The People, Respondent,v.Isaac Diggins, Appellant.BriefN.Y.April 24, 2013To be argued by: ROY L. REARDON, ESQ. (Counsel requests 20 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ISAAC DIGGINS, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: ROSEMARY HERBERT, ESQ. Supervising Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 (phone) (212) 402-4199 (fax) ROY L. REARDON, ESQ. SIMPSON THACHER & BARTLETT LLP Of Counsel Date Completed: November 19, 2012 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT: CONTRARY TO RESPONDENT’S CLAIM, CRONIC APPLIES WHEN – AS OCCURRED HERE – COUNSEL COMPLETELY FAILS TO SUBJECT THE PROSECUTION’S CASE TO “MEANINGFUL ADVERSARIAL TESTING” (Replying to Respondent’s Brief at 57-88) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Mr. Diggins’ Claim Is Fully Preserved . . . . . . . . . . . . . . . . . . . . . . . 1 B. Contrary To Respondent’s Claim, This Appeal Does Not Present A Mixed Question Of Law And Fact . . . . . . . . . . . . . . . . . . 3 C. The Application Of Cronic Turns On Whether Counsel Completely Failed To Subject The Prosecution’s Case To Meaningful Adversarial Testing, And Not, As Respondent Argues, Whether Counsel Completely Failed To Participate In The Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 D. Respondent’s Contention That Counsel Pursued A Reasonable Strategy Must Be Rejected And, In Any Event, Is Irrelevant Where There Has Been A Constructive Denial Of Counsel . . . . . . 13 E. The Ethical Obligations Of Counsel And The Duty Of The Trial Judge To Maintain The Integrity Of The Proceedings Do Not Disappear In The Context Of An In Absentia Trial, As Respondent Suggests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ii TABLE OF AUTHORITIES CASES PAGE Bell v. Cone, 535 U.S. 685 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8 Director General v. Kastenbaum, 263 U.S. 25 (1923) . . . . . . . . . . . . . . . . . . . . . . 5 Cooper v. United States, 16 F.2d 830 (D.C. Cir. 1926) . . . . . . . . . . . . . . . . . . . . . 5 Florida v. Nixon, 543 U.S. 175 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8, 9 Gagnon v. Scarpelli, 411 U.S. 778 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Lovett v. Foltz, 884 F.2d 579, 1898 WL 101522 (6th Cir. 1989) . . . . . . . . . . . . . 13 Martin v. Rose, 744 F.2d 1245 (6th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 New Jersey v. Wiggins, 158 N.J. Super. 27 (N.J. 1978) . . . . . . . . . . . . . 11, 12, 19 People v. Aiken, 45 N.Y.2d 394 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 12 People v. Baldi, 54 N.Y.2d 134 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Benevento, 91 N.Y.2d 708 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 19 People v. DeBour, 40 N.Y.2d 210 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 People v. Donovan, 13 N.Y.2d 148 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 People v. Diggins, 25 Misc.2d 1218(A) (N.Y. Co. Sup. Ct. 2009) . . . . . . . . . 1, 10 People v. Gil, 285 A.D.2d 7 (1st Dep’t 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Harrison, 57 N.Y.2d 470 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Oden, 36 N.Y.2d 382 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 5 iii People v. Smith, 18 N.Y.3d 544 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Silvestry, 11 N.Y.3d 902 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 People v. Turner, 5 N.Y.3d 476 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Smith v. Robbins, 528 U.S. 259 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Strickland v. Washington, 466 U.S. 668 (1984) . . . . . . . . . . . . . . . . . . . 13, 14, 16 United States v. Cronic, 466 U.S. 648 (1984) . . . . . . . . . . . . . . . . . . . . . . . passim United States v. Sanchez, 790 F.2d 245 (2d Cir. 1986) . . . . . . . . . . . . . . . . . . 5, 12 Walker v. Maryland, 161 Md. App 253 (Md. 2005) . . . . . . . . . . . . . . . . . . . . . . . 6 Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 13 STATUTES & CONSTITUTIONAL PROVISIONS N.Y. Const. Art. I § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 N.Y. Judiciary Law § 750 (McKinney 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 N.Y. Judiciary Law § 753 (McKinney 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 U.S. Const. Amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 iv OTHER AUTHORITIES N.Y. Rules of Professional Conduct, Preamble ¶ 2 . . . . . . . . . . . . . . . . . . . . . . . 