A federal judge has temporarily withdrawn a previously granted habeas petition, admitting he did not give the trial attorney a chance to explain actions the judge had faulted as ineffective assistance of counsel. Eastern District Judge Nicholas G. Garaufis criticized what he said was the failure of Dennis Lemke of Mineola to notify the prosecution of his intention to call alibi witnesses at the trial of Charles Harrison. The judge precluded the use of the witnesses’ testimony.
On June 1, the Nassau County District Attorney’s Office moved for reconsideration of the granted petition in Harrison v. Cunningham, 07-cv-4077. Prosecutors argued that Judge Garaufis had ignored “well-established Second Circuit precedent” that lets purportedly ineffective attorneys present evidence in their own defense. “The court admittedly failed to provide Mr. Lemke with such an opportunity in its original consideration of Harrison’s habeas petition,” Judge Garaufis wrote. The judge directed Mr. Lemke to submit an affidavit by June 15.
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