The People, Appellant,v.Dwight R. DeLee, Respondent.BriefN.Y.October 15, 2014APL-2013-00229 _____________________________________________________________________________________________________________________________________ Court of Appeals STATE OF NEW YORK -----------------►►-◄◄----------------- THE PEOPLE OF THE STATE OF NEW YORK, Appellant, Against DWIGHT R. DELEE, Defendant-Respondent. _____________________________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________________________ BRIEF OF AMICI CURIAE FOR NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, NEW YORK STATE DEFENDERS ASSOCIATION, AND THE OFFICE OF THE APPELLATE DEFENDER _____________________________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________________________ Marc Fernich Brendan White Diane Ferrone New York State Association New York State Association 2 Wall Street of Criminal Defense Lawyers of Criminal Defense Lawyers New York, New York 10005 810 7th Avenue, Suite 620 148 East 78th Street Telephone: (212) 532-4434 New York, New York 10019 New York, New York 10075 Telephone: (212) 446-2346 Telephone: (212) 861-9850 Facsimile: (212) 459-2299 Facsimile: (212) 861-9870 Alfred O’Connor Richard M. Greenberg New York State Defenders Association Office of the Appellate Defender 194 Washington Ave., Suite 500 11 Park Place, Suite 1601 Albany, New York 12210 New York, NY 10007 Telephone: (518) 465-3524 Telephone: (212) 402-4100 Facsimile: (528) 465-3249 Facsimile: (212) 402-4199 _____________________________________________________________________________________________________________________________________ 1 INTEREST OF AMICI CURIAE The New York State Association of Criminal Defense Lawyers (“NYSACDL”), an affiliate of the National Association of Criminal Defense Lawyers and the state’s largest private criminal bar group, is a nonprofit membership organization of some 750 criminal defense attorneys practicing throughout New York. It assists its members in better serving their clients and works to enhance their professional standing. NYSACDL strives to protect individual rights and liberties for all. The New York State Defenders Association (“NYSDA”) is a not-for-profit membership association of more than 1700 public defenders, legal aid attorneys, 18- b counsel and private practitioners throughout the state. With funds provided by the state of New York, NYSDA operates the Public Defense Backup Center, which offers legal consultation, research, and training to nearly 6,000 lawyers who serve as public defense counsel in criminal cases in New York. The Backup Center also provides technical assistance to counties that are considering changes and improvements in their public defense systems. The New York State Defenders Association is contractually obligated "to review, assess and analyze the public defense system in the state, identify problem areas and propose solutions in the form of specific recommendations to the Governor, the Legislature, the Judiciary and other appropriate instrumentalities." 2 Office of the Appellate Defender (“OAD”) is a not-for-profit organization that provides client-centered appellate and post-conviction representation to indigent criminal defendants arising from convictions in Bronx and New York Counties. OAD represents hundreds of individuals each year pursuant to a contract with the City of New York, and represents countless others on a pro bono basis. Amici file this brief in support of Defendant-Respondent Dwight DeLee because we and our clients believe that the principles governing legally inconsistent verdicts, as enunciated in this Court’s decisions in People v. Tucker, 55 N.Y.2d 1 (1981), and People v. Muhammad, 17 N.Y.3d 532 (2011), provide essential protections to the bedrock principle of the criminal justice system that the prosecution must prove each and every element of a charged offense beyond a reasonable doubt, helps ensure the fairness and accuracy of trials, and are vital to the justice system’s reliability and predictability – values threatened by the Appellant’s suggestion that they be abandoned. STATEMENT OF FACTS Amici rely upon the facts set forth in the July 19, 2013 decision of the Appellate Division, Fourth Department. (R. 4-13) 1; People v DeLee, 108 A.D.3d 1145 (4th Dept. 2013). 1 References to “R” are to the Record on Appeal. 