Federal Appeal/Where Things Stand Now

“I finally got a real judge who finally read the record for the first time.” 
— Interviewee in “48 Hours Investigates”, 12/17/05

In New York State, county judges as well as state appellate justices are elected to ten-year terms of office. By contrast, federal judges have life-time appointments. Therefore the latter are, hopefully, better insulated from the political pressures faced by state judges.
In March of 2006, a federal appeal -- known as a Writ of Habeas Corpus — was filed in the district court of the Northern District of New York.

On May 11, 2009, federal Magistrate Judge Randolph F. Treece issued a recommendation that Nickel’s appeal be denied.

Because the federal writ had been sitting on Treece’s desk for over three years, we had thought that perhaps this was a good sign that Treece was considering ruling in our favor. But in hindsight the delay was, perhaps, merely a sign that the writ was just sitting there, with Treece not even bothering to look at it until very recently. In any event, besides being riddled with factual errors, Treece’s decision simply ignored many of the facts raised in Nickel’s brief:

On pg. 2 of his decision, Treece wrote, referring to photographs which Nickel had mailed to an inmate at the Albany County Jail: “Thereafter, the Sheriff’s Department commenced an investigation and located and interviewed some of the boys in the photographs, including [alleged victim “A” and alleged victim “C”].” This is simply false; none of the people depicted in those photos were the subject of the indictment against Nickel. Treece does not appear to have a grasp of the actual facts of this case.

(pg. 3) “After his interview, Petitioner consented to a search of his home that [allegedly] yielded … a picture of a man who appeared to be Petitioner [that is, Nickel] engaged in a sexual act with a boy.” It only so appeared to Investigator Bates, who then managed to convince “A” that it depicted himself and Nickel. But given the eye color (whereas “A” has blue eyes, the boy in the sex photo has brown eyes) and background details mismatches (police’s own photos show sex photo was clearly not taken in Nickel’s bedroom, as “A” claimed) he was obviously wrong, as our photography expert was prepared to testify.

“[“A”] testified against Petitioner at trial after a determination by the court that they were competent to testify.” Despite the fact that Nickel’s writ enumerated “A”’s numerous competency problems, the magistrate failed to address these in any way whatsoever. “A” claimed that the title of a book he was using in class to study all history subjects was entitled “The Civil War.” When asked to name the school in the “Harry Potter” series, of which he claimed to have read 4-5 books, he gave the name of his own school, then proceeding to change his answer (though he was wrong then as well) in an obvious effort to please his interviewer. He was only able to name one character in those books, the title character, whom he wrongly gave the title of “Mr.” Then he stated, obviously incorrectly, that he had three teachers, all of whom taught the same subject; i.e., though he clearly did not understand the question, he felt obliged to provide an answer anyway.

“[“A”] testified that Petitioner … put his finger inside [“A”’s] anus on one occasion; and that Petitioner placed his mouth on [“A”’s] penis and took a photograph of the act.” This totally ignores “A”’s change of stories as to where these acts supposedly occurred, as well as the fact that he got all of the details of the house wrong.

(pg. 4) “Under the Anti-Terrorism and Effective Death Penalty Act … a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits off the claim and such adjudication … resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” This clearly was the case here. And yet, the magistrate completely fails to review this. He simply ignores the fact that K.S. was wrong about absolutely every verifiable detail regarding the scene of the alleged crime, as well as the fact that he changed his stories as to where it supposedly occurred. Nickel's writ outlined “A”’s complete unrefuted wrongfulness about each and every detail regarding Nickel’s house about which he testified:

He said the house was white, when it’s really blue.

He said the walls in Nickel’s bedroom were blue, when they’re really white.
He said Nickel had to duck to enter a low doorway, which is false.
He said there was a camera mounted on a 3 1/2-foot-wide window sill in Nickel’s bedroom, when the fact is, there are no window sills there.
He said there was a waterbed in the bedroom, which is false.
He said there was a computer in Nickel’s bedroom, when there was not.
(pg. 9) (Quoting the Third Dept.’s decision:) “’County Court was clearly in a position to make a reasoned determination concerning the reliability of the child witnesses as well as their credibility.’” 

