id. at 4, 9-10.) The second Gonzalez affidavit, dated December 12, 1996, claimed that she started the physical altercation on May 9, 1995, but stopped short of stating that the sex was voluntary, saying Santos "had sex with me and though I was telling him to stop I have never denied sex to my husband." (Pet. Ex. L: 12/12/96 Gonzalez Aff. ¶¶3-4.)1/ Gonzalez also stated that that she told the prosecutor that her "complaint wasn't really true," but that the prosecutor forced her to testify:

[The prosecutor] told me I could go to jail for filing a false report. I repeated that Jose, my husband, didn't really rape me, and she became upset and told me that if I didn't stick to the original story I would be put in prison and my children would be taken away. I began to cry and she told me to be strong. That everything would be okay, and my husband would be home within six months anyway. She said that the six months would do him some good and teach him to respect a good woman like myself. (Pet. Ex. L: 12/12/96 Gonzalez Aff. ¶7.)

On June 3, 1997, the trial court denied Santos's second CPL §440.10 motion, pursuant to CPL §440.10(3)(c), because Santos's prior motion raised the same ground. (Pet. Ex. I: 6/3/97 Opinion at 2-3.) The trial court also found the motion to be without merit, because Gonzalez's affidavit showed that Santos had sex with her over her objection, and because "the recantation of a victim of domestic violence is particularly unreliable." (Id. at 3.)

Santos sought leave to appeal to the First Department. (Foo Aff. Ex. 5: 7/10/97 DA Letter to 1st Dep't at 2-3.) The First Department denied leave to appeal in July 1997. (Pet. Ex. J: 7/97 1st Dep't Certificate Denying Leave to Appeal.)

Santos's Federal Habeas Corpus Petition

Santos's present federal habeas corpus petition, in which he is represented by counsel, raises three grounds: (1) his due process rights under Brady v. Maryland were infringed because the prosecutor failed to disclose evidence that Gonzalez recanted her grand jury testimony before trial (Pet. ¶¶18-22); (2) he was denied effective assistance of trial counsel by his lawyer's failure to investigate and bring to the trial judge's notice Gonzalez's recantation, and by counsel's failure to request a jury charge regarding intoxication (Pet. ¶23); and (3) the trial court's admission of Gonzalez's statements at the hospital under the prompt outcry hearsay exception violated his Sixth Amendment confrontation rights (Pet. ¶23).

ANALYSIS

I. THE STATE DID NOT VIOLATE ITS BRADY OBLIGATIONS SINCE SANTOS'S ATTORNEY WAS AWARE OF GONZALEZ'S ALLEGED RECANTATION BEFORE TRIAL

Under Brady v. Maryland and its progeny, state as well as federal prosecutors must turn over exculpatory and impeachment evidence, whether or not requested by the defense, where the evidence is material to guilt or to punishment. See, e.g., Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999); United States v. Bagley, 473 U.S. 667, 676, 682, 105 S. Ct. 3375, 3380, 3383-84 (1985); United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963); Franza v. Stinson, 98 Civ. 5484, 1999 WL 495902 at *28 & n.9 (S.D.N.Y. June 30, 1999) (Kaplan, D.J. & Peck, M.J.). In order to demonstrate a Brady violation, a defendant must make a three-part showing. As the Supreme Court recently stated: "There are three essential components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 119 S. Ct. at 1948; see also, e.g., Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568 (1972); United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995), cert. denied, 516 U.S. 1165, 116 S. Ct. 1056 (1996); Orena v. United States, 956 F. Supp. 1071, 1090-92 (E.D.N.Y. 1997) (Weinstein, D.J.); Franza v. Stinson, 1999 WL 495902 at *28-29 & n.9.

Santos's Brady claim fails because he has failed to show that the prosecution suppressed, either willfully or inadvertently, evidence of Gonzalez's alleged recantation of her rape claim. Both Gonzalez affidavits presented on Santos's CPL §440.10 motions unambiguously state that Gonzalez notified Santos's lawyer before trial that she wanted to withdraw the charges against Santos and that her complaint was untrue. (Pet. Ex. K: 5/28/96 Gonzalez Aff. ¶5; Pet. Ex. L: 12/17/96 Gonzalez Aff. ¶7.) Indeed, defense counsel cross-examined Gonzalez at trial regarding her telephone call to him in which she stated that she did not want to see Santos go to jail. (Tr. 227, quoted at page 7 above.) The record is clear, therefore, that the defense knew of Gonzalez's supposed desire to recant.

