99 Civ. 11428 (LAK)
September 29, 2000
Cynthia Colt, M. Sue Wycoff, Criminal Appeals Bureau The Legal Aid Society, Attorneys for Petitioner.
Stuart P. Levy, Elizabeth F. Bernhardt, Assistant District Attorneys, Robert T. Johnson, District Attorney, Bronx County, Attorneys for Respondent.
Petitioner was convicted in New York Supreme Court, Bronx County, of second degree murder and criminal weapons possession and sentenced to a term of twenty-five years to life imprisonment. His conviction was affirmed by the Appellate Division, and the New York Court of Appeals denied leave to appeal. He then filed this petition for a writ of habeas corpus.
The central issue presented is whether petitioner was deprived of his federal constitutional right to a defense by counsel of his choice when the trial judge refused to permit the second of his two retained attorneys to conduct the cross-examination of Dr. Pearl, the medical examiner called by the People. The details of the circumstances in which that occurred the and the Appellate Division's subsequent treatment of the issue are set forth in the Report and Recommendation of Magistrate Judge Andrew J. Peck, dated June 8, 2000, and need not be repeated here.
Lainfiesta v. Artuz. No. 99 Civ. 11428 (LAK) (AJP), 2000 WL 739425, at ¶ 6 2-4, ¶ 6 11-13 (SDNY June 8, 2000).
Judge Peck concluded that petitioner's constitutional right was violated and that the state court's action was arbitrary, erroneous and an unreasonable application of Supreme Court precedent. He recommended that the petition be granted. Respondent objects.
Id at *10-13
Petitioner's Right to Counsel of His Choice
The Sixth Amendment, as applied to the states by the Fourteenth, guarantees criminal defendants the right to assistance of counsel for their defense. As Magistrate Judge Peck thoroughly discussed in his Report and Recommendation, the Supreme Court has recognized that this right encompasses a defendant's qualified right to be represented in a criminal prosecution by counsel of his or her choice. Although this right may be limited by a trial court where there is a competing interest concerning orderly trial procedures or the fair administration of justice, it may not be denied arbitrarily.
See U.S. CONST. amend. VI.
See Wheat, 486 U.S. at 159 (defendant may not insist on counsel who is not admitted, declines to represent defendant, or who has an actual or serious potential conflict of interest); see also Morris v. Slappy, 461 U.S. 1, 14 (1983) (unreasonable delay is valid basis to override counsel of choice).
See Morris, 461 U.S. at 11-12 (trial court's refusal to reschedule trial to accommodate defendant's lawyer of choice would violate the right to the assistance of counsel "only [if it was] unreasoning and arbitrary").
A related right, also embodied within the Sixth Amendment, is the right to present a defense as one sees fit. Within limits, a defendant has the right to prepare and present the defense that he or she chooses and to select a particular attorney, or attorneys, to assist with that defense. Each of these fundamental rights is extended to a defendant in a state criminal prosecution through the Fourteenth Amendment.
Cf. Herring V. New York, 422 U.S. 853, 857 ("the right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary fact-finding process").
See, e.g., Geders v. United States, 425 U.S. 80, 91 (1976) (bar on attorney-client consultation during over night recess held unconstitutional); Faretta v. California. 422 U.S. 806, 819 (1975) ("The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense."); Herring v. New York, 422 U.S. 853, 864-65 (1975) (holding unconstitutional a state statute that conferred authority upon judge to deny counsel opportunity to make final summation); Brooks v. Tennessee, 406 U.S. 605, 611 (1972) (striking state rule requiring defendants to testify before any other defense witness testifies as unreasonable restriction defense in planning of its case); Powell, 287 U.S. at 59 (defendant must not be "stripped of his right to have sufficient time to advise with counsel and prepare his defense").
See. e.g., United States v. Laura, 607 F.2d 52, 58 (3d Cir. 1979) (finding unjustified dismissal of defendant's local counsel violated Sixth Amendment right to counsel of choice, even though defendant still had her lead counsel. The court in that case stated: "By the time of [defendant's] hearing, she had defense team composed of two attorneys who may have served distinct and important functions on her behalf. As she wished to retain both attorneys we can only presume that she felt that she needed both attorneys. The choice is hers to make and not the court's, unless some appropriate justification for the dismissal is provided.").
