The People, Respondent,v.Paul Cortez, Appellant.

Brief

N.Y.October 15, 2013

New York County Indictment No. 6433/05 Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, against PAUL CORTEZ, Defendant-Appellant. >> >> To Be Argued By: Marc Fernich Time Requested: 30 Minutes REPLY BRIEF FOR DEFENDANT-APPELLANT LAW OFFICE OF MARC FERNICH Attorneys for Defendant-Appellant Paul Cortez 152 West 57th Street, 24th Floor New York, New York 10019 212-446-2346 Date Completed: May 23, 2013 Of Counsel: Marc Fernich TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii STATEMENT ........................................................................................................... 1 ARGUMENT ............................................................................................................ 2 POINT I: CORTEZ WAS DENIED THE RIGHT TO CONFLICT-FREE COUNSEL BECAUSE THE TRIAL COURT CONDUCTED A DEFICIENT WAIVER INQUIRY ................................................................................................. 2 A. STATEMENT ............................................................................................ 2 B. THE CLAIM THAT MIRANDA’S PRESENCE ADEQUATELY PROTECTED CORTEZ’S INTERESTS TORTURES THE RECORD AND MANGLES THE LAW .................................................................................. 6 C. CORTEZ’S INTELLIGENCE AND SOPHISTICATION DO NOT REDEEM THE COURT’S FLAWED CONFLICT WARNING AND DEFICIENT WAIVER INQUIRY ............................................................... 16 D. THERE IS NO INQUIRY EXCEPTION FOR CONFLICTS WITH ALLEGEDLY APPARENT RISKS ............................................................ 19 E. CONCLUSION ........................................................................................ 24 POINT II: THE DEFICIENT CONFLICT INQUIRY WAS A STRUCTURAL OR MODE OF PROCEEDINGS ERROR WARRANTING AUTOMATIC REVERSAL OF CORTEZ’S CONVICTION – OR AT LEAST A HARMFUL ERROR MANDATING REVERSAL ON THE FACTS ....................................... 25 A. THE TRIAL COURT’S FAULTY WAIVER COLLOQUY CONSTITUTES STRUCTURAL OR MODE OF PROCEEDINGS ERROR MERITING BLANKET REVERSAL ......................................................... 25 B. REVERSAL IS ALTERNATELY WARRANTED BECAUSE THE INVALIDLY WAIVED CONFLICT OPERATED ON FLORIO’S REPRESENTATION AND ADVERSELY AFFECTED CORTEZ’S DEFENSE ..................................................................................................... 33 ii POINT III: IRRELEVANT, INFLAMMATORY AND UNFOUNDED PROPENSITY EVIDENCE – VIOLENT WRITINGS ABOUT UNHARMED OTHERS, LONG PREDATING THE CRIME AT HAND – WAS ADMITTED UNDER AN ERRANT LEGAL STANDARD, DENYING CORTEZ A FAIR TRIAL AND WARRANTING REVERSAL OF HIS CONVICTION ................. 39 A. STATEMENT .......................................................................................... 39 B. THE TRIAL JUDGE MADE UNDENIABLE ERRORS OF LAW, AND THEREBY ABUSED HER DISCRETION, WHEN SHE REFUSED TO APPLY MOLINEUX AND FAILED TO BALANCE PREJUDICE VERSUS PROBITY. REVERSAL NECESSARILY FOLLOWS .............. 41 C. NO COURT IN THE LAND HAS EVER ALLOWED EVIDENCE LIKE THIS IN CIRCUMSTANCES LIKE THESE .............................................. 44 1. Hoffman .......................................................................................... 44 2. Masters ........................................................................................... 46 D. ANY CLAIM OF INVITED RESPONSE IS WAIVED, MERITLESS AND PROVES TOO MUCH ....................................................................... 50 E. THE PEOPLE’S REMAINING MOTIVE ARGUMENTS MISS THE MARK .......................................................................................................... 55 F. THE PEOPLE FAIL TO CARRY THEIR HARMLESS ERROR BURDEN, DICTATING REVERSAL ........................................................ 63 G. CONCLUSION ........................................................................................ 70 CONCLUSION ....................................................................................................... 72 iii TABLE OF AUTHORITIES Case Page Cuyler v. Sullivan, 446 U.S. 335 (1980) ................................................................. 37 Frye v. U.S., 293 F. 1013 (D.C. Ct. App. 1923) ..................................................... 36 Huddleston v. U.S., 485 U.S. 681 (1987) ................................................................ 49 Konstantinides v. Griffin, No. 10-CV-05999, 2011 WL 3040383 (E.D.N.Y. July 25, 2011) ................................................................................................................. 12 Lockhart v. Terhune, 250 F.3d 1223 (9th Cir. 2001) .............................................. 12 Masters v. People, 58 P.3d 979 (Col. 2002) ..................................................... 46, 50 Melendez-Diaz v. Mass., 557 U.S. 305 (2009) ............................................. 7, 34, 36 Michelson v. U.S., 335 U.S. 469 (1948) ................................................................. 59 Monell v. Dept. of Social Servs., NYC, 436 U.S. 658 (1978) ................................. 31 Old Chief v. U.S., 519 U.S. 172 (1997) .................................................................. 40 Papasan v. Allain, 478 U.S. 265 (1986) ................................................................. 31 Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001) ........................................................ 35 People v. Abar, 99 N.Y.2d 406 (2003) ................................................................... 18 People v. Agina, 18 N.Y.3d 600 (2012) .................................................................. 51 People v. Alvino, 71 N.Y.2d 233 (1987) ........................................................... 40, 41 People v. Baffi, 49 N.Y.2d 820 (1980) ..................................................................... 8 People v. Belliard, 20 N.Y.3d 381 (2013) .............................................................. 28 People v. Brown, 265 A.D. 153 (2d Dept. 1942), aff’d, 290 N.Y. 830 (1943) ...... 55 People v. Byer, 2013 NY Slip Op. 02777, _ N.Y.3d _, 2013 WL 1759564 (April 25, 2013) ..................................................................................................... 46, 60, 64 People v. Caban, 70 N.Y.2d 695 (1987) .................................................................. 8 iv People v. Cortez, 85 A.D.3d 409 (1st Dept. 2011) ................... 37, 38, 61, 63, 64, 70 People v. Decker, 157 N.Y. 186 (1898) .................................................................. 60 People v. Dunbar, 104 A.D.3d 198 (2d Dept. 2013) ......................... 4, 17-19, 22, 24 People v. Espada, 205 A.D.2d 332 (1st Dept. 1994) .............................................. 63 People v. Fitzgerald, 156 N.Y. 253 (1898) ................................................. 55-58, 61 People v. Gomberg, 38 N.Y.2d 307 (1975) ........................................................ 9, 13 People v. Griffin, 2013 N.Y. Slip Op. 02161, 20 N.Y.3d 626, 2013 WL 1294579 (April 2, 2013) ................................................................................................... 28, 29 People v. Hanley, 2013 N.Y. Slip Op. 02106, 20 N.Y.3d 601, 2013 WL 123814 (March 28, 2013) ..................................................................................................... 31 People v. Hoffman, 570 N.W.2d 146 (Ct. App. Mich. 1997) ............... 44, 45, 50, 58 People v. Jackson, 8 N.Y.3d 869 (2007) .......................................................... 52, 54 People v. Knowles, 88 N.Y.2d 763 (1996) ............................................................. 15 People v. Konstantinides, 14 N.Y.3d 1 (2009) ............................... 14, 26, 27, 32, 33 People v. Lloyd, 51 N.Y.2d 107 (1980) .................................................................. 12 People v. Macerola, 47 N.Y.2d 257 (1979) ........................................................ 6, 16 People v. Mateo, 2 N.Y.3d 383 (2004) ............................................................. 52, 54 People v. Molineux, 168 N.Y. 264 (1901) .............................................................. 40 People v. Rojas, 97 N.Y.2d 32 (2001) .............................................................. 42, 53 People v. Smart, 96 N.Y.2d 793 (2001) ............................................................ 32, 33 People v. Solomon, 20 N.Y.3d 91 (2012) ......................................................... 11, 21 People v. Stanard, 32 N.Y.2d 143 (1973) .............................................................. 63 People v. Sutherland, 154 N.Y. 345 (1897) ............................................................ 62 People v. Townsley, 20 N.Y.3d 294 (2012), cert. denied, No. 12-8882, 2013 WL 673268 (April 15, 2013) ..................................................................................... 4, 27 People v. Vega, 3 A.D.3d 239 (1st Dept. 2004) ..................................................... 47 v People v. Zackowitz, 254 N.Y. 192 (1930) ............................................................. 45 Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012) .................................................... 3, 71 State v. Everett, 297 P.3d 292 (Kan. 2013) ............................................................. 53 Stoia v. U.S., 22 F.3d 766 (7th Cir. 1994) .............................................................. 15 U.S. v. Aman, 748 F. Supp. 2d 531 (E.D. Va. 2010) .............................................. 68 U.S. v. Cancilla, 725 F.2d 867 (2d Cir. 1984) ........................................................ 27 U.S. v. Curcio, 680 F.2d 881 (2d Cir. 1982) ....................................................... 4, 14 U.S. v. Gonzalez- Lopez, 548 U.S. 140 (2006) ....................................................... 28 U.S. v. Iorizzo, 786 F.2d 52 (2d Cir. 1986) ............................................................... 6 U.S. v. James, 712 F.3d 79 (2d Cir. 2013) .............................................................. 63 U.S. v. Levy, 25 F.3d 146 (2d Cir. 1994) ................................................ 6, 24, 33, 36 U.S. v. Lowry, 971 F.2d 55 (7th Cir. 1992) ...................................................... 20, 22 U.S. v. Malpiedi, 62 F.3d 465 (2d Cir. 1995) ......................................................... 38 U.S. v. Marcus, 560 U.S. 258 (2010) ...................................................................... 64 U.S. v. Moccia, 681 F.2d 61 (1st Cir. 1982) ........................................................... 41 U.S. v. Rogers, 209 F.3d 139 (2d Cir. 2000) .......................................................... 30 U.S. v. Williams, 372 F.3d 96 (2d Cir. 2004).............................................. 12, 17, 20 Vasquez v. Hillery, 474 U.S. 254 (1986) ................................................................ 31 Wheat v. U.S., 486 U.S. 153 (1988) .................................................................... 6, 29 RULES & OTHER AUTHORITIES Deep Purple, “Highway Star” ................................................................................. 69 Fed. R. Evid. 803(3) ................................................................................................ 42 vi Fuentes, Gabriel A., “Toward a More Critical Application of Daubert in Criminal Cases: Fingerprint Opinion Testimony After the NAS Report,” 92 Bloomberg BNA Criminal Law Reporter (CRL) 135 (Oct. 31, 2012) .......................... 65, 66, 67 Jacobs, Andrew, “Visit to Jailed Client Ends in Lawyer’s Arrest,” The New York Times (Sept. 17, 2005) .............................................................................................. 3 Mnookin, Jennifer L., “The Courts, the NAS, and the Future of Forensic Science,” 75 Brook. L. Rev. 1209 (2010) ............................................................................... 65 Montero, Douglas, “Tix-fix attorney bounced,” New York Post (May 4, 2013) ...... 3 Natl. Institute of Justice’s (NIJ) Natl. Institute of Standards and Technology (NIST), Latent Print Examination and Human Factors: Improving the Practice Through a Systems Approach (Feb. 2012) .............................................................. 66 Prince, Richardson on Evidence, § 4-401 (Farrell 11th ed. 1995) ......................... 45 Scientific Working Group on Friction Ridge Analysis, Study, and Technology (SWGFAST) Position Statement (Aug. 3, 2009) ................................................... 66 COURT OF APPEALS NEW YORK STATE ----------------------------------------------------------------X PEOPLE OF THE STATE OF NEW YORK -v.