Whatever “position” the trial judge (Czajka) may or may not have been in, he clearly did not “make a reasoned determination” here. An examination of “A”’s responses in his voir dire for competency, as well as the fact of his irrefutable wrongfulness regarding each and every detail about which he testified, in addition to his change of stories as to where the top two convictions supposedly happened, clearly demonstrate that the trial court’s determination of this witnesses’s competency as well as reliability was irrational. Yet another writ raised issue which this magistrate fails to address, also relating to “A”’s reliability, is the so-called ‘slapping incident,’ where the boy thought a friend of Nickel’s had struck him, only conceding later on that that was simply not true; on the stand he admitted that that he “might have dreamed it up.” He furthermore confessed that he sometimes mistakes dreams for reality, and false thought that Nickel had given him a motorcycle as well as a saxophone, again, realizing only later on that these, also, were untrue. When the written record itself is so clearly riddled with problems and inconsistencies as to facts at issue, appellate courts are obliged to go beyond such slavish deference to the trial court’s findings. This federal magistrate’s decision and recommendation relies on the trial and state appellate courts’ findings to such a degree as to render his federal ‘review’ virtually superfluous and meaningless.

(pg. 10) (attempting to rebut Nickel’s claim that his trial lawyer was ineffective for failing to call an expert on suggestibility:) “In addition, trial counsel identified the issue of suggestiveness … in his opening and closing statements.” Again, this is simply false. As a careful review of the defense counsel’s opening and closing statements, as well as, for that matter, his comments during cross-examination or at any other time demonstrates, as Nickel’s writ clearly states, “[defense counsel] never used (in opening, cross-examination, or closing) the term ‘suggestive, ‘suggestible,’ or ‘suggestibility.’” Treece is simply flat wrong about the facts here. Nor did defense counsel use any words that could possibly be interpreted as synonyms of them, such as ‘influence,’ ‘alter memory,’ ‘implant memories,’ etc. Not once, during the entire trial. In other words, defense counsel said nothing whatsoever about how “A”’s memories were actually created by suggestive interviews. Nor did trial counsel offer to the trial court any of the treatises on suggestibility which Nickel had provided him with months in advance. Again, though this is all covered in Nickel’s writ, it is simply ignored in the decision of the magistrate.

“In this case, Petitioner did not testify, and his confession that he inappropriately touched the children was corroborated by the testimony of the child-witnesses.”

This ignores the numerous inconsistencies between the alleged statement and the children’s testimonies.

Once again, it completely ignores the fact that nothing in the alleged ‘statement’ says anything about the top three charges: oral sex, photographing of the same, and the ‘finger’ incident.

This magistrate’s report is also something of an exercise in atomization; in focusing on each discrete, insular issue, it ignores the clear reality that cumulatively, Nickel was clearly denied the right to a fair trial.

(pg. 11) (attempting to rebut Nickel’s claim that his trial lawyer was ineffective for failing to call a medical expert or other witness regarding the largely illegible report on the physical examination of “A”, which was provided to the defense at the last minute:) “On the agreement of both attorneys, the trial court decided that [“A”] would testify that day as scheduled, but that Petitioner’s attorney would be given the opportunity to review and consult with whomever he deemed necessary about the report, and that [“A”] could be asked to return the next day regarding potential medical issues if the need arose.” Treece ignores the fact that defense counsel never did so much as carefully review this report and then take further action of any kind, to even ascertain what it actually said, or to re-call “A” or call or re-call any other witnesses. The entire point here is not what the trial court offered to defense counsel in this vein, but what defense counsel actually did or did not do.

“Petitioner does not allege, and there is no evidence on the record, that the report contained any exculpatory information.” Even now, we do not know what it contained because, as the trial court (Czajka) itself acknowledged, the fax pages which were ultimately provided were largely illegible. (One part that can be read, however, is where it says “No apparent injury.”) Defense counsel failed to take even the first step of just trying to get a legible copy of this report, and/or get the doctor who wrote it to decipher it.

(pg. 12) “Also, on cross-examination of [“A”], Mr. Gray questioned [“A”] about the medications he was taking on a regular basis, which, according to [“A”’s] testimony, included Adoral, Clonidine, Ritalin, Zoloft, and Senokot.” Yes, but defense counsel never even attempted to elicit any testimony as to what underlying psychiatric disorders these medications were for. (For one, Gray could have asked “A”’s social worker about this, but simply did not.) Again, though Nickel raised this in his brief, the magistrate failed to address this issue in any way whatsoever.