In an earlier passage, Judge Higgenbotham aptly described the importance of the selection of a given attorney to a defendant's case:
"Attoreys are not fungible, as are eggs, apples and oranges. Attorneys may differ as to their trial strategy, their oratory style, or the importance they give to particular legal issues. These differences, all within the range of effective and competent advocacy, may be important in the development of a defense. Given this reality, a defendant's decision to select a particular attorney becomes critical to the type of defense he will make and thus falls within the ambit of the sixth amendment." Id. at 56.
U.S. CONST. amend. XIV; see also Herring v. New York, 422 U.S. 853, 857 (1975).
The petitioner asserts that he was denied his Sixth Amendment right to counsel of choice when the trial court refused to allow one of his two retained attorneys to conduct the cross-examination of the prosecution's last witness, the medical examiner, in spite of the fact that his preferred counsel had prepared for the examination and had broader knowledge of the subject area than the attorney who ultimately conducted the examination. He argues also that the trial court's decision interfered with his defense strategy and infringed his right to decide how to present his defense.
Mem. in Support of Pet. 20-21.
II The Appropriate Standard of ReviewWhen Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") in 1996, it placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners. Federal courts now are prohibited from granting an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. . . ." The AEDPA shifts the focus of the federal courts from a petitioner's claims to the state court decision in which the petitioner's claims were adjudicated on their merits, and limits review of the state court decision to its application of legal rules that were "clearly established . . . by the Supreme Court." Petitioner's claims were not raised in constitutional terms to the trial court, but nonetheless were adjudicated on their merits by the Appellate Division. In consequence. petitioner is entitled to relief only if this Court finds that the Appellate Division's decision rejecting his claims was either "contrary to, or involved an unreasonable application of" the Sixth Amendment as established by the Supreme Court.
The Supreme Court recently has interpreted Section 2254(d)(1) as giving independent meaning to both the "contrary to" and "unreasonable application" clauses of the statute. A state court decision is contrary to Supreme Court precedent if it "arrives at a conclusion opposite to that reached by [the] Court on a question of law" or if it "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite" to that of the Court. A state court decision is an "unreasonable application" of Supreme Court precedent if it "identifies the correct governing legal rule . . . but unreasonably applies it to the facts" of a particular case or if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply."
Williams, 120 S.Ct. at 1519.
Id. at 1520.
The Supreme Court has not yet addressed a factual situation that is materially indistinguishable from petitioner's case. Nor did the state court reach a conclusion opposite to the Supreme Court on a question of law. In consequence, the state court decision in this case was not "contrary to" Supreme Court precedent. If this Court may grant the writ, it must be pursuant to the "unreasonable application" clause of Section 2254(d)(1).
The Appellate Division correctly identified the qualified constitutional right to be represented by counsel of one's choice as the governing legal rule. It recognized that a trial court should be hesitant to interfere with an established attorney- client relationship, that it may not do so arbitrarily, and that "such interference is permissible only where the trial court determines that [an attorney's] participation presents a conflict of interest or where the defense tactics may "compromise the orderly management of the trial or the fair administration of justice'" This is a fair statement of the legal principle. But it nevertheless concluded that this right was not violated by the trial court's refusal to allow Mr. Murphy to cross-examine the medical examiner at petitioner's trial.
III Was the State Court's Application of the Law Reasonable?The question that must be answered is whether, having correctly identified the governing legal principle, the Appellate Division's application of the law to petitioner's case was reasonable. This determination is distinct from the question of whether the court's reading of Supreme Court precedent was correct. Indeed, in order for a federal habeas court to grant a writ under this clause of the AEDPA, the state court's application of law must be more than incorrect or erroneous — it must be objectively unreasonable. On the other hand, the increment of incorrectness "need not be great."
In petitioner's case, the trial court stated that he was "an old fashioned judge" who tries cases "the old fashioned way," meaning that one "assistant district attorney tries a case, one defense counsel tries a case, period, and that is it." When defense counsel objected to the ruling and attempted to explain that Mr. Murphy had conducted research and had broader knowledge of the subject matter of the examination, the court refused an offer of proof and ended discussion of the subject. In reviewing the trial court's decision, the Appellate Division correctly concluded that because the trial judge did not "completely exclude" Mr. Murphy from the trial, its refusal to allow him to cross-examine the witness was a "restriction rather than a deprivation" of counsel. But it went on to hold that the "context" within which the defendant's application was made "suggest[ed] that the court considered the appropriate factors in ruling on the motion" and did not "restrict" the defense arbitrarily but rather did so in the "proper exercise of its discretion."
