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A state prison inmate serving 10 to 20 years in prison for robbery must be given a new trial because he was the victim of a prosecutor’s “dirty trick,” an Eastern District judge has ruled. Judge John Gleeson also found that the inmate’s appellate lawyers at the Legal Aid Society erred, as did the New York Court of Appeals in concluding that the inmate had been provided with effective assistance of counsel. A Queens prosecutor pulled a “dirty trick” when in the midst of trial she presented evidence that the inmate’s trial counsel had been present at a severely flawed lineup and had not objected to its makeup, Judge Gleeson ruled in Ramchair v. Conway , 04 CV 4241.
The decision will be published Tuesday. Making matters worse, Judge Gleeson found that the prosecutor, Robin Leopold, in her closing statement made “outrageous and prejudicial accusations” that the defendant’s lawyer, Jonathan T. Latimer, was a “racist” when he contended that his client, Racky Ramchair, was identified in the lineup because he is a Guyanese Indian. The lineup was flawed, Judge Gleeson observed, because only one person, Mr. Ramchair, was a Guyanese Indian. In addition, a “carbon rub” was used to make it appear that others in the lineup had facial hair, a technique Judge Gleeson described as “laughable.” Mr. Ramchair’s conviction rested on a one-witness identification, Judge Gleeson noted. Helen Peterson, a spokeswoman for the Queens District Attorney’s Office, said the office is “conferring” on a possible appeal with the state Attorney General’s Office, which represented the state defendants before Judge Gleeson. There was no doubt Ms. Leopold’s tactics would not have been countenanced had she been a federal prosecutor, Judge Gleeson wrote. A federal prosecutor would be admonished for failing to advise a court in advance that a lawyer might become a witness to prevent the conversion of “a potential conflict” into “an acute actual conflict,” he said. The remedy in federal court when a prosecutor fails to warn the judge that a trial lawyer may be forced to testify as a fact witness is to order a new trial, Judge Gleeson added. Mr. Ramchair’s appellate counsel, Pamela Peters of the Legal Aid Society, only argued that Mr. Ramchair’s trial counsel should have been permitted to testify at trial concerning the handling of the lineup. But that was an error, Judge Gleeson said, because Ms. Peters also failed to argue that the trial court had committed reversible error by denying the alternate motion for a mistrial made at trial by Mr. Latimer, a private practitioner in Kew Gardens. It was not error for the trial judge, Justice Joseph Rosenzweig, to have denied Mr. Latimer’s request to testify on his client’s behalf, Judge Gleeson wrote, because “the advocate-witness rule” prohibits a lawyer from being both an advocate and a witness on a significant trial issue. Judge Gleeson also noted that Mr. Latimer was correct in remaining silent during the lineup because New York law “explicitly” allowed him to remain silent without waiving any of his client objections to the lineup. But as for Ms. Peters’ failure to raise on appeal the denial of a mistrial, Judge Gleeson wrote that “since a reasonable appellate court would have granted the relief counsel failed to request, [the failure to raise the issue] is not a mistake Ramchair ought to have paid for. It constituted ineffective assistance of appellate counsel.” Patricia Bath, a spokeswoman for the Legal Aid Society, said “we respectfully disagree with the district court.” She added that “a unanimous Court of Appeals specifically found that the society had filed ‘a comprehensive brief’ and pursued ‘a reasonable appellate strategy.’” Federal Rules Under federal rules for the handling of habeas petitions, however, Judge Gleeson could only order relief if he made two findings: that Mr. Ramchair had exhausted his state remedies and New York’s courts had not only “incorrectly” applied principles articulated by the U.S. Supreme Court but had done so “unreasonably.” To allow for exhaustion, Judge Gleeson stayed the habeas proceeding while Mr. Ramchair presented the issue to the state court in a coram nobis proceeding, according to Mr. Ramchair’s current lawyer, Frank Handelman, who was appointed by Judge Gleeson. Both the Appellate Division and the Court of Appeals found that Ms. Peters had not provided ineffective assistance, which Judge Gleeson noted is “obviously a significant impediment” to Mr. Ramchair’s quest for habeas relief. But Judge Gleeson nonetheless found the Court of Appeals misapprehended Mr. Ramchair’s argument. The Court had reasoned, he noted, that “from the perspective of appellate counsel” there was authority suggesting the admissibility of counsel’s presence and silence at the lineup. But Mr. Ramchair’s argument on the habeas application assumes the admission of those facts, Judge Gleeson wrote, and instead “focuses on the consequencesof the admission where the lineup counsel and trial counsel are the same person.” (emphasis in original) The state defendants were represented by Assistant Attorney General Danielle Attias. - Daniel Wise can be reached at [email protected] .

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