16 Code of Professional Responsibility, Canon 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Code of Professional Responsibility, Ethical Consideration 7-19 . . . . . . . . . . . 16 -1- ARGUMENT POINT CONTRARY TO RESPONDENT’S CLAIM, CRONIC APPLIES WHEN – AS OCCURRED HERE – COUNSEL COMPLETELY FAILS TO SUBJECT THE PROSECUTION’S CASE TO “MEANINGFUL ADVERSARIAL TESTING” (Replying to Respondent’s Brief at 57-88). A. Mr. Diggins’ Claim Is Fully Preserved. Respondent apparently recognizes that Mr. Diggins’ principal claim on appeal – that he was effectively without counsel and that, under Cronic, prejudice must be presumed – was preserved. See Resp. Br. at 61 (“To be sure, defendant argued in his initial papers that he was denied effective assistance of counsel under Cronic.”). Respondent’s concession is compelled by the fact that, from the very beginning, Mr. Diggins has advanced the same claim that he is making to this Court, namely, that counsel’s nonparticipation was a deprivation of counsel and that it was inherently prejudicial, and has relied on the same body of caselaw, most notably United States v. Cronic, 466 U.S. 648 (1984). See, e.g., Defendant’s Memorandum of Law In Support of Motion To Vacate Judgment, at 2, 3-6; A. 623, 624-27 (discussing Cronic and federal cases); People v. Diggins, 25 Misc.3d 1218(A) * 9 (characterizing defense arguments). 1 After the language quoted in Respondent’s Brief, respondent cites to pages “38-39, 66" of Appellant’s Brief. Page 38 of Appellant’s Brief does not contain any references to Aiken and, while page 66 includes a discussion of Aiken, that discussion includes only the concern voiced by the Court that a finding of ineffective assistance would allow counsel to render the trial “a nullity.” Brief for Appellant at 66 (quoting Aiken, 45 N.Y.2d at 399). That discussion does not include any reference to overruling Aiken. -2- Nonetheless, respondent insists that one aspect of Mr. Diggins’ claim is unpreserved. Specifically, respondent argues that Mr. Diggins’ contention that People v. Aiken, 45 N.Y.2d 394 (1978), “‘has been effectively overruled by Cronic,’” Resp. Br. at 61 (purportedly quoting Appellant’s Brief at 38-39, 66), is unpreserved. Not only does respondent mischaracterize Mr. Diggins’ argument with respect to Aiken, but it also overstates the rules of preservation. The language quoted by respondent appears at only one of the pages of Appellant’s Brief cited by respondent.1 Rather than arguing that Aiken should be overruled in full, as respondent implies, Mr. Diggins has actually made the more limited argument that, “[t]o the extent that People v. Aiken, 45 N.Y.2d 394 (1978), which was decided years before Cronic, applied a different standard, that portion of the decision has been effectively overruled by Cronic.” Brief for Appellant at 39 (emphasis added). This is not an independent argument, as to which preservation would be required. Rather, it is simply a statement of the obvious, namely, that a decision of the United States Supreme Court must be followed by this Court, when -3- that decision involves matters of federal constitutional law, as Cronic unquestionably does. As this Court has recognized in other cases, the fact that this contention was not expressly made below does not amount to a failure to preserve. See, e.g., People v. DeBour, 40 N.Y.2d 210, 215 (1976) (“The mere emphasis of one prong of attack over another or a shift in theory on appeal, will not constitute a failure to preserve”). B. Contrary To Respondent’s Claim, This Appeal Does Not Present A Mixed Question Of Law And Fact. Respondent also argues that the question on appeal is “beyond this Court’s review,” because, in respondent’s view, it presents a “mixed question of law and fact.” Resp. Br. at 60. However, respondent’s characterization of the issue is inaccurate. As this Court has made clear, while the “truth and existence of the facts and circumstances bearing on the issue” are questions of fact, “the determination of whether those facts and circumstances . . . constitute [a complete failure