Dissent Calls Out Appeals Court, New York Prosecutor For Denying A Prisoner His Right To Challenge His Conviction

from the rights-are-not-privileges dept

The operative word in the phrase “criminal justice system” isn’t “justice.” As much as we tip our hats to enshrined rights and ideals like “innocent until proven guilty,” the operative word remains “system.” And like any system, the justice system is mostly there to process those accused of crimes, rather than act as a check on government power.

Every so often, someone in the justice system will recognize an injustice and raise their voice. But this rarely changes things. And some of the loudest voices calling out violations of civil rights are limited to dissenting opinions. Sure, the opinion may be heard but because it’s only a dissenting opinion, it ultimately doesn’t matter.

But that doesn’t mean we should ignore dissenting judicial voices. They sometimes have the most to say and raise the best arguments. Just because they’ve been regulated to the back half of court opinions doesn’t mean they’re not worth hearing.

That’s the case here in a Second Circuit Appeals Court decision [PDF] dealing with a denial of a prisoner’s claim his rights were violated during his rape trial.

In this case, Terrence McCray was accused of raping a woman. She claimed rape. He claimed consensual sex. She claimed he pinned her down and sexually assaulted her. He claimed she tried to steal his pants and his money and he was able to reclaim them after a brief struggle. The physical evidence — bruises and bite marks on McCray’s arm — supported both narratives.

Before the trial, the prosecution informed McCray the victim had a history of mental illness. He requested documents pertaining to her mental state. Prosecutors obtained 5,000 pages related to the alleged victim’s mental health. The trial court said McCray was only entitled to a 28-page “sample” it deemed “representative.” After a jury trial, McCray was convicted of first-degree rape and sentenced to twenty-two years in prison.

The Second Circuit Court of Appeals says this is fine. Despite the fact that the entire amount of information provided to the prosecution detailed multiple aspects of prior mental health diagnoses that may have called into question the victim’s account of the incident, the court said a small percentage was all the defendant deserved.

The dissent disagrees. While Judge Dennis Jacobs agrees the 28-page sample was representative of some of the victim’s mental health issues, the sampling did not contain certain crucial information that could only be found in the files held (but not turned over) by the prosecution.

In a word-against-word rape case, the State turned over to the defense documents reflecting a variety of mental disorders of the complainant that rendered her vulnerable; but the State did not turn over documents reflecting her distortions of memory and reality, and an earlier report of rape. The withheld documents put the case in a wholly different light, raise powerful doubts about what happened, and would have opened the only promising avenues for investigation and trial strategy.

Just because McCray’s challenge of his conviction doesn’t follow the expected procedural path is no reason to dismiss it entirely… unless the Second Circuit is trying to send the message that it simply doesn’t care about prosecutorial evidence obligations in criminal trials.

The majority deems it “critical to McCray’s case” that Brady is a “general rule” that entails “judgment” in deciding what “specific materials” must be turned over, and therefore may not be a viable ground for seeking relief under the habeas standard. Maj. Op. at 12-13. That principle would foreclose habeas relief even when—as here—the Brady violation is complete, flagrant, and consequential, which cannot be the law.

In sum, the court knew things and the prosecution knew things about the accuser the accused was never made aware of. On top of this being a Brady violation, this was a violation of the accused’s right to confront his accuser on equal footing.

The facts of the case are horrific. But they’re also disputed. To prevent the person whose freedom is on the line from fully engaging in a dispute of the facts suggests those simply accused of crimes have fewer rights than other citizens. The handling of the mental health information has been heavily disputed at every level of the court system. And even though many judges at the state and federal level have seen problems with the way this evidence has produced, a very slim majority have decided it’s not worth a retrial. The disadvantages McCray experienced during his trial continue to be compounded by subsequent examination. Not only that, they’re becoming precedent that create even more hurdles for prisoners hoping to challenge their convictions.

The judge isn’t happy about the trial court’s decision the defendant was only entitled to 28 pages of 5,000 pages of documents given to the prosecution. But he’s even less happy the state of New York continues to wholeheartedly defend this apparent miscarriage of justice.

The State now doggedly defends a conviction that it obtained thanks to a violation of due process. True, the initial mistake here was made by the trial judge. With 5000 pages of a medical file, the process of review somehow broke down. The critical documents were withheld from the prosecution as well as the defense. But after the trial, the successive state courts and the district court—and now my chambers found documents that “put the whole case in . . . a different light” and “undermine confidence in the verdict.” A prosecutor who knowingly did what the trial judge did would be a menace. But good faith is irrelevant under Brady, and functionally, there is no difference between an error by the trial judge and a dirty deed by a prosecutor: the State has deprived the defendant of a fair trial. To McCray, in jail for 22 years, it is all one.