3 ARGUMENT THE COURT SHOULD NOT ABANDON, OR OTHERWISE INVALIDATE, THE TUCKER/MUHAMMED RULE, WHICH SAFEGUARDS A DEFENDANT’S DUE PROCESS RIGHTS, AND ENSURES CONFIDENCE IN THE ACCURACY AND RELIABILITY OF THE CRIMINAL JUSTICE SYSTEM. “… an individual [may] not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all. Allowing such a verdict to stand is not merely inconsistent with justice, but is repugnant to it.”2 Although the doctrine that legally inconsistent verdicts cannot stand, and that a conviction based on such a verdict must be reversed, is well established in this State, the People urge that, in the event that the doctrine presents an obstacle to a conviction in this case, it must be abandoned. For important reasons of due process, public policy and stare decisis, that radical suggestion should be rejected. Repugnant verdicts are those which are “inherently inconsistent when viewed in light of the elements of each crime as charged to the jury.” People v. Mohammad, 17 N.Y.3d at 539 (internal quotations omitted) (quoting Tucker, 55 N.Y.3d at 4). Abandonment of the long-standing inconsistent or repugnant verdict rule will strip criminal defendants of the protections afforded them by due process; namely, the bedrock principle that the prosecution must prove its case beyond a reasonable doubt 2 People v. Tucker, 55 N.Y.2d 1, 5 (1981) (emphasis added). 4 as to each element of the offense, and would undermine public confidence in the integrity, accuracy and fairness of the criminal justice system, with implications far beyond the instant case. This is particularly true in cases such as this, in which the prosecution did not object to the jury instructions, and the inconsistent verdict was timely raised by the defendant, giving the trial court an opportunity to address the issue with the jury before it was released.3 The problem of legally inconsistent verdicts “occurs when the jury convicts the defendant on one count and acquits on another, but the verdicts are illogical when viewed in light of the proof adduced[; t]he difficulty stems from the jury's implicit finding that the essential elements of one crime were proven, while one or more of the same elements were not proven for the other crime.” Tucker, 55 N.Y.2d at 6. “The critical concern is that an individual not be convicted for a crime on which the jury has actually found that the defendant did not commit an essential element, whether it be one element or all[, and a]llowing such a verdict to stand is not merely inconsistent with justice, but is repugnant to it.” Id. Where a jury “has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt,” id., the courts of this State have determined that due process demands that a 3 While the Appellant makes much of the purported “unfairness” of applying the rule in the instant case, after the defendant raised the possibility of repugnant verdicts, the court was obligated to explain the defect to the jury and direct it to reconsider the verdict. See N.Y. C.P.L. §310.50(2). Failure of the court to do so should not result in wholesale elimination of the rule. 5 conviction must be reversed if, based on the instructions given to the jury without regard to the evidence presented at trial, it was logically impossible to find the defendant guilty of one charge and not guilty of the other. Id. at 4. Unsurprisingly under the circumstance, the People have pointed to the fact that this doctrine is not universally followed, and that, in fact, the United States Supreme Court has declined to adopt such a rule, choosing instead to allow legally inconsistent verdicts to stand in the name of respecting the jury’s autonomy. (Peo. Brf. at 22-23, citing United States v. Powell, 469 U.S. 57 (1984) and Dunn v United States, 284 U.S. 390 (1932)). This Court, however, has long expressed its awareness of the difference in views among various courts and has carefully explained its decision to adhere to the rule forbidding legally inconsistent verdicts. See People v. Tucker, 55 N.Y.2d at 6 (“The problem of repugnant, or inconsistent, verdicts has long plagued the common law. Many jurisdictions precluded any judgment of conviction if the verdicts were inconsistent. American courts have divided on the question, with the majority accepting that the conviction is valid, albeit inconsistent.”) Nevertheless, understanding the potential complications that arise in attempting to determine whether two verdicts are legally inconsistent, the Tucker Court chose to reject an approach that would allow a reviewing court to evaluate the complete record and evidence to determine whether the verdicts were in fact logical 6 or consistent, and instead chose the more limited approach in which only the jury charge would be reviewed to determine whether the elements could be