- PAUL CORTEZ, Defendant-Appellant. ----------------------------------------------------------------X REPLY BRIEF FOR DEFENDANT-APPELLANT STATEMENT Paul Cortez respectfully replies to the People’s answering brief – a bloated and repetitive exercise in evading the gist of our legal claims and distorting the factual record. There is no better example of the People’s penchant for embellishment than this risible nugget: “Defendant could not have asked for a more committed team of advocates.” Ans. 98. Say what? One of the defense lawyers stood accused, by the same district attorney prosecuting her client, of smuggling drugs to a different client in jail – after losing her own job as a prosecutor for supplying a burglary suspect, an ex-boyfriend, with a phony alibi. See post 3 n.1. The other defense lawyer, having announced on the eve of trial that she 2 “wo[uld]n’t be ready” (A: 217), simply ignored a firm trial date and lit out to Puerto Rico on what the judge found to be false pretenses. She then failed to show up for the first three scheduled trial days, drawing a contempt citation. If those are “committed ... advocates,” we shudder to imagine the behavior of indifferent or derelict ones. The People’s assertion is seriously short on credibility, suggesting they will say almost anything to try and convince this Court to salvage Cortez’s conviction. Their willingness to resort to such cheek casts aspersions on their brief's candor and reliability, calling for heightened scrutiny of all the People’s representations on appeal. ARGUMENT POINT I CORTEZ WAS DENIED THE RIGHT TO CONFLICT-FREE COUNSEL BECAUSE THE TRIAL COURT CONDUCTED A DEFICIENT WAIVER INQUIRY A. STATEMENT Cortez attacks Justice Berkman’s ailing inquiry into attorney Dawn Florio’s undisputed conflict of interest. As mentioned, the conflict 1 Compare, e.g., Andrew Jacobs, “Visit to Jailed Client Ends in Lawyer’s A r r e s t , ” T h e N e w Y o r k T i m e s ( S e p t . 1 7 , 2 0 0 5 ) , http://www.nytimes.com/2005/09/17/nyregion/17lawyer.html?_r=0 (as visited 5/18/13) (public document) with Ans. 79-80 & n.80 (claiming record does not “reveal the nature of the charge against Florio”) and id. 86 (similar). This Court may judicially notice the fact of the press coverage’s contents. Rivas v. Fischer, 687 F.3d 514, 520 n.4 (2d Cir. 2012) (citation omitted). Indeed, Florio is reportedly under current investigation, by the same district attorney’s office, for what appear to be similar allegations of misconduct with yet another client in the same facility. Douglas Montero, “Tix-fix a t t o r n e y b o u n c e d , ” N e w Y o r k P o s t ( M a y 4 , 2 0 1 3 ) , http://www.nypost.com/p/news/local/bronx/tix_fix_attorney_bounced_pTX0yAMSxO yVG1zlLLknXJ (as visited 5/18/13). 3 stemmed from Florio’s concurrent prosecution, by the same district attorney’s office trying Cortez, for allegedly smuggling drugs to a different client in jail.1 Rather than address the argument actually made, the People rebut one never raised. Reframing the question presented and substituting their own, they thus seek to divert this Court’s attention from the deficiency of the judge’s conflict advisory to the propriety of her refusal to disqualify Florio. E.g., Ans. 55, 66, 74. The digression fails. As the People recognize elsewhere (e.g., id. 56 n.51, 63 n.56), no one suggests that Florio’s conflict was “unwaivable” or denies that the court could have allowed Cortez to accept it – if he validly chose that course. To enjoy validity, however, his decision had to be knowing and intelligent. 2 People v. Townsley, 20 N.Y.3d 294, 308 (2012) (Ciparick, J., and Lippman, C.J., dissenting), cert. denied, No. 12-8882, 2013 WL 673268 (April 15, 2013). 4 And for a waiver of constitutional rights – here, the “fundamental” right to “conflict-free representation”2 – to meet those criteria, the defendant must be “effectively advised as to what th[e] rights [at stake] are, and the consequences of foregoing them.” People v. Dunbar, 104 A.D.3d 198, 209- 10 (2d Dept. 2013) (emphasis supplied). At issue is whether Justice Berkman’s conflict admonition, such as it was, satisfied that standard, imparting enough information to validate Cortez’s putative waiver – enough information, that is, to enable a knowing and intelligent choice. Insisting that the judge properly declined to oust Florio does not engage or answer that question. It only begs it. Equally significant, the People concede that an appropriate conflict inquiry must be, at the least, sufficiently “reasonable” and “searching.” Ans. 63-65, 72 (citations and internal quotes omitted). They also concede that this Court has never explained what those terms mean or outlined the minimum information an advisory must convey to implement them. 3 The People summarily declare, without citation or explanation (Ans. 70), that the court fulfilled its duty to warn when it said: “There is an argument that in some fashion constitutes a conflict of interest, that [Florio] might, for some reason, be more interested in her own matter than yours. I’m not quite sure I see it factually, frankly.” A: 520 (emphasis supplied). The People’s peremptory assertion deserves no weight. If anything, the quoted remarks tended to minimize the conflict’s existence and import – not illuminate its perils and pitfalls – defeating the purpose of conducting an inquiry in the first place. Cf. Dunbar, 104 A.D.3d at 207, 211-12 (“muddled and ambiguous” message serves only “to confuse, or at worst, mislead” defendants “as to the nature of their rights and the consequences of waiving them,” vitiating warnings). Indeed, if the quoted remarks qualify as sufficiently “reasonable” and “searching,” it is hard to imagine any that wouldn’t and the judicial inquiry duty is illusory. Ans. 63- 65, 72 (citations and internal quotes omitted). 4 See also, e.g., Br. 26-27 & cases cited. 5 Nor do the People seriously contest that the waiver dialogue here fell short – under any plausible definition. Ans. 70.3 Instead, and although judges should describe conflict risks in as much “detail” as possible, U.S. v. Curcio, 680 F.2d 881, 888 (2d Cir. 1982),4 the People take a different tack. They submit, in direct contrast, that “more detail[ed]” warnings were unnecessary on the particular facts at hand. Ans. 70. To back this novel contention – basically a glorified harmless error claim – the People maintain that (1) the presence of purportedly unconflicted cocounsel, Laura Miranda, adequately “protected” Cortez’s “interests”; (2) Cortez was “intelligent” and “sophisticated”; and (3) the 6 dangers attending Florio’s conflict, though never communicated by the trial court, were nonetheless “apparent” and obvious. Id. 69-70. These arguments miss the point of requiring judicial conflict warnings and do not withstand scrutiny. B. THE CLAIM THAT MIRANDA’S PRESENCE ADEQUATELY PROTECTED CORTEZ’S INTERESTS TORTURES THE RECORD AND MANGLES THE LAW Two core policy concerns oblige judges to investigate and apprise defendants of potential attorney conflicts. First, courts have an “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat v. U.S., 486 U.S. 153, 160 (1988) (emphasis supplied); accord, e.g., People v. Macerola, 47 N.Y.2d 257, 263 (1979). Second, it is perilous and foolish to “leav[e] the waiver inquiry in the hands of ‘the very attorney whose capacity to act in the defendant’s interests [is] under challenge.’” U.S. v. Levy, 25 F.3d 146, 158 (2d Cir. 1994) (quoting U.S. v. Iorizzo, 786 F.2d 52, 59 (2d Cir. 1986)). 7 Flouting these cardinal principles, the People allege that Miranda discussed Florio’s conflict with Cortez, as if that reduced or excused the court’s duty to explain its risks and repercussions. E.g., Ans. 66-69, 71-75. This suggestion ignores the first rationale and turns the second on its head, putting the fox in charge of the proverbial henhouse. 1. After all, Miranda – even if not technically conflicted herself – still faced contempt sanctions for skipping the first three scheduled trial days on grounds the judge found incredible and pretextual. E.g., Ans. 57- 58, 89 & n.68; see Melendez-Diaz v. Mass., 557 U.S. 305, 328 & n.13 (2009) (noting risk “defense attorneys” run by “antagoniz[ing]” judge). More than that, she was admittedly unprepared – especially to combat the People’s key forensic evidence – and had delegated that crucial task to Florio. E.g., Br. 8, 37-38 & sources cited. Hobbled by her own contempt citation, avowedly unready to proceed and depending on cocounsel to fight the heart of the case, Miranda was in no position to give Cortez objective advice about keeping or sacking the trial partner she desperately needed – assuming, contrary to what the 5 See post 9-14. 8 record actually shows,5 they ever discussed the issue at all. See generally id. 38-39 & authorities cited. It follows that Miranda was hardly the impartial guardian of her client’s interests the People fancy – and certainly no substitute for the neutral judicial guardian the law prescribes. Cf., e.g., People v. Caban, 70 N.Y.2d 695, 697 (1987) (advice of “conflict-impaired attorney ... not alone sufficient” for valid waiver); People v. Baffi, 49 N.Y.2d 820, 822 (1980) (reliance on attorney does not relieve court’s independent inquiry obligation). At bottom, the People’s approach would leave the conflict inquiry solely to lawyers whose “judgment,” “good faith” and ability to act in the defendant’s behalf are under suspicion – even if Miranda happened to be true to her word in this particular instance. Ans. 68 (citation and internal quotes omitted). Taken to its logical conclusion, that view would eliminate the need for judicial involvement altogether, extinguishing the role of the court and effectively removing it from the waiver process. To state those propositions is to reject them. 6 Contrary to the People’s glib description (Ans. 66-77), it certainly wasn’t a conflict “inquiry.” See A: 229-49; Br. 24 & n.10. Merely labeling it such does not make it so. 7 People v. Gomberg, 38 N.Y.2d 307 (1975). 9 2. Whatever occurred or didn’t at the Jan. 25, 2007 hearing addressing Miranda’s contempt situation6 – and any “assurances” she offered there or didn’t – are both beside the point. E.g., Ans. 58-59, 66-69, 71-75 & sources cited. For the court implicitly determined that those purported assurances were insufficient to ameliorate Florio’s conflict, resolving that Gomberg7 warranted further inquiry of Cortez himself. (A: 240) The court attempted that personal inquiry on Jan. 30, the day after trial belatedly began. E.g., Ans. 60-61, 68-68 & sources cited. The question is whether that inquiry sufficed to elicit a knowing and informed waiver of Cortez’s right to conflict-free counsel. And again, the government substantially concedes that it didn’t, essentially asking this Court to excuse the inadequacy due to supposed countervailing factors. See ante 5-6. 3. In any event, the record belies the People’s insistence that Miranda assured the court on Jan. 25 that she had “fully discussed” Florio’s conflict with Cortez and received his “approbation.” Ans. 67 10 (citation and internal quotes omitted); see also, e.g., id. 68 (asserting that Miranda made an “unequivocal and unchallenged representation that [Cortez] was aware of Florio’s conflict and had knowingly accepted its risks”) (emphasis supplied); id. 73 (contending – falsely, as demonstrated – that Miranda was “well qualified to provide advice about the conflict posed by Florio’s pending case”) (emphasis supplied). To begin, some of what the People proffer in support of this claim actually came from the mouth of Miranda’s personal contempt counsel, Robert Feldman. E.g., id. 58-59, 66. By dint of his office, Feldman represented Miranda’s interests, not those of Cortez. With no evidence that he was authorized to speak on Cortez’s behalf, anything attributed to Feldman is irrelevant and should be disregarded. As for Miranda’s Jan. 25 remarks, the record reflects that she uttered all of three potentially pertinent sentences: Florio “was retained at the same time I was retained. We were retained together. However, because of her matter that was pending, my client preferred that she not be attorney of record.” (A: 240-41) 11 Nothing in those three sentences – even if charitably taken as true – indicates that Miranda and Cortez ever discussed anything material to Florio’s conflict. By their terms, the three sentences merely confirm Cortez’s undisputed knowledge that Florio had a “matter ... pending.” They do not suggest he knew the matter’s nature, severity or venue – i.e., the same county where he faced charges. Much less do they suggest that Miranda or anyone else apprised him of those facts. Cf. People v. Solomon, 20 N.Y.3d 91, 94 (2012) (counsel’s statements that she told defendant she represented prosecution witness in unrelated civil matter, and that defendant “‘agreed to waive any conflict in that regard,’” held