to subject the prosecution’s case to meaningful adversarial testing is] a question of law.” People v. Oden, 36 N.Y.2d 382, 384 (1975). Here, the “facts and circumstances” of Mr. Giovanni’s representation of Mr. Diggins are not in dispute; they appear on the record of Mr. Diggins’ 2004 trial and the 440 hearing, at which Mr. Giovanni appeared as the sole witness. Indeed, 2 Respondent cites People v. Harrison, 57 N.Y.2d 470, 477 (1982), in support of its claim that the reasonableness of Mr. Giovanni’s “strategy” presents a mixed question. However, as respondent is well aware, the issue reviewed in Harrison was not ineffective assistance of counsel, but rather whether the conduct of the police was justified by reasonable suspicion, a classic mixed question of law and fact. Id. -4- even before the hearing court, Mr. Diggins did not challenge Mr. Giovanni’s credibility. See generally Defendant’s Post-Hearing Memorandum of Law; A. 680-92. It is the legal determination that Mr. Giovanni provided effective assistance of counsel and meaningful representation that has been in dispute throughout. That legal determination is “a question of law.” Oden, 36 N.Y.2d at 384. See also People v. Smith, 18 N.Y.3d 544, 551 (2012) (holding that a “pure issue of law” regarding the admissibility of a chemical breath test was presented, where there was no dispute regarding the events leading to the officer’s conclusion that the defendant had refused the test). Significantly, respondent does not cite to a single case involving a claim of ineffective assistance of counsel in which the scope of review has been limited as respondent urges.2 To the contrary, claims of ineffective assistance of counsel routinely received plenary review in this Court. See, e.g., People v. Turner, 5 N.Y.3d 476 (2005); People v. Benevento, 91 N.Y.2d 708 (1998). It is significant that the federal appeals courts that have considered the application of Cronic have not viewed the issue as a mixed question of law and -5- fact, notwithstanding that the federal appellate generally courts employ a similar scope of review with respect to mixed questions. See Oden, 36 N.Y.2d at 384 (on the review of mixed questions, citing, inter alia, Director General v. Kastenbaum, 263 U.S. 25, 28 (1923); Cooper v. United States, 16 F.2d 830, 831 (D.C. Cir. 1926)). Thus, for example, in United States v. Sanchez, a case upon which respondent relies, the court engaged in a plenary review of the defendant’s claim that he was denied the effective assistance of counsel and, in particular, that “in effect he had no counsel at all” and there was therefore a “presumption of unreliability” under Cronic. 790 F.2d 245, 253-54 (2d Cir. 1986). Moreover, even if this Court were to view the issue as a mixed question, it is only beyond this Court’s review “if the determination is supported by the record.” People v. Silvestry, 11 N.Y.3d 902, 902 (2009). Here, the conclusion reached by the lower courts, that Mr. Diggins received the effective assistance of counsel or meaningful representation, is not supported by the record. 3 Respondent’s reliance on Walker v. Maryland, 161 Md. App 253 (Md. 2005), is misplaced. See Resp. Br. at 73-74. In Walker, the defendant absconded on the eve of trial and his attorney “declined to actively participate in the trial.” 161 Md. App. at 258. In holding that Cronic did not apply, the Maryland Court of Special Appeals misinterpreted decisions from the United States Supreme Court to limit a “presumption of ineffectiveness” to situations where “counsel is denied or the state interferes with counsel’s assistance” and a “presumption of prejudice” to situations where counsel is “burdened by an active conflict of interest.” 