The old saw, bad facts make bad law, doesn’t apply when a case goes so far beyond bad that it can only be called bizarre.  And so there’s the Appellate Division, Second Department, decision in People v. Flores.  This case could have been an apocryphal case, a warning to all in the system of how badly things can go wrong when all the players screw up.

Instead, the Second Department buried the monumental screw ups in a one line of the decision: 

The defendant’s conviction of depraved indifference murder (see Penal Law § 125.25[2]) must be vacated, as that count of the indictment had been dismissed by another judge prior to trial and was later mistakenly submitted to the jury by the trial judge. (citations omitted)

Yes, you read it right.  “Mistakenly submitted,” a defendant stood convicted of murder.  How could that possibly happen?  Well, you would never know from the decision as it doesn’t mention a word, not a single word, of the sordid tale of incompetence that led to a wrongful murder conviction.

This was a murder case that started out in Nassau County, New York.  In the normal course, the top count of depraved indifference murder was dismissed after the court inspected the grand jury minutes for sufficiency.  So far, great.  But from that point on, the case went downhill fast.

The Assistant District Attorney wasn’t very proud of this dismissal, so no one was told of it and the decision was buried in the file.  The defense attorney never bothered to mention anything to his client, and was subsequently replaced by a new attorney, who never bothered to read the file for the decision on motions.

The Court Clerk who marked the count dismissed did so in the wrong place, the wrong side of the file jacket.  When the case was sent to a new judge for trial, the new clerk looked in the correct place on the file jacket and saw nothing there.  The trial judge never read the file and didn’t know of the order dismissing the charge.  And the prosecutor never bothered to mention anything to anyone as the case went to trial.

And so the case was tried, and the defendant convicted of murder.  And no one knew.  Well, not exactly no one, as the Nassau County ADA knew that he had gotten a conviction for a dismissed count, but he was npt about to screw up a good conviction by dredging up bad memories.  

It took a court data input clerk, about a month after the conviction, to realize that something went wrong.  Very wrong.  So what does he do?  As an employee of the court system, he naturally notifies the District Attorney (who else would he tell?).  But this time, someone realizes that they have made a huge mistake and word spreads about the murder conviction on a dismissed count of an indictment.

And so, the Trial Judge promptly vacates the conviction and chastises all involved, himself included, for this shocking failure?  No, no.  The Trial Judge decides that it doesn’t matter.  A conviction is a conviction, even without a charge, and sentences the defendant to the maximum.  For good measure, he maxes out the defendant on the lesser counts as well.

Side note:  If the data input clerk had not noticed that something was wrong, the defendant would have spent the next 30 years of his life in prison for a murder conviction that could not legally exist.  No one would have ever known.  He would have never known.  And that would be that.

On appeal, the case was handled by my good buddy Dick Barbuto, who briefed the case and, during some discussions about the case, expressed incredulity at the pervasiveness of incompetence demonstrated by what happened to the defendant.  But he also expressed his fear that the Second Department, well known for the paucity of its decisions and its penchant for making swift work of ugly cases, would bury this one.

But the weirdness of this case didn’t end with submission of the brief.  Dick, the day after completing a murder trial in Virginia, temporarily lost his sight due to diabetes.  When the District Attorney’s brief came in on this case (that’s right, they decided to fight to hold on to the conviction on appeal), he couldn’t read it.  Dick was in the midst of undergoing numerous painful eye surgeries to regain his sight.  And Dick was determined not to let this case slide under the radar again.

The case was promptly set down for oral argument, and he made the simple request to adjourn oral argument
to the following month so that he could be there and argue.  After all, the District Attorney intended to argue.  The Court refused, telling him that oral argument was a privilege, not a right, and that if he couldn’t make it on the day set, then tough.  The District Attorney appeared for oral argument anyway.

And so Dick waited for a decision.  And waited.  Until yesterday, when a bunch of decisions from September 11th finally appeared on the Court Website.  Yes, the Second Department made the right decision, the only decision, by reversing the murder conviction that never was.  But nowhere in that decision does the Court tell the story of how the District Attorney, Defense Counsel and Trial Judge almost put a man in prison for a murder charge that didn’t exist.  And that’s how appeals courts bury the body so no one knows.