Wednesday, March 27, 2019

NYCOA: Criminal Appeals (Part 4c)--More Recent Dissents That Should Have Been Majorities

In the last post, we looked at two dissents that protested majority decisions at New York's highest court that overturned convictions because of errors having nothing to do with guilt or innocence, and where there was no suggestion that the alleged error by the trial judge had caused any prejudice to the defendant. (See Part 4b.)

Now we turn to the other two previously previewed dissents that protested majority decisions that upheld convictions, despite serious questions about guilt, and where the Court of Appeals would not even permit a hearing to consider actual innocence.

Again, cheers for those dissents as glimmers of hope amidst dismay at the majority decisions.

People v. Tiger (2018) (Wilson, J., dissenting)
People v. Thibodeau (2018) (Rivera, J., dissenting)
In both Tiger and Thibodeau, the defendants sought post-conviction relief on the basis of actual innocence. They each sought a hearing, pursuant to New York's Criminal Procedure Law, to present evidence that had not been previously available or previously considered and that raised serious questions about guilt. In both cases, the Court of Appeals majority would not even permit a fact-finding hearing to assess that evidence and consider the claims of actual innocence.

In Tiger, by a 5-2 vote, the Court held that a guilty plea was an absolute bar to a subsequent innocence claim. According to the majority, "a voluntary guilty plea is inconsistent with a claim of factual innocence."

The majority rejected the request for an innocence hearing despite the circumstances which led the defendant to plead guilty. Despite the defendant's exoneration of any wrongdoing in a subsequent civil case. And despite the unanimous conclusion of the Appellate Division (New York's intermediate appeals court) that the defendant had established a prima facie showing of innocence that justified a hearing.

Judge Wilson
Judge Rowan Wilson emphatically decried the rigidity of the majority's ruling and its seeming indifference to the injustices it perpetuates:
Natascha Tiger pleaded guilty but is innocent. 
Ms. Tiger is neither the first nor last innocent person to plead guilty. Ms. Tiger's case...provides a compelling example...Faced with seven years in prison, she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence. 
Subsequently, when the [victim's] family sued Ms. Tiger[, e]ven though [they] had to satisfy only the "preponderance of the evidence" standard, and not the "beyond a reasonable doubt" standard, the jury found that Ms. Tiger did not cause the [victim's] injury. 
Our modern criminal justice system "is for the most part a system of pleas, not a system of trials."...We know that some completely innocent people plead guilty. In 2016, a record-setting 166 people were exonerated nationally. Of those, 74 exonerees, or 45 percent, were convicted based on guilty pleas. Of the nearly 2,000 individuals who were exonerated between  1989 and October 2016, 17 percent pleaded guilty....Research shows that innocent defendants may be motivated to plead guilty for a variety of reasons: most prominently, the threat of a more serious charge and a far longer sentence upon electing to go to trial, the fact that a plea will offer a release from pre-trial detention if the offense is low-level, and concerns about the defendant's lawyer or the availability of evidence that would conclusively demonstrate innocence. 
Relatedly, we also know that innocent suspects falsely confess...More than 20 percent of known exonerations for murder were at least in part due to false confessions... Consistently with the research on guilty pleas, the research on false confessions shows that "[t]he most potent psychological inducement is the suggestion that the suspect will be treated more leniently if he confesses and more punitively if he does not."  
The majority is focused on the importance of the finality of the plea process, and the appropriate conservation of judicial resources. Those concerns are weighty. But "conservation of judicial resources" does not appear alongside "life, liberty and the pursuit of happiness."  
Former Chief Judge Jonathan Lippman described our courts' mission thus: 
"Every wrongful conviction is a stain on the reputation of the courts, eroding public trust and confidence in the legitimacy of our institutional status and the fairness and accuracy of our decisions. This only underscores why the judiciary, the focal point of the entire justice system, is absolutely duty-bound to lead the way in making sure that the criminal justice process is as fair and accurate as humanly possible." 
Today's decision inexplicably and unnecessarily denies that mission, eschewing our obligation in favor of further legislative action or executive clemency. I will not. [Citations omitted throughout.]
To which I say, Amen!