Trial Tr. 885 (The court further stated, somewhat obscurely, "[t]his is not O.J. Simpson, and I am not having that situation. I had a lawyer come in one day and tell me that he wanted to do something ala Angela Davis and I said no. I said no." Id.).
Id. at 885-86.
This conclusion must be reviewed with care. The trial court offered no reasonable explanation for its refusal to allow Mr. Murphy to cross-examine the medical examiner. Its consideration of the defense request was cursory and did not suggest that it weighed any of the factors that appropriately might counterbalance the defendant's constitutional right to be represented by his counsel of choice during the cross-examination at issue. The transcript of the exchange shows that the trial court simply refused to "have two lawyers trying the case," without explanation or consideration of factors that might appropriately allow such restriction of petitioner's counsel of choice. With respect, this Court agrees with Judge Peck and is obliged to hold that the Appellate Division's finding that petitioner's rights were not violated by the trial court's action was an unreasonable application of clearly established Supreme Court precedent.
The Appellate Division enumerated several factors that it believed the trial court might have considered in ruling on the defense motion. These included an assertion that the defense request was untimely, as well as the facts that Mr. Murphy had not examined any other witnesses and was absent for significant periods of time during the trial. The appellate court concluded that his absence left him unfamiliar with much of the testimony that had been given and that allowing him to conduct a cross examination would pose "the real possibility of confusion." After considering each of these factors, the court concluded that "it is obvious that the [trial] court's ruling was based upon the its concern that the trial be conducted in an orderly and efficient manner." Id. 257 A.D.2d at 415, 684 N.Y.S.2d at 511. Because the Court does not find any evidence that the trial court did, in fact, consider these factors in applying its one-lawyer rule, it need not determine whether their proper consideration would have resulted in a constitutionally acceptable restriction of petitioner's right to counsel of choice.
Having concluded that the state court decisions not only deprived petitioner of his constitutional right to counsel of his choice and unreasonably applied clearly established precedent in doing so, Judge Peck proceeded to consider the consequences of that conclusion. He concluded that respondent had conceded "that if Lainfiesta `had been arbitrarily deprived of Mr. Murphy's counsel . . . case law [would] justify reversal without considering prejudice,"' a proposition for which he cited page 15 of the respondent's memorandum of law. So he recommended that the petition be granted upon finding the constitutional violation described above. But this Court does not so construe the respondent's memorandum. On the contrary, the respondent argued that a showing of prejudice is required in denial of counsel of choice cases and, a fortiori, in cases in which there merely was some modest limitation on the role of chosen counsel. In consequence, this Court must consider whether the constitutional violation in this case requires that the petition be granted irrespective of prejudice and, if not, whether the requisite showing has been made.
Lainfiesta, 2000 WL 739425, at *6.
Resp. Mem. 14-17.
IV The Role of Prejudice in this Case
Where a constitutional error, such as the total deprivation of counsel, contaminates an entire proceeding, it constitutes a structural defect and renders the trial presumptively unfair. Such errors therefore require reversal without inquiry into whether the defendant actually was prejudiced by the error. Much more common, however, are constitutional violations that occur during the presentation of a case and may be assessed in the context of other evidence in order to determine the effect, if any, they had on the trial. Such "trial errors" are amenable to harmless-error analysis.
Most constitutional violations fall into this category, including the ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 693 (1984), improper admission of a coerced confession, Fulminante, 499 U.S. 279, 310 (1991), improper admission of evidence obtained in violation of the Sixth Amendment Counsel Clause. Satterwhite v. Texas, 486 U.S. 249. 258 (1988) (psychiatric evidence resulting from examination without notice to counsel admitted at sentencing); Moore v. Illinois, 434 U.S. 220, 232 (1977) (evidence of post-indictment pretrial identification held in absence of counsel admitted at trial); Brown v. United States, 411 U.S. 223, 231-32 (1973) (out-of-court statement of non-testifying codefendant admitted at trial); United States v. Wade, 388 U.S. 218, 223, 242 (1967) (in-court identification based on post-indictment pretrial lineup held without notice to and in absence of counsel admitted at trial); Gilbert V. California, 388 U.S. 263, 272 (1967) (witness's testimony that he had identified defendant at post-indictment pretrial lineup held in absence of counsel admitted), and failure to follow the Fourth Amendment exclusionary rule, Chambers v. Maroney, 399 U.S. 42, 52-53 (1970), restrictions on a defendant's right to cross-examine a witness for bias, Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986), denial of a defendant's right to be present at trial, Rushen v. Spain, 464 U.S. 114, 117-18 n. 2 (1983), improper comment by a prosecutor on defendant's silence at trial, United States v. Hasting, 461 U.S. 499, 509 (1983) and the denial of counsel at a preliminary hearing, Coleman v. Alabama, 399 U.S. 1, 10-11 (1970). The Supreme Court has found each of these violations to be "trial errors," meaning that they occurred during presentation of the case to the jury and may be quantitatively assessed in the context of other evidence presented in order to determine whether their effect was harmless beyond a reasonable doubt. Fulminante, 499 U.S. at 307-08.