insufficient where record “disclose[d] nothing further about the nature of counsel’s [concurrent] representation” – even though defendant affirmed statements on the record). More fundamentally, the three sentences nowhere imply that Miranda, or anyone else, either told Cortez that Florio’s pending matter created a potential conflict of interest or explained how the conflict could hamper her representation and harm his defense. And it is settled that knowledge of the facts triggering a conflict – here, knowledge that Florio 12 faced unspecified charges of her own – does not equate with knowledge of the conflict and its consequences. E.g., U.S. v. Williams, 372 F.3d 96, 109- 10 (2d Cir. 2004) (“even if Williams knew the relevant facts concerning [attorney] Leonardo’s criminal activity, there is no evidence that Williams knew how these facts translate into a conflict of interest” and “would almost certainly impair Leonardo’s ability to represent him”) (emphasis supplied); Konstantinides v. Griffin, No. 10-CV-05999, 2011 WL 3040383, at *6 (E.D.N.Y. July 25, 2011) (“Konstantinides may have been fully informed of the [criminal] allegations against [attorney] Kasapis, but that is not the same as being informed of the problems those allegations could cause for Konstantinides’s defense at trial.”) (emphasis supplied); People v. Lloyd, 51 N.Y.2d 107, 114 (1980) (contrasting explanation of “fact[] of potential conflict” with adequately informing defendant of its “potential risks and pitfalls”) (internal quotes omitted) (Jones, Fuchsberg and Meyer, JJ., dissenting); Lockhart v. Terhune, 250 F.3d 1223, 1233 (9th Cir. 2001) (distinguishing between “alerting a defendant to a situation that could give rise to a conflict” and “warning him of the dangers of conflicted 13 representation”) (citations, internal quotes and alterations omitted); Gomberg, 38 N.Y.2d at 314. In reality, the record reveals that the court simply “presume[d]” Miranda had “discussed” with Cortez any “conflict” Florio “might or might not have,” noting that it would have to “discuss that with him” personally before Florio “comes into this case again.” A: 240 (emphasis supplied). And to repeat, the People effectively concede that the subsequent discussion on Jan. 30, the day after trial eventually commenced, was lacking. Finally, even if Cortez had once “preferred that [Florio] not be attorney of record” because of her pending “matter,” as Miranda reported (A: 240), she added later in the Jan. 25 conference that he currently had reservations about his representation and was mulling a change. (A: 244) Cortez ratified those comments, and if anything his misgivings called for enhanced scrutiny of the conflict situation. Id. Instead, the court proclaimed that the case had been “manipulated” and “delayed long enough” (id.), bluntly announcing its intent to forge ahead – without 14 allowing Cortez “time to digest and contemplate” the risks of keeping conflicted counsel. Curcio, 680 F.2d at 889-90; contra, e.g., Ans. 72. 4. Similarly misdirected is the suggestion that “Miranda’s presence at trial ensured” Cortez’s “interests were vigorously represented.” E.g., id. 67, 71, 78-79 (emphasis supplied). This contention is a revisionist canard. First, it speaks to the remedy for any deficiency in the court’s inquiry as to Florio’s conflict, not the threshold question whether the inquiry was deficient at all. Second, freighted with baggage of her own, Miranda was scarcely the fearless champion of Cortez’s interests the People extol. See ante 7-8. Indeed, the record indicates that she was preoccupied with her own contempt problem throughout Cortez’s trial, evidenced by her persistent requests for a hearing and unsuccessfully moving to vacate just a day after summing up. Br. 37-38 & sources cited. At any rate, it was Florio – not Miranda – who was responsible for countering the critical forensic evidence that anchored the People’s case. Cf. People v. Konstantinides, 14 N.Y.3d 1, 10-13 (2009) (wholly 8 Ans. 62 (citations and internal quotes omitted). 15 unconflicted lead lawyer “conducted” bulk of trial; sufficient off-record inquiry presumed as to potentially conflicted “second attorney”). Thus, on any dispassionate view, Florio played an integral part in presenting Cortez’s defense. She was far from the potted plant the People cast her as now. Third, even assuming – fictitiously – that Miranda was unencumbered and “single-mindedly devoted to” her client,8 this Court and others have made clear that the presence of one adequate lawyer does not necessarily purge the taint from defects involving a second. E.g., People v. Knowles, 88 N.Y.2d 763 (1996); Stoia v. U.S., 22 F.3d 766, 770 (7th Cir. 1994) (despite representation by team of three unconflicted attorneys, defendant’s Sixth Amendment rights could be compromised by conflicted representation of fourth attorney who never filed notice of appearance); Br. 69 n.38 & additional authorities cited. *** For all these reasons, the People’s bid to shift focus from the faulty conflict advisory as to Florio to the presence of Miranda – a contemptuous 16 if not unscrupulous lawyer inhibited in her own right – falls emphatically flat. We urge the Court to reject it for the ruse that it is. C. CORTEZ’S INTELLIGENCE AND SOPHISTICATION DO NOT REDEEM THE COURT’S FLAWED CONFLICT WARNING AND DEFICIENT WAIVER INQUIRY Next, the People ask this Court to overlook the judge’s ailing conflict advisory since Cortez was “an intelligent, sophisticated litigant,” and gave “personal assurance[s]” that (1) Florio had “not compromised []his case” and (2) he “wanted” to keep her as counsel. E.g., Ans. 56, 68-71, 88 (citations and internal quotes omitted). This argument is another exercise in circular reasoning and question begging. After all, courts are charged with explaining conflicts and their risks largely because lay defendants – even educated, intelligent ones – are “unschooled in the nature of criminal proceedings” and may not “perceive” how a conflict can undermine an attorney’s “effectiveness.” Macerola, 47 N.Y.2d at 263; see generally, e.g., Br. 26-28, 41-42 n.22 & cases cited. Here, as the last SUBPOINT demonstrates, there is no evidence that Miranda ever discussed Florio’s conflict or its ramifications with Cortez. And even if there were, that would not diminish the court’s 9 Even if Cortez believed on the second trial morning that Florio’s (continued...) 17 independent inquiry obligation. What’s more, the People substantially concede that the judge failed to adequately discharge that duty. If anything, as our opening brief shows and the next SUBPOINT amplifies, she played the conflict down and pushed Cortez to accede on the spot. See also, e.g., ante 5 n.3. With no record indication that the conflict and its dangers were ever explained to Cortez – competently or otherwise – any “assurance[s]” he provided were meaningless and carry no weight. Ans. 68. For no matter how smart Cortez may have been, he was not a lawyer. He therefore had no way of knowing – and cannot be expected to have deduced by osmosis – that which he supposedly assured. On the contrary, the law “presume[s]” that he didn’t know. Cf., e.g., Dunbar, 104 A.D.3d at 210 (“a suspect is never presumed to know his ... rights”) (emphasis supplied); Williams, 372 F.3d at 110 (unfair to “blame” defendant, “the least legally sophisticated party,” for court’s failure to advise that conflict’s “underlying” facts “would almost certainly impair [counsel’s] ability to represent him”).9 9(...continued) preparation had not been hampered, and even if that belief warranted credence, he could not have predicted how the conflict might “compromise[]” her performance going forward (A: 521) – all the more reason for a judicial explanation. Br. 41-42 & n.22. This is especially so where Cortez was jailed pending trial, and thus had no real idea whether or how Florio’s preparation might have been impeded. Id.; cf. People v. Abar, 99 N.Y.2d 406, 410 (2003) (“defendant affirmatively advised the court at his [] plea allocution that he was satisfied with the legal services provided by his lawyer”) (footnote omitted) (emphasis supplied) (elliptically cited, without the italicized language, at Ans. 88). 18 As one court aptly observed in a similar context: [W]e are not faced with the question of whether the defendant was a person capable of understanding his rights and making a knowing and intelligent waiver. There is no indication in this case that, had the [proper] warnings simply been [given] to the defendant, ... he could not have understood them. Rather, the problem is that the defendant never received a clear and unequivocal advisement of his rights.... Having never received an effective warning describing [his] rights, ... the defendant ... cannot be said to have knowingly waived th[em]. Dunbar, 104 A.D.3d at 210 (emphasis supplied); accord Br. 41-42 n.22 & cases cited. The People’s clashing view blurs the concepts of native intelligence and legal expertise, and would essentially reserve judicial conflict 19 warnings for defendants with low IQs. Cf. Dunbar, 104 A.D.3d at 207-08 n.1 (“not reasonable to expect an individual with no legal training to appreciate [] subtle [legal] distinction[s]”). Such a rule would be impossible to administer and is untenable on its face. D. THERE IS NO INQUIRY EXCEPTION FOR CONFLICTS WITH ALLEGEDLY APPARENT RISKS In a final effort to rationalize the court’s offending advisory, the People dismiss the “dangers” of Florio’s conflict – springing from her simultaneous indictment by her client’s prosecutors – as “readily apparent” and “easy to comprehend.” Ans. 70 (citation and internal quotes omitted). This argument – a variant on the “sophisticated and intelligent” theme just refuted – is equally flimsy. First, the claim that the conflict’s perils were so obvious as to render judicial inquiry unnecessary is raised for the first time in this Court, and therefore waived. Second, as mentioned earlier, the court determined that judicial inquiry of Cortez was necessary, and attempted to conduct it the day after trial belatedly began. The question, again, is whether that attempt sufficed – not whether it was necessary at all. 20 Third, a “conflict premised on an attorney’s concern[s] for h[er] own liberty” is among the most “significant” conflicts a lawyer can face. Williams, 372 F.3d at 100, 105, 108. And courts routinely warn defendants of the accompanying risks – obvious or not – in considerable detail. E.g., Br. 29-30, 32-34 & cases cited. The People’s theory thus defies decades of precedent from across the country. Fourth, the dangers attending attorney indictment conflicts are no more or less obvious than those arising from any other sort of conflict. If the one is “apparent,” then so are they all. Ans. 70. In this light, the People’s approach would eradicate judicial inquiry for conflicts of every stripe – or at least for all conflicts involving attorneys facing criminal charges. That is not a viable position. Fifth, the lone case said to support the People’s thesis actually dispels it. In U.S. v. Lowry, the court did opine that the “risks” surrounding defense counsel’s ongoing criminal probe were “not difficult to appreciate.” 971 F.2d 55, 62-63 (7th Cir. 1992). But the court made that comment only after stressing that the trial judge had “fully discussed” the probe’s “ramifications” – and thoroughly explained how it could “hinder” 21 counsel’s “representation” – with the defendant “present” in “open court.” Id. Specifically, the judge had “informed” Lowry that his lawyer, Schick, “might either try too hard, damaging Lowry’s case because he was personally angry at the prosecutors, or not try hard enough, attempting to curry the prosecutor’s favor by sabotaging Lowry’s defense.” Id. Beyond that, the judge also “advised” Lowry of his right to “different counsel” and called a recess for him to ponder the conflict’s “implications.” Id. at 62. Here, by contrast, Justice Berkman told Cortez nothing whatsoever about the dangers of Florio’s indictment conflict. In fact, she described its professional hazards for Florio – potential disbarment – without explaining how they could impair her representation or impede his defense. Indeed, the judge failed even to divulge the nature of Florio’s ongoing “case.” Cf. Solomon, 20 N.Y.3d at 94 (“The inquiry here, in which not even the nature of defense counsel’s simultaneous representation of [prosecution witness] was placed on the record, was simply inadequate.”). She noted only that the lawyer had a “matter” pending, while candidly 22 conceding that she didn’t “know” – and made no apparent effort to learn – its “status.” See generally Br. 24-35 & sources cited. Adding insult to injury, Justice Berkman – unlike the judge in Lowry – gave Cortez no time to weigh the risks of keeping Florio or to consider other options. To top it off, she also failed to tell him he was entitled to a “different” lawyer. Cf. Lowry, 971 F.2d at 62. Nor did the court offer to appoint an outside attorney to counsel Cortez about the conflict, never mind encourage him to take advantage of that opportunity. On the contrary, the court seemed to press Cortez for instant assent to Florio’s predicament, flatly stating that the case had been “manipulated” and “delayed long enough.” A: 244; cf. Dunbar, 104 A.D.3d at 208 (“sense of immediacy and finality” chills “reflective consideration” of rights and “consequences” of renouncing them). And rather than solicit a narrative understanding of the conflict’s drawbacks, the judge stopped Cortez short when he tried to provide one, abruptly declaring, “I don’t 10 The People worry that searching waiver inquiries will breach privilege and jeopardize lawyer-client relationships. E.g., Ans. 63-64, 74. But the risks of attorney indictment conflicts are well documented, and the parade of horribles the People predict have not come to pass in the many jurisdictions where Curcio-type procedures govern. E.g., Br. 34 n.14. Nothing suggests that they would materialize if similar procedures reigned in New York, or had obtained in this case specifically. 