When a defendant is actually aware of the existence of exculpatory evidence, or should be aware of such evidence, the prosecution does not violate due process by not disclosing the evidence to the defendant. "Evidence, even if material and exculpatory, is not 'suppressed,' and thus no Brady violation '"occurs if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence."'" Montemarano v. United States, No. 95-2314, 89 F.3d 826 (table), 1995 WL 722208 at *2 (2d Cir. Dec. 1, 1995); see also, e.g., United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993); United States v. Diaz, 922 F.2d 998,1007 (2d Cir. 1990) ("[T]here is no improper suppression within the meaning of Brady where the facts are already known by the defendant."), cert. denied, 500 U.S. 925, 111 S. Ct. 2035 (1991); United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988), cert. denied, 488 U.S. 1040, 109 S. Ct. 864 (1989); United States v. Gaggi, 811 F.2d 47, 59 (2d Cir.), cert. denied, 482 U.S. 929, 107 S. Ct. 3214 (1987); United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103 S. Ct. 823 (1983); United States v. Robinson, 560 F.2d 507, 518 (2d Cir. 1977) (en banc), cert. denied, 435 U.S. 905, 98 S. Ct. 1451 (1978); United States v. Stewart, 513 F.2d 957, 960 (2d Cir. 1975); Harris v. United States, 9 F. Supp. 2d 246, 275-76 (S.D.N.Y. 1998); United States v. Germosa, 95 CR. 486, 1998 WL 152571 at *9-10 (S.D.N.Y. April 2, 1998); Nieves v. Kelly, 990 F. Supp 255, 266 (S.D.N.Y. 1997) (Cote, D.J. & Peck, M.J.); Anderson v. Kelly, No. CV 91-1354, 1992 WL 175665 at *3 (E.D.N.Y. July 14, 1992); United States v. McGuinness, 764 F. Supp. 888, 896 (S.D.N.Y. 1991).

Since Santos's defense counsel was fully aware of Gonzalez's supposed desire to recant, there is no Brady violation. Santos's Brady claim is denied.

II. SANTOS'S TRIAL COUNSEL WAS NOT INEFFECTIVE UNDER THE STRICKLAND v. WASHINGTON TEST

A. The Strickland v. Washington Standard

The Supreme Court has announced a two-part test to determine if counsel's assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S. Ct. at 2064.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Id. at 689, 104 S. Ct. at 2065; accord, e.g., Franza v. Stinson, 98 Civ. 5484, 1999 WL 495902 at *7 (S.D.N.Y. June 30, 1999) (Kaplan, D.J. & Peck, M.J.); Torres v. Irvin, 33 F. Supp. 2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. & Peck, M.J.).

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.

In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

Id. at 695-96, 104 S. Ct. at 2069; see also, e.g., DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S. Ct. 83 (1996); Franza v. Stinson, 1999 WL 495902 at *8; Torres v. Irvin, 33 F. Supp. 2d at 277.

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id. The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697, 104 S. Ct. at 2069; accord, e.g., Franza v. Stinson, 1999 WL 495902 at *8; Torres v. Irvin, 33 F. Supp. 2d at 277.

In addition, the Supreme Court also has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066; accord, e.g., Franza v. Stinson, 1999 WL 495902 at *8; see also, e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices."), cert. denied, 513 U.S. 820, 115 S. Ct. 81 (1994).

B. Application of the Strickland Standard to Santos's Claims

Santos alleges that three decisions by his trial lawyer constituted ineffective assistance of counsel. (Santos Br. at 6). Two of Santos's claims are interconnected and appear contradictory: Santos argues that his attorney fell short both by (1) failing to investigate properly "his case, including the fact that the complaining witness advised him she wished to withdraw her complaint" and (2) by failing to bring Gonzalez's "recantation" to the court's attention. (Santos Br. at 6; Pet. ¶23(a) on p. 4.)