161 Md. App. at 268 (citing Smith v. Robbins, 528 U.S. 259, 284-85, 287 (2000)). (continued...) -6- C. The Application Of Cronic Turns On Whether Counsel Completely Failed To Subject The Prosecution’s Case to Meaningful Adversarial Testing, And Not, As Respondent Argues, Whether Counsel Completely Failed To Participate In The Trial. On the merits, respondent insists that Mr. Diggins’ interpretation of Cronic, is “entirely mistaken.” Resp. Br. at 60. See also id. at 70-72. However, it is respondent, not Mr. Diggins, who fails to understand the exception delineated by the United States Supreme Court in Cronic, 466 U.S. at 659. As discussed at length in Mr. Diggins’ Opening Brief, see Brief for Appellant at 51-62, Cronic recognized that there is a presumption of prejudice where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” 466 U.S. at 659 (emphasis added). The touchstone is the complete failure to subject the prosecution’s case to “meaningful adversarial testing.” Id. Accord Florida v. Nixon, 543 U.S. 175, 190-91 (2004); Bell v. Cone, 535 U.S. 685, 696-97 (2002).3 3(...continued) Apparently failing to recognize that the denial of counsel can be constructive as well as actual, the court concluded that “none of those situations is satisfied in this case.” Id. The court noted that counsel had met with the defendant, who absconded on the eve of trial, and “was present in the courtroom, awake and sober, throughout the entire trial process.” Id. The court also noted that the state had not interfered with counsel, nor was there any claim of a conflict of interest. Id. -7- Respondent makes no argument that Mr. Diggins’ attorney, Thomas Giovanni, subjected the prosecution’s case to “meaningful adversarial testing.” Instead, respondent echoes the analysis employed by the trial court and focuses on what it characterizes as counsel’s “limited participation” in the trial. Resp. Br. at 72. See also Resp. Br. at 62-64, 80-81. However, under Cronic and its progeny, “participation” is not the standard; “meaningful adversarial testing” is. Contrary to respondent’s claim, Resp. Br. at 70-73, the Supreme Court’s decision in Florida v. Nixon, 543 U.S. 175 (2004), is not at odds with Mr. Diggins’ position on appeal and, in fact, supports the conclusion that Cronic applies here. At issue in Nixon was whether Cronic’s “narrow exception” to the requirement that prejudice resulting from counsel’s deficient performance be demonstrated, applied where defense counsel conceded guilt during the guilt phase of a capital trial in order to more effectively advocate for a life sentence at the penalty phase. The Court’s conclusion – that counsel’s concession “does not rank as a ‘fail[ure] to function in any meaningful sense as the Government’s -8- adversary,’” id. at 190 (quoting Cronic, 466 U.S. at 666) – was expressly circumscribed by the “gravity of the potential sentence in a capital trial and the proceeding’s two phase structure,” which “vitally affect counsel’s strategic calculus.” Id. at 190-91. Indeed, in a comment ignored by respondent, the Court cautioned that “such a concession in a run-of-the-mill trial might present a closer question.” Id. at 190. It is also significant that, while counsel’s strategy in Nixon was to “impress the jury with his candor and his unwillingness to engage in “a useless charade,’” at the guilt phase, id. at 192 (citation omitted), counsel was nonetheless an active participant in the trial. In stark contrast to Mr. Diggins’ attorney, who was operating in the non-capital “run-of-the-mill” context, the attorney in Nixon made an opening statement to the jury (in which he urged jurors to focus on the penalty phase), conducted limited cross-examination of the state’s witnesses, objected to the introduction of crime scene photographs, contested aspects of the jury instructions and delivered a closing argument (which, like his opening statement, focused on the penalty phase). Id. at 182-83. Thus, unlike Mr. Diggins’ attorney, Nixon’s counsel did not “entirely fail[] to subject the prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659. See also Bell v. Cone, 535 U.S. at 696-97 (rejecting the application of the Cronic exception to the penalty 4 The page of Nixon cited by respondent contains the following language: “Cronic instructed that a presumption of prejudice would be in order in ‘circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.’” 