A convict who has served 22 years of a 50-years-to-life sentence for a double homicide narrowly won a new trial after more than two decades of trying to persuade the courts that he was denied effective assistance of counsel.
The Appellate Division, Fourth Department, which affirmed Kharye Jarvis’ conviction and sentence in 1994, now says in a 3-2 decision that his trial attorney committed grievous errors, that the prosecutor exploited those mistakes and that the defendant’s appellate counsel failed to bring this to the attention of the justices in Rochester some 19 years ago.
People v. Jarvis, 1009/13, is rooted in the execution-style shootings of two people in Monroe County. Jarvis was convicted of two counts of second-degree murder following a jury trial in 1992. The Fourth Department dispatched with his appeal in a unanimous memorandum a few years later (People v. Jarvis, 202 AD2d 1036) and the Court of Appeals declined to hear the case.
But Jarvis, now 40 and imprisoned at Attica Correctional Facility, persisted. He filed a series of pro se motions that got him nowhere until a recent petition for a writ of coram nobis caught the court’s attention. The court directed William Pixley, a semi-retired former prosecutor and former Fourth Department clerk from Rochester, to pursue an appeal.
“This one has been a long time coming,” said Pixley, a onetime assistant district attorney who spent 14 years clerking for a long-retired Appellate Division justice. “[Jarvis] has been trying to get this thing reopened for some time. Someone [at the Fourth Department] there must have taken a close look at it and for whatever reason it jumped out at them. They said he was entitled to a new appeal, and I took it from there.”
The court’s decision focused on the performance of Jarvis’ assigned trial counsel, Robert Smith, who is now in the federal defender’s office, and the prosecutor, Joanne Winslow, who is now a Monroe County judge. It arose from a writ of coram nobis alleging that the defendant’s first appellate counsel, James Eckert of Rochester, should have raised issues on direct appeal that would have resulted in a reversal in 1994.
Smith, according to the majority, “committed two serious errors,” either of which would have warranted reversal on ineffective assistance grounds.
First, the court said, after stopping the prosecution from introducing evidence that the defendant had threatened a witness, Smith did not object when Winslow elicited that precluded testimony at trial. It said Smith’s failure to object was “inexplicable” and “simply cannot be construed as a misguided though reasonably plausible strategy decision” (quoting from People v. Webb, 90 AD3d 1563 (2011).
Second, the majority said Smith “compounded” his initial error by presenting an alibi defense for what turned out to be the wrong day of the week.
“Presenting an alibi defense for the wrong date or time has been found, by itself, to constitute ineffective assistance of counsel,” the majority said in a memorandum joined by justices Eugene Fahey, Erin Peradotto and Rose Sconiers. “We conclude that presenting an alibi defense for the wrong day of the week, as occurred here, similarly constitutes ineffective assistance of counsel inasmuch as offering patently erroneous alibi testimony cannot be construed as a plausible strategy.”
Here, records show, the defendant’s girlfriend and mother provided an alibi for murders that occurred on June 4, 1991, a Tuesday. But the mother identified the day of the week as Friday and the girlfriend, on cross examination, said it was a Saturday.
At the request of the prosecution, the trial court took judicial notice of the fact that June 4, 1991 was a Tuesday, highlighting that the defense witnesses had given erroneous testimony.
“[T]he People took full advantage of the poorly-presented alibi defense during summation, denigrating it as a ‘Hollywood charade,’” the court said.
Justices Joseph Valentino and Gerald Whalen dissented in a memorandum.
They said Smith may well have had a strategic reason for not objecting when Winslow elicited precluded testimony and “may have decided not to object in order to avoid focusing the jury’s attention on the testimony of the witness.”
Another alibi problem arose when the prosecutor pointed out that a television program Jarvis was supposedly watching during the fatal shootings was not on the air at the time specified by the defense witness.
“Under the majority’s analysis, defense counsel would have to be prescient to know that the prosecutor was going to cross-examine one of the witnesses with respect to the television show and then establish that the witness was incorrect about the time that it aired,” the dissenters said. “We refuse to hold the defense counsel to such a standard.”
Valentino and Whalen said that even if Smith did commit small errors, his “otherwise impressive representation contradicts defendant’s contention that he was denied effective assistance of counsel.” They said Smith “presented a unified defense theory” that kept the jury deliberating “for an extended period of time despite strong evidence incriminating defendant.”
Pixley, who had clerked at the Fourth Department for Justice Donald Wisner, who retired in 2004, said the case is a classic “justice delayed, justice denied” matter.
Assistant Monroe County District Attorney Geoffrey Kaeuper argued the latest appeal for the prosecution. There was no immediate reaction from the district attorney’s office.
Smith, Winslow and Eckert did not return calls seeking comment.
@|John Caher can be contacted at email@example.com.