Strickland requires an attorney "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 2066 (1984); see also, e.g., Nell v. James, 811 F.2d 100, 106 (2d Cir. 1987). "[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 691, 104 S. Ct. at 2066; see also, e.g., Nieves v. Kelly, 990 F. Supp. 255, 263 (S.D.N.Y. 1997) (Cote, D.J. & Peck, M.J.); Tapia-Garcia v. United States, 53 F. Supp. 2d 370, 1999 WL 333401 at *10 (S.D.N.Y.) (Baer, D.J. & Peck, M.J.). However, Santos provides no indication of how or where his attorney's investigation fell short. Defense counsel was aware that Gonzalez had expressed interest in recanting, and he cross-examined her at trial on her telephone call to him, her desire not to see Santos go to jail and on the subject of recantation, thus bringing her reservations to the jury's attention. (Tr. 227.) Nothing further would have been gained by, as Santos now urges, "inquiring of the prosecutor as to whether the complainant witness wanted to drop charges." (Santos Br. at 6.) See, e.g., Mullins v. Ramirez, No. C 96-1055, 1996 WL 506927 at *5 (N.D. Cal. Sept. 3, 1996) (no ineffective assistance of counsel where counsel failed to interview a witness whose testimony "'is otherwise fairly known to defense counsel'"), aff'd 127 F.3d 1105 (9th Cir. 1997). While there is no need for this Court to pass on the credibility of Gonzalez's repudiation, the inherent unreliability of recantation testimony (especially by a reconciliated spouse) may have played a role in trial counsel's strategic decision not to focus on the recantation. See, e.g., Hernandez v. Senkowski, No. 93 CV 5763, 1996 WL 285426 at *1 (E.D.N.Y. May 17, 1996) ("it is generally understood that recantations are unreliable and lack trustworthiness"); People v. Shilitano, 218 N.Y. 161, 170, 112 N.E. 733, 736 (1916) ("There is no form of proof as unreliable as recanting testimony").

Defense counsel's cross-examination of Gonzalez at trial about her alleged desire to recant, while perhaps not optimal in hindsight, fell within the range of acceptable conduct of attorneys in New York courts. "[T]he conduct of examination and cross-examination is entrusted to the judgment of the lawyer, and an appellate court on a cold record should not second-guess such decisions unless there is no strategic or tactical justification for the course taken." United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998), cert. denied, 119 S. Ct. 2059 (1999); see also, e.g., United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (reasonable trial tactic to forego further cross-examination because decisions on cross-examination are "strategic in nature"), cert. denied, 507 U.S. 1029, 113 S. Ct. 1840 (1993). Cross-examination of rape victims is a particularly delicate matter of trial strategy. See, e.g., Brewer v. State, No. 96-2988, 121 F.3d 712 (table), 1997 WL 464858 at *1 (8th Cir. 1997) (denying ineffectiveness claim based on limited cross-examination of a rape victim and noting that "[t]he extent to which an alleged rape victim 2/ The State claims that Santos's ineffective assistance of counsel claim based on failure to request the intoxication jury charge was not exhausted in state court. (See State Br. at 13-15.) However, in his second CPL §440.10 application, Santos claimed that trial counsel was ineffective for not raising an intoxication defense. (Pet. Ex. D: Santos 12/17/96 CPL §440.10 Motion Papers at 24.) Arguably, since the prior argument involved intoxication evidence while the present claim concerns an intoxication jury charge should be subjected to cross-examination is inherently a matter of strategy, as a withering and relentless cross-examination can easily backfire"); Williams-Bey v. Trickey, 894 F.2d 314, 316 (8th Cir.) (strategic decision not to cross-examine rape victim about certain information not ineffective assistance where defense attorney feared detailed cross-examination might elicit sympathy for the victim), cert. denied, 495 U.S. 936, 110 S. Ct. 2183 (1990). In this case, any number of strategic considerations might have explained why Santos's counsel did not more vigorously pursue the issue of Gonzalez's alleged recantation during cross-examination, including the possibility that counsel believed Gonzalez had been pressured by Santos or his family, as indeed Gonzalez testified on redirect. (Tr. 230.) See, e.g., United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.) (no ineffectiveness where cross-examination "might have been counterproductive" since "[d]ecisions whether to engage in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature"), cert. denied, 484 U.S. 958, 108 S. Ct. 357 (1987); Mullins v. Ramirez, 1996 WL 506927 at *5 (counsel not ineffective for failing to pursue examination of witness where "testimony would have been, at best, unpredictable, and may have even been detrimental" to the defendant).

