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New York’s Court of Appeals on Thursday toppled a manslaughter conviction in a rare case — perhaps a first for the state’s top court — where a single error in an otherwise well-presented defense constitutes reversible ineffective assistance. In a unanimous vote with 14 pages of explanation, the court Thursday vindicated Herman Turner in his lengthy and circuitous quest to establish he had been denied effective assistance when he was tried in 1999 on a 17-year-old homicide charge. He spent five years in prison after he was convicted of a charge for which the statute of limitations had expired. But even though Turner himself raised the issue with at least his appellate counsel, neither the appeals attorney nor the trial lawyer grasped the validity of his point. “Very rarely, a single lapse by otherwise competent counsel compels the conclusion that a defendant was deprived of his constitutional right to effective legal representation,” Judge Robert S. Smith wrote for the court in People v. Herman Turner, 163. “This is such a rare case, in which defendant’s trial and appellate lawyers failed to perceive that a statute of limitations defense would have prevented their client’s manslaughter conviction.” The ruling is rooted in a 1982 incident in Brooklyn, when Donald Holloman was shot and killed on a street corner. Turner was arrested in 1998 and charged with second-degree murder. At trial, the prosecutor asked the court for a lesser-included charge on first-degree manslaughter. Defense attorney Howard Weiswasser of Manhattan objected, claiming his client was innocent and that he did not want to give the jury an opportunity to compromise. He did not, however, note that a first-degree manslaughter prosecution is restricted by a five-year statute of limitations. Turner was convicted on the lesser-included manslaughter charge and sentenced to a term of 8 to 16 years. On appeal, Jennifer Danburg, then an attorney with Appellate Advocates, submitted what the Court of Appeals described as a substantial and well-reasoned brief. But she did not raise the statute of limitations issue, even though Turner himself had brought it to her attention. Danburg advised her client that since there was no statute of limitations for the main charge, second-degree murder, there was no bar to a lesser-included charge for which there was a time bar. She also noted that the issue was not preserved since it was not raised by Weiswasser at trial — never mentioning the possibility that Weiswasser’s assistance may have been constitutionally ineffective. Turner’s conviction was affirmed in 2001 on appeal to the Appellate Division, 2nd Department, and the Court of Appeals denied leave. The matter did not return to state court until Turner initiated a federal habeas corpus petition. Eastern District of New York Judge Jack B. Weinstein denied Turner relief, but remanded the case back to state court for consideration of whether Danburg should have argued that Weiswasser was ineffective. Turner, “taking the hint,” as Smith put it, returned to the 2nd Department with a writ of error coram nobis, on which he prevailed. A ‘CLEAR CUT’ DEFENSE Thursday, the Court of Appeals noted that its jurisprudence on ineffective assistance is “somewhat more favorable to defendants” than U.S. Supreme Court precedent. Still, Smith said the hurdle is high, observing that the court has “rejected ineffective assistance claims despite significant mistakes by defense counsel.” But he said that a “failure to raise a defense as clear-cut and completely dispositive as a statute of limitations … is hard to reconcile with a defendant’s constitutional right to the effective assistance of counsel.” The court said that Weiswasser could reasonably have “doubted that the statute of limitations argument was a clear winner — but no reasonable defense lawyer could have found it so weak as to be not worth raising.” The panel also said Weiswasser’s error should have been apparent to Danburg. When contacted Thursday, Weiswasser said he had not yet read the decision and declined comment. Danburg could not be reached for comment. Appearing on the appeal were Katheryne M. Martone of the Legal Aid Society in Manhattan for Mr. Turner and Assistant Brooklyn District Attorney Sholom J. Twersky for the prosecution.

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