“The Appellate Division denied this claim, stating that ‘[t]he decision not to request an adjournment for consultation with a medical expert regarding one victim’s records was a trial strategy, as counsel was able to effectively cross-examine that victim regarding his extensive medication regimen.” In citing the Appellate Division here in apparent approval, the magistrate makes the same factual and logical errors. First, contrary to the Appellate Division’s strong implication, and apparently now the magistrate’s belief as well, this report was finally produced to the defense not during “A”’s testimony, but rather, before that, during Investigator Bates’s testimony. Second, whereas there may have been a legitimate trial strategy at play in finishing the cross-examination of Bates prior to seeking an adjournment to review the medical exam, there is absolutely no good reason why defense counsel should not have sought such an adjournment immediately after Bates left the stand.

“… given the testimony of the child witnesses, which was corroborated by the Petitioner’s own statement to the police …” Yet again, this is simply a parroting of the Appellate Division’s own sloppy mis-statements regarding the actual content of the alleged ‘statement,’ which says nothing about the top 3 charges of oral sex, photographing the same, or the ‘finger incident.’

(pg. 13) (attempting to rebut Nickel’s claim that Richard McEvoy, the defense’s proposed photography expert, was wrongly excluded, by Czajka, from testifying as an expert:) “Thus, our review is limited to whether ‘the omitted evidence creates a reasonable doubt that did not otherwise exist.’” The magistrate simply ignores the extensive case law cited by Nickel relating to the fact that experts of this kind not only routinely are qualified by courts to testify as experts; but in one particular case, U.S. v. Alexander, cited in Nickel’s brief extensively, the 5th Circuit Court of Appeals found that the exclusion of very similar expert evidence in a bank robbery photo case constituted reversible error.

“In this case, although the trial court did not permit Mr. McAvoy [sic] to testify as an expert, it nonetheless permitted his testimony as a lay person.” This is meaningless; so limited, McEvoy’s testimony then, at best, simply cancelled out Bates’s lay testimony to the contrary. By contrast, if McEvoy had been permitted to testify as an expert, this would have completely destroyed “A”’s credibility.

“The trial court acquitted Petitioner on count #3 of the indictment: Use of a Child in a Sexual Performance. Thus, whether or not the inclusion of Mr. McAvoy’s [sic] expert testimony would have created a reasonable doubt with respect to that claim is a moot question. With regard to the remaining counts of the Indictment for which Petitioner was convicted, those counts were proven by the testimony of the child-witnesses, and by Petitioner’s confession. 

Even if Mr. McAvoy’s [sic] testimony had been introduced [and] classified as “expert,” and even if the trial court had concluded as a matter of law that Petitioner was not the person in the photograph, that fact would not have created a reasonable doubt with respect to the other crimes for which Petitioner was convicted. Those crimes relate to specific acts alleged by the child-witnesses, that were corroborated by the Petitioner’s own statement.” Once again, the magistrate ignores the fact, clearly pointed out in Nickel’s brief, that “A” only alleged oral sex after being shown that very photograph. Petitioner was convicted of the oral sex charge itself. Furthermore, the magistrate also ignores the fact, also addressed in Nickel’s brief, that the sex photo was also offered as proof of the oral sex charge itself. Also, he fails to address the ‘repugnancy’ problem inherent in the trial court acquitting Nickel of the ‘Use’ (photo) charge, while simultaneously convicting him of the sodomy charge itself, given that these two charges clearly share one or more material element.

Obviously, had McEvoy been allowed to testify as an expert, the effect of this would simply have been devastating to “A”’s overall credibility. Given that he claimed that the sex photo depicted both himself and Nickel, if the defense were permitted to provide irrefutable evidence that Nickel was not in the photo, “A”’s credibility would have been reduced to nil. Because five of the six counts of which Nickel was convicted related to “A”, the impact of refusing to allow McEvoy to testify as an expert was clearly enormous. Moreover, once again, this magistrate speaks of the “Petitioner’s confession” as if it ‘corroborated’ the top two charges of which he was convicted; it does not. Given that Treece is simply parroting many of the same factual errors that were made by the state appellate court, it is very difficult indeed to characterize this federal review as a truly independent one.