Santos's third ineffectiveness allegation is that counsel failed to request a jury instruction on intoxication, despite evidence that Santos was drinking during the attack.2 (Santos (compare Pet. Ex. D at 24 with Santos Br. at 6.) Again, Santos fails to overcome the presumption that his trial attorney based his action on strategic considerations. The core trial defense, afterall, rested on Santos's credibility and his testimony that he did not engage in sexual intercourse with Gonzalez at all onMay 9, 1995. A defense that Santos had forcible seix with Gonzalez because he was intoxicated woujld ahve been inconsistent with his claim that it never happened. Failure to raise an intoxication defense that is inconsistent with other defenses that is inconsistent with other defneses not sufficient to support an ineffectiveness claim. See, e.g., White v. Singletary, 972 F.2d 1218, 1221 & n.3 (11th Cir. 1992) (no ineffectiveness for for failure to raise intoxication defense that would have been inconsistent with other defenses), cert. denied, 514 U.S. 1131,115 S.Ct. 2008 (1995); Harich v. Dugger, 844 F.2d 1464, 1470-71 (11th Cir. 1988) (en banc) (no ineffectiveness for failure to raise intoxication defense where defendant was only "mildly drunk" and testified as to his factual innocence), cert. denied, 489 U.S. 1071, 109 S. Ct. 1355 (1989); Keys v. Duckworth, 761 F.2d 390, 392-94 (7th Cir. 1985) (no ineffective assistance of counsel for failing to investigate intoxication defense where facts were insufficient to show intoxication); Underwood v. Artuz, 95 Civ. 7866, 1996 WL 734898 at *4 (S.D.N.Y. Dec. 24, 1996) (no ineffectiveness in decision not to call defendant to testify as to his own intoxication, where testifying might have subjected him to damaging cross-examination); Williams 3/ See also, e.g., Panuccio v. Kelly, 927 F.2d 106, 109-10 (2d Cir. 1991) (no ineffectiveness where defense counsel failed to advise defendant of the possibility of an intoxication defense prior to defendant's acceptance of a guilty plea, where the intoxication defense was unlikely to succeed); Kohler v. Kelly, 890 F. Supp. 207, 211-12 (W.D.N.Y. 1994) (same); Waters v. Hoke, No. 85 CV 2655, 1986 WL 14616 at *2 (E.D.N.Y. Nov. 18, 1986) (no ineffectiveness where defense attorney was not informed by client of client's intoxication at time of incident, and thus had no reason to investigate an intoxication defense). v. Walker, 92 Civ. 1905, 1993 WL 22128 at *6 (S.D.N.Y. Jan. 26, 1993); Shaird v. Scully, 610 F. Supp. 442, 447-48 (S.D.N.Y. 1985).3/ Therefore, defense counsel's decision not to request an intoxication jury instruction or present an intoxication defense that might have undermined Santos's credibility and claim of innocence was a reasonable strategic decision.

Santos's ineffective assistance of trial counsel claims are denied.

III. SANTOS WAS AFFORDED ADEQUATE OPPORTUNITY TO CONFRONT HIS ACCUSER AT TRIAL THROUGH CROSS EXAMINATION

Santos maintains that he was denied the right to confront witnesses against him, in violation of his Confrontation Clause rights under the Sixth and Fourteenth Amendments, by the admission of Gonzalez's two out-of-court statements at the hospital shortly after the attack. Santos contends that the trial court's "mechanical" application of the New York hearsay rule permitting "prompt outcries" that corroborate a sexual assault charge "resulted in denying [Santos] his right of confrontation." (Santos Br. at 8.)

