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A man imprisoned for 11 years for sexually abusing his young daughter must receive a new trial or be freed within 90 days because of ineffective assistance of counsel, the 2nd U.S. Circuit Court of Appeals has ruled. The court found that the attorney for George Lindstadt committed numerous errors during the 1989 Suffolk County trial that ended with Lindstadt being convicted of three counts of sexual abuse and one count of rape. He was sentenced to 12 to 25 years in prison. Writing for the 2nd Circuit, Judge Dennis G. Jacobs said that Lindstadt, now 54, was convicted in a “case of underwhelming evidence.” The decision in Lindstadt v. Keane, 99-2002, reverses a decision by Judge Charles P. Sifton of the U.S. District Court for the Eastern District of New York, and grants Lindstadt’s petition for a writ of habeas corpus. But the court also found that Lindstadt’s right to confront his accuser was not violated when the trial court allowed his daughter to testify via closed-circuit television. Finding that “ineffectiveness permeated all the evidence,” the court said that defense attorney Edward Elliot, now a retired lawyer who practiced in Suffolk County, made a series of critical errors in his representation of Lindstadt. First, the court said, the lawyer failed to notice, along with the judge and prosecution, a one-year error in the date of the alleged abuse. The girl and her mother had testified that the first incident of abuse took place in December 1986. Second Circuit Judge Dennis G. Jacobs said that “it is now conceded that the first incident must have happened, if at all, in December 1985,” and that Lindstadt was not living with his wife and daughter at that point. ” … [A] lawyer who conducted an adequate investigation could have elicited testimony from Lindstadt that he did not live with his daughter at the time of the alleged abuse, and in that way (and others) shaken the credibility of both key prosecution witnesses,” Jacobs said. Second, the judge said, Elliot “made no effective challenge to the only physical evidence of sexual abuse”: a doctor’s examination of the girl that was based, in part, on an “unnamed study” of the phenomena of physical, sexual abuse that was never produced by the prosecution, and was “controverted by other easily available, published studies.” Jacobs said further that Elliot announced during his opening statement that the decision of Lindstadt to testify would be based on whether prosecutors, at the close of its evidence, “have made their case.” Lindstadt’s subsequent decision to present testimony amounted, Judge Jacobs said, to an “implicit confession” that the prosecution had made its case. His attorney’s “gratuitous comment compelled Lindstadt to pay a heavy price for the exercise of his constitutional right to give testimony in his defense … “ Jacobs said Elliot had offered testimony from law enforcement officials that Mrs. Lindstadt tried to have her husband jailed for a variety of crimes before the allegations of sexual abuse were made. “This testimony was essential to bolster Lindstadt’s only defense: that his wife had fabricated the allegations of abuse and coached the child to remember them,” Jacobs said. “The testimony was excluded, however, after counsel failed to make the obvious relevance argument to the court.” Jacobs said that Judge Sifton concluded that there was a strategic reason that counsel withheld the relevancy argument that the jury might believe that Lindstadt had actually committed the crimes alleged by his wife prior to the abuse revelations. “This analysis makes sense, but it was not counsel’s strategic consideration,” Jacobs said. Steven Hovani, Chief of the Appeals Bureau in Suffolk County, said prosecutors were studying the decision and weighing whether to seek a retrial. Hovani said they would “probably move for rehearing” before the 2nd Circuit, and were also studying whether to appeal to the U.S. Supreme Court. Judges Chester J. Straub and Robert D. Sack joined in the opinion. Colleen P. Cassidy of the Legal Aid Society’s Federal Defender Division represented Mr. Lindstadt. Suffolk County Assistant District Attorney Michael Blakey represented the State.

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