In Thibodeau, in an unsigned memorandum for a bare 4-3 majority, the Court of Appeals rejected another substantial actual innocence claim on the same day. The defendant's post-conviction motion was denied by a hearing judge, despite considerable new evidence that others actually committed the kidnapping for which the defendant was convicted many years earlier. The hearing judge ruled that the evidence didn't even raise a "probability" that the verdict at trial would have been "more favorable." The Court of Appeals majority upheld the ruling below on the ground that it was not an abuse of discretion.

Judge Rivera
Judge Jenny Rivera's dissenting opinion set forth in detail the new evidence. In her view and that of two other Judges who joined her, that evidence severely undermined a conviction that was somewhat troubling from the start, and it persuasively demonstrated much more than a mere "probability" that others were guilty and the defendant innocent:

Defendant Gary Thibodeau has been incarcerated for over two decades—almost a third of his life—for the kidnapping of a young woman who disappeared one morning and was never seen again. No physical or forensic evidence connected defendant to the abduction, and no witness ever identified defendant as the kidnapper or placed him at the scene where the victim was taken. Nor has defendant confessed to having committed the crime; rather, he has always maintained his innocence. He now asserts that newly discovered evidence points to three men who have admitted to abducting and murdering the victim[, and he] asks for an opportunity to present this third-party culpability evidence to a jury. 
Defendant presented evidence that three [identified] men...abducted the victim..killed her, and disposed of her body by cutting it up and sending it to Canada in a vehicle being scrapped. The evidence consisted of testimony by a multitude of witnesses to these three men's inculpatory statements, as well as documents that corroborated their guilt and defendant's innocence. 
At the hearing on the motion, defendant presented additional testimony by various witnesses implicating [the three men] in the abduction, including confessions by these three to the victim's abduction and murder. 
[D]efendant presented an exhaustive amount of corroborating evidence for the confessions. [Inter alia,]several witnesses have testified to statements by these three declarants that not only implicate them in the victim's disappearance, but constitute admissions of guilt of kidnapping and murder. [Moreover, t]here is no evidence that the witnesses concocted these powerful third-party statements of guilt for defendant's benefit, nor of a motive for the declarants to inculpate themselves in a kidnapping and murder or exculpate defendant. The witnesses are a variety of ages, occupations, and levels of closeness to the three declarants. The incriminating statements themselves are also varied. At times, the declarants explained what had occurred...Other times, the statements were made as a blatant commentary that the declarant was immune to prosecution because the victim would never be found and the wrong persons—the Thibodeau brothers—were blamed for the crime. 
Contrary to the People's argument, it is not insignificant or irrelevant to our analysis that the various statements connected these declarants and pronounced their guilt of abducting the victim, her murder, and the subsequent cover-up. Far from suggesting fabrication or misperception, the interconnected and mutually-confirming nature of the statements reaffirms their reliability and the "hallmark of trustworthiness" attributed to declarations against penal interest. The quantity of overlapping statements also lends further support for their admission. 
Defendant met his burden of showing by the preponderance of the evidence that "[n]ew evidence has been discovered . . . which is of such character as to create a probability" of a verdict "more favorable to the defendant" (see CPL 440.10 [1] [g]). It is also noteworthy that the People's trial evidence was not overwhelming. No physical or testimonial evidence at trial placed defendant at the store at the time the victim disappeared, and no forensic evidence was found at defendant's home or in [the] van linking defendant to the victim. It is difficult to imagine these statements would not have "added a little more doubt to the jury's view of the evidence" such that there would have been enough uncertainty as to defendant's guilt to tip the scales in his favor. [Citations omitted throughout.]
It is difficult to imagine, as Judge Rivera wrote, that this new evidence would not have added uncertainty and tipped the scales. And difficult to imagine why a majority of the Judges would not err on the side of allowing a full post-conviction review of these two very possibly wrongful convictions. At the least, these cases were very close. Why err on the side that might well be perpetuating grievous injustice?

As for these two dissenting opinions--like those reviewed in the preceding post and like all thoughtful, ardently felt dissents--they gave voice to serious concerns about the majority opinions and  they demonstrated an independent vigilance that should always be welcomed--whether we happen to agree or disagree with the Court's decisions.