While Courts Squabble Over Words

Adam Liptak writes about the 1996 murder case of Richard Rosario in the Bronx.  On its face, it’s another eyewitness ID case that was pretty common in the Bronx back then, where drugs and murder were similarly common.  And the state courts treated it that way, affirming the conviction and denying leave to appeal.  As routine as it gets.

Richard Rosario was convicted of a murder that took place on Turnbull Avenue in the Bronx on June 19, 1996, based on the testimony of two witnesses who had picked his picture out of a book of police photos.

Rosario was in Florida, and voluntarily returned when he found out the cops were looking for him in the Bronx.  He told them he was in Florida at the time the  murder occurred, and gave the cops the names of 13 witnesses to his alibi.  There was no evidence against Rosario other than the eyewitnesses from Turnbull Avenue. Rosario was represented by serial 18B counsel.


Mr. Rosario’s court-appointed lawyer did ask a judge for money to send an investigator to Florida to interview alibi witnesses. The request was granted, but the lawyer never pursued the matter, and her replacement mistakenly thought the request had been denied.

Rosario had two alibi witnesses, one of whom was his baby mama. The reason she knew he was in Florida was that she gave birth to his son the day after the murder.  It’s the sort of thing one remembers, but then, who can believe a baby mama?

He was convicted.  He appealed and the conviction was affirmed. He moved for leave to appeal to the court of appeals and it was denied. A routine murder conviction.

He brought a state court habeas, with seven additional alibi witnesses.  As reflected in the subsequent 2d Circuit decision,


The court . . . concluded that the government’s case was “strong”; that the prospective alibi witnesses “were, for the most part, questionable and certainly not as persuasive as the two witnesses who did testify”; and that the verdict was “unimpeached, and ‘amply supported by the evidence.’ ”

Though not perfect, defense counsel “represented Rosario skillfully and with integrity.” Routine.  Rosario then brought a federal habeas, and suddenly everything changed. And didn’t change.



A federal magistrate judge ruled that Mr. Rosario’s trial lawyers were “objectively deficient for failing to adequately investigate petitioner’s alibi and present additional witnesses at trial.” There was, Judge Henry Pitman went on, “a reasonable probability that the jury could have found petitioner not guilty of murder” had it heard the missing testimony.


But Judge Pitman said that did not matter, because New York courts were entitled to use an idiosyncratic standard in judging the effectiveness of counsel, one that considers lawyers’ performances over all rather than their isolated errors.


The idiosyncracy is that New York hasn’t adopted the federal test of Strickland v. Washington as its standard for ineffective assistance of counsel.  Instead, it holds tight to People v. Baldi, a 1981 decision that differs from the federal standard because it doesn’t require that, but for the lawyer’s screw-up, there would be a reasonable probability that the jury would have acquitted.  Instead, it’s second prong requires that the lawyer’s mistake merely undermine “meaningful representation.” 

What does that mean?  Not much if you’re sitting in the 2d Circuit and the state courts have already held that the lawyer’s representation, on the whole, was pretty good (aside from that one little screw up of not presenting the additional alibi witnesses).  The Circuit saw the problem as one of New York’s disingenuous creation.


New York has, to some degree, combined the two prongs of Strickland. Prejudice to the defendant, meaning a reasonable possibility of a different outcome, is but one factor of determining if the defendant had meaningful representation. New York courts look at the effect of the attorney’s shortcomings as part of the equation in deciding if the defendant received the benefit of competent counsel.

This approach, and the language of Benevento, creates a danger that some courts might misunderstand the New York standard and look past a prejudicial error as long as counsel conducted himself in a way that bespoke of general competency throughout the trial. That would produce an absurd result inconsistent with New York constitutional jurisprudence and the mandates of Strickland. Properly applied, however, this standard is not contrary to Strickland and, in the case before us, the court properly applied the standard.

Even though New York prided itself on a “more generous” standard, the Circuit rubbed New York’s nose in its own convoluted caselaw and the extraneous wiggly language that courts always slip into decisions to leave themselves an out for the next case where they should reverse but don’t want to. 

What’s extraordinary about this decision is how utterly routine its handling within the court of New York.  From the banal and inexplicable neglect by appointed counsel to the rubber stamping of another Bronx murder down the line.  The language of the habeas denial, about how the case was “strong” and “amply supported by the evidence” is the mechanism by which courts blow off argument, recreate their own other-worldly reality and make the problem go away. 

Got an iffy, troubling conviction?  Just write the words on paper that the evidence was overwhelming and suddenly it’s not iffy anymore.  It’s never quite clear what catches an appellate judge’s interest, distinguishing the knee-jerk, routine affirmance with the case that gets serious scrutiny and consideration.  It certainly doesn’t help when it’s another indigent appeal, like so many that flow in and out of court with interchangeable “affirmed, no decision” orders that put a conclusive end to hope.

But Rosario’s claim caught Judge Pitman’s attention, only to get caught in a battle over federal antipathy toward New York’s reliance on Baldi.  You want your own “more generous” rule?  Great, now choke on it.

