Top Judges Require New Trial, But Still Secret Name Of Failing Attorney

Defense Errors Warrant New Trial in Sex Assault Case, Panel Finds
The New York Law Journal by Joel Stashenko  -  June 13, 2011

ALBANY, NY - Repeated errors by the attorney for a man being prosecuted for rape and other sexual offenses require a new trial, an upstate appeals court ruled unanimously last week.  Gary Arnold was denied adequate representation at various junctures in the 2009 trial that resulted in his convictions for multiple counts of rape and sexual abuse, the Appellate Division, Third Department, ruled unanimously in People v. Arnold, 103851.  The briefs in the case are sealed, and the name of the defense attorney could not be learned Friday. The 52-year-old defendant has been serving a state prison term of up to 7 years for his conviction.  The complainant, aged 12 when the alleged abuse began, told her sister that she had been repeatedly abused by Mr. Arnold starting in 2005 in the home that Mr. Arnold was then sharing with the girl's mother. The girls were living elsewhere, but frequently visited their mother's home.  During trial in Schoharie County Court, Mr. Arnold denied all charges of sexual impropriety. On appeal he contended that his defense had been legally inadequate.  In particular, Mr. Arnold alleged that his counsel set up an expectation for the jury during opening arguments that the attorney would be able to impugn the victim's credibility, but failed to follow through on that strategy during the trial.  The defense counsel promised to put before jurors the victim's diary and messages posted on "MySpace" that the attorney promised jurors "will just shock you."  "Yet [the defense] never explained how this information would relate to why the victim would falsely accuse defendant, nor did he ever attempt to introduce any of the MySpace messages into evidence," Justice Karen K. Peters wrote for the Third Department. "Although defendant argues that the significant discrepancies between the victim's accusations in her supporting deposition and her trial testimony further demonstrate her lack of credibility, those inconsistencies were never placed before the jury."  While prosecutors objected to the admission into evidence of portions of the diary and the MySpace entries, the appeals judges agreed that Mr. Arnold's defense attorney failed to lodge an appropriate objection to why those writings were not allowed into the record to show a valid relevance to the victim's credibility.  In addition, and perhaps more critically, the court found that Mr. Arnold's attorney failed to challenge the victim on testimony at trial that was "significantly at odds" with statements she made to police following the alleged attacks.  "In her supporting deposition to police, the victim claimed only that defendant had put his hand and mouth on her vagina; she never stated that defendant ever put his penis in her vagina," Justice Peters noted. "Yet, during her trial testimony, the victim accused defendant of penetrating her vagina with his penis during four of the six alleged instances of abuse."  Given that Mr. Arnold's defense hinged on the credibility of the girl's statements, Justice Peters said the Third Department panel "can perceive no strategic or legitimate tactical explanation" for his defense counsel not to have challenged the discrepancies in her recitations of the events.  "Furthermore, defense counsel's questioning of his own witnesses was directionless and largely ineffective, and he elicited testimony that reflected badly on defendant and actually served to bolster the victim's credibility," the court decided. "Moreover, counsel's summation was confused, ineffectual and did more to advance the prosecution's case than that of his own client."  The defense counsel referred in his closing to "whether or not the actions were consensual," which, given the victim's age, was legally irrelevant, the panel held.  The judges said that the accumulation of errors made by Mr. Arnold's attorney demanded a new trial. "While none of these errors or unexplained omissions on the part of counsel, standing alone, necessarily constitutes ineffective assistance, the cumulative effect of counsel's actions deprived defendant of meaningful representation," the court concluded.  Joining in the decision were Justice Edward O. Spain, Robert S. Rose and John C. Egan Jr. Schoharie County Assistant District Attorney Michael L. Breen argued the matter for the county. Terence L. Kindlon of Kindlon, Shanks & Associates represented Mr. Arnold. Neither returned calls Friday for comment. Mr. Arnold was convicted of two counts of committing a sexual act in the second degree, four counts of second-degree rape and four counts of second-degree sexual abuse in 2009 in a trial before County Court Judge George R. Bartlett III.  Mr. Arnold is first eligible for parole in September 2014.  Joel Stashenko can be reached at jstashenko@alm.com