The Confrontation Clause of the Sixth Amendment affords the accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause is applicable in state criminal trials via the Fourteenth Amendment. E.g., Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965); Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068 (1965); Avincola v. Stinson, 97 Civ. 1132, 1999 WL 557965 at *17, *19 (S.D.N.Y. July 9, 1999) (Scheindlin, D.J. & Peck, M.J.). The right to confront witnesses has been interpreted as "securing an adequate opportunity to cross-examine adverse witnesses." United States v. Owens, 484 U.S. 554, 557, 10 S. Ct. 838, 841 (1988); see also, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S. Ct. 989, 999; Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974); Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965); Bagby v. Kuhlmann, 932 F.2d 131, 135 (2d Cir.), cert. denied, 502 U.S. 926, 112 S. Ct. 341 (1991); Dunbar v. Harris, 612 F.2d 690, 692 (2d Cir. 1979); United States v. Cardillo, 316 F.2d 606, 610-11 (2d Cir.), cert. denied, 375 U.S. 822, 84 S. Ct. 60 (1963); Avincola v. Stinson, 1999 WL 557965 at *19; Mercado v. Stinson, 98 Civ. 0551, 1999 WL 129570 at *8 (S.D.N.Y. Feb. 10, 1999) (Baer, D.J. & Peck, M.J.). The primary purpose of the confrontation clause is to prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. See, e.g., Douglas v. Alabama, 380 U.S. at 418-19, 85 S. Ct. at 1076-77; Mitchell v. Hoke, 930 F.2d 1, 2 (2d Cir.1991); Avincola v. Stinson, 1999 WL 557965 at *17.

The Supreme Court has consistently held that when a defendant has an opportunity to cross-examine the witness who made the out-of-court statement, the Confrontation Clause is satisfied; while an out-of-court statement by a witness may be excluded as hearsay under state evidence rules or laws, there is no Confrontation Clause violation in admitting such a statement when the witness who made the statement can be fully and fairly cross-examined at trial. See, e.g., California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935 (1970) ("Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination."); United States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983); see also, e.g., Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 295 (1985) (the "Confrontation Clause is generally satisfied" when cross-examination affords an opportunity to expose infirmities in witness testimony); Rado v. Connecticut, 607 F.2d 572, 578-80 (2d Cir. 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3009 (1980). As the Supreme Court explained in United States v. Owens, 484 U.S. 554, 108 S. Ct. 838 (1988), when the defendant is afforded an opportunity at trial to cross-examine the declarant who made an out-of-court statement, there is no need to inquire into the nature of the hearsay statement:

This Court has recognized a partial (and somewhat indeterminate) overlap between the requirements of the traditional hearsay rule and the Confrontation Clause. The dangers associated with hearsay inspired the Court of Appeals in the present case to believe that the Constitution required the testimony to be examined for "indicia of reliability," or "particularized guarantees of trustworthiness." We do not think such an inquiry is called for when a hearsay declarant is present at trial and subject to unrestricted cross-examination. In that situation, as the Court recognized in Green, the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements.

United States v. Owens 484 U.S. at 560, 108 S. Ct. at 843 (citations omitted).

Application of these principles to the present case is straightforward. Santos objects to the introduction of two out-of-court statements by Gonzalez in the hospital shortly after the rape. Evidence of these statements was adduced by in-court testimony by Gonzalez herself. Defense counsel was given ample opportunity to cross-examine Gonzalez about her statements and, in fact, did so. Therefore, the Confrontation Clause has been satisfied and Santos' claim is denied.

CONCLUSION

For the reasons set forth above, Santos's petition for a writ of habeas corpus is denied. Since Santos has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. §2253.

So Ordered.


NOTES:


(1) Gonzalez's statement is consistent with Santo's "machismo" claim that he was unaware it was "a crime to have sex with his wife whether the wife wanted to or not." (Pet. Ex. D: Santos 12/17/96 CPL §440.10 Moton Papers at 23.)