It’s likely that state judges thinking about Liptak’s column are muttering to themselves, “you don’t understand, we get thousands of these cases, and they all begin to look alike, to blur, claiming innocence when they’re guilty as sin.  How are we supposed to know that this is the needle in the haystack, the one where the guy really was innocent? All these defendants look the same.”

Yes, it’s a very difficult job, being a judge (or, more to the point, being one of the tired lawyers working for the appeals court whose job it is to read through and write up the arguments in these many appeals).  But all the rhetoric in all the decisions about how wondrous the law is, or how ample the evidence is, or how meaningful the representation is, doesn’t mean much to Richard Rosario, who sits in prison for a murder that happened 1000 miles away, as he awaited the birth of his child.

And now that the 2d Circuit has made sure that the New York Courts know that they screwed up, they still leave Rosario sitting in prison.  Because they are all too happy to squabble over words, but don’t really care too much about some guy named Rosario sitting in prison for a murder in the Bronx.  Routine.

11 comments on “While Courts Squabble Over Words

  1. Jonathan Edelstein

    Ah, Rosario v. Ercole, the case I always cite to show 440.10 motion courts that they should analyze ineffective assistance claims under both the state and Federal standards. All 10 of the Second Circuit judges who opined on the denial of rehearing en banc thought this would be a wise idea. Very few state judges have taken them up on it — they still cite Baldi and don’t even mention Strickland even when the motion papers make a primarily Federal argument.

    What was that from Professors Hoffman and King about habeas no longer being necessary because state courts now enforce Federal rights?

  2. SHG

    Ah, but why bother to go through any thoughtful analysis, no less analysis under two separate standards, when the evidence of guilt is “ample” and the case is just going to get swept under the rug like the thousands of other indigent appeals that clutter up the clerk’s office?

  3. Mark Draughn

    This is one of the things that kills me about criminal law. Rosario’s got nine witnesses who say he couldn’t have done the crime, but all the lawyers and judges are stuck arguing about whether or not he received effective assistance of counsel, as if that was the most important consideration here. I realize that there are procedures to follow and issues of finality, but this is absurd. I have no idea what the right way is to handle a case like this, but this sure seems like the wrong way.

  4. SHG

    Giving the lawyers the benefit of good judgment, they play the legal argument game because it’s the only way to get the courts to move.  Just saying that “hey, the guy is innocent, for crissakes. What the hell is wrong with you guys?” doesn’t usually work.  This reflects law at its worst, it’s most futile and useless, all caught up in itself and forgetting why we do this stuff in the first place. 

    There are plenty of long-winded, deep reasons for every move we make, and yet when when the result is nonsensical, as here, we’ve managed to accomplish nothing.  Judges may be brilliant in the law, but they sometimes forget why we bother with all this.

  5. Stephen

    I think it would be nice if “hey, the guy is innocent, for crissakes. What the hell is wrong with you guys?” did work, though.

  6. SHG

    The same lawyer who argues process because he has to will try to slip that in as well.  Whether the judges are receptive is another matter.  It would be nice if they remembered why we have process.

  7. Jonathan Edelstein

    True enough. Have you noticed that prosecution witnesses invariably provide “strong” evidence, while defense witnesses of approximately equal credibility are “questionable” or “not believable?” One iffy witness is enough (indeed “ample”) to affirm a conviction, but seven iffy witnesses aren’t enough to vacate it. Some judges have called out this sophistry — the Second Department’s Tankleff opinion is a beautiful thing — but they’re nowhere near consistent.

    At any rate, the Baldi standard is just as much a culprit for sloppy analysis as the harmless-error button. Baldi allows courts to make what I call the “laundry-list argument” — you know, “the defendant’s attorney filed pretrial motions, made an opening statement and summation, cross-examined the People’s witnesses, made a few trial objections and requested a charge-down, so his representation is ‘meaningful’ even though he didn’t find the easily locatable, unimpeachable proof that the main prosecution witness lied.” When it comes down to it, Baldi is just another way to create an alternate appellate reality, by turning a lawyer who didn’t do his job into one who did. At least Strickland forces the court to focus, in the first instance, on whether the lawyer erred.

  8. Jonathan Edelstein

    I do a lot of appeals, and I often raise sufficiency points that I know I’m not going to win, just to educate the judges about how marginal the case is. In my experience, this does affect how they look at the procedural issues. It’s a shame that the procedural hook is nearly always necessary, though — even in states like NY where intermediate appellate courts have factual review power and can look beyond sufficiency, they very rarely do so.

  9. SHG

    Noting Takleff, that’s the problem, where a high profile case receives such incredibly different treatment than the routine.  And I am galled when I see a decision that’s created a completel appellate fantasy scenario, where the case that kept the jury out for 10 days is suddenly a slam dunk, “overwhelming evidence of guilt.” 

    The Baldi argument reminds me of the painter who missed a spot. When you point it out, he says, “but look how well I painted the rest of the wall.” 

  10. SHG

    I do the same thing for the exact same reason.  It’s a loser, but incredibly useful to note the while the conviction may have been legally sufficient, there is enough to give rise to doubt in the judge’s mind and make him more amenable to a procedural argument that he would otherwise toss aside.

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