DeLuca v. Lord

KEARSE, Circuit Judge,

dissenting:

With all due respect, I disagree with the majority’s assessment of DeLuca’s trial counsel’s performance. To establish a constitutional claim of ineffective assistance of counsel, a convicted defendant must show, inter alia, that “counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In assessing counsel’s performance, we are neither to engage in second-guessing, nor to find constitutional violations in acts or omissions that might be considered sound tactics:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, ... the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

Id. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).

The threshold question in this habeas corpus proceeding was thus whether one could reasonably conclude that the performance of DeLuca’s trial counsel John Patten, viewing the matter from his perspective at the time, fell below an objective standard of reasonableness. The majority faults Patten for not preparing an extreme emotional disturbance (“EED”) defense, for not preferring an EED defense to the justification defense he did prepare, and for electing not to present any affirmative defense because of his judgment that the prosecution had not proven its case beyond a reasonable doubt. I do not see in any of these a less than objectively reasonable level of performance.

(a) Rejecting the EED Defense for Lack of Psychiatric Support

The majority’s view is that counsel’s performance was unconstitutionally deficient *591principally because Patten “rejected the EED defense prematurely,” Majority Opinion ante at 587, for the “inadequate” reason that he erroneously believed the testimony of a psychiatrist was necessary, see id. The majority’s view of the EED defense, though technically accurate, is myopic. In People v. Harris, 109 A.D.2d 351, 491 N.Y.S.2d 678 (1985), the New York court observed that the advice of trial counsel in that case that “it would be necessary for the defense to introduce psychiatric testimony to support the claim of EED” was “not wrong from a practical point of view”:

Concededly, psychiatric testimony would not be legally required for defendant to raise the defense.... Nonetheless, if defendant had any hope of prevailing upon the defense, she would have had to convince the jury by a preponderance of the evidence that the emotional explanation given for her conduct was a reasonable excuse.... Whatever other evidence may have been available to support the defense, certainly a psychiatrist’s testimony, giving objective reasons why particular conduct was triggered, would be most probative on the question, even de Hgueur, in order to be successful, as a practical matter, with the jury.

Id. at 362, 491 N.Y.S.2d at 688-89 (emphasis added). Accordingly, the Harris court concluded that “counsel’s advice as to the practical necessity of psychiatric evidence ... was in no way erroneous.” Id. at 363, 491 N.Y.S.2d at 689.

(b)Preferring a Justification Defense to an EED Defense

In faulting Patten for preferring a defense of justification to the EED defense, the majority states that the justification defense offered “no valuable benefits,” Majority Opinion ante at 588, and that the EED defense “offered substantial and likely benefits,” id. Yet a successful justification defense would have produced an acquittal; a successful EED defense would have yielded at best a first-degree manslaughter conviction.

(c) Criticism of Justification for Reasons Also Applicable to EED

Further, the majority finds that the justification defense preferred by Patten was not “promising” because

[t]his defense required DeLuea to take the stand and admit to killing Bissett. Her admission that she approached the van with gun drawn, while her husband approached from the other side, was highly suggestive of intentional murder.

Majority Opinion ante at 586. Since the EED defense would likewise have required this testimony, surely counsel was entitled to view the EED defense — which had far less potential benefit than the justification defense — as not promising.

In my view, it would have been an uphill battle to persuade the jury of either of these defenses, assessing DeLuca’s testimony in light of the photographs introduced at trial. To accept either defense, the jury would have had to believe, inter alia, that DeLuea, while being grabbed by Bissett and pulled off balance, managed to fire into his head four bullets, closely spaced and in a straight line.