Even a judge did the dirty work, the prosecution went along with it. Both had the power to undo this during the trial stage. Neither did. But it’s the prosecution that scored an unearned win. And now, 13 years later, it still believes it’s entitled to this illegitimate conviction. The dissent will not sign off on the Second Circuit majority’s willingness to give its blessing to secondhand prosecutorial misconduct. And the judge is even less thrilled with the prosecution’s willingness to spend public money actively arguing in favor of an apparent rights violation.

A prosecutor who continues to enjoy a misbegotten victory is as much a menace as one who contrives it. Here, the Attorney General knows from successive appellate opinions that McCray, who is still in prison, was wholly denied the right to defend himself. Yet the Attorney General labors hard to maintain the advantage. The result here is that a person is more than halfway through a 22-year prison sentence, without a trial that anyone can now deem fair, and he is still without the opportunity to see the documents that could have acquitted him. I don’t know what happened in that abandoned house; but it is clear what is happening here. This is a sinister abuse. The last-ditch defense of such a conviction by the Attorney General is disreputable. Were I a lawyer for the State, I would not have been able to sign the brief it filed on this appeal.

Strong words. But still, just a dissenting opinion. The majority rules. And the part of the system that cares only about being a process to convert the accused into the convicted will continue to take all the wins it can get, whether or not it’s actually earned them.

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Comments on “Dissent Calls Out Appeals Court, New York Prosecutor For Denying A Prisoner His Right To Challenge His Conviction”

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Anonymous Coward says:

Re: Re: Re:

I already explained it to you. The accused has the absolute right to know who it is who is accusing them and the cause and nature of the accusation. Marsy’s law restricts that by preventing confidential information (without describing what that information is) to the defense. The only people who like Marsy’s law are fascists.

Fuck off. I hope you don’t ever vote in any election that matters.

Anonymous Coward says:

Re: Re: Re:3

Marsy’s law is not required to ensure that alleged victims of crimes are protected from stalking. States were doing a great job of preventing that from happening without running roughshod over the rights of the accused. Since the early 1990s (long before the abomination of a law was voted on by an ill-informed electorate in the states that have implemented it), a requirement to stay away from the alleged victim was part of any pretrial release condition in every state. All Marsy’s law has done in states where it has been law was remove explicit protections for the rights of defendants and add a bunch of rights for alleged victims that should have been in statutes instead.

If ever the right of an alleged victim or the accused are in conflict, due process demands that the accused are given favor. Marsy’s law has torn that apart. The only people who defend it are people who can’t think critically.

Anonymous Coward says:

nothing more important in the USA ‘justice’ system that getting someone convicted, whether guilty or not! the USA was founded on many things a few hundred years ago but most of them along with the majority in The Constitution, have all been erroded to basically mean nothing! whoever gets accused is almost never proven to be innocent because the state and federal ‘Justice System’ wont allow them to be! not much different to a dictatorship, really! Hitler would’ve been proud!

Rekrul says:

I just read an article the other day about a black woman sentenced to four years in prison for “aggravated” disturbing the peace during the George Floyd protests. She was found not guilty of inciting a riot, but the jury found her guilty of (I believe, I’m too lacy to track it down) disturbing the peace, which is a misdemeanor carrying a maximum sentence of 30 days in jail. However, what her lawyer was not allowed to tell the jury, was that since the prosecutor had made it a charge of “aggravated” disturbing the peace, it carried a possible 10-year maximum sentence.

The jury thought they were convicting her of a charge that would get her, at most, 30 days in jail. They weren’t allowed to know that by convicting her of this charge, they were paving the way for her to be sentenced to up to a decade in prison.

Anonymous Coward says:

Three things I say in cases like this.
* First is the same general on the overall “justice” system in the US: truth and justice are not the goal. Winning is.
* Second is if criminals don’t have rights, then neither do innocent people. You basically enjoy your rights up to the point that someone decides to make you a suspect, regardless of your guilt.
* Third is the George Carlin quote: “Rights aren’t rights if someone can take them away, they’re privileges. That’s all we’ve ever had in this country: a bill of temporary privileges.”

All of this say basically the same thing. Laws in the us are applied very unequally. You only get whatever rights the prosecution and judges agree to grant you as they’re trying to “win” this game. And innocent people be damned in their race to be the “best” judge or prosecutor, the one who secures the most convictions.

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