Louis Cyrus got 20 to life for an armed robbery of a Duane Reade Pharmacy.  What he didn’t get was effective assistance of counsel at trial.  According to the New York Law Journal, his lawyer, Edward Land, was ecstatic.

Mr. Land said in an interview last week that he was “delighted” the court had ordered a new trial for Mr. Cyrus. At the time the case was tried in the fall of 2003, Mr. Land said, “I was relatively inexperienced in handling felony cases” and “my performance” was not the “effective assistance of counsel Mr. Cyrus was entitled to.”

Justice Luis Gonzalez at the Appellate Division, First Department, wrote a scathing decision, detailing Land’s incompetent representation at the suppression hearing and trial.  Most egregious, according to Justice Gonzalez, was defense counsel’s raising the existence of a video of the robbery that he had never seen, asking a police officer what was on the video.  Ouch.

First, with respect to the police testimony about the videotape, we find that counsel committed egregious and prejudicial error in failing to investigate the contents of the videotape, and then, without knowing what was on it, inadvertently opening the door to damaging testimony by Harper about its contents.

I suppose that he was hoping for one of those Perry Mason moments, with the cop breaking down on the stand and admitting that the videotape showed the defendant unarmed, possibly even giving out candy to children and tossing the proceeds into a Salvation Army kettle.  No such luck.  The testimony fell on the defendant like a ton of bricks.  Yes there was a video.  Yes I saw it.  Yes, it showed the defendant brandishing a box cutter as he tried to escape from the store.  And this came out on cross.

Mind you, the post trial motion to vacate by new assigned counsel was denied by the trial judge, Justice Bruce Allen, who:

[R]ejected Mr. Cyrus’ posttrial motion for a new trial, finding that, although aspects of Mr. Land’s performance were “troubling,” overall he “made appropriate motions,” conducted “vigorous” cross examinations and “presented a coherent, if ultimately futile, defense.”

This is instructive.  No matter how badly and ineffectively an attorney performs, there is always something a judge can say that will give the rhetorical appearance that he met the minimal standards for effective assistance of counsel.  Essentially, Justice Allen said that Land was breathing and asked a couple of questions, and that’s all the Constitution promises a defendant. 

But at least Ed Land recognizes that he lost the case.  In a  letter to the Editor of the Law Journal, Land writes:

[T]he Appellate Division, First Department held that I rendered ineffective assistance of counsel at trial and I am delighted that Louis Cyrus has been granted a new trial. On the whole, I am in agreement with the appellate court that I did not provide the effective assistance of counsel Mr. Cyrus was entitled to. That was due to my relative inexperience in October 2003 in trying felony cases, and I would not make those same “rookie” mistakes again.

Of course, this tells us little of what mistakes he would make today, given his vast experience of four more years, but you have to give him credit for not trying to put his reputation ahead of his client.  At least he got that right.

What comes across loud and clear was that Ed Land had no business trying a case yet.  He was not up to the job.  While he admits it now, the defendant has already spent 5 years in prison awaiting his conviction being vacated.  Had he been convicted for petty larceny, meaning that he stole from Duane Reade but did not have a weapon (as the defendant testified at trial), he faced a max sentence of 1 year.  And no, for those of you asking, he can’t bank the four extra years and apply them to his next crime.

This case begs the question of how Edward Land ended up trying this case.  Neither the articles or decision state whether Land was retained, Legal Aid or assigned, but the implication is that he was assigned counsel.  According to Avvo, there is only one Edward Land in New York.  His rating states there is “no concern” about Edward Land, who has been admitted to practice for 17 years.  What he was doing during that time is unclear, but it certainly wasn’t trying felony cases.  If this isn’t the right Edward Land, I sincerely apologize, but I can’t find another Edward Land to pin it on.

It’s hard, if not impossible, to understand how Land got onto the 18B panel, given his lack of experience in criminal defense.  Yet, he apparently did, and decided to find out whether he had any skills as a trial lawyer at Cyrus’ expense.  This means that the defendant, relying on his right to counsel under Gideon, got hosed by a system that gave him a lawyer, but not a lawyer capable of rendering effective assistance.  This is worse than no lawyer at all, and shows the gap between promise and delivery. 

And then there was the trial judge, doing what he had to do to preserve his conviction when he, of all people, knew that the defendant got hosed right in front of him.  So once again, we have a decision that, on its face, would give the appearance of a win for the defendant, but in harsh reality demonstrates a system that failed at every turn, with the defendant paying the price of his crime five times over.  This was a better day than if the conviction was affirmed, but this was not a good day for the criminal justice system.