543 U.S. at 189 (quoting Cronic, 466 U.S. at 658). Although “likely” and “prejudice” appear in the same sentence, the meaning of that sentence is the opposite of that urged by respondent. -9- phase of a capital trial, where counsel made an opening statement, cross-examined the state’s witness and successfully objected to the admission of gruesome crime scene photos). Respondent further contends that, even in those cases where application of Cronic “relieve[s] a defendant of actually having to demonstrate that counsel’s conduct affected the outcome of the case, the second prong of the analysis . . . the defendant must still make a showing of ‘likely prejudice.’” Resp. Br. at 72 (purportedly quoting Nixon, 543 U.S. at 190). This makes no sense. Not only does the phrase “likely prejudice” not appear on the page cited by respondent,4 but nothing in either Nixon or Cronic supports the imposition of such a burden where there has been a complete failure to subject the prosecution’s case to meaningful adversarial testing. To the contrary, the exception recognized in Cronic and discussed in Nixon, serves to relieve a defendant whose counsel failed “to function in any meaningful sense as the Government’s adversary,” Nixon, 543 U.S. at 190 (quoting Cronic, 466 U.S. at 666), of the burden of establishing prejudice. Where, 5 Of course, counsel also failed to engage in any meaningful adversarial testing of the evidence presented by the prosecution at the suppression hearing. Counsel refused to cross- examine the sole witness at the hearing or offer any argument in support of suppression. See generally H. 39-51; A. 138-150. 6 As Mr. Diggins argued in his Opening Brief, see Brief for Appellant at 42-43, and respondent appears to accept, counsel’s arguments at the pre-trial Parker hearing cannot be viewed as “meaningful adversarial testing” of the prosecution’s case at trial, any more than would arguments at a bail hearing or other such ancillary proceeding. (continued...) -10- as here, there has been a complete failure of adversarial testing, prejudice must be presumed. Id. Even if Mr. Giovanni’s minimal involvement in the proceedings could support the conclusion that he “participated to a limited extent,” People v. Diggins, 25 Misc. 3d 1218(A) *13, no claim can be made that he subjected the prosecution’s case to meaningful adversarial testing. Among other failings,5 Mr. Giovanni refused to voir dire prospective jurors, exercise jury challenges, make an opening statement, cross-examine witnesses, make any objections or even make a closing argument urging the jury to acquit his client. Tinkering with the jury instructions regarding counsel’s own nonparticipation, agreeing to the court’s jury charge and response to a jury note and requesting that the jury be polled, id., do not come close to subjecting the prosecution’s case to “meaningful adversarial testing.”6 At a bare minimum, “meaningful adversarial testing” must encompass 6(...continued) Respondent attaches significance to the fact that Mr. Goivanni continued to protest the court’s decision at the Parker hearing after the conclusion of that hearing, Resp. Br. at 64, but its reasoning is entirely unclear. That Mr. Giovanni continued to express his displeasure with the court’s earlier ruling is not the same as subjecting the prosecution’s case at trial to “meaningful adversarial testing.” Finally, respondent accuses Mr. Diggins of misrepresenting the record regarding the colloquy that occurred when April Diggins failed to appear on the first day of trial. Resp. Br. at 67 (citing Appellant’s Brief at 44-45). However, Mr. Diggins characterization of the record is accurate. At no point in the discussion did Mr. Giovanni ask the court to take any particular action. Rather, he voiced his displeasure with what he perceived as uneven treatment of the defense and prosecution, then noted the options available to the court, namely swearing the jury and proceeding with the trial or declaring a mistrial. T. 19; A. 392. Contrary to respondent’s claim, Mr. Giovanni did not ask the court to take either course of action. Indeed, in referring to the possible declaration of a mistrial, Mr. Giovanni appeared to be taking pains not to request that one be granted, stating only “[a]s you said, you could declare a mistrial and pick up Mr. Digg[i]ns later on.” Id. (emphasis added). -11- some challenge to the prosecution’s case, which never occurred here. Indeed, the description of the proceedings in New Jersey v. Wiggins, 158 N.J. Super. 