Lastly, this review fails to even acknowledge the fact that, as was pointed out in Nickel’s brief, defense counsel failed to clearly elicit testimony from “A” with regard to the fact that he only alleged that oral sex took place after being shown the photo in question.

In addition to that which has been enumerated above, there are three further points/issues, raised in Nickel’s brief, which were also simply ignored by this magistrate’s ‘review’:

That the trial “Court took on the role of the prosecutor by seeking to redirect the People’s theory and proof of the case relative to said [sexual] photograph.” (brief at 3)

The fact that the trial Court took a mere two minutes to ‘deliberate’ its verdict. (3)

The failure of the police and/or the prosecution to turn over to the defense police-taken photos of the interior of Nickel’s home, until it was too late to effectively use them; moreover, that Czajka offered no remedy of any kind. (32)

(Judge Treece hopes to be appointed to the district court itself, which may help to explain why he was unwilling to overturn Nickel's conviction [i.e., not wanting to make a very unpopular —but correct — decision]. However, this will probably not happen anyway, because the Obama administration prefers to appoint younger judges, who will be on the bench for many years to come.)

On June 8, 2009, less than a month after Judge Treece rendered his decision, Federal District Judge Thomas McAvoy concurred with Treece’s recommendation that Nickel’s appeal be denied. The following are some “highlights” from this rather rubber-stamp ruling:

In response to Judge Treece’s decision, Nickel’s brief pointed out that Treece was simply factually wrong in asserting that Nickel had sent photographs of the boys who would later be the subject of the indictment. McAvoy then responds in his own decision: “This factual error is irrelevant to the legal issues presented and, thus, is an insufficient basis for rejecting the Report and Recommendation.” Well, no, because this casts doubt on Treece’s comprehension of all of the facts of this case.

“Petitioner also faults the Magistrate Judge for failing to ‘address the factual problems in declaring the children … competent.’ … This does not present a factual error by the Magistrate Judge.” So then, when Treece simply ignored this raised issue, that was okay? Moreover, McAvoy then does so as well.

“This … goes to the Petitioner’s claim at trial, on appeal, and in the instant Petition that the minor witnesses’ testimony was not sufficiently competent because it was the product of suggestive interrogations.” This actually conflates two different issues (and, moreover, misrepresents Petitioner’s claims): competency to testify under oath, which is the actual issue Petitioner did raise in this vein, relates to one’s general ability to understand questions being asked and to provide coherent, consistent responses. “A” clearly failed that test when Czajka was examining him (called “voir dire”) to assess his competency to testify under oath. Suggestive interrogations, though certainly a huge problem, were not the reason why “A” should have been found incompetent to testify. It was his obviously non-sensical answers to Czajka’s voir dire questions — before he provided any actual testimony -- that should have precluded him from testifying. This is apples and oranges, and again, a troubling misrepresentation of Nickel’s claims.

“While defense counsel may not have specifically used the words ‘suggestive questioning’ or something similar, defense counsel repeatedly challenged the veracity of the minor witnesses and of the interrogation techniques utilized by law enforcement.” ‘Challenging the veracity’ of witnesses is not remotely the same as carefully and consistently arguing that it was suggestiveness that implanted wholly new, false memories. Though Nickel’s trial counsel did do some of the former, it did none of the latter. Given that defense counsel indeed did not use any derivatives or even synonyms of “suggestibility” etc., he clearly did not build a case for suggestiveness. Veracity is a totally separate issue from suggestibility per se. (Whereas suggestive procedures may often lead to a lack of veracity, such lack can, clearly, have many other causes; i.e. deliberate lying.) Mere allusions to generally poor interview practices are no substitute for absolutely ‘hammering home’ how false memories can be -- and were -- implanted. At no time during trial did defense counsel ever make this point, which is precisely why he was, in the legal sense of the word, ineffective in representing Nickel.

“Moreover, the issue of suggestive questioning was the basis of pre-trial motions.” As both of Petitioner’s briefs clearly stated, those pre-trial motions were conducted before a different judge (Breslin); there, Czajka, the actual trial judge, never had the benefit of any of this suggestibility-related information. Judge McAvoy appears to be totally unaware of this.