23 need you to describe that.”10 See generally Br. 24-26, 35-40 & sources cited. Worst of all, the judge whitewashed the conflict’s existence and significance, taking pains to soft pedal its perils and pitfalls. Most troubling, she oddly remarked: There is an argument that [Florio’s pending prosecution in the same county] in some fashion constitutes a conflict of interest, that she might, for some reason, be more interested in her own matter than yours. I’m not quite sure I see it factually, frankly. A: 520 (emphasis supplied). Why give a conflict warning only to suggest that there really is no conflict – especially when the conflict and its liabilities are universally recognized, if not unequivocally established, in piles of cases from courts around the nation? Again, if that passes for an adequate waiver advisory, it is hard to imagine one that wouldn’t and Gomberg is an empty 11 Needless to say, it does not follow that courts should revert to rigid “format[s]” or rote “catechism[s].” Ans. 64, 70 n.5 (citation and internal quotes omitted). There is a vast gulf between prescribing general guidelines, adaptable to the facts and circumstances of individual cases, and demanding “talismanic incantation[s].” Dunbar, 104 A.D.3d at 210-11 (citation and internal quotes omitted). 24 formality. Cf. Dunbar, 104 A.D.3d at 213 (“atmosphere” attending waiver dialogue should be “geared” to protecting, not “overcoming,” constitutional rights).11 E. CONCLUSION In their zeal to save the court’s deficient admonition, the People marginalize the “central role” judges play in securing informed attorney conflict waivers. Levy, 25 F.3d at 158. In the end, they would leave the investigation and inquiry responsibilities to the good offices of lawyers constrained by ethical dilemmas and to the intuition of smart defendants. And they would eliminate those safeguards entirely where prosecutors, in their own unchecked discretion, deem conflicts and their repercussions sufficiently apparent and obvious. Among its faults, this approach thwarts judges’ institutional duty to ensure the fairness and integrity of criminal proceedings. Equally problematic, it subverts their independent obligation to protect the 25 interests of lay defendants, unschooled in the law and presumptively unaware of their rights. The People’s position is neither sound nor sensible. If condoned, it would reduce Gomberg advisories to little more than a pro forma exercise. In all, the desultory warnings here were grossly inadequate under any standard – and certainly under the Curcio-like rigors we propose and favored in other jurisdictions. Indeed, they arguably did more harm than good, belittling the conflict and its consequences to the vanishing point. Cortez’s purported waiver was therefore invalid and calls for a remedy. POINT II THE DEFICIENT CONFLICT INQUIRY WAS A STRUCTURAL OR MODE OF PROCEEDINGS ERROR WARRANTING AUTOMATIC R E V E R S AL OF CORTEZ’S CONVICTION – OR AT LEAST A HARMFUL ERROR MANDATING REVERSAL ON THE FACTS A. THE TRIAL COURT’S FAULTY WAIVER COLLOQUY CONSTITUTES STRUCTURAL OR MODE OF PROCEEDINGS ERROR MERITING BLANKET REVERSAL As the People acknowledge (Ans. 80-83), the remedy for an absent or inadequate waiver advisory, by a court on actual or constructive inquiry 12 While digging up 19th century relics in defense of the challenged Cortez diary entries, the People slight the significant possibility standard as a product of “older cases” from “decades ago.” Compare Ans. 81 with, e.g., id. 115, 120, 123, 128, 134. That is irony epitomized. At any rate, the backdating is folly; by the People’s own account, the Court employed the significant possibility standard or an equivalent as recently as 1988 and 1990. Id. 82. 26 notice, currently turns on whether a given conflict is retrospectively deemed actual, potential or significantly possible.12 In our respectful view, this approach goes astray in two principal ways. First, the terms at issue – actual, potential and significantly possible conflicts – seem vague and obscure, the differences among them more academic than real. Indeed, distinguishing the concepts often comes down to perception and semantics rather than substance. This ambiguity makes the present taxonomy difficult to decipher and administer. And that difficulty leads to arbitrary and inconsistent results, leaving a conflict’s gravity – and the concomitant right to relief – largely in the eye of the beholder. E.g., Br. 42-44. One judge’s “potential” conflict, in short, may be another’s “per se, unwaivable” one. Compare, e.g., Konstantinides, 14 N.Y.3d at 11-14 (characterizing counsel’s involvement in “criminal misconduct directly related” to client’s representation as mere 27 “potential” conflict, less serious than multiple representation of defendant and witness or codefendants with antagonistic defenses) and Townsley, 20 N.Y.3d at 299-300 (similar) with, e.g., Konstantinides, 14 N.Y.3d at 15-16 (“few, if any, lawyers” could “disregard the possibility of disbarment or criminal proceedings against them personally, even if their client’s interests demanded it”) (Smith and Ciparick, JJ., and Lippman, C.J., partially dissenting) and U.S. v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984) (“What could be” a greater attorney “conflict” than “concern” over “trouble with criminal law enforcement authorities?”). Second, and more fundamentally, the current approach imprudently focuses on the conflict and its consequences rather than the presence and efficacy of judicial warnings. E.g., Ans. 99. This emphasis is misplaced for several reasons, surveyed in our opening brief. 1. A missing or faulty conflict advisory functionally infringes a defendant’s constitutional right to counsel of choice – a structural defect requiring automatic reversal of an ensuing conviction, without a showing of prejudice or resort to harmless error analysis. See U.S. v. Gonzalez- 13 Thus, contrary to the People’s earlier supposition (Ans. 63, 66), there is no genuine tension between searching conflict advisories and the right to counsel of choice. In fact, the two are complementary and symbiotic, the one facilitating the (continued...) 28 Lopez, 548 U.S. 140 (2006); People v. Griffin, 2013 N.Y. Slip Op. 02161, 20 N.Y.3d 626, 2013 WL 1294579, at *3 & n.2 (April 2, 2013). After all, the right to choose one’s counsel necessarily contemplates a choice that is meaningful and informed. And a decision to keep a conflicted lawyer is neither unless the court describes the conflict’s risks and repercussions, and explains the defendant’s options and alternatives. Withholding that information deprives a defendant of the means to take a knowing decision, precluding intelligent exercise of his right to choose. Cf. People v. Belliard, 20 N.Y.3d 381, 385 (2013) (ailing judicial allocution, rendering guilty plea unknowing and involuntary, “not subject to harmless error review and requires automatic reversal”) (citation omitted). And an uninformed choice – a choice made in ignorance – is no choice at all. Br. 51-57 & authorities cited; contra Ans. 85 (alleging, without citation or substantiation, that “the trial court here protected [Cortez’s] right to retain counsel of his choice”) (citation omitted) (emphasis supplied).13 13(...continued) other’s informed exercise. If anything, it is the People’s position that is mired in tension. For their fixation on preserving the right to choose should logically lead them to support automatic reversal where, as here, a faulty advisory foils the ability to exercise that right in educated or intelligent fashion. 29 2. Deficient warnings occasion loss of autonomy, dignity and self- determination, affecting the defendant’s representation in any number of subtle and imperceptible ways. And those are abstract, intangible harms, impossible to calculate or quantify by conventional examination of the conflict’s impact at trial. Br. 57-63 & authorities cited; contra Ans. 84 (conceding that current adverse effect or operation on representation test distills to “a requirement of at least some [concrete] prejudice”). 3. Probing inquiries further important institutional interests – notably, promoting public confidence in the justice system’s integrity – that transcend the existence and effects of individual conflicts. Cf. Griffin, 2013 WL 1294579, at *3 n.2 (wrongful denial of chosen counsel “implicates the entire criminal justice system”). And putting teeth in the warning requirement fosters compliance with judges’ “independent” obligation to “ensur[e]” that “legal proceedings appear fair to all who observe them.” Wheat, 486 U.S. at 160; see Br. 63-66 & authorities cited; U.S. v. Rogers, 30 209 F.3d 139 (2d Cir. 2000) (“adopt[ing]” and “appl[ying] a firm preference for prophylactic inquiry”). 4. Finally, our proposed approach aligns with New York’s traditionally broad and protective conception of the right to counsel, and to conflict-free representation in particular. Br. 50 & authorities cited. It also comports with precedent from other jurisdictions, as well as decisions in parallel settings here. Id. 66-69 & authorities cited. For all these reasons, automatic reversal – with no prejudice showing or review for harmlessness – is the proper remedy where a court on notice either neglects to examine a plausible conflict or examines it inadequately. E.g., id. 44-45, 69. Cortez’s conviction founders accordingly. *** For their part, the People scrupulously avoid these contentions, failing again to substantially engage or refute them. Instead, the People simply rehearse the status quo and tacitly encourage the Court to maintain it. 31 But while “[s]tare decisis is usually the wise policy,” this “cautionary principle must give way to countervailing considerations in appropriate circumstances.” Monell v. Dept. of Social Servs., NYC, 436 U.S. 658, 708 (1978) (Powell, J., concurring) (footnote, citations and internal quotes omitted). More pointedly, “ill-founded” and “unworkable” precedents should “yield” to “greater objective[s],” Vasquez v. Hillery, 474 U.S. 254, 266 (1986), and matters of “institutional importance.” Papasan v. Allain, 478 U.S. 265, 293 (1986) (Brennan, Marshall, Blackmun and Stevens, JJ., concurring and dissenting). One such institutional imperative is shifting remedial scrutiny for deficient waiver warnings away from the conflict and its immediate consequences and placing the focus where it rightfully belongs. And the focus belongs on the court’s independent inquiry duty, the intangible values it serves and the immeasurable injuries – to free choice, personal autonomy and public trust – that its breach inflicts. Contra Ans. 99. This imperative “offer[s]” a “compelling justification for deviating from th[e Court’s] established view.” People v. Hanley, 2013 N.Y. Slip Op. 02106, 20 N.Y.3d 601, 2013 WL 123814, at *3 (March 28, 2013). 32 Contrary to the People’s pat suggestion, Konstantinides does not “control[]” the remedy issue. Ans. 75-80, 86. There, the Court held only that “the absence of an on the record inquiry,” otherwise presumed sufficient, did not “require reversal.” 14 N.Y.3d at 13 (trial judge’s “neglect” to place waiver discussions “on the record” does not relieve “obligation” to show conflict’s operation) (emphasis supplied). The Court had no occasion to consider whether a substantively insufficient inquiry, recorded or not, would dictate a different result. People v. Smart, 96 N.Y.2d 793 (2001), is similarly inapt. The trial court “inquiry” there was not found “[in]sufficient,” as the People profess. Ans. 77. Rather, the defendant merely “contend[ed]” it was flawed. 