harmonized. Id. at 6-7. As the Court made clear, there was a “compelling policy reason” for this choice, namely that it served to protect the autonomy of the jury and the integrity of its deliberations by avoiding the inevitable intrusion on the deliberative process that would come with second guessing the jurors’ thought processes. Id. at 7. The Court further recognized that exercises in lenity and mercy by the jury should not be undermined. Id. Thus, the very concerns underlying the decision by the United States Supreme Court not to follow the inconsistent verdict rule, Powell, 469 U.S. at 65 (“[i]t is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense”), have been carefully considered and addressed by this Court, albeit in furtherance of a different conclusion. Significantly, the Tucker Court noted that the rule it announced did not constitute “any departure from its prior practice.” Id. at 7, n.4 (citing People v. Carbonell, 40 N.Y.2d 948 (1976), and People v. Haymes, 34 N.Y. 2d 639 (1974). Of course, this Court has continued to follow this approach, including only three years ago, in People v. Muhammad, where the Court reaffirmed its approach to inconsistent verdicts even while acknowledging the contrary approach taken in the 7 intervening Powell decision. 17 N.Y.3d at 538 (noting that while “federal courts do not review verdicts under the theory of repugnancy[,] New York, in contrast, has chosen a more moderate approach that extends better protection against verdicts that are inherently repugnant on the law”). In reiterating the rationale behind this choice, the Court made the straightforward and common-sense observation that “[a] person cannot be convicted of a crime if a jury has necessarily decided that one of the essential elements was not proven beyond a reasonable doubt,” and that “[t]he remedy for this type of error is dismissal of the repugnant conviction.” Id. at 539 & n.1. New York jurisprudence as enunciated in Tucker and Muhammad nevertheless permits a jury to exercise leniency and render verdicts that are illogical factually, even in contravention of jury instructions. See Muhammad, 17 N.Y.3d at 540 (“If there is a possible theory under which a split verdict could be legally permissible, it cannot be repugnant, regardless of whether that theory has evidentiary support.... In this context, the apparently illogical nature of the verdict—as opposed to its impossibility —is viewed as a mistake, compromise or the exercise of mercy by the jury, none of which undermine[s] a verdict as a matter of law”)4; People v. 4 The People’s reliance on New York Court of Appeals Modifies Doctrine of Inconsistent Verdicts, 11 New York Criminal Law Newsletter 2 (Spring 2013), in support of abandoning the Tucker/Muhammad rule, is misplaced. While the article discusses the limitations of the rule, it explicitly recognizes that legally inconsistent verdicts cannot stand under Muhammad. 8 McFadden, 90 A.D.3d 413, 414 (1st Dept. 2011) (same). And both decisions have been relied upon by courts of this state without apparent confusion. The rule is narrow, with limited application, and a review of recent decisions confirms that in reviewing alleged repugnant verdicts, courts search for any rational theory by which to harmonize seemingly discordant findings and uphold the conviction. See, e.g., People v. Isakov, --A.D.3d --; 990 N.Y.S.2d 828 (2d Dept. 2014) (verdict not repugnant in light of elements of each crime as charged to jury); People v. Kramer, 118 A.D.3d 1040, 1042-43 (3d Dept. 2014) (same); People v. Lamont, 113 A.D.3d 1069, 1072 (4th Dept. 2014) (same); People v. Spralling, 91 A.D.3d 510, 511 (1st Dept. 2012) (same). Such verdicts, while factually illogical, are not barred by the inconsistent verdicts rule because they still are legally possible. Muhammad, 17 N.Y.3d at 540. Thus, the People’s citation to a New York Law Journal article characterizing the legal inconsistency doctrine as “moribund, if not dead,” (Peo. Brf. at 23), seems hyperbolic at best. However, while limited in scope, the repugnancy doctrine plays a vital role in protecting a defendant’s fundamental right to due process. Inconsistent verdicts present a threat to essential constitutional values and elimination of the rule in its entirety would be a grave injustice to those defendants whose convictions are legally—and logically—impossible, and would erode confidence in the system that allows such a conviction. In contrast, dismissal of convictions founded on legally 9 inconsistent verdicts engenders confidence in the justice system