If you handle criminal cases, you know there is a good chance that your client will attack the quality of your representation if the jury finds him guilty. The inmate may file a habeas corpus petition in federal court and claim "ineffective assistance of counsel." These petitions usually fail. But sometimes the petition is a close call. This case is one of them.
The case is Gillespe v. Uhler, a summary order decided on June 21. This was a rape trial. The victim said she was raped at around 11:46 p.m. In summation, defendant's lawyer said the time stamp on the surveillance video at the bagel store (where it happened) was 11:44 p.m. In fact, the time stamp said it was 11:46 p.m. Those two minutes would have made all the difference between guilt and innocence. Also, counsel said the victim had vaginal lacerations even though the prosecution's medical expert said on cross-examination that there were no such lacerations. That statement in summation supported the prosecution's theory of the case.
So did defense counsel provide ineffective assistance of counsel? Kind of. The State appellate court did affirm the conviction. Federal courts have to defer to State court rulings, even on constitutional claims like ineffective assistance of counsel. You win the habeas petition only if the State appellate court had unreasonably applied settled constitutional standards. The State courts can get it wrong on constitutional matters so long as they don't really blow it.
The State court did not really blow it here. While the government admits that defense counsel made mistakes in summation, it argues that the State appellate court was within its discretion to uphold the conviction anyway. There was testimony that the surveillance footage when defendant left the bagel store said 11:46 p.m. While the manager of the bagel store said the time stamp may have been off by two minutes, the jury did not have credit the accuracy of the time stamp, so it was able to find that defendant left the store at 11:44 p.m. after all. So the lawyer's statement in summation did not necessarily prejudice the defendant's case. As for the vaginal laceration statement in summation, the prosecution's medical expert said there were no vaginal lacerations. Since the jury was instruction that summations are not evidence, the State appellate court did not irrationally affirm the guilty verdict.
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Stephen Bergstein is a civil rights lawyer in Orange County, N.Y. He has briefed or argued more than 200 appeals in the state and federal courts.