96 N.Y.2d at 794-95. In fact, the court “ascertained” by suitable “colloquy” that “defendant knew” of counsel’s professional acquaintance with “the victim, the People’s primary witness.” Id. And the colloquy itself was arguably unnecessary, as acquaintanceship may not even be a conflict. Id. (simply “assuming the prior acquaintance rose to a level implicating the 14 Insofar as Smart reminds that “courts should take care to conduct a sufficient inquiry whenever there is [proof] of a prior relationship between a defense attorney and [a prosecution] witness[],” 96 N.Y.2d at 795-96, the admonition demolishes the notion that the risks of Florio’s prosecution were too self-evident to warrant an inquiry. See SUBPOINT I(D), ante. 33 conflict of interest concerns addressed in Gomberg and its progeny”) (emphasis supplied).14 B. REVERSAL IS ALTERNATELY WARRANTED BECAUSE THE INVALIDLY WAIVED CONFLICT OPERATED ON FLORIO’S REPRESENTATION AND ADVERSELY AFFECTED CORTEZ’S DEFENSE Failing automatic reversal, SUBPOINT III(F) explains how the People muddle the standards of appellate review by improperly conflating harmless error analysis with sufficiency of evidence scrutiny. See, e.g., Ans. 96-98. And, in conjunction with SUBPOINT III(C) of our opening brief, SUBPOINT III(F) of this one also shows that the People contort the record to overstate the strength of the case against Cortez. Finally, SUBPOINT II(D) of our opening brief easily meets the “minimal” burden of establishing that Florio’s poorly examined indictment conflict “operat[ed]” on Cortez’s defense. Konstantinides, 14 N.Y.3d at 10, 15 While paying lip service to the precept that a defendant “need not” point to “specific prejudice” to pass the operation test, Ans. 87 (citation and internal quotes omitted), the People also conflate conflict and general ineffective counsel standards – sometimes on the very same page. E.g., id. 84, 87-88, 90. 34 14; contra Ans. 88 (styling burden as “heavy”) (citation omitted).15 That is, it identifies “plausible alternative defense strateg[ies]” that “might have been” undertaken, but were “inherently in conflict with” Florio’s clashing “interest[]” in pleasing the prosecutors for leniency in her own case. Levy, 25 F.3d at 157 (citations and internal quotes omitted) (emphasis supplied). We do not repeat those arguments here. Instead, we add a few supplemental observations. 1. In an otherwise circumstantial case built on biological evidence, it was objectively unreasonable for Florio – solely responsible for combating the vital forensics – not to present an expert rebuttal defense. The Supreme Court itself has recognized as much, noting that the “legal community now concedes ... our system produces erroneous convictions based on discredited forensics.” Melendez-Diaz, 557 U.S. at 319 (citation and internal quotes omitted); see also id. at 320-21 (lamenting “wide variability across forensic science disciplines” as to “techniques, 35 methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material”) (citation and internal quotes omitted). With “serious deficiencies” increasingly found in the “forensic evidence used in criminal trials,” close adversarial scrutiny of “analysts’ honesty, proficiency, and methodology” – through competing expert testimony and other means – is no longer a luxury. Id. at 319, 321. It is a necessity. Compare, e.g., Pavel v. Hollins, 261 F.3d 210, 224 (2d Cir. 2001) (expert “interpretation of relevant physical evidence” is the sort of “neutral, disinterested testimony that may well tip the scales and sway the fact finder”) (citation and internal quotes omitted) with Ans. 95 (calling need for scientific experts “entirely speculative”) and id. 93 (similar). Indeed, the lack of an expert forensic defense is especially inexcusable on the facts at hand. After all, the court had allocated funds for that very purpose months before trial. Yet counsel openly admitted – as late as the trial’s delayed onset – that their putative expert reports “still” weren’t “ready.” Compare Def. AD1 Br. 24-25 & sources cited with 16 See Frye v. U.S., 293 F. 1013 (D.C. Ct. App. 1923). 17 Ans. 92. 18 Ibid. 91. 36 Ans. 96 n.71 (insisting that counsel were prepared to cross-examine People’s experts) (citations omitted). 2. As detailed in SUBPOINT III(F), Florio’s botched handling of the fingerprint lifted from Woods’s bedroom wall – the fulcrum of the People’s case – was equally regrettable. Given emerging scientific evidence that “latent fingerprint analysis” is infected with “subjectivity, bias, and unreliability,” Melendez-Diaz, 557 U.S. at 321, a Frye motion16 to exclude testimony presuming to “conclusively”17 match the print to Cortez – with “100% certainty”18 – was at least a “plausible alternative defense strateg[y].” Levy, 25 F.3d at 157 (citations and internal quotes omitted); see 65-68, post & authorities cited. At a minimum, unencumbered counsel could have powerfully impeached that testimony, by cross-examination and/or contradiction through a qualified defense expert. Id. 3. Though Justice Berkman affirmatively solicited authority construing written thoughts evidence as proof of other “acts,” counsel 19 But see 49 n.32, post. 20 Cortez, 85 A.D.3d at 412 (Freedman, J., concurring). 37 failed to supply any (Ans. 100-01, 103-04) – despite a wealth of precedent treating it as such. See SUBPOINT III, post. This was yet another “lapse in representation” tenably attributable to Florio’s dueling interest in appeasing the prosecutors – at her client’s expense if necessary. Cuyler v. Sullivan, 446 U.S. 335, 349 (1980). 4. At least one appellate judge has condemned the prosecutor’s progressive rage theory – that “previous [romantic] rejections” made Cortez increasingly “‘hostile to women,”” filling him with “‘murderous [fury]’” that culminated in Woods’s killing – as illicit “‘psychological opinion[]’” unsupported by the “evidence.” People v. Cortez, 85 A.D.3d 409, 412 (1st Dept. 2011) (Freedman, J., concurring). Yet, according to the People (e.g., Ans. 101, 112, 133, 136),19 counsel failed to protest the “1999 and 2000 [diary entries] regarding former girlfriends”20 – or the contingent psychobabble lacing the prosecutor’s summation – as the study in unfounded junk science they specifically were. 38 5. More generally, counsel also stood silent for the lion’s share of a summation that the Appellate Division found at least partially “excessive” – if not “improper[]” and “erro[neous]” – and that “went beyond fair comment on the evidence” in Justice Freedman’s view. Cortez, 85 A.D.3d at 411-12; Ans. 101, 111-12, 136. *** All of these “foregone” strategies – mounting an expert forensic defense, discrediting the definitive match testimony, providing the requested other acts authority, protesting the prosecutor’s acting as his own expert, and objecting to his extravagant summation – were eminently “plausible,” even if they may not have succeeded. U.S. v. Malpiedi, 62 F.3d 465, 469 (2d Cir. 1995) (defendant need not show that “alternative strategy or tactic” shunned by “conflicted counsel” was even “reasonable,” let alone that its absence affected trial’s “conduct” or “outcome”). Cortez’s conviction therefore must be reversed – either because Florio’s inadequately explored indictment conflict operated on his defense or automatically, without review for prejudice or harmlessness. 21 The trial prosecutor conceded that the challenged diary entries were temporally “distant” from the charged homicide. (A: 525) So the appellate prosecutors’ attempted about face (Ans. 120, 129 & n.83) is both waived and misguided. Still, the operative event was Woods’s murder, not when her “relationship” with Cortez “began.” Id. 129. 22 E.g., Br. 89-94 & authorities cited. 39 POINT III IRRELEVANT, INFLAMMATORY AND UNFOUNDED PROPENSITY EVIDENCE – VIOLENT WRITINGS ABOUT UNHARMED OTHERS, LONG PREDATING THE CRIME AT HAND – WAS ADMITTED UNDER AN ERRANT LEGAL STANDARD, DENYING CORTEZ A FAIR TRIAL AND WARRANTING REVERSAL OF HIS CONVICTION A. STATEMENT This Court has neither squarely faced, nor directly addressed the criteria for admitting, the sort of evidence at issue here: evidence of a defendant’s bad words or thoughts about unharmed third parties, never acted out, remote in time21 and factually unrelated to the crime on trial. As explained in our opening brief, however, almost every court to consider this kind of evidence has analyzed its admissibility under rule 404(b)-type principles,22 akin to the framework established in People v. 23 To be fair, the People do contend that written “thoughts” are not literal “acts.” Ans. 125, 142. That is not necessarily so. Contra, e.g., Br. 89-90 & authorities cited. But even if it were, the point is that courts across the country treat the two commensurately for admissibility purposes – a point the People do not and cannot refute. 40 Molineux, 168 N.Y. 264 (1901), for proof of extrinsic acts. E.g., People v. Alvino, 71 N.Y.2d 233, 256-57 & n.6 (1987) (noting that 404(b)-type rules “basically restate[]” this Court’s “Molineux decision,” and finding cases construing them “clearly on point”) (Hancock and Titone, JJ., dissenting). The People do not and cannot dispute this central fact. Ans. 130. And they offer no reason – let alone a cogent reason – for this Court to depart from the overwhelming consensus of its sisters nationwide. Id. at 130-32.23 Given the adages “talk is cheap” and “actions speak louder than words,” after all, evidence of evil thoughts is inherently less probative than evidence of evil deeds. E.g., Br. 89-94, 111-15 & authorities cited. Yet, as other courts roundly agree, it presents comparable risks of “generalizing a defendant’s earlier bad [words] into bad character and taking that as raising the odds that he did the later bad act now charged (or, worse, as calling for preventive conviction even if he should happen to be innocent momentarily).” Old Chief v. U.S., 519 U.S. 172, 180-81 (1997); 24 No less an authority than the U.S. Supreme Court thus uses the terms “character” and “propensity” interchangeably. Accord, e.g., Alvino, 71 N.Y.2d at 241 (similar). The People’s effort to divide the two concepts – insisting that trial counsel preserved the one objection but not the other – is therefore fanciful. Ans. 101, 132-33 & n.88. 41 accord id. (while “‘propensity evidence’ is relevant, the risk that a jury will convict for crimes other than those charged – or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment – creates a prejudicial effect that outweighs ordinary relevance”) (quoting U.S. v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982) [Breyer, J.]).24 B. THE TRIAL JUDGE MADE UNDENIABLE ERRORS OF LAW, AND THEREBY ABUSED HER DISCRETION, WHEN SHE REFUSED TO APPLY MOLINEUX AND FAILED TO BALANCE PREJUDICE VERSUS PROBITY. REVERSAL NECESSARILY FOLLOWS. The trial judge in this case, though, broke with the weight of authority and took a different approach, deeming Molineux inapplicable to the Cortez diary excerpts challenged on appeal. To reiterate, those excerpts discussed entirely separate women – ex-girlfriends, not the decedent herself – who concededly met no harm. And they were written during breakups that occurred up to six years before the charged offense, when Cortez was still in college and Catherine Woods wasn’t even a glimmer in his eye. E.g., Ans. 53 n.9, 69, 104-06, 129 n.83. 25 As the People confess, the judge identified only one “ground[]” for allowing the challenged entries: to show Cortez’s “growing state of mind.” Ans. 104, 132 (quoting A: 746). And even then, she did so only when trial counsel pressed her for an explanation. Id. But “state of mind” is an exception to the rule against hearsay, cf. Fed. R. Evid. 803(3), not a traditional exception to Molineux. See, e.g., People v. Rojas, 97 N.Y.2d 32, 37 & nn. 3-4 (2001) (listing common Molineux exceptions). And even were it a conventional Molineux exception, the challenged entries – concerning unscathed others in all events – were too old to shed any legitimate light on Cortez’s uncontested state of mind many years afterward, at the time of Woods’s late 2005 murder. E.g., Br. 109 n.49 & cases cited. Granting the judge every indulgence, “state of mind” might conceivably subsume recognized Molineux exceptions like knowledge, intent or motive. But the People have never claimed knowledge was in issue, and they explicitly disavow any “intent” rationale. Ans. 124-25 n.80. As for “motive” – Cortez’s anger at Woods “over the[ir] breakup” – the People concede that it was not genuinely in dispute (e.g., Ans. 97-98, 137, 141), making motive an insufficient if not pretextual Molineux purpose on this record. E.g., Br. 83, 87, 91, 95-98, 102, 104 & cases cited. Equally telling, the People admit that dated screeds about untouched third parties also duplicated more “compelling” proof of motive. E.g., Ans. 97-98, 137, 141. Among this other evidence were “undisputedly admissible” journal entries scorning Woods at the time of the murder, along with “incessant[]” and “obsessive[]” telephone calls “after the[ couple’s] breakup.” Ibid. At a minimum, this other evidence rendered the challenged excerpts needlessly cumulative, properly excluding them under the prejudice-probity balancing Justice Berkman eschewed. E.g., Br. 83-84, 87, 97-98, 104, 120-21, 124-25 & sources cited. 