Ineffective Assistance of Counsel Leaves High Court To Reverse Conviction

Faulting Counsel and ADA, Ruling Reverses Conviction
The New York Law Journal by John Caher  -  April 4, 2012

ALBANY, NY - In a rare reversal in an ineffective assistance case, a 6-1 Court of Appeals has toppled the conviction of a man serving 20 years in prison for molesting his nieces, holding that "competent defense counsel" would have objected to a prosecutor's "egregiously improper" summation.  The court said in People v. Fisher, 56, that a Monroe County prosecutor "improperly encouraged inferences of guilt based on facts not in evidence," while the defense attorney sat silent.  But Judge Robert Smith, in lone dissent from the unsigned majority opinion, argued strenuously that neither the conduct of the prosecutor nor the inaction of defense counsel was anywhere near serious enough to warrant reversal.  "I simply cannot fathom why the majority is reversing in this case," Judge Smith wrote. "We have never, so far as I know, done such a thing before, and I hope it will be a long time before we do it again."  In another case decided April 3, the court held in Lesher v. Hynes, 49, that the Brooklyn District Attorney's Office can withhold documents in connection with its pursuit of a rabbi who fled to Israel following a 1984 indictment accusing him of molesting young boys.  However, since Israel will not extradite the rabbi, Avrohom Mondrowitz, the court said the chance he will return is "speculative and improbable," and invited lawyer/author Michael Lesher to renew his Freedom of Information Law request.  The criminal case, People v. Fisher, from Rochester, involves Aaron Richard Fisher, who was convicted of molesting two nieces, ages 7 and 11. Both girls testified against Fisher, as did their mother and a convicted murderer, Raymond Burse, who apparently met Fisher in the Monroe County Jail.  The court noted that the jury heard evidence that the girls were afraid of their physically abusive mother who took advantage of Fisher's pretrial incarceration by stealing from him. Also, the jury knew that the informant, who was incarcerated on an alleged parole violation and claimed the defendant had confessed to him, could benefit from cooperating with the prosecution.  Assistant District Attorney Kristina Karle "bolstered" the testimony of the nieces, "essentially testifying" and telling the jury the girls' misbehavior at school during the time of the alleged abuse was proof that the crimes had occurred, the court said.  Additionally, Karle was "less than frank" with the jury, and led the panel to believe that she had virtually no sway with the parole board that would determine if Burse would be returned to prison for violating the conditions of his release, the court said.  The "none too subtle suggestion" that the prosecutor's letter to the parole board on behalf of Burse "was merely courtesy and conferred no real benefit to be weighed in assessing Burse's credibility, was materially misleading; the prosecutor was plainly in a position, if not to control, at least to influence the outcome of Burse's parole violation hearing," the court said.  State records show that Burse is currently on parole release.  The court also said Karle told the jury that the testimony of the two children was evidence, and that "the day that the voice of a child is not evidence is the day that" the courthouse doors should be forever locked.  "Obviously, it was not permissible for the prosecutor, an officer of the court, to admonish the jury that their acceptance of the testimony of the child witnesses was essential to the administration of justice," the court said.

The majority found "no strategic basis" for defense counsel Brian Shulman's "failure to object to these highly prejudicial instances of prosecutorial abuse," and said his failure constituted ineffective assistance.  Chief Judge Jonathan Lippman and Judges Carmen Beauchamp Ciparick, Eugene Pigott Jr., Victoria Graffeo, Susan Phillips Read and Theodore Jones Jr. comprised the majority.  In dissent, Judge Smith said Karle's summation, "while not impeccable, was not outrageous." He conceded that Karle should have omitted her remark about shutting down the court if a child's voice was not heard.  But Judge Smith said "getting carried away is an occupational hazard for trial lawyers." He said jurors should have been able to see through Karle's "emotional peroration."  "Jurors should be given some credit for common sense, and no one with common sense would be persuaded by this sort of talk to overlook any reasonable doubt about a defendant's guilt," Judge Smith said.  He added that "if jurors were not bright enough to figure out on their own" that Burse could benefit from his testimony, Shulman made it clear in his own summation.  Judge Smith noted that Shulman had predicted to the jury in his summation that Karle would be "theatrical" and "dramatic" and would play on the sympathies of the panel in her summation.  "It was not, I suggest, an unreasonable trial strategy for defense counsel to sit quietly and appear unconcerned when the prosecutor did what he had told the jury she would do," Judge Smith said. "But even if defense counsel's silence was a mistake, it is not close to being the sort of mistake that constitutes ineffective assistance of counsel."  Janet Somes, an assistant public defender who argued the appeal, said the ruling seems to be a departure in the way the Court of Appeals typically evaluates ineffective assistance claims.  Usually, she said, the court will focus more on "all the things defense counsel did right" that would outweigh any errors. But here, Somes said, the court focused on Shulman's errors.  "We are very excited about this decision because it sends a message that you cannot ask a jury to draw conclusions that are not fairly inferable from the facts," Somes said. "That is especially important in child cases that are purely a question of credibility."  Shulman was not immediately available for comment.  Assistant District Attorney Kelly Wolford argued for the prosecution. She was not immediately available for comment.  Karle, who is now in private practice, said her "best and worst trait is that I was passionate for kids who are sexually abused."  "I am disappointed, I am sad for these two girls who went through the trial and received justice, and now risk having to go through it again," Karle said. "I hate that there are judges out there who think I did something wrong and the kids have to go through this again. It just breaks my heart."  Karle acknowledged that her summation could have been more "articulate," but insisted her remarks did not cross the line of propriety.  "I don't believe anything I said rose to the level of reversal and, sitting through the trial, I believe defendant received meaningful representation by Mr. Shulman," Karle said.