27 (N.J. 1978), which also involved an absent defendant, is equally applicable to Mr. Diggins’ trial: “What we observe in this record is not a trial but an ex parte, non- adversarial, in absentia proceeding, not unlike a grand jury presentation. Indeed, in contrast to a conventional trial, this was almost a charade.” Id. at 31. In Wiggins, the defendant was frustrated by adverse rulings on his pretrial motions; he discharged his attorney and left the courtroom after admitting that he was not competent to represent himself. Id. at 29-30. After his departure, “[d]efense counsel remained in the courtroom, but did not participate in the trial.” -12- Id. at 30. On appeal, the defendant claimed that he was denied his right to the assistance of counsel. The court agreed, rejecting arguments that the defendant had waived his right to counsel. Id. Although Wiggins was decided prior to Cronic, the court relied on many of the same principles that formed the basis of exception recognized in Cronic, namely, the integrity of the adversarial system of justice. Id. at 31-32. Nor does Mr. Diggins’ absence remove this case from the ambit of Cronic, as respondent maintains. Resp. Br. at 73-74. Indeed, respondent acknowledges, as it must, that a defendant “‘may not, by absence alone, waive his right to effective assistance of counsel.’” Resp. Br. at 73 (quoting Aiken, 45 N.Y.2d at 398). And yet, that is effectively the rule that respondent urges upon the Court. Although respondent refers to Mr. Diggins’ “obstructionist conduct,” see, e.g., Resp. Br. at 74, as a basis for finding that Cronic does not apply, respondent never identifies any conduct – other than “absence alone” – that can be considered “obstructionist.” This case is not like United States v. Sanchez, 790 F.2d 245, 253 (2d Cir. 1986), for example, where the defendant, in addition to absconding prior to trial, had earlier refused “to communicate or otherwise cooperate with counsel.” To the contrary, the record here establishes that Mr. Diggins cooperated fully with 7 Significantly, these communications included the basis for a defense, namely, that he never displayed a gun and his wife was lying because she saw him with another woman. H2. 20, 22; A. 54, 56. Thus, respondent misstates the record when it asserts that Mr. Diggins “provided Giovanni with no insights about potential bias, credibility, background or ability to see or perceive the events at issue with respect to any of the witnesses at trial.” Resp. Br. at 78. -13- Mr. Giovanni during their “extensive[]” meetings, H. 26; A. 125, and shared his version of events with counsel.7 D. Respondent’s Contention That Counsel Pursued A Reasonable Strategy Must Be Rejected And, In Any Event, Is Irrelevant Where There Has Been A Constructive Denial Of Counsel. Respondent argues that Mr. Giovanni made “a legitimate strategic choice” which “defeats an ineffective assistance of counsel claim.” Resp. Br. at 76. As an initial matter, labeling something a “strategy” or a “tactic” cannot insulate it from a claim of ineffective assistance of counsel. See Washington v. Hofbauer, 228 F.3d 689, 704 (6th Cir. 2000); Lovett v. Foltz, 884 F.2d 579, 1989 WL 101522 *4 (6th Cir. 1989). The strategy employed must be that of a reasonably competent attorney. See Strickland, 466 U.S. at 690. As argued in Mr. Diggins’ Opening Brief, see Brief for Appellant at 46-51, Mr. Giovanni’s refusal to subject the prosecution’s case to meaningful adversarial testing of any kind, while undeniably deliberate, cannot be viewed as a legitimate strategy. “[E]ven deliberate trial -14- tactics may constitute ineffective assistance of counsel if they fall ‘outside the wide range of professionally competent assistance.’” Martin v. Rose, 744 F.2d 1245, 1249 (quoting Strickland, 466 U.S. at 690). See, e.g., People v. Gil, 285 A.D.2d 7, 13, 15 (1st Dep’t 2001) (while a deliberate strategy, designed to “call the People’s bluff,” counsel’s decision to immediately proceed to trial, without any investigation or pretrial discovery and without filing suppressions motions, was not an exercise of “reasoned professional judgment”) (citations omitted). More fundamentally, however, any course of action with includes a complete failure to subject the prosecution’s case to meaningful adversarial testing is not a “professionally competent” strategy. Thus, for example, had Mr. Giovanni been physically absent from the courtroom during critical portions of the trial, respondent