42 On this flawed legal premise, the judge refused to scrutinize the challenged excerpts under Molineux or subject them to the rigors it prescribes. To the contrary, she admitted the excerpts without articulating a valid non-propensity purpose, recognized in this Court’s Molineux jurisprudence, to support their introduction.25 Nor, the record reflects, did the court make any effort to measure the excerpts’ slim 26 The People baldly allege, without citation or elaboration, that the trial judge ruled “the probative value of the challenged entries outweighed” their prejudicial effect, allegedly “not[ing]” that Cortez’s “thoughts about Boo and Amanda never translated into action.” Ans. 132. The record belies these tropes, revealing no attempt whatever to balance prejudice and probity. See id. 103-04 & sources cited. Though the People did stipulate that “Boo and Amanda” suffered no harm, defense counsel complained that the challenged entries were more prejudicial than probative regardless – a protest the court ignored. Id. 103-04, 132 & sources cited. 27 Though trial counsel did not seek a cautionary instruction (Ans. 132 n.87), the judge had already signaled her refusal to give one by errantly holding Molineux inapplicable. Nothing obliged counsel to make a futile request. 43 probative worth (if any) against their fully realized capacity to cause crushing prejudice.26 To make matters worse, the judge neglected to issue a limiting instruction warning the jury not to convict on the charged offense simply because Cortez had expressed violent thoughts about other, unharmed women in the distant past.27 These errors and omissions by the trial judge should begin and end this Court’s inquiry regarding the challenged journal entries. For a judge necessarily abuses her discretion when she makes mistakes of law – here, using the wrong legal standard to gauge the entries’ admissibility and shunning prejudice/probity balancing. E.g., Br. 94-95 & cases cited; Schlup v. Delo, 513 U.S. 298, 334 (1995) (“erroneous view of the law” is a “paradigmatic abuse of discretion”) (O’Connor, J., concurring). Reversal 44 follows inescapably as the People fail to prove the mistakes harmless. E.g., Br. 126-34; post SUBPOINT III(F). C. NO COURT IN THE LAND HAS EVER ALLOWED EVIDENCE LIKE THIS IN CIRCUMSTANCES LIKE THESE Illustrating their position’s frailty, the People cannot point to a single case anywhere in the world allowing this type of evidence on remotely similar facts. The closest cases they muster – a pair of solitary rulings from Michigan and Colorado (Ans. 116-17), both cited and discussed in our opening brief – are easily and decisively distinguished. 1. Hoffman In People v. Hoffman, the court did affirm the admission of evidence that the defendant generally “hate[d] women” in his prosecution for assaulting a live-in girlfriend. 570 N.W.2d 146, 147-49 (Ct. App. Mich. 1997). But it did so only because, and accompanied by proof that, the defendant previously “acted on such hostility” by assaulting two former girlfriends. Id. (emphasis supplied). Nothing in the opinion implies that proof of the defendant’s misogyny alone would have been admissible had he, like Cortez, not acted it out. If anything, the opinion strongly suggests the opposite conclusion: that misogyny without corresponding action 28 In juxtaposing character and propensity, Hoffman itself dispels any distinction between the two for Molineux/404(b) purposes. See ante 41 n.24; accord, e.g., People v. Zackowitz, 254 N.Y. 192, 197 (1930) (explaining that propensity evidence is a species of character proof, a forbidden means of attacking character); Prince, Richardson on Evidence, § 4-401, at 162-63 (Farrell 11th ed. 1995) (declaring, contrary to People’s conflation, that “[c]haracter and reputation are not synonymous”). 29 While faulting our purported “reliance on cases involving evidence of actual bad acts” (Ans. 126 & n.81, 130), the People do the same with Hoffman. They cannot have it both ways. 45 would “establish[] no more than character or propensity” on the facts before the court. Id. at 149.28 Even the People acknowledge as much, burying the lede in a grudging footnote. Ans. 117 n.78.29 Here, in contrast to Hoffman, it is undisputed that Cortez never laid a finger on ex-girlfriends Boo and Amanda. What’s more, Hoffman placed his motive squarely in issue by giving “self-serving testimony that the victim provoked the incident by stealing his money.” 570 N.W.2d at 110. Not so Cortez, as detailed in our opening brief and echoed later. E.g., ante 42 n.25; post 52-55. And without the challenged excerpts, “the jurors” in this case would not have “found it difficult to believe” that Cortez “committed the depraved and otherwise inexplicable actions” with which he was charged. Ans. 117 (quoting 570 N.W.2d at 149-50). After all, the jurors had already 30 Far from “related,” the random violence, bias crime and political/ideological crime cases the People marshal are thus beside the point. Ans. 116, 117-18 n.79, 121, 127, 133 n.88. 46 heard about the couple’s stormy breakup, Cortez’s contemporaneous writings vilifying Woods in its wake, and his compulsive phone calls and other unsuccessful efforts to win her back. Cf., e.g., People v. Byer, 2013 NY Slip Op. 02777, N.Y.3d , 2013 WL 1759564, at * (April 25, 2013) (defendant’s own “statements” made “motive clear:” girlfriend “had told him earlier in the day that she wanted to end their relationship and he vented his rage on her friend, the victim, who he thought was interfering in the relationship”). 2. Masters Even farther afield is Masters v. People, 58 P.3d 979 (Col. 2002) (en banc). There, too, the court did uphold the admission of a defendant’s “misogynistic journal entries” in a “homicide prosecution where [the] female victim was stabbed and [sexually] mutilated.” Ans. 117. But Masters involved a seemingly unprovoked and “otherwise inexplicable” attack against a “random” stranger, 58 P.3d at 983-85, not what allegedly occurred here – a de facto domestic assault against an intimate partner.30 31 For these reasons – identity’s removal as an admissibility basis and insufficient novelty – the People’s insistence that the journals “displayed” a “fascination with knives and slit throats” is a red herring and should be discounted. E.g., Ans. 100, 105, 108, 119, 138. In similar fashion, the People also profess to abandon any “background” (continued...) 47 Cf., e.g., People v. Vega, 3 A.D.3d 239, 247-48 (1st Dept. 2004) (evidence of prior victim abuse “often admissible” in domestic violence cases while past assaults against others “most properly” precluded; earlier aggression “principally indicates” motive in first instance but “predominantly” connotes “propensity” in second). On top of that, Masters’s graphic depictions of “death by stabbing or slicing” closely foreshadowed the peculiar way the victim was killed, helping identify him as the perpetrator. 58 P.3d 983-85, 1000 (entries reflected “specific aspects” of charged murder, including “pools of blood, bloody drag trails, distinctive scratch marks on victims’ faces” and victims with “arms positioned” above heads). Here, in contrast, the People purport to disclaim any identity rationale. Ans. 124-25 n.80. And in all events, the writings, drawings and manner of death in this case were too nondescript – i.e., insufficiently unique – to form a signature modus operandi. E.g., Br. 100-01 & n.46, 104-05 and cases cited.31 31(...continued) rationale. Id. 124-25 n.80. Yet, at the same time, they intermittently try to defend the excerpts’ receipt on that very theory and under the pseudonym “context.” Compare ibid. with id. 118-19, 120-21. The Court should discount those efforts as well. Once again, the People cannot have it both ways. 48 Finally, the Masters court stressed that its “admissibility” determination depended “primarily” on “expert” testimony from a “forensic psychologist” specializing in “sexual homicide.” 58 P.3d at 985, 1004, 1010 (dissenting op.). The expert’s testimony, the court emphasized, concretely “link[ed] the defendant’s [written] fantasies” to the particular “crime” at hand, demonstrating their “relevance” and “reliability” and validating the 404(b) “exceptions” said to support their receipt. Id. at 32 Contrary to the People’s supposition (Ans. 101, 133-35), our foundation objection is amply preserved for this Court’s review. Trial counsel protested the challenged excerpts on Molineux grounds. Molineux requires the proponent to articulate a proper, non-propensity purpose for admitting proffered evidence. Cases interpreting Molineux and its 404(b) analogue hold that a proper purpose encompasses an appropriate factual foundation linking the evidence to – and showing that it fairly tends to establish – the proposition for which it is offered. Cf. Huddleston v. U.S., 485 U.S. 681, 689-90 (1987) (relevancy exists “only as a relation between an item of evidence and a matter properly provable in the case,” and court must “decide” whether jury could “reasonably find” this threshold connection “by a preponderance of the evidence”) (construing federal rule 404(b)). Those cases also spell out what an appropriate foundation entails, and make clear that it was absent here. E.g., Br. 111- 20 & authorities cited. The same is true of our claim that motive was uncontested. Contra, e.g., Ans. 101, 124. Again, defense counsel objected to the challenged entries under Molineux. And again, Molineux requires the proponent to establish a proper, non-propensity purpose for admitting proffered evidence. In turn, cases construing Molineux and its 404(b) counterpart make clear that a proper purpose contemplates an issue that is really in dispute. E.g., Br. 83, 87, 91, 95-98, 102, 104 & cases cited. Here, motive was not. 33 The People thus mischaracterize our position – and knock down a strawman – when they insist that we demand an expert foundation. Ans. 133-35. What the law requires, rather, is some evidentiary or factual predicate – more than the prosecutorial ipse dixit managed here. E.g., Br. 83, 111-20. The People’s reference to statements by a party opponent (Ans. 134) mixes apples – an exemption from the hearsay ban – and oranges – the requisites for admission under Molineux. 49 1010 (dissenting op.). Such evidentiary foundation32 – lay or expert, factual or empirical33 – was entirely lacking here. *** In light of these marked distinctions, Hoffman and Masters offer the People little comfort on this appeal. If anything, they bolster the defense position, proving our point by negative implication: the challenged entries 34 E.g., Br. 79; Ans. 102; A: 284, 300-01. 50 “establishe[d no] more than character or propensity” in disguise, Hoffman, 570 N.W.2d at 149, inviting punishment for the kind of “person” Cortez was claimed to be rather than the “acts” he was accused of committing – “who he [wa]s” was rather than “what he [allegedly] did.” Masters, 58 P.3d at 1005, 1012 (dissenting op.). D. ANY CLAIM OF INVITED RESPONSE IS WAIVED, MERITLESS AND PROVES TOO MUCH Stymied on the law, the People vainly attempt to rewrite the facts. Thus, they persistently suggest that Cortez’s defense somehow opened the door to the challenged entries, justifying their admission as invited response. E.g., Ans. 100-01, 107, 121-23. This argument is fallacious and should be rejected out of hand. First, as our initial brief notes and the People reluctantly agree,34 the prosecutor unveiled the challenged entries at the trial’s very outset, previewing them extensively in his opening statement – before defense counsel got up to say a word, Cortez took the stand to try and “explain” 35 See A: 527 (defense counsel protesting that challenged entries would “place a burden” of explanation on Cortez) (quoted at Ans. 103). 36 Ans. 91, 101, 124. 