because, on their face, such verdicts are unreliable and suggest at least confusion or misunderstanding by the jury, and offends notions of fundamental fairness. At a minimum, the inconsistency constitutes evidence of arbitrariness that undermines confidence in the quality of the jury’s conclusion. At worst, when a jury exercises what may be called lenity (but is in fact just discretion), the jury may well have deemed the evidence insufficient to prove the defendant’s guilt beyond a reasonable doubt, but nonetheless convicted out of animus. See Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 771, 798 (1998).5 What lay person would look at a logically impossible verdict and reach any conclusion but that such verdict had been the result of either mischief or incompetence? Letting such a conviction stand undermines the reliability of jury trials. The legal repugnancy test, adopted by this Court in Tucker and reaffirmed in Muhammad, looks only to the crimes as charged, isolating true repugnancy without 5 While the District Attorneys Association’s amicus brief assumes that the jury’s verdict “demonstrated a clear recognition of the gravity of the crime of hate that defendant had committed,” it could be just as likely that in acquitting the defendant of manslaughter in the first degree the jury deemed the evidence insufficient to prove the defendant’s guilt beyond a reasonable doubt, but convicted him of the manslaughter as hate crime “out of animus.” See Eric L. Muller, The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L. Rev. 771, 798 (1998). 10 improperly speculating about or invading the jury’s fact-finding province. The rule is straightforward and easy to apply, without analysis of the facts or speculation into the jury’s mindset. The rule simply protects a defendant’s right to have all elements of a crime proven beyond a reasonable doubt, and forbids a conviction where acquittal on one charge is conclusive as to an element which is necessary to and inherent in a charge on which a conviction has occurred. See Steven T. Wax, Inconsistent and Repugnant Verdicts in Criminal Trials, 24 N.Y. L. Sch. L. Rev. 713, 740 (1979). The notion that a single unpalatable decision involving a troubling set of facts—particularly where the defendant properly drew the inconsistency to the court’s attention, and the prosecution failed to raise its own objection—should undo this well-established legal precedent is ill-advised, and should be rejected outright by the Court.6 6 Finally, any suggestion in the amicus brief submitted by the District Attorneys Association for the State of New York, to except hate crimes from application of the inconsistent verdict rule, must be rejected. As an initial matter, if the Court were to make exceptions, it would essentially be endorsing that the government does not have to prove the elements of certain crimes beyond a reasonable doubt. Second, any carve out for hate crimes would be arbitrary as there are many statutory provisions aimed at the protection of a certain group. See, e.g., N.Y. Penal Law § 263, et seq. (child pornography provisions). Once exceptions to the general rule are recognized, they are likely to overcome the general rule, which, here, plays a pivotal role in confirming that a defendant is only convicted if there is proof beyond a reasonable doubt as to each and every element of the offense charged. 11 CONCLUSION The inconsistent verdict rule established in Tucker and Muhammad safeguards an essential element of a defendant’s due process rights – namely, that she be convicted of each element of a crime beyond a reasonable doubt. Abandonment of the rule would deny defendant’s protection of this basic principal of criminal justice, and such a result should not be adopted by the Court. Dated: New York, New York Respectfully submitted, September 16, 2014 DIANE FERRONE 2 Wall Street New York, New York 10005 (212) 532-4434 Marc Fernich NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS 810 7th Avenue, Suite 620 New York, New York 10019 Telephone: (212) 446-2346 Facsimile: (212) 459-2299 Brendan White NEW YORK STATE ASSOCIATION OF CRIMINAL DEFENSE LAWYERS 148 East 78th Street New York, New York 10075 Telephone: (212) 861-9850 Facsimile: (212) 861-9870 12 Alfred O’Connor NEW YORK STATE DEFENDERS ASSOCIATION 194 Washington Ave., Suite 500 Albany, New York 12210 Telephone: (518) 465-3524 Facsimile: (518) 465-3549 Richard M. Greenberg OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Telephone: (212) 402-4100 Facsimile: (212) 402-4199 Counsel for Proposed Amici Curiae