Circuit grants habeas in murder-for-hire case based on recanted testimony

This habeas corpus case is quite complicated. It started with a drive-by shooting in 1993 and various eyewitnesses who said the defendant was guilty of a murder-for-hire. It ends with the U.S. Court of Appeals more than 25 years later finding the defendant was denied a fair trial. Along the way, we have some interesting holdings.

The case is Fernandez v. Capra, decided on February 22. Under the federal habeas law, state court convictions cannot be attacked as unconstitutional in federal court unless the state court unreasonably applied settled Supreme Court authority. Here, we have an arresting officer who, it turns out, was under investigation for selling drugs at the time of the criminal trial, and eyewitnesses who recanted their testimony post-trial.

As for the cop, he was accused of selling cocaine to another officer before he was actually hired as an officer. The prosecution did not tell the defendant in the case about the officer's alleged drug dealing until a few days after defendant was found guilty of murder, on the basis that authorities were skeptical about the drug-dealing allegations. But, the Second Circuit says, withholding that Brady material until after the defendant was convicted in this murder case was unconstitutional, as it was up to defendant and his lawyer -- and not the prosecution -- to exercise judgment in determining whether the defendant should make use of it on cross-examination. However, that error was harmless in the overall scheme of things because the bad-officer's testimony was not critical to the case against Fernandez.

But Fernandez has other arguments in seeking a new trial. Two eyewitnesses recanted their testimony post-trial, claiming the drug officer coerced their identification testimony. The Second Circuit agrees that one brother's recantation was incredible because he was "extremely evasive" at the post-trial hearing on this issue. As for the other eyewitness, Canela, he claimed post-trial that Fernandez was not the shooter and he had never seen him before in his life, contrary to his trial testimony. He said he felt pressure from the detectives to lie at the trial. The Court of Appeals gives little weight to the criminal court's conclusion that Canela tried too hard to be convincing, and the Circuit instead says that Canela (who was 18 at the time) overall gave credible testimony at the post-trial hearing as to why he lied and what he actually saw on the day of the shooting and how the detectives pressured him into identifying Fernandez. As the Second Circuit says there is a good chance Canela's perjury made a difference at trial, Fernandez wins his habeas petition, as the state court's rejection of Canela's recantation testimony was an "unreasonable determination of the facts in light of the evidence presented" under the habeas statute. Having read many Second Circuit habeas rulings over the years, I cannot remember the last time someone prevailed at the Court of Appeals on this basis. I would say Fernandez had some damned good lawyers working for him in his appeal.