(d) Relying on Reasonable Doubt

Finally, even if counsel should not have rejected the idea of the EED defense in the pretrial preparation stage, the more pertinent question is whether it was incompetent for him not to present that defense at trial. At trial, Patten believed the prosecution had not proven its case. Though the majority terms the possibility that the jury would acquit on grounds of reasonable doubt “dismal,” Majority Opinion ante at 588, there can be no doubt that there were unusual weaknesses in the State’s case. For example, the prosecution theorized that Bissett had been killed at about 1:30 p.m., ie., just before road workers in the area saw a woman who matched DeLuca’s description walking away from the parking lot in which Bissett’s van was located. But the prosecution could not prove the time of death because the police had refrigerated the body before it could be examined by the medical examiner. Further, prior to seeing the woman leaving, the road workers had noticed the van “rocking” and had theorized that sexual acts were be*592ing performed; but at no time did any of the workers hear any gunshots. Thus, it was inferable that Bissett was not shot before DeLuca left. There being no evidence that DeLuca returned, or that placed her at the scene of the crime at the time any shots were fired, the jury could well have found that there was a reasonable doubt that it was she, as opposed to her husband who also had access to her gun, who had committed the homicide.

In these circumstances, even had Patten prepared the EED defense, he would not have used it because his judgment was that if no affirmative defense were presented the jury could and would acquit on grounds of reasonable doubt. Patten testified that his view of the weakness in the prosecution’s case was held by others as well, to such an extent that the trial judge had even ordered preparation of an exit route for DeLuca to use upon return of a verdict of acquittal:

I had no doubt that if I put her on that stand, okay, that she would do well. [But] I didn’t think you [sic ] people made it. It was that simple. And I tell you, [Judge] Tonetti himself thought we made it. They had set up an exit route for us to leave the courthouse, because [Judge] Tonetti was concerned that if there was a verdict in favor of the defendant, that there would be a demonstration there. And [Judge] To-netti himself had set up an exit route for us to leave down through chambers. There was that sense that we had made it. Obviously we didn’t. But there was the sense at the time.
Q. You talk about the sense. What did Judge Tonetti do that indicated to you that he had this sense that the case was not made?
A. Judge Tonetti is a former DA from the Bronx and Manhattan, I believe. The atmosphere in his chambers was very relaxed between himself, myself and [Assistant District Attorney] Tony Shepis.
There was [sic ] times when we were in there informally together. In the course of that, [Judge] Tonetti indicated to us I think we should have a way that this woman can leave the courtroom. And we had the sense that we had made it. And we were surprised that it went the other way.
Q. You’re saying “we.” Who are you referring to?
A. Meaning my partner, myself, Mrs. DeLuca, other people who I would speak to there. There was not this great sense of gloom. There was an upbeat sense. And it just didn’t turn out that way.
Q. And you had this sense that you had prevailed because of the weaknesses that you saw in the people’s case?
A. That’s correct.

(Transcript of Habeas Corpus Hearing at 545-46.)

If the majority’s finding of ineffectiveness is limited to counsel’s failure to prepare an EED defense, and not to his failure to present it, surely the prejudice prong of the Strickland test, see 466 U.S. at 694, 104 S.Ct. at 2068 (requiring reasonable probability that outcome of proceeding would have been different but for counsel’s unprofessional errors), has not been met, for it cannot be said that the jury would likely have acquitted just because counsel had prepared a defense he did not present.

In sum, in all the circumstances, I do not share the majority’s view that the performance of trial counsel fell below an objective standard of reasonableness. When two defenses require much the same presentation of factual evidence and, if successful, one would produce acquittal whereas the other could achieve at best a conviction of first-degree manslaughter, counsel’s preference for the defense that could achieve acquittal does not seem to me deficient. When counsel believed that in order to be successful an EED defense would require testimony of a type that the New York court agrees is “highly probative,” “a practical necessity,” and “de rigueur,” one cannot reasonably call his tactical choice, premised on that belief, unconstitutionally defective. And when the trial judge had sufficient question about the persuasiveness of the State’s case to suggest and prepare an exit route for the defendant upon the return of a verdict of not guilty, I think it constitutes pure hindsight to fault counsel for not introducing an affirmative defense that *593would have filled the most obvious gap in the prosecution’s case.