See Brecht, 507 U.S. at 629; see also Fulnunante, 499 U.S. at 306 ("the Court has applied harmless-error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless").
The Supreme Court has not addressed the question of whether the arbitrary deprivation of counsel of choice is prejudicial per se. Some courts have relied on language in Flanagan v. United States to support their holdings that the arbitrary denial of counsel of choice requires automatic reversal. But the dictum in that case does not support such a conclusion.Flanagan did not address the issue and held only that a disqualification order is not an immediately appealable collateral order. The dictum, in its proper context, is as follows:
See Chapman v. California, 386 U.S. 18, 23 (1967) (stating that there are "some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error" and citing the right to be free of the admission of coerced confessions at trial, the right to counsel, and the right to an impartial judge as examples of such rights); see also Fulminante, 499 U.S. at 308-10 (distinguishing admission of coerced confession, which the Court found subject to harmless- error test, from total deprivation of right to counsel and trial before judge who was not impartial).
465 U.S. 259 (1984).
See, e.g., United States v. Panzardi Alvarez, 816 F.2d 813, 818 (1st Cir. 1987); United States v. Diozzi, 807 F.2d 10, 16 (1st Cir. 1986); United States v. Urbana, 770 F. Supp. 1552, 1555 (S.D. Fl. 1991). These cases each cite Flanagan for the proposition that the right to counsel of choice "reflects constitutional protection of the defendant's free choice independent of concern for the objective fairness of the proceeding." This is, however, a misleading use of the Court's reference to the principle that reversal for a violation of the right to represent oneself requires no showing of prejudice, a correct reading of which is made clear by the Court's citation of McKaskle v. Wiggins, 465 U.S. 168, 177-78 (1984). a case dealing exclusively with the right of a defendant to represent himself pro se, immediately following the oft-quoted language in Flanagan. See Flanagan, 465 U.S. at 268.
There is a distinct line of cases in the Third Circuit that does not rely on Flanagan for the conclusion that the arbitrary dismissal of a defendant's attorney of choice violates the defendant's right to counsel. See Fuller v. Diesslin, 868 F.2d 604, 609 (3d Cir. 1989) (finding itself constrained by the circuit's precedent to hold that the arbitrary denial of the right to counsel of choice requires reversal per se); United States v. Romano. 849 F.2d 812, 820 (3d Cir. 1988); United States v. Laura, 607 F.2d 52, 58 (3d Cir. 1979). The Third Circuit, however, has recognized that it is unclear whether Laura and its progeny survive Strickland or the Supreme Court's constitutional harmless error cases. See Fuller, 868 F.2d at 609.
"Petitioners correctly concede that postconviction [sic] review of a disqualification order is fully effective to the extent that the asserted right to counsel of one's choice is like, for example, the Sixth Amendment right to represent oneself. Obtaining reversal for a violation of such a right does not require a showing of prejudice to the defense, since the right reflects constitutional protection of the defendant's free choice independent of concern for the objective fairness of the proceeding. Similarly, post-conviction review is concededly effective to the extent that petitioners' asserted right is like the Sixth Amendment rights violated when a trial court denies appointment of counsel altogether, or denies counsel's request to be replaced because of a conflict of interest. No showing of prejudice need be made to obtain reversal in these circumstances because prejudice to the defense is presumed. In sum, . . . if establishing a violation for their asserted right requires no showing of prejudice to their defense, a pretrial order violating the right does not [satisfy the conditions] for coverage by the collateral order exception. . . . If on the other hand, petitioners' asserted right is one that is not violated absent some specifically demonstrated prejudice to the defense, a disqualification order still falls outside the coverage of the collateral-order exception. . . . In short, whether or not petitioners claim requires a showing of prejudice, a disqualification order does not qualify as an immediately appealable collateral order. . . . "
Flanagan, 465 U.S. at 267-68 (emphasis added).
