Habeas Upheld for Ineffective Assistance of Appellate Counsel

The United States Second Circuit Court of Appeals upheld the granting of a writ of habeas corpus and a new trial Friday, April 2, 2010 to defendant Racky Ramfair because his appellate counsel was ineffective in assisting him.
Robert D. Sack, a Clinton appointee, wrote the opinion for a panel that also included senior-- that is, retired-- judges Guido Calabresi, famed Yale legal scholar who is also a Clinton appointee, and former chief judge Ralph K. Winter, Jr., a Reagan appointee.
Ramfair was accused of robbing cabdrivers in the New York City borough of Queens. His appointed lawyer Jonathan D. Latimer, III, was present at a lineup which identified Ramfair. It is undisputed that Latimer was at the lineup, but he does not remember if he objected then. Some of the men in the lineup had facial hair; some did not. The police had the ones who did not to rub their faces with carbon paper for the viewing.
The first trial resulted in a mistrial when Ramfair was assaulted while in jail. He had a second mistrial when a juror had to be hospitalized during the trial. The main issue at that trial was whether the robbery victims had said that Ramfair was the man who attacked them because he looked different from the other men in the lineup. At the third trial, a police witness revealed that Latimer had been present at the lineup and testified that he had not objected. Latimer asked the court for permission to testify to dispute that testimony. The judge overruled him. Latimer moved for a mistrial. It was also overruled. In closing argument, the prosecutor emphasized that Latimer had been at the lineup and of the testimony that Latimer had not objected then.
Ramchair was convicted, and ended up getting 10 to 20 years in prison. He had different appointed counsel on appeal. She brought two issues. First, that the trial violated double jeopardy. Second, that Latimer should have been allowed to testify.
The Appellate Division of the New York Supreme Court (equivalent to Texas's state courts of appeal) affirmed. It said that Latimer should have sought to withdraw. If he had, they said, Ramchair could have had a new, different lawyer and Latimer would have been just a witness instead of being both a witness and trial counsel.As a practical matter, this would almost certainly have required a fourth trial.
Making a long story short, the federal trial court held more proceedings in this case between June 30, 2009 and February 12, 2010, resulting in Friday's ruling.
Here are some observations about this. First, this is mostly a panel of retired judges. Federal judges are more open to do unpopular things-- like grant habeas relief-- than state judges are. Senior federal judges are even more likely to. Second, if the lineup was unduly suggestive, Ramchair might be doing time for a crime that he did not commit. Such a case is much more appealing to a federal habeas judge or an appellate judge than a due-process-type challenge made by a guilty person. Third, Ramchair has served approximately thirteen years of a 10-to-20 year sentence. If he was improperly convicted, he's done about as much time as he would have done had he been properly convicted. When I saw oral argument in the Fifth Circuit, I noticed the electric emotional effect such an argument on federals appeals judges in a case such as that. Fourth, conventional wisdom about how many issues an appellate lawyer should put in a brief is that one should not put in more than two or three (in an extreme case, four) if you really want the appellate court to rule in your favor. Appeals court judges don't believe that a trial could have more than a few important errors, and lengthy briefs make their hearts sink. The only time one wants many issues should be put in is when the purpose of a brief is to preserve error in some proceeding likely far-off in time. For example, a criminal defense lawyer may reasonably that the only court likely to rule for a defendant is a federal one. To get to that federal court properly, one has to exhaust one's state remedies and that might well take years. There is a good chance that the federal habeas lawyer will not be the one doing the original appeal to the trial court. The world might be very different then. That might be one scenario; the other is defensive law practice. Complain about everything, all the time, to be ready when the ineffective assistance of counsel claim is made or when the grievance is filed.