No in banc review in missing alibi case

The Court of Appeals rarely grants in banc review on appeals. In banc review happens when the entire 10-member (or so) court re-hears an appeal originally decided by a three-judge panel. The only good that comes out of the court's refusal to grant in banc review is the opinions that the individual judges issue in support or in opposition to these denials.

The case is Rosario v. Superintendent Ercole, issued on August 10. As decided by the original three-judge panel, Rosario's original case is summarized here. In this case, Rosario's lawyer in state court did not interview about a dozen alibi witnesses because he erroneously thought that the state court would not pay for his efforts. He was wrong, and Rosario was convicted of murder. The alibi witnesses would have sworn that Rosario was in Florida when the crime was committed. Under the habeas corpus rules, the Second Circuit held in April 2010 that the state court that originally handled the post-conviction challenge did not violate clearly-established constitutional law in finding that the lawyer's performance did not rise to the level of ineffective assistance of counsel.

The sticking point here is the fact that New York courts use a different ineffective assistance standard than the federal courts. While both systems of justice are interpreting the same constitutional guarantee, the state standard is more favorable to criminal defendants than the federal standard. Six judges on the Second Circuit (Wesley, Cabranes, Raggi, Hall, Livingston and Katzmann) think the Court of Appeals does not have to intervene to iron out the standard. As Judge Wesley (a former judge in the state system) writes:

because the state standard could be misapplied to diminish the prejudicial effect of a single error, members of this Court wish to encroach on the province of the state to demand that it reframe its standard for identifying ineffective assistance of counsel to mimic the less protective federal model. I believe such a drastic measure is unnecessary as a matter of law and unwarranted as a matter of comity. As the court’s opinion in this case holds, an attorney error that prejudiced a defendant under the federal standard would necessarily affect the fairness of the process as a whole under the state standard. Thus, to the extent that any state court failed to afford relief for prejudicial error, that oversight would be contrary to both the federal and state standard, and could be dealt with on case by case review.

In dissent from the denial of in banc review, Judge Jacobs writes on behalf of Judges Pooler, Lynch and Chin in stating that the Second Circuit needs to iron out these dual ineffective assistance standards. One reason for this is that "the New York standard allows the gravity of individual [attorney] errors to be discounted indulgently by a broader view of counsel's overall performance ... contrary to [Supreme Court authority."

The best part of Judge Jacobs' dissent is his review of the evidence in this case, taking issue with the finding by the panel in the original appeal that the lawyer's failure to interview alibi witnesses was not enough to grant habeas corpus. No liberal he, Judge Jacobs writes:

although the state court conducted a hearing that included testimony from seven prospective alibi witnesses, I am unimpressed by the finding that they were “for the most part, questionable,” and that the two who testified at trial were the best of the lot. First, if a witness is without flaw, I tend to suspect perjury; second, corroboration matters. As the panel dissent forcefully explains, Rosario was seriously prejudiced by the absence of more alibi witnesses.