could not argue against a denial of counsel, even if his absence was deliberate. Mr. Giovanni’s decision not to make an opening statement, not to cross-examine a single prosecution witnesses, not to object to the admission of any evidence, and not to make a closing argument, was no different. Constructive denial of counsel, whether as a result of a deliberate choice by counsel or some other circumstance, cannot be recognized by this Court as a legitimate trial strategy, much less “professionally competent assistance,” Strickland, 466 U.S. at 690, or “meaningful representation.” People v. Baldi, 54 N.Y.2d 137, 147 (1981). -15- Mr. Giovanni’s “choice” was not a strategic decision that served to challenge the prosecution’s case against his client. In truth, it aided the prosecution. E. The Ethical Obligations Of Counsel And The Duty Of The Trial Judge To Maintain The Integrity Of The Proceedings Do Not Disappear In The Context Of An In Absentia Trial, As Respondent Suggests. Respondent contends that Mr. Diggins’ reliance on the Rules of Professional Conduct, the Code of Professional Responsibility and the ABA Model Rules of Professional Conduct is misplaced, as “none of these provisions address a situation where the defendant has absconded and is to be tried in absentia. Instead, they simply state that an attorney must provide zealous representation.” Resp. Br. at 86. Respondent has missed the point. The ethical command that an attorney act as a zealous advocate for his client is absolute. What may constitute zealous advocacy will necessarily vary according to the circumstances confronting the lawyer – including the absence of the client. However, such circumstances do not relieve the attorney of the duty of zealous advocacy. An attorney who, like Mr. Giovanni, entirely fails to subject the prosecution’s case to meaningful adversarial testing has not fulfilled his duty of zealous advocacy. 8 Respondent includes a quote from Strickland, which indicates that “prevailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable, but they are only guides.” Resp. Br. at 86-87 (quoting Strickland, 466 U.S. at 688-89). The language quoted by respondent suggests that “detailed rules” are not binding on a court’s assessment of counsel’s performance because they cannot “satisfactorily take account of the variety of circumstances faced by defense counsel.” Id. It does not suggest, however, that any circumstances relieve counsel of the overarching duty of zealous representation. See N.Y Rules of Professional Conduct, Preamble at ¶ 2; N.Y. Code of Professional Responsibility, Canon 7 & Ethical Consideration 7-19. -16- As the Supreme Court observed in Gagnon v. Scarpelli, 411 U.S. 778, 787 (1973), attorneys are “advocates and bound by professional duty to present all available evidence and arguments in support of their clients’s positions and to contest with vigor all adverse evidence and views.” That did not happen here. To argue that Mr. Giovanni was a “vigorous” advocate for Mr. Diggins, as respondent does, Resp. Br. at 87, is to completely devalue the bedrock principle of zealous representation.8 Respondent’s treatment of the obligation of the trial court to protect the integrity of the proceedings and the various mechanisms available to the court to do so, see Brief for Appellant at 67-70, is similarly inadequate. Indeed, tespondent challenges only one of the methods by which the trial court could have required counsel to perform as an advocate for his absent client, namely, holding Mr. Giovanni in contempt. Resp. Br. at 87. According to respondent, once Mr. Giovanni assured the court that he would “actively participate if, at any point, he -17- believed that it would be to defendant’s benefit,” he could not be held in contempt. Resp. Br. at 87. This is not accurate. Rather, the record reflects that the court simply dropped the threat of contempt, even when it became apparent that Mr. Giovanni’s refusal to participate was not benefitting his client. Thus, for example, at the conclusion of the prosecution’s case, the court observed, “It’s obvious there are areas that you could sum up in that might be seen as beneficial to your client in terms of the charges that have been brought,” T. 141; A. 514, but did not require