When the passage is read in its entirety, it becomes clear that the Court did not decide whether the right to counsel of choice is "like" the Sixth Amendment rights to represent oneself or to counsel in the sense that no showing of prejudice is required to obtain reversal when these rights are violated. In fact, the Supreme Court has left this question open.
See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 438 (1985); see also Diozzi, 807 F.2d 16 n. 11; Urbana, 770 F. Supp. 1556 n. 8. But see United States v. Arena, 180 F.3d 380, 397 (2d Cir. 1999) ("The denial of a defendant's request for a continuance [in order to accommodate a defendant's last minute request to discharge his counsel] will not be reversed absent a showing both of arbitrariness and of prejudice to the defendant.").
This Court also finds it unnecessary to decide the issue, as petitioner was not completely deprived of his counsel of choice by virtue of the trial court's refusal to allow one of his retained attorneys to conduct the cross-examination. The Supreme Court has stated that the rare case in which a constitutional violation defies analysis by harmless-error standards is one where the violation "affected — and contaminated — the entire criminal proceeding." It is not necessary that the violation be ongoing, as it is in the case of a total deprivation of counsel. Indeed, the Court has held that the actual or constructive denial of counsel at a critical stage of a criminal trial is prejudicial per se, and the taking of evidence on a defendant's guilt is clearly a critical stage of a trial. In this case, however, the constitutional violation does not appear to have permeated the entire proceeding. Rather, it resulted in petitioner's lead counsel conducting one particular cross-examination while his co-counsel of choice was seated at the defense table, available for consultation. At no time was petitioner without representation. Nor was he completely deprived of his counsel of choice at any stage of the proceeding. Although Mr. Murphy was not allowed to conduct the cross-examination, he was accessible to both Mr. O'Brien and the petitioner and was not prevented from sharing his "broader knowledge" of medical science with the attorney conducting the examination.
Satterwhite v. Texas, 486 U.S. 249, 257 (1988); see also Fulminante, 499 U.S. at 309-10 ("structural defects in the constitution of the trial mechanism, which defy analysis by `harmless-error' standards" affect "the entire conduct of the trial from beginning to end"); Penson v. Ohio, 488 U.S. 75, 88 (1988) ("it is important to emphasize that the denial of counsel in this case left petitioner completely without representation during the appellate court's actual decisional process"); see also Curtis v. Duvall, 124 F.3d 1. 5-6 (1st Cir. 1997) ("harmoniz[ing] the dissonance" between Supreme Court cases finding prejudice per se and remanding for harmless error analysis by relying on the difference between "a wholesale denial of counsel" and "a short-term, localized denial of counsel").
See, e.g., United States v. Cronic, 466 U.S. 648, 659 n. 25 (1984). But see Gilbert v. California, 388 U.S. 263, 272 (1967), and United States v. Wade, 388 U.S. 218, 242 (1967) (remanding for harmless error analysis after finding petitioners denied counsel at critical stage of proceeding).
See Perry v. Leeke, 488 U.S. 272, 286-87 (1989) (Marshall, J., dissenting) (citations omitted). The right of effective cross-examination is similarly protected. See Davis v. Alaska, 415 U.S. 308, 318 (1974).
Cf. Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996) ("We do not understand [the Supreme Court's] . . . examples of violations that have been held exempt from harmless error review to mean that any violation of the same constitutional right is a `structural defect,' regardless whether [sic] the error is significant or trivial. Nor does the fact that the Supreme Court has applied harmless error analysis to one level of violation of a particular right necessarily mean that even the most egregious violations of that right would also require demonstrated prejudice. . . . To determine whether an error is properly categorized as structural, we must look not only at the right violated, but also at the particular nature, context, and significance of the violation.")
There is nothing in the record to indicate that Mr. O'Brien was prevented from consulting with Mr. Murphy during the course of the cross-examination. See Trial Tr. 900-06.
Cf. Leslie v. Artuz, 72 F. Supp.2d 267, 280-81 (S.D.N Y 1999) (holding per se reversal rule in cases where the defendant is represented by an imposter attorney did not apply in case where defendant was represented by two attorneys — one imposter and one licensed attorney — because defendant "was, in fact, represented by a bonafide lawyer throughout the entire trial").