51 them,35 or a single character witness testified on his behalf. Obviously, Cortez could not have opened the door to evidence the People had already fronted and spotlighted in the first instance. Cf., e.g., People v. Agina, 18 N.Y.3d 600, 606 (2012) (though defendant’s testimony arguably “opened the door to the admission of prior bad acts,” evidence was “admitted during the People’s direct case, a clear Molineux violation”) (Ciparick and Jones, JJ., dissenting) (footnote omitted). If anything, the shoe is on the other foot; the prosecutor’s opening speech invited the defense to respond in kind. The open door theory fails on this ground alone. Second, the People explicitly did not contend – at trial or in the Appellate Division – that Cortez had opened the door to the challenged entries. Nor were they offered as impeachment or rebuttal evidence. Instead, the People offered the entries to directly prove Cortez’s motive, as substantive evidence of guilt. The People thereby waived any “newfound”36 invited response claim, and it is not properly before this 52 Court. Cf., e.g., People v. Jackson, 8 N.Y.3d 869, 870 n.* (2007) (People limited on appeal to Molineux admissibility theories “advance[d] at trial”). Third, even ignoring the prosecutor’s opening and assuming proper preservation, nothing in the defense opening, Cortez’s testimony, or that of his character witnesses put motive in issue or opened the door to evidence on that score. By the People’s own account, defense counsel’s opening portrayed Cortez as “peaceful,” “nonviolent,” “gifted” and “artistic,” “incapable” of killing Woods or anyone else. Ans. 121-22 & sources cited. Nothing in those descriptions suggested that Cortez did not have a motive to commit the murder. Nowhere did they question or contest that he had such a motive, or imply that anybody else had a “superior” one. Id. 119. They said nothing about motive one way or the other, avoiding the subject altogether. Cf., e.g., People v. Mateo, 2 N.Y.3d 383, 420, 425-26 (2004). Fairly read, rather, defense counsel’s opening remarks denied her client’s guilt and proclaimed his innocence on the theory that he was “incapable” of murder period – that he was unable to kill at all, not that he lacked a motive to do so. Ans. 100, 121, 122, 139. Even if Cortez had 37 Insofar as counsel maintained that Cortez loved Woods and denied their relationship was obsessive (Ans. 122), the entries disparaging Woods herself more than adequately countered those claims. 38 Cf., e.g., Rojas, 97 N.Y.2d at 38 (“if a defendant offers evidence of good character, the prosecution may independently prove any previous conviction ... tending to negate the trait in issue”) (citations omitted) (emphasis supplied); but see, e.g., State v. Everett, 297 P.3d 292, 296-97 (Kan. 2013) (defendant cannot open door to otherwise inadmissible evidence; even if door opened, evidence still must satisfy prevailing restrictions on proof of uncharged acts). 53 such a motive, counsel basically posited, he was not the kind of “person” who could or would have carried it into action. Id. 121 & sources cited. Killing Woods, she intimated, would have been aberrational, out of character, and inconsistent with everything the jury would learn about Cortez’s attitude, demeanor and behavior. In taking that tack, the defense opening did precisely what our initial brief alleged: it disputed the culprit’s identity by making an argument about Cortez’s character.37 Yet the People concede that the entries’ admission cannot be sustained on identity grounds. Id. 124-25 & n.80. And to be sure, the prosecutor could have asserted that the defense opening had placed Cortez’s character in issue, opening the door to the entries for impeachment and rebuttal purposes.38 Had the prosecutor followed that course, the judge might have admitted the entries with a limiting 39 Cf., e.g., Mateo, 2 N.Y.3d at 424-25, 428. 40 As for Cortez’s testimony, summation and character witnesses, we reiterate that they could not have invited – and were necessary to try and “explain” (Ans. 103 [quoting A: 527]) – entries that the prosecutor opened on in the first instance. See ante 50-51. Though Cortez did have an “opportunity to air his views” on the entries (Ans. 132), that is neither here nor there, as he should not have had to explain inadmissible evidence to begin with. 41 E.g., Ans. 122 (“The People were obviously entitled to demonstrate that [Cortez] was not the peaceful, loving, non-violent man ... he claimed to be.”); id. 123 (Cortez’s “attempt to portray himself to the jury as a gentle, peaceful, loving soul was an utter sham, and the prosecutor had the right to unmask this fraud using [his] own written words.”); id. 124 (“defense case” and “summation” emphasized Cortez’s “supposedly non-violent nature”); id. 133 n.88 (“it was [Cortez] who introduced his character into the trial, calling several witnesses to testify about his reputation for truthfulness [sic] and nonviolence”); id. 139 (defense cast Cortez as a “person ... fundamentally incapable of murder”). 54 instruction that they were not to be considered for their truth,39 and the Appellate Division could have reviewed that ruling for abuse of discretion. But the People spurned that approach, offering the entries – and defending their admission – solely as substantive evidence of motive and direct proof of guilt. Cf. Jackson, 8 N.Y.3d at n.* And as just reaffirmed, Cortez’s opening never put motive in controversy.40 Viewed in this light, the People’s invited response argument protests too much and betrays the challenged entries for what they really amounted to: a putative but forfeited counterattack on Cortez’s character41 – first injected by the People at any rate – in the name of proving a motive 55 that he never seriously denied. Contra, e.g., People v. Fitzgerald, 156 N.Y. 253, 267 (1898) (People “had no right to prove indirectly what they” could not “show by direct proof”) (cited at Ans. 123, 134); People v. Brown, 265 A.D. 153, 157 (2d Dept. 1942) (offering evidence for one purpose (motive) and using it for another (character) long held “improper”), aff’d, 290 N.Y. 830 (1943). E. THE PEOPLE’S REMAINING MOTIVE ARGUMENTS MISS THE MARK The rest of the People’s arguments as to motive fare no better. 1. Contrary to the People’s surmise, nothing in Cortez’s aged writings about unharmed ex-lovers had any logical tendency to show that he killed Woods to settle old scores – or, as the People put it, to vindicate the “sum total of his grievances” against “former romantic partners.” Id. 120; see also id. 119 (asserting that challenged entries exhibited a “desire to avenge perceived wrongs committed by” previous girlfriends). In evidentiary terms, that is, the challenged entries made it little or no more likely that Cortez’s alleged hostility to women – latent as it was – had suddenly escalated “to the point where he was willing and able to use violence against” Woods. Id. 120-21 (emphasis supplied). 56 If anything, Cortez’s pattern of suppressing his “anger” over earlier breakups – i.e., not acting it out – tends in the opposite direction. Id. 120. In other words, Cortez’s failure to act on his rage after prior breakups with others made it less likely that he would act on the same palpable fury by turning to violence after this breakup with Woods – the only issue genuinely in dispute. Three times zero equals zero, no matter how the People spin or slice it. E.g., Fitzgerald, 156 N.Y. at 258-59 (“motive” ascribed to accused “must have some legal or logical relation to [charged] criminal act according to known rules and principles of human conduct. If it has not such relation, or if it points in one direction as well as in the other, it cannot be considered a legitimate part of the proof.”) (emphasis supplied). Thus, to paraphrase the People’s own Fitzgerald case, the “truth” is that the challenged entries “had no bearing on th[is] case [either] way.” And since the entries “presented” Cortez “very unfavorabl[y]” as to matters removed from the real “issue” – the odds of his enacting the animosity the jury already knew he felt over the Woods split – they “should have been excluded.” Id. at 263. 57 It would be different, for example, if Cortez had a history of domestic abuse, if there were proof that he had incrementally injured any women in the past or if he had written, in substance, “I’m gonna kill Catherine to get back at her and all the girls who hurt me over the years.” In those scenarios, writings maligning other women who spurned Cortez’s affections might well be admissible for background, context or motive purposes, if not as evidence intrinsic to the offense itself. But there was no such proof here, rendering the challenged entries irrelevant – or at least properly excludable in the prejudice-probity balancing the trial judge shirked. As it is, the People’s arguments in this vein merely parrot the “speculative” pabulum the trial prosecutor peddled. Fitzgerald, 156 N.Y. at 264. Like the trial prosecutor, the People conjure a factual dispute where none existed and invent their own theory of relevance for the challenged excerpts. Without a whit of objective support – legal, psychological, statistical or experiential – they echo the prosecutor’s supposition that Cortez’s inchoate and accumulated “grievances” against women somehow made him “willing and able to use violence against 58 Woods” on this occasion. Ans. 120-21; accord, e.g., id. 118-20, 127-28 (similar). And, implausibly, they reprise this rank assumption even as they concede that there was no suggestion Cortez had ever lifted a finger against any woman before. From the same whimsical premise – a product of the trial prosecutor’s imagination – the People then seek to bootstrap the excerpts’ admission, essentially concocting their own logical predicate, manufacturing their own foundation and arguing in a circle. The ploy is no more effective – and no less transparent – than it was below. With respect, this Court should not condone it. E.g., Fitzgerald, 156 N.Y. at 264 (the “reasoning from cause to effect is strained,” so motive theory cannot justify admitting evidence impugning defendant’s “character” when “foreign” to “issue” on trial; evidence “had no tendency to throw light on the real question” and was bound to “prejudice and mislead the jury”). 2. No one disputes the truism, riddling the People’s brief, that proof of “a defendant’s motive to commit the charged crime is relevant.” E.g., Ans. 115, 123-24, 127-28. Indeed, the “distinction” between “motive” and “character” is elusive, Hoffman, 570 N.W.2d at 148, and all character 59 evidence is relevant in the abstract – so relevant, in fact, that it is presumptively precluded for that very reason. E.g., Michelson v. U.S., 335 U.S. 469, 475-76 (1948) (character evidence “exclud[ed]” not because “irrelevant,” but because it “weigh[s] too much with the jury,” so “overpersuad[ing] them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge”). For proffered motive evidence to satisfy Molineux, however, the defendant must genuinely contest the issue, with the evidence’s probative force trumping its risk of undue prejudice. E.g., Br. 83, 87, 91, 95-98, 102, 104 & cases cited. Here, Cortez’s motive was not genuinely contested. What’s more, the trial court never balanced probity and prejudice, and the latter eclipsed the former in any event. If all motive evidence is “admissible” and the People are always entitled to “prove it in their direct case, regardless of the defense” (Ans. 123-24), then prejudice/probity balancing evaporates and anything a defendant has ever written or said anytime in his life becomes fair game; there is literally no limit to what a prosecutor might dredge up. That is not the law. 60 3. Finally, the prosecution hits bottom when it reaches back to the 19th century and dusts off Fitzgerald, People v. Decker and People v. Sutherland. Ans. 115, 120, 123, 128, 134. The People’s reliance on these pre-Molineux relics is sorely misplaced, exuding desperation and punctuating their argument’s weakness. a. Decker approved admission of a defendant’s prior threats against the decedent herself, reasoning that they showed motive, deliberation and premeditation, then apparent elements of first degree murder. 157 N.Y. 186, 193-94 (1898). Here, on the other hand, the challenged entries berated unharmed third parties years before the charged offense. And motive – undisputed if not indisputable – was abundantly established by contemporaneous excerpts denouncing the actual victim, coupled with relentless telephone calls in the breakup’s aftermath. Cf. Byer, 2013 WL 1759564, at * . In context, the challenged entries thus distilled to pure prejudicial overkill. Given these stark discrepancies, Decker is hardly the mother lode the People make it out to be. 61 b. As for Fitzgerald, it favors the defense position. There, the Court reversed an arson-for-profit conviction for improper admission of similarly “conjectur[al]” other acts evidence, with no “legal” or logical “connection” to the fire “charged in the indictment.” 