Habeas is giveth and taketh away

A college student and his friend make plans to meet with an older guy to facilitate a drug deal. The idea was the student would sell the drugs to make money on his own. When they meet up on Long Island, the student, Keith, is left lying in the street with a bullet in his head. Somehow he survives. The older friend, Garner, is arrested for attempted murder and a jury finds him guilty. The assumption is that Garner needed money to pay the bills and for some reason decided to shoot Keith. A federal judge then grants Garner's habeas corpus petition on the basis that Garner was denied the effective assistance of counsel at his criminal trial. The Court of Appeals vacates the habeas order and reinstates the conviction.

The case is Garner v. Lee, decided on November 15. After Garner shot Keith, the police arrived and Keith, thinking he was going to die, told them all about the drug deal and that Garner pulled the trigger. The officer said Keith was "very coherent," even with a bullet in his head. Shortly after the police arrived, Keith's cell phone rang; it was Garner, who said he was on the parkway and then hung up. The police knew that Garner worked for an auto dealer, so they staked him out at work and pretended to be customers. When they saw Garner on the phone talking frantically and suggesting he was going to disappear, the police arrested him at work, which must have been quite a scene, I must say. The police found most of the money that Keith gave Garner for the drug deal, in Garner's glove compartment. Garner's cell phone records show that he made a series of phone calls from home shortly after Keith was shot.

The Eastern District of New York said Garner did not get a fair trial because his trial lawyer did not properly review and analyze the cell phone records, which Garner claims exonerates him because they would have supported his alibi that he was at home when Keith was shot. The Court of Appeals (Livingston, Raggi and Lohier) reverses the habeas order and reinstates the conviction.

The Constitution protects criminal defendants who are denied the effective assistance of counsel. But even constitutionally-defective representation does not get you a new trial if you are so guilty that any lawyerly deficiencies did not really make a difference. In this thorough ruling, the Second Circuit says the evidence against Garner was overwhelming and that Garner's testimony at trial was self-serving and uncorroborated. The Court adds that Garner's trial lawyer could not have done anything with the phone records that could have exonerated Garner at trial. So, legally, this crime that took place in 2002 is finally put to rest.