Thus, while the substitution of Mr. O'Brien for Mr. Murphy in contravention of petitioner's wishes was a constitutional error, it did not erode the structural framework of the trial or render it fundamentally unfair.
Cf. United States v. Feliciano, Nos. 99-1289, 99-1290, 99-1318, 2000 WL 1194237. at *6-7 (2d Cir. Aug. 16, 2000) (assuming exclusion of defendants from limited bench voir dire to be constitutional error, but finding error "did not `affect the framework within which the trial proceed[ed]"' and was "not of such dimension as to undermine the integrity of the trial and require automatic reversal") (quoting Fulminante, 499 U.S. at 310).
The limited restriction placed on petitioner and his defense team by the trial court is similar in degree to many of the errors held subject to harmless error analysis. The cases involving errors resulting from the deprivation of counsel at a critical stage of a criminal proceeding, usually the erroneous admission of evidence, are particularly relevant. Although the Supreme Court has found that the deprivation of counsel at a critical stage of a proceeding constitutes structural error in some cases, it since has distinguished cases that involve deprivations that affected the entire criminal proceeding from those in which the deprivations were limited and, for example, resulted in the erroneous admission of particular evidence at trial. The Court finds this case to be more similar to the latter than the former. Moreover, the error occurred during presentation of the case to the jury and may therefore be assessed in the context of the other evidence presented. In consequence, the Court finds that the trial court's violation of petitioner's Sixth Amendment rights, which resulted in the limited deprivation of petitioner's counsel of choice and interference with the right to decide how to present his defense, is amenable to harmless-error analysis.
See, e.g. Cronic, 466 U.S. at 659.
Satterwhite, 486 U.S. at 257; see also Yarborough, 101 F.3d at 897 (observing that "Fulminante distinguishes between errors of sufficient magnitude or significance that they call into question the validity of the proceeding and are therefore deemed structural, and trivial violations of the same rights which are not").
The Court recalls the Supreme Court's decision in United States v. Morrison, 449 U.S. 361, 364 (1981), which stated that "[c]ases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests."
V. Was the Trial Court's Violation Harmless Error?
The Supreme Court originally set forth its harmless error test in Chapman v. California, in which it instructed reviewing courts to consider what effect the error at issue had upon the guilty verdict. Thus, the correct inquiry under the Chapman standard "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered . . . was surely unattributable to the error."
386 U.S. 18 (1967).
Id. at 24; see also Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (describing Chapman standard).
Sullivan, 508 U.S. at 279.
The Court since has held the Chapman standard to be inappropriate when evaluating presumptively correct convictions on collateral review and has held that the correct standard for habeas review of constitutional error is set forth inKotteakos v. United States. That case, which is grounded in the federal harmless-error rule, asks "whether the error `had substantial and injurious effect or influence in determining the jury's verdict.'" The burden of persuasion is on the government, meaning that if "the matter is so evenly balanced that [the federal judge] feels himself in virtual equipoise as to the harmlessness of the error" the petitioner should prevail.
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) ("The imbalance of the costs and benefits of applying the Chapman harmless-error standard on collateral review counsels in favor of applying a less onerous standard on habeas review of constitutional error.").
328 U.S. 750 (1946).
28 U.S.C. § 2111 ("On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.").
O'Neal v. McAninch, 513 U.S. 432, 435 (1995).
In petitioner's case, the trial error was the court's refusal to allow an arguably better-prepared attorney to conduct the cross-examination of the state's medical examiner. The effect of this error is difficult, but not impossible, to gauge. Petitioner provides little assistance, stating simply that the court's ruling "could not help but have prejudiced the defense." The petitioner comes to this conclusion by way of its assertion that the medical examiner's testimony contradicted the prosecution's two eye-witness accounts of the murder. A review of the medical examiner's testimony shows, however, that both the prosecution's direct examination and Mr. O'Brien's cross-examination elicited this "critical" testimony.
Pet. Mem. 27.
The medical examiner testified about two issues that related to the credibility of the eye witnesses' testimony: (1) the angle of the bullet wound, which went to the height and position of the shooter, and (2) the presence or absence of powder burns and stippling around the fatal bullet wound, which bore on the proximity of the gun to the victim at the time the gun was fired. The medical examiner testified that the bullet entered at the right temple, above the hairline, and traveled "pretty much straight across his head from toward the left side, slightly downwards. slightly backward." When questioned further about the angle of the bullet wound, the witness testified that it was consistent with the gun being held at an upward angle by someone four or five inches shorter than the victim, who was six feet tall, and that he could not exclude the possibility that someone who was five feet, seven inches or five feet, eight inches had fired the fatal shot. Additionally, the witness testified that he recovered a small caliber bullet that was consistent with being a .25 caliber bullet.