156 N.Y. at 261-62. As in this case, the People purported to offer the evidence to prove the defendant’s motive – specifically, his motive for “procur[ing]” another man to burn a school. Id. at 256, 259, 263-64. Rejecting as tenuous the “theory” that the evidence “furnished” the crime’s “motive,” the Court held that it had “no legitimate bearing on [any] fact in issue.” Id. at 264, 267. Rather, it served only to “prejudice and mislead,” smearing Fitzgerald’s “character.” Id. at 259, 264. With no claim of accessorial liability, this case is even more suspect. If Cortez killed Woods, there was no doubt that he did it himself. And there was also no doubt as to why he would have done it: to vent his manifest “antagonism” over their breakup. Cortez, 85 A.D.3d at 410-11. The issue, instead, was simply whether Cortez acted on that uncontroverted motive; either he did or he didn’t. Incipient fantasies about hurting other women, never themselves acted out, had no rational 42 Sutherland involved “letters written by the deceased to the defendant” – not a defendant’s own private writings – and is wholly inapt. 154 N.Y. 345, 351 (1897). 62 capacity to prove that he did. If anything, Cortez’s prior inaction and self- restraint – his keeping those feelings in check and not acting them out – cut the opposite way, as previously discussed. Thus here, as in Fitzgerald, it follows that the challenged entries were offered principally – if not exclusively – to tar Cortez as a vile woman hater with dangerous inclinations. They therefore should have been excluded as irrelevant, or infinitely more prejudicial than probative.42 *** In sum, motive was never truly in issue in Cortez’s trial, and the challenged excerpts had little or no bearing on the sole contested question of the assailant’s identity. Endlessly repeating the magic word “motive” – the People’s strategy in this Court – does not mean that Cortez genuinely denied its presence. And doggedly insisting that he did, without a jot of supporting evidence, does not make it a reality. Try as they might, the People cannot create a factual dispute from whole cloth. 43 Indeed, the prosecutor confirmed the excerpts’ real purpose at sentencing, claiming they revealed Cortez’s “violent nature” and “sadistic” personality – abusive, “malevolen[t]” and “danger[ous]” to women – “as it truly exists.” (PA: 46-48, 50, 52) 44 Cortez, 85 A.D.3d at 411. 45 As the People recognize (Ans. 135-36), we examine the summation to illustrate the prosecutor’s use of the challenged entries and explain their harmful impact – not as an independent claim of error. E.g., People v. Stanard, 32 N.Y.2d 143, 146-47 (1973) (prosecutor’s use of inadmissible evidence in summation created “inherent prejudice”); People v. Espada, 205 A.D.2d 332, 333 (1st Dept. 1994) (admission of improper evidence and use in summation denied defendant fair trial); U.S. v. James, 712 F.3d 79, 100 (2d Cir. 2013) (“prosecutor’s conduct with respect to [] improperly admitted evidence” critical to prejudice determination) (citation and internal quotes (continued...) 63 It follows by default that the excerpts were designed to paint Cortez as a loathsome deviant disposed to violence, especially against women. And as recounted in our opening brief and elaborated directly below, that is exactly how the prosecutor used them.43 F. THE PEOPLE FAIL TO CARRY THEIR HARMLESS ERROR BURDEN, DICTATING REVERSAL There is no dispute that the challenged entries were sensational if not explosive, describing Cortez as a “monster” filled with “pent up rage,” craving “revenge” and wishing death on “sly whore[s]” “fucking random guys.” Br. 77-78; Ans. 104-05; see also PA: 76 (court calls diary passages “concern[ing]”). And the entries dominated the prosecutor’s “excessive”44 and inflammatory summation,45 which “went beyond fair comment on the 45(...continued) omitted). Still, it is worth noting that the summation misused even the impeaching excerpts for substantive purposes (compare Ans. 122-23 with Br. 81 & n.40, 129-31) – a plain error if ever there was one. Cf., e.g., U.S. v. Marcus, 560 U.S. 258 (2010). 46 Cortez, 85 A.D.3d at 412 (Freedman, J., concurring). 47 Ans. 119, 123. 64 evidence”46 by assailing the “violent” and angry “person” they allegedly “unmask[ed].”47 E.g, Br. 80-82, 129-32. In a circumstantial case with significant infirmities and a viable alternative perpetrator, it strains credulity to suggest that these seamy writings and the character attack they fueled did not affect the outcome. Id. 132-34. The People’s opposing claim confuses harmless error analysis with sufficiency of evidence review. That the evidence legally sufficed to convict does not make it “overwhelming” (Ans. 140, 142) or mean there was no “significant [acquittal] probability” without the wrongly admitted entries. Byer, 2013 WL 1759564, at * (citation and internal quotes omitted). On the contrary, our main brief shows that the proof was porous and open to conflicting interpretations, so the entries and their use probably did influence the result. E.g., Ans. 132-34. And there were other shortcomings besides. Among them: 65 1. The latent fingerprint lifted from Woods’s bedroom wall is not the smoking gun the People would have this Court believe. Id. 140. Indeed, a recent Natl. Academy of Sciences report concluded that there is no “genuine research” to back “claims that examiners may ‘individualize’ a latent []print to a single” suspect such as Cortez. Gabriel A. Fuentes, “Toward a More Critical Application of Daubert in Criminal Cases: Fingerprint Opinion Testimony After the NAS Report,” 92 Bloomberg BNA Criminal Law Reporter (CRL) 135, (Oct. 31, 2012) (“Fuentes”) (footnote and citations omitted); accord id. at (NAS Report found examiners “unjustified in claiming they can match” a latent print “to a particular finger to the exclusion of all others in the world,” rejecting assertions of “uniqueness in friction ridge patterns a[s] unsubstantiated”) (footnotes, citations and internal quotes omitted); Jennifer L. Mnookin, “The Courts, the NAS, and the Future of Forensic Science,” 75 Brook. L. Rev. 1209, 1268 (2010) (“ACE-V [identification technique] is extremely vague, and does not come close to providing a fully developed and adequately articulated method with detailed specifications”). 66 In the NAS Report’s wake, “prominent” members of the “fingerprint examiner community” have issued statements “backing away from the idea that a zero error rate [i]s plausible or appropriate for court testimony.” Fuentes, 92 CRL at (footnote omitted). For example, one organization – the Scientific Working Group on Friction Ridge Analysis, Study, and Technology (SWGFAST) – publicly “acknowledg[d]” that “errors do occur,” adding that “claims of zero error rate in the discipline are not scientifically plausible.” SWGFAST Position Statement (Aug. 3, 2009). Similarly, the Natl. Institute of Justice’s (NIJ) Natl. Institute of Standards and Technology (NIST) announced that testimony purporting to individualize a latent print to one source, to the exclusion of all others, is “needlessly strong, not yet adequately supported by fundamental research, and impossible to validate solely on the basis of experience.” NIST, NIJ, Latent Print Examination and Human Factors: Improving the Practice Through a Systems Approach, at 197 (Feb. 2012). Given this growing body of research debunking the individualization myth, conflict-free defense counsel could have sought to preclude – under 67 Frye – testimony professing to “match[]” the bloody wall print to Cortez in “conclusive” and “unequivocal” terms. Ans. 140, 92 (insisting that wall print “was matched, with 100% certainty, to [Cortez’s] left index finger”), 93 (asserting that “fingerprint conclusively linked [Cortez] to the murder”). As one commentator persuasively argues: [T[he recurring but now discredited claim that an examiner may individualize a latent fingerprint to a single human source must be excluded from the courtroom, at least until an adequate research basis can be advanced to support that claim. *** When ... Frye is stringently – and appropriately – applied, there should be no place in the courtroom for fingerprint examiners to make individualization claims, at least until the fingerprint examiner community and a community of relevant scientists are in consensus that research exists to back up the validity of an opinion that will be so compelling to jurors who have been told for their entire lives that fingerprint identification is infallible. Fuentes, 92 CRL at ___ n.45, - (emphasis supplied). 68 At a minimum, conflict-free counsel could have discredited the definitive match testimony through vigorous cross-examination, e.g., U.S. v. Aman, 748 F. Supp. 2d 531, 541 (E.D. Va. 2010), or competing testimony from a defense expert – especially where the court had set aside funds for that precise purpose months before trial. Br. 8; Ans. 57 & n.52; A: 214. 2. By their very nature, the journal excerpts the People introduced – both the challenged entries and even those concerning Woods herself – presented as potent evidence likely to captivate the jury. E.g., Br. 131-32 & authorities cited. But that appearance was deceptive. As courts and commentators widely agree, diary evidence actually suffers from innate ambiguity and reliability problems that minimize its probity and maximize its prejudicial effect. E.g., id. 112-15, 125-26 & authorities cited. To cite just one example, the People hype the lyrics to Cortez’s “Killin’ Machine” song as damning proof that he planned to murder Woods. Ans. 13, 44-45, 107-08, 111, 120. Yet in the rock classic “Highway Star,” heavy metal band Deep Purple used the same phrase, “killin’ 69 machine,” to describe a car – not a sexual homicide. http://www.lyricsfreak.com/d/deep+purple/highway+star_20038723.html. Like the fingerprint, the diaries were not the smoking gun the People imagine. 3. The People similarly embellish the evidence when they claim Cortez “stopped calling” Woods following the murder, ostensibly proving “he knew she was dead.” Ans. 141, 97-98. In fact, phone records showed that he called her eight minutes after the time to which the crime was pinpointed. E.g., Def. AD1 Br. 4-5 & sources cited. And if he had stopped calling, that would obliterate – not advance – the “alibi” he was supposedly cooking up. Ans. 141, 97-98. Which one is it? 4. Finally, the People again revert to embroidery in insinuating that a neighbor observed Cortez discarding “bloody clothing and the murder weapon, which were never found.” Id. (emphasis supplied). As the People admit elsewhere, the neighbor could not say when he saw Cortez taking out trash, much less whether it was before or after the crime. Id. 25. *** 70 For these reasons and those previously stated, the People greatly exaggerate the strength of the evidence against Cortez. This was far from the open and shut, airtight case the People postulate. Conviction was anything but certain, much as they might wish it were. In a circumstantial case hinging on a single undatable fingerprint – categorically degraded in probity by emerging science and scholarship – the People cannot pretend that graphically misogynistic writings “excessive[ly]” emphasized in summation had no effect on the verdict. Cortez, 85 A.D.2d at 411. On this record, the inadmissible entries were assuredly and demonstrably prejudicial, mandating reversal. G. CONCLUSION In sum, the trial judge admitted the challenged excerpts without Molineux analysis or prejudice/probity balancing, applying an incorrect evidentiary standard, committing a clear legal error and thereby abusing her discretion. At any rate, private writings expressing anger toward other women following earlier breakups – feelings that never ripened into action – made it no more likely that Cortez would act on similar hostility to Woods after 48 Cf. Rivas, 687 F.3d at 526. 71 splitting with her. As such, the challenged entries had no logical tendency to identify Woods’s killer, the only issue genuinely in contest. To boot, the entries were stale, sordid, cumulative of contemporaneous selections denigrating the actual victim, and lacked appropriate foundation. Their prejudicial effect thus outweighed any residual probative value they may have had. Because the case was “underwhelming”48 and the prosecutor used the excerpts to make illicit propensity arguments demeaning Cortez as a “person” – i.e., pillorying him as a violent “misogynist narcissist [who] couldn’t handle rejection anymore” – the error warrants reversal. E.g., Br. 80-81, 84, 130-31 & sources cited. 72 CONCLUSION Cortez’s conviction should be overturned. Dated: New York, NY May 23, 2013 Respectfully submitted, LAW OFFICE OF MARC FERNICH By: MARC FERNICH 152 W. 57th St. Fl. 24 New York, NY 10019 (212) 446-2346 maf@fernichlaw.com Attorney for Paul Cortez