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A clash between the federal and New York state standards for ineffectiveness of counsel led the 2nd U.S. Circuit Court of Appeals to order authorities to either release or retry a convicted robber. Finding that defendant Dwayne Henry’s lawyer was ineffective because he presented “a demonstrably fallacious” alibi defense, the circuit said Henry’s conviction should be overturned because there was a reasonable probability that the mistake changed the outcome — a key element of the federal standard. In so ruling, the circuit, in an opinion written by Judge Amalya Kearse, contradicted New York’s Court of Appeals, which upheld Henry’s conviction for a 1995 robbery of livery cab driver Richard Mitchell in Queens. The state standard examines primarily whether the defendant received “meaningful representation” and focuses on the fairness of the process as a whole. Henry was convicted of first- and second-degree robbery, and sentenced to serve concurrent prison terms of 10 to 20 years and 6 to 12 years for a robbery that occurred just after midnight on Thursday, Aug. 10, 1995. But at trial, the defense called Henry’s girlfriend, Lakesha Person, as an alibi witness. Person testified that she had been with Henry on the night of Thursday, Aug., 10 and stayed with him until the morning of Fri. Aug. 11 — a time frame that did not cover the time of the robbery. Nonetheless, the alibi was repeatedly emphasized by defense counsel in closing argument — a fact that contributed to the 1999 decision by the Appellate Division, 2nd Department, to reverse the convictions. The 2nd Department wrote, “Inasmuch as the witness’ testimony went to the heart of the alibi, counsel’s error undermined the defense,” and the “representation provided was not adequate or effective in any meaningful sense of the word.” The State Court of Appeals reversed. “Despite our well-settled test for evaluating ineffective assistance of counsel claims, the People ask this Court to adopt the Federal standard, maintaining that it is more precise than the State’s ‘meaningful representation’ standard,” the state court said. “This Court has previously recognized the differences between the Federal and State tests for ineffectiveness, and has consistently adhered to the application of our ‘meaningful representation’ test… . In doing so, we have clarified ‘meaningful representation’ to include a prejudice component which focuses on the ‘fairness of the process as a whole rather than [any] particular impact on the outcome of the case.’ … No further clarification of the standard is required.” Henry’s next step was federal court, where Eastern District Judge Jack B. Weinstein denied his petition for a writ of habeas corpus. Weinstein found that the Court of Appeals’ decision was not an unreasonable application of the federal standard for ineffective assistance as outlined by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Weinstein said the defense attorney aggressively represented Henry on several fronts, including challenging the lineup identification of Henry by the livery driver. “There is no possibility, absent counsel’s decision to elicit the alibi testimony, the outcome of petitioner’s trial would have been different,” Weinstein. A 2nd Circuit panel of Judges Kearse, James Oakes and Robert Sack reversed. TWO-PRONGED TEST Writing for the panel in Henry v. Poole, 03-2884, Kearse said that, under Strickland, a Sixth Amendment right to effective assistance of counsel can be found first, where counsel’s performance falls below an objective standard of reasonableness … under prevailing professional norms and, second, the deficient performance “prejudiced the defense.” The decision will be published Wednesday. Here, Kearse said, “both prongs of the Strickland test are met.” Eliciting an alibi for the wrong date, she said, was an error that “plainly” went to the heart of the alibi and undermined Henry’s defense. And the defense attorney “adhered to the alibi defense and urged the jury to accept it throughout the trial — long after it must have been clear to the jury beyond peradventure that Person provided Henry with an alibi only for the night after the night of the crime,” she said. “The failure to recognize that Person’s alibi testimony in no way contradicted the testimony of Mitchell — because they dealt with Henry’s whereabouts on different nights — is not within the realm of professional competence,” Kearse said. And as to the “prejudice” prong of Strickland, she said, “We cannot conclude that there is no reasonable probability that the presentation of the false alibi defense affected the outcome of Henry’s trial.” There were inconsistencies in the identification of Henry, including the initial description and subsequent descriptions of him by the victim, Kearse said, leaving the state’s “weakened” case “bolstered” by the false alibi evidence. “We conclude as well that the NY Court of Appeals’ decision that Henry had not made a sufficient showing of prejudice resulting from counsel’s presentation of the false alibi defense constituted an objectively unreasonable application of Strickland‘s test for prejudice,” she concluded. Reed Smith and Lawrence T. Hausman of the Legal Aid Society’s Criminal Appeals Bureau represented Henry. Queens County Assistant District Attorneys Donna Aldea and John M. Castellano represented the state.

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