Trial Tr. 890.
Id. at 897-99.
The prosecutor asked also about powder residue and stippling. Stippling, the medical examiner explained, is a phenomenon that occurs when a gun is fired at close range and partially burnt and unburnt gunpowder strikes the skin, causing light abrasions. He testified that he found no evidence of gun powder on the victim, which most guns would leave if fired at a range as close as the eye witnesses testified the victim was shot, a distance of approximately six inches. He went on to say that the gun powder residue could have been removed during the course of the victim's five days in the hospital prior to his death and subsequent autopsy, but that any powder stippling still should have been visible around the wound at the time of death.
Id. at 893.
Id. at 895.
Id. at 895-97.
Id. at 897.
On cross-examination, Mr. O'Brien inquired further about powder burns and stippling. The medical examiner testified that powder burns result when a gun "is really close, like inches or even less than an inch" from skin when it is fired. He stated that he did not notice any powder burns or stippling on the victim and reiterated that, had it occurred, the stippling would have been visible even after five days in the hospital.
Id. at 901.
Id. at 901-02.
When cross-examined about the angle of the bullet wound, the witness testified that there are many variables that contribute to the angle of the bullet wound, including the way the wrist of the shooter was bent, the victim's posture, and the position of the victim's head at the time of the shooting. He concluded that it is very difficult to rule out any given scenario based on the track of the bullet, and that the track of the bullet in this case would be consistent with a shooter that was taller than five feet, seven inches or five feet, eight inches. The witness had no opinion about the angle or position of the gun when it was fired.
Id. at 902-04.
Id. at 905-06.
From this testimony, a reasonable juror could have concluded that the eye witness accounts of the shooting, which placed the petitioner behind the victim and the gun "two or three" inches or "a couple of inches" from the victim's head, were inaccurate. The medical examiner stated more than once that there were no powder burns or stippling around the bullet wound at the time of the autopsy, which could indicate that the victim was not shot at as close a range as the eye witnesses said. The medical examiner s testimony regarding the position and height of the shooter was inconclusive, and he stated that he had no opinion as to the position of the gun itself.
Id. at 554 (Lugo), 651 (Turner).
Id at 600-01 (Lugo).
Id. at 765 (Turner).
After reviewing the testimony, the Court finds that the substitution of Mr. O'Brien for Mr. Murphy could not have had "a substantial and injurious effect or influence in determining the jury's verdict" because the information of value to the defense — that the physical evidence gathered by the medical examiner at the autopsy tended to contradict the eye witnesses' accounts of the shooting and was consistent with a shooter that was taller than petitioner as well as with someone of petitioner's height — was elicited during the examination, both during the direct and the cross. The medical examiner's testimony was consistent and fairly limited, making it hard to imagine that a different examiner would have come up with significantly different results. Furthermore, it is undisputed that Mr. Murphy was present at the counsel table throughout the cross-examination, making it likely that he would have prompted Mr. O'Brien if he had overlooked critical areas of testimony and possible that he could have coached him through complex portions of the examination. Although the trial transcript does not indicate whether this occurred, there also is nothing in the trial transcript to indicate that the judge prevented it from happening.
In consequence, the Court finds that the trial court's refusal to allow petitioner's counsel of choice to conduct then cross-examination of the medical examiner was harmless error. The examination was brief but nonetheless revealed information that contradicted the eye witnesses' accounts. Thus, the cross-examination served its critical function to the defense, even though the lawyer with the greatest expertise was not allowed to conduct the examination himself. The impact of the trial judge's constitutional error on the jury's determination was therefore minimal, and the error harmless.
The petition for a writ of habeas corpus is denied. The Court grants a certificate of eligibility on the following issues:
1. Did the constitutional error that occurred in the state courts require reversal without regard to prejudice?
2. If not, what standard governs the prejudice analysis conducted by a federal habeas court?
3. Was the applicable standard satisfied here?
The Court certifies also that any appeal herefrom would be taken in good faith within the meaning of 28 U.S.C. § 1915.