FOIL Request

Lesher, the Freedom of Information Law (FOIL) case, involves a longtime effort to obtain records in the notorious sex abuse case, and an even longer effort by the Brooklyn district attorney to put Rabbi Mondrowitz on trial. Mondrowitz fled to Israel after he was indicted in 1984, and Brooklyn prosecutors have been trying to bring him back ever since.  District Attorney Charles Hynes was forced to drop his effort to extradite Mondrowitz in 1993 because a treaty in effect at that time would not permit it.  In 1998, Michael Lesher, an attorney and author in New Jersey who represents several of Mondrowitz's alleged victims, obtained some records of the probe through a FOIL request. He was provided with police reports, redacted statements of alleged victims and witnesses and some correspondence with federal agencies.  Nine years later, after a new extradition treaty raised the possibility that Mondrowitz could be returned to Brooklyn, the district attorney resumed efforts to bring the defendant back. Lesher then submitted a second FOIL request seeking all records in the case from September 1993 to October 2007.  The request was denied on the grounds that the records pertained to an open case and included documents which, if disclosed, would compromise investigations and judicial proceedings.  A trial judge held that the district attorney could withhold documents except those relating to the extradition. The Appellate Division, Second Department, reversed, holding that all of the documents were exempt.  On appeal, the top court affirmed the Second Department, but emphasized that "this does not mean that every document in a law enforcement agency's criminal case file is automatically exempt from disclosure simply because it is kept there."  Judge Read, writing for the Court of Appeals, said an agency "must identify the generic kinds of documents for which the exemption is claimed, and the generic risks posed by disclosure."  In this matter, the district attorney sustained that burden, Read said.  However, she also stressed that the exemption evaporates after the investigation and prosecution have ended, and noted that a 2010 ruling from the Israeli Supreme Court seemingly precludes extradition.  "Of course, Mondrowitz might always in theory return to Brooklyn voluntarily or relocate or travel to another nation from which extradition is possible, but such a happening is speculative and improbable," Read said.  The court said Lesher is free to make another FOIL request in light of the Israeli court ruling. Lesher, who said he is working on a book on sex abuse cover-ups in Jewish communities, said he will continue to seek the documents.  "The more they resist disclosure, the more convinced I am that there is something I ought to see, and not just me but the victims who number in the hundreds and the general public who deserves to know if the district attorney is or isn't protecting an indicted child molester," Lesher said. "All of us have a right to know what really happened in this case."  "We will continue to vigorously prosecute child abuse whether in the religious or the secular community all the while protecting the identify of these victims and their families from harassment by mindless and misguided people," District Attorney Hynes said in a statement. "It is beyond my understanding that Mr. Lesher continues to attempt to force us to remove the protective shield which is the right of every victim of sexual abuse."  Lesher, of Passaic, N.J., appeared pro se.  The prosecution was represented by Assistant District Attorney Morgan J. Dennehy. The New York Civil Liberties Union appeared as amicus curiae.  Robert Freeman, executive director of the state Committee on Open Government, said the ruling is "quite significant" in confirming that an agency seeking to withhold records "must meet the burden of defending secrecy."  "If indeed there is little likelihood of extradition…the primary exception in this case would no longer apply," Freeman said.  |John Caher can be contacted at jcaher@alm.com.