(2) The State claims that Santo's ineffective assistance of counsel claim based on failure to request the intoxication jury charge was not exhausted in state court. (See State Br. at 13-15.) However, in his second CPL §440.10 Motion Papers at 24.) Arguably, since the prior argument involved intoxication evidence while the present claim concerns an intoxication jury charge (compare Pet. Ex. D at 24 with Santos Br. at 6), the present claim is not exhausted. However, as here, "where the issue of whether the claim is exhausted is somewhat questionable, but the lack of merit of the claim is easily shown, it may be more appropriate for the Court to reach the merits." Morris v. Reynolds, 48 F. Supp. 2d 379, 385 n.8 (S.D.N.Y. 1999) (Baer, D.J. & Peck, M.J.); see also, e.g., Cowans v. Artuz, 14 F. Supp. 2d 503, 507 n.5 (Preska, D.J. & Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 265245 at *4 n.5 (S.D.N.Y. May 19, 1998) (Cote, D.J. & Peck, M.J.). The Court therefore denies the claim on the merits for the reasons discussed in text.

(3) See also, e.g., Panuccio v. Kelly,m 927 F.2d 106, 109-19 (2d Cir. 1991) (no ineffectiveness where defense counsel failed to advise defendant of the possibility of an intoxication defense prior to defendant's acceptance of a guilty plea, where the intoxication defense was unlikely to succeed); Kohler v. Kelly, 890 F. Supp. 207, 211-12 (W.D.N.Y. 1994) (same); Waters v. Hoke, No. 85 CV 2655, 1986 WL 14616 at *2 (E.D.N.Y. Nov. 18, 1986) (same); Waters v. Hoke, No. 85 CV 2655, 1986 WL 14616 at *2 (E.D.N.Y. Nov. 18, 1986) (no ineffectiveness where defense attorney was not informed by client of client's intoxication at time of incident, and thus had no reason to investigate an intoxication defense).


SUMMARIES OF ALL PUBLISHED SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS SINCE STRICKLAND V. WASHINGTON

This section originally found on here

SUMMARIES OF ALL PUBLISHED SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS POST-STRICKLAND V. WASHINGTON AND PRE-WIGGINS V. SMITH, IAC Strickland to Wiggins, by Teresa Norris (June 29, 2008)

SUMMARIES OF ALL SUPREME COURT INEFFECTIVE ASSISTANCE OF COUNSEL CASES FROM WIGGINS V. SMITH TO PRESENT, SCOTUS Post-Wiggins, by Teresa Norris (April 29, 2009)

SUMMARIES OF SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS POST-WIGGINS V. SMITH INVOLVING NUMEROUS DEFICIENCIES AND INADEQUATE DEFENSE AT TRIAL, Numerous Deficiencies Post-Wiggins, by Teresa Norris (April 29, 2009)

SUMMARIES OF SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS POST-WIGGINS V. SMITH INVOLVING ONE DEFICIENCY AT TRIAL, Single Deficiency Post-Wiggins, by Teresa Norris (April 29, 2009)

SUMMARIES OF SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS POST-WIGGINS V. SMITH INVOLVING CAPITAL SENTENCING ERRORS, Capital Sentencing Errors Post-Wiggins, by Teresa Norris (April 29, 2009)

SUMMARIES OF SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS POST-WIGGINS V. SMITH INVOLVING NON-CAPITAL SENTENCING ERRORS, Non-Capital Sentencing Errors Post-Wiggins, by Teresa Norris (Feb. 10, 2009)

SUMMARIES OF SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS POST-WIGGINS V. SMITH INVOLVING ADVICE TO CLIENT AND PLEA-RELATED ISSUES, Advice to Client Post-Wiggins, by Teresa Norris (April 29, 2009)

SUMMARIES OF SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS POST-WIGGINS V. SMITH INVOLVING APPEAL-RELATED ISSUES, Appeal Issues Post-Wiggins, by Teresa Norris (April 29, 2009)

SUMMARIES OF SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS POST-WIGGINS V. SMITH INVOLVING POST-CONVICTION COUNSEL ISSUES, Post Conviction Counsel Post-Wiggins, by Teresa Norris (Feb. 10, 2009)

SUMMARIES OF SUCCESSFUL CLAIMS POST-WIGGINS V. SMITH INVOLVING DENIAL OF RIGHT TO COUNSEL, Denial of Right to Counsel Post-Wiggins, by Teresa Norris (Feb. 10, 2009)

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