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A federal judge in Brooklyn has questioned the federal standard for reviewing habeas claims in which a defense attorney admits to neglect. Eastern District of New York Judge Jack B. Weinstein addressed the matter in a case where a defense attorney claimed he was negligent, but in fact had been an excellent advocate. The judge said the tactic was meant to help the convicted defendant, even if it harmed the attorney’s reputation. In evaluating such cases of admitted neglect, the judge said, the standard in New York state “seems more useful” than the federal standard. In New York’s negligent representation test, the evidence, the law and the circumstances of a case are viewed in the totality and as of the time of the representation. The federal standard has two parts, requiring courts to determine whether performance fell below an objective standard of reasonableness under prevailing norms, and whether there is reasonable probability that the result of the proceeding would have been different. In order for the New York standard to meet the requirements of the U.S. Constitution, Weinstein said, either the U.S. Supreme Court or the 2nd U.S. Circuit Court of Appeals would have to issue a decision. The judge noted that a rule of the 2nd Circuit cannot be changed except in an en banc proceeding, as stated in Henry v. Poole, 2005 WL 1220468. “The distinguished New York courts and New York’s excellent criminal justice system deserves more in the way of comity than is afforded in some federal proceedings,” Judge Weinstein wrote in Barclay v. Spitzer, 02-CV-2184. The judge’s ruling comes a month after another of his habeas cases, Henry, was reversed by the 2nd Circuit. The circuit’s ruling, which ordered the release or retrial of a convicted robber, favored the federal standard for ineffective assistance claims over the New York state standard. Notwithstanding that ruling, Weinstein wrote in Barclay that the state standard seemed superior in cases where an attorney had admitted to neglect. In Barclay, Patrick H. Barclay was convicted of rape and assault. Two years ago, Weinstein dismissed the habeas petition as part of his review of 500 state habeas cases on backlog in federal court, but the 2nd Circuit remanded it for further review. Barclay was convicted of raping a woman on a date. They were at his residence, which was inside a church, and had been drinking and smoking marijuana. On appeal, Barclay made various claims, including that his defense attorney, Lawrence E. Wright, was ineffective. After trial and before Barclay’s sentencing, Wright moved to set aside the guilty verdict because he was remiss in not calling a doctor to testify on Barclay’s behalf. The doctor was Barclay’s treating physician. Barclay walked with a cane. Wright said the doctor would have testified that Barclay was not capable of chasing the victim around his apartment and forcing her to have sex with him. DEFENSE TACTIC In his ruling last week, Weinstein said that Wright had done excellent work at trial and was merely trying to help his client by taking a fall. “While state counsel suggested at the argument of the state post-trial motion that his failure represented neglect, possibly constituting a constitutional violation, this rhetoric did not represent his real evaluation, but was essentially a ploy to obtain a new trial by a lawyer more devoted to his client than to his own reputation,” the judge wrote. Wright could not be reached for comment. Weinstein noted that the doctor was out of the country for much of the trial and hence unavailable for an interview. Wright, whom the judge described as “talented,” was simply following his practice of never calling a witness without preparing him. Weinstein said Barclay shouldered much of the blame for his conviction. He insisted on making key defense decisions, the judge said, and decided to testify on his own behalf. “Skepticism is particularly called for when an excellent attorney doing a highly credible job for the defense suddenly pleads ineptitude,” the judge wrote. “In this respect, the New York State’s standard for determining competent representation seems more useful than the federal standard.” Though Weinstein denied Barclay’s petition, he granted a certificate of appealability in light of the 2nd Circuit’s interest in the case. Mark S. DeMarco represented Barclay on appeal. John O’Mara and Jane S. Meyers of the Brooklyn District Attorney’s Office represented the state.

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