This week’s feature story, about the daughter of a prisoner convicted of murder, details the legal case of Richard Rosario. Rosario has claimed that he was in Florida on the day Jorge Collazo was murdered in June 1996.
He gave his public defender, Joyce Hartsfield, a list of 13 people who could back up his alibi. Hartsfield requested funding to send an investigator to Florida to interview the potential witnesses. The judge, Hartsfield believed, denied the request. As a result, only two witnesses appeared at trial to testify that Rosario had been in Florida. The prosecutor match those alibi witnesses with two eye witnesses, and argued that the alibi witnesses were lying to protect Rosario. The jury agreed.
The judge, however, had actually approved Hartsfield’s request. Hartsfield’s unfortunate error formed the basis of Rosario’s 2004 appeal, citing “inadequate defense representation.”
See also this week’s feature story about Rosario’s daughter: The Prisoner’s Daughter: What if your dad had been doing time for murder for as long as you’d known him?
In the appeal hearing, six new alibi witnesses testified to seeing Rosario in Florida around the time of the murder. These were testimonies that the jurors in the original trial should have heard. Rosario’s appeals lawyer, Chip Loewenson, argued that hearing a total of eight alibi witnesses, instead of two, would have altered the jury’s decision, and therefore altered the trial’s result.
Judge Edward Davidowitz, however, still struck down the appeal. And a few years later, two-judge majority in a federal court upheld Davidowitz decision. The defeat shocked Loewenson, who called it “the biggest disappointment of my professional career.” The federal court’s conclusion also seemed to shock Judge Chester Straub, the third member of the panel, who dissented from his two colleagues, stating, “There exists too much alibi evidence that was not presented to the jury and too little evidence of guilt, to now have any confidence in the jury’s verdict.”
So what did Davidowitz and the two federal judges see that brought them to their rulings?
Their reasons stemmed from subtle but important differences between the New York state and federal standards for what constitutes “effective assistance” from a lawyer.
“The federal standard for allegations of ineffective assistance of counsel,” Davidowitz wrote, “requires a showing that the attorney’s performance was deficient and that, but for the attorneys errors, the result of the proceeding would have been different.”
But under New York law, “The issue is, were the trial strategies employed by attorneys
reasonable, even though they were unsuccessful?” the judge wrote. “An unexplained error or blunder by an attorney does not amount to ineffective assistance unless that error was so serious that defendant did not receive a fair trial.”
To put it simply: Federal courts deem a lawyer ineffective if an “unprofessional error” probably led to a different result. New York assesses lawyers “by looking at the totality of the circumstances,” not any single act.
The way Davidowitz saw it, Rosario received an adequate overall representation. He concluded that the lawyers’ mistakes did not affect the outcome of the case because the additional alibi witnesses did not provide any new evidence. The jury heard from the most important defense witnesses: Torres and Seda had the baby and hosted Rosario. The other testimonies would have been redundant, the judge said.
Hartsfield “represented defendant in a thoroughly professional, competent, and dedicated fashion,” Davidowitz wrote in his ruling. “There was a misunderstanding or mistake which persisted throughout the case and which the parties simply cannot explain,” he wrote. “But it was not deliberate. And that does not alter the fact that [Rosario’s] attorneys represented defendant skillfully, and with integrity.”
Next: why the federal court upheld the state court ruling.
The two federal judges who upheld Davidowitz’s ruling noted that they could only overturn the state court’s decision if it was based on a state law that conflicted with federal law.
So the judges first assessed, abstractly, how a conflict might occur. The state standard had been intended, in a way, to widen the meaning of “ineffective assistance.” It stated that a lawyer did not have to make a single, significant and egregious mistake to fall below acceptable standards. Rather, a general incompetence that caused an unfair trial would be enough grounds for an appeal.
The judges pondered whether there exists a hypothetical situation where a lawyer is incompetent under the federal standard but effective under state law:
“What case, then, could present the converse, an error so egregious that it most likely influenced the outcome of the trial, but did not cripple the fundamental fairness of the proceedings? We can think of none.”
The state standard, therefore, did not undermine federal law. As a result, the judges stated, they could not reject Davidowitz ruling, regardless of whether they agreed with his conclusion.
“He adhered to the New York state standard and found counsel to have been effective,” the majority wrote. “Whether our own cold reading of the record would lead us to this conclusion is of no moment; we must presume the state court’s findings of fact are correct and can only be rebutted by clear and convincing evidence otherwise.”
The dissenter, Judge Straub, fund this reasoning absurd.
“The majority does not dispute that Rosario received constitutionally ineffective assistance of counsel under Strickland, but views the state court’s decision to the contrary as within the bounds of permissible error,” he wrote. “The majority essentially concedes a [federal] violation and that Rosario would be entitled to relief if this case arose on direct review.”
He called Rosario’s defense “half-baked” and found the trial “troubling.” He argued that Rosario deserved, at minimum, a new trial.
“Rather than the slim alibi defense actually presented at trial, the jury would have been presented with a much stronger and more credible account of Rosario’s presence in Florida on the day of the murder and in the immediately surrounding period,” he wrote. “Instead of disbelieving two alibi witnesses who were good friends with Rosario and Rosario himself, the jury would have had to discredit at least seven additional witnesses, who would have corroborated Rosario’s alibi, provided further context to his defense and testified to additional facts that had not been elicited at trial.”
He added: “Because the prosecution’s case hinged so much on discrediting Rosario’s alibi defense, these additional witnesses could have made all the difference in the world.”