Mr. Giovanni to make any closing argument to the jury or face contempt. T. 144; A. 517. Moreover, respondent ignores the fact that a contempt citation can be criminal or civil. Compare, e.g., N.Y. Judiciary Law § 750 (McKinney 2003) (criminal contempt), with § 753 (civil contempt). While the former is intended to be punitive, the latter can be coercive and, had it been used by the court, it might well have compelled Mr. Giovanni to act as an advocate for his client and fulfill his role in the adversarial system. Respondent also fails to address the other tools available to the trial court, such as a referral to the disciplinary committee of the bar or enlisting the assistance of Mr. Giovanni’s supervisors at the Neighborhood Defender Services of Harlem (NDS). The trial court referred once to the possibility of taking -18- disciplinary action, J. 25; A. 204, but, as with contempt, failed to pursue it in order to achieve a fair trial for Mr. Diggins. Similarly, the trial court was aware (1) that Mr. Giovanni had consulted with his supervisors about his planned nonparticipation, J. 28, 31; A. 207, 210, and (2) while the supervisors intended to support him, they did not necessarily agree with his plan and, had the court permitted him to withdraw, they “themselves might even try the case.” J. 31; A. 210. Yet the court never sought to have Mr. Govanni’s supervisors appear in court, much less discuss with them the possibility of substituting another NDS attorney who, unlike Mr. Giovanni, would be willing to act as an advocate for Mr. Diggins. While it would not have been ideal to proceed with an attorney who had not met with Mr. Diggins personally, it would have been better to have an attorney willing to pursue an active defense on Mr. Diggins’ behalf. Respondent minimizes the responsibility of the court to ensure the proper functioning of the adversary system, even chastising Mr. Diggins for “lectur[ing] the Court, Justice Goldberg and the trial court on the proper way to ensure that ‘all defendants receive the effective assistance of counsel to which they are constitutionally entitled.’” Resp. Br. at 85 (quoting Appellant’s Brief at 66). Respondent’s view to the contrary notwithstanding, the proper functioning of the adversary system is vitally important. Indeed, the court in Wiggins, in holding -19- that the trial judge should have ordered counsel to take an active role in the proceedings, observed that [i]n every trial there is more at stake than just the interests of the accused; the integrity of the process warrants a trial judge’s exercising his discretion to have counsel participate in the defense even when rejected. A criminal trial is not a private matter; the public interest is so great that the presence and participation of counsel, even when opposed by the accused, is warranted in order to vindicate the process itself. 158 N.Y. Super. at 32. This Court has also made clear that the integrity of the process is of paramount importance. Thus, in Benevento, the Court observed that “‘our legal system is concerned as much with the integrity of the judicial process as with the issue of guilt or innocence.’” 91 N.Y.2d at 714 (quoting People v. Donovan, 13 N.Y.2d 148, 153-54 (1963)). The trial court’s inaction in this case gravely impaired the integrity of the judicial process. -20- CONCLUSION This case is one of those exceedingly rare instances where counsel com- pletely refused to subject the prosecution’s case against his client to meaningful adversarial testing. As a result, Mr. Diggins’ trial bore no resemblance to an adversarial proceeding. The narrow exception recognized by the United States Supreme Court in Cronic must be applied and, accordingly, prejudice must be presumed from the constructive denial of counsel. Because Mr. Diggins was denied the assistance of counsel guaranteed by the state and federal constitutions, his conviction must be reversed. See U.S. Const. amends. VI & XIV; N.Y. Const. Art. I § 6. Dated: November 19, 2012 New York, New York RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: ______________________________ ROSEMARY HERBERT, ESQ. Supervising Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 (phone) (212) 492-4199 (fax) ROY L. REARDON, ESQ. SIMPSON THACHER & BARTLETT LLP Of Counsel