Supreme Court May Consider Case of Bad Defense Lawyer


Fifteen years ago a New York man was convicted of murder based solely on eyewitness testimony. 

Next week, the Supreme Court is scheduled to decide whether to hear Richard Rosario’s appeal, which claims his lawyers overlooked his alibi defense.

Rosario was identified by two witnesses from a book of police photos but several witnesses confirmed that he was in Florida for the entire month that the crime was committed, reported Adam Liptak in The New York Times.

Despite naming more than a dozen people in Florida who could corroborate his alibi, the police failed to pursue the leads.

Mr. Rosario’s court-appointed lawyer did ask a judge for money to send an investigator to Florida to interview alibi witnesses. The request was granted, but the lawyer never pursued the matter, and her replacement mistakenly thought the request had been denied.

At trial, the prosecution swayed the jury to ignore the testimony of alibi witnesses, claiming they were not credible since they were friends of Rosario.  He was ultimately convicted in 1996 and sentenced to 25 years to life.

Rosario challenged his conviction in state court almost a decade later.  This time, seven more witnesses testified that he was in Florida around the time of the murder—two of which recalled seeing him there the day of the murder. But the judge still ruled against him and determined that Rosario’s lawyers’ failure to send an investigator to Florida was not deliberate.

Rosario next challenged his conviction in federal court.  There, a federal magistrate judge ruled that his trial lawyers were “objectively deficient for failing to adequately investigate petitioner’s alibi and present additional witnesses at trial.” Judge Henry Pitman went on to say that there was “a reasonable probability that the jury could have found petitioner not guilty of murder” had it heard the missing testimony.

But Judge Pitman said that did not matter, because New York courts were entitled to use an idiosyncratic standard in judging the effectiveness of counsel, one that considers lawyers’ performances over all rather than their isolated errors.

The full federal appeals court turned down a request for a rehearing by a 6-to-4 vote. Chief Judge Dennis G. Jacobs, dissenting, wrote that New York’s way of thinking about ineffective assistance of counsel — by averaging out performance rather than considering individual errors — “violates the federal Constitution.”

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Innocence Project Report:

Court Findings of Ineffective Assistance of Counsel

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