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Addressing a “bizarre” case in which a father and son sexually abused the same child victim and one lawyer in the case was disbarred and another resigned the bar because of fraud convictions, a federal court of appeals has refused to grant a petition for a writ of habeas corpus. In reversing a lower court decision ordering the retrial or release of defendant Robert Eisemann, the 2nd U.S. Circuit Court of Appeals, in a decision written by Judge Jon O. Newman, found there was no viable claim for ineffective assistance of counsel in Eisemann v. Herbert, 03-2582. On Aug. 8, 1995, Robert Eisemann was charged with sodomizing a 5-year-old girl and his father, Henry Eisemann, was charged with sodomizing the same girl and her brother. Both men retained attorney Harold Holtman. Holtman was paid by Henry Eisemann and his wife, but he was later disbarred after being convicted of defrauding the couple. Henry Eisemann pleaded guilty to attempted sodomy in December 1995 and was sentenced to 3 to 9 years in prison. But Robert Eisemann went to trial in Nassau County, N.Y., where he was represented by Holtman and his associate, Victor Regan. Regan represented Eisemann at a crucial pretrial hearing on the admissibility of inculpatory statements that Eisemann made to police after his arrest. Regan, who also was responsible for conducting almost all the defense at trial, was later considered by the circuit to have been “entirely competent” in his handling of the case. But it was not Regan’s handling of the case that was the focus of the petition — it was Holtman’s alleged conflict. Following testimony of the child victim, her mother and police detectives, Eisemann was convicted of three counts of sodomy. But he was not in the courtroom to hear the verdict, and the court later found that Holtman had instructed him to flee. Eisemann was sentenced in absentia to 8 1/3 to 25 years in a prison. He was eventually taken into custody to begin serving his sentence. In 1990, the Appellate Division, 2nd Department, affirmed the conviction, but it later vacated its decision on the grounds of ineffective assistance of appellate counsel Marvin E. Basson, who later resigned from the bar following his conviction for securities fraud in an unrelated matter. After new counsel was appointed, the 2nd Department vacated one of the sodomy convictions but let the other convictions stand, rejecting Eisemann’s claim of ineffective assistance. Eastern District Judge Jack B. Weinstein then granted Eisemann’s petition for a writ of habeas corpus. Weinstein found that Holtman’s representation of both Henry and Robert Eisemann created a conflict of interest that affected his representation of the son at trial. The judge said the conflict caused Holtman to forgo three strategies that were “viable and reasonable” — calling Henry Eisemann as a witness, arguing that Henry Eisemann’s confession was coerced, and encouraging Robert Eisemann to make a plea bargain to receive a lesser sentence in return for testifying against his father. Weinstein also said that Holtman had a conflict of interest because he had defrauded the family and “Holtman’s interest in concealing his massive wrongdoing eclipsed his interest in zealously safeguarding his client’s rights.” But Weinstein expressly declined to grant the writ on this ground. NO ADVERSE EFFECT On the appeal, Newman said the federal courts of appeal “are divided as to how a defendant may demonstrate that a conflict adversely affected his counsel’s performance” but that the 2nd Circuit has stated that a defendant need only suggest a “plausible” alternative that was not pursued by the conflicted lawyer, not necessarily a “reasonable” one. “In order to demonstrate that a conflict adversely affected representation even under this Circuit’s lenient standard, Robert must show that at least some plausible defense strategy was foregone as a consequence of Holtman’s conflict of interest,” Newman said. Here, he said, there was nothing in the record that indicated Henry Eisemann would have exonerated his son if he had been called to the witness stand. Even without Henry’s testimony, he said, Regan was able to argue to the jury that, based on Henry Eisemann’s plea, Henry was the one who had attacked the girl. The suggestion that the trial lawyer would have argued that Henry Eisemann’s confession was coerced, Newman said, “also rests on speculation as to how Henry would have testified, and fails for lack of any support in the evidence.” And as to the argument that Holtman’s conflict prevented him from seeking a plea bargain for Robert Eisemann, Newman said “there is no indication that Robert had any evidence to offer against Henry or that the prosecutor had any reason to bargain with Robert for evidence against Henry, who readily plead guilty.” Finally, Newman said, the circuit’s conclusion that Holtman’s conflict did not lead him to abandon a defense strategy is “reinforced by the deferential standard” of review that federal courts are to undertake when hearing challenges to state court convictions. Judges Robert Sack and Barrington D. Parker Jr. joined in the opinion. Assistant Nassau County District Attorneys Karen W. Weiss, Peter A. Weinstein and Edward Miller represented the state. William D. Wexler of North Babylon represented Robert Eisemann.

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