“Next, Petitioner attacks the Magistrate Judge’s findings concerning the credibility of the minor witness, [“A”]. [“A”]’s understanding of the obligation to tell the truth in court was adequately developed by the trial court.” Once again, Judge McAvoy conflates competency to testify under oath with credibility as to what is actually testified to once one is judged competent. In any event, it is simply ludicrous to say that "[“A”]’s understanding of the obligation to tell the truth in court was adequately developed by the trial court.” Judge McAvoy simply ignores “A”’s numerous competency problems evinced in the voir dire examination of him, all of which were addressed in both of Petitioner’s briefs: “A” claimed that the title of a book he was using in class to study all history subjects was “The Civil War.” When asked to name the school in the “Harry Potter” series, of which he claimed to have read 4-5 books, he gave the name of his own school. He then proceeded to change his answer, although that answer was wrong as well, in an obvious effort to please his interviewer, the trial judge. He was only able to name one character in those books, the title character, whom he wrongly gave the title of “Mr.” He then stated, obviously incorrectly, that he had three teachers, all of whom taught the same subject. Although he clearly did not understand the question, he felt obligated to provide an answer anyway, true or not. Treece and McAvoy simply ignored all of these problems. Moreover, “A”’s ‘understanding’ of the obligation to tell the truth was only part of the competency determination; one must also be able to demonstrate an understanding of the questions asked, and provide coherent, consistent answers.

“Moreover, defense counsel clearly elicited [“A”]’s history of telling non-truths and detailed the many ways in which [“A”]’s testimony was inconsistent with the facts.” The fact that defense counsel may have been competent in this respect says nothing about his ineffectiveness in failing to pursue the issue of suggestibility in any meaningful way, which, after all, is (part of) Petitioner’s actual ineffectiveness argument. Moreover, Judge McAvoy’s characterization as to “the many ways in which [“A”]’s testimony was inconsistent with the facts, “ which is indeed quite an under-statement, is precisely why the trial court’s factual determinations (i.e., as to what was actually true) were clearly incorrect. Both Judges Treece and McAvoy fail to acknowledge that “A” was, in fact, irrefutably wrong about absolutely every verifiable detail regarding Nickel’s house (supposedly the scene where the sodomy took place) about which he testified:

He said the house was white, when it’s really blue.

He said the walls in Nickel’s bedroom were blue, when they’re really white.
He said Nickel had to duck to enter a low doorway, which is false.
He said there was a camera mounted on a 3 1/2-foot-wide window sill in Nickel’s bedroom, when the fact is, there are no window sills there.
He said there was a waterbed in the bedroom, which is false.
He said there was a computer in the bedroom, when there was not.

Given the above, and the fact that there are no admissions in the purported statement as to the top two counts of which Nickel was convicted, the oral sex and the ‘finger’ incident, the state court’s findings clearly “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” (This is the standard for federal review laid out in the “Anti-Terrorism and Effective Death Penalty Act” (AEDPA) of 1996.) However, the Magistrate as well as the District Judge, in violation of AEDPA, incorrectly or completely failed to address these factual variances in reviewing the trial court’s (unreasonable) determination of the facts.

“Despite [“A”]’s history and the inaccuracies, or falsities, of his trial testimony, the trial court was not required to disregard the entirety of [“A”]’s testimony.” Well, the trial court was required to only find guilt if it had been proven beyond a reasonable doubt. Again, the only evidence as to the two most serious counts are “A”’s own testimony. Given that he was wrong about each and every detail of the house where the sodomy supposedly took place, and in any event, changed his stories as to where both that and the ‘finger’ incident took place, guilt beyond a reasonable doubt on those charges was clearly not proven, thus rendering the trial court’s findings of fact here unreasonable. Given “A”’s absolute wrongfulness about each and every detail concerning Nickel’s house, where the alleged sex took place, the trial court in fact was obliged to disregard, at the very least, his testimony in this regard.

“Petitioner further admitted that ‘I may have some experiences even with those boys I have mentioned but haven’t recalled those experiences,’ leaving open the possibility that [“A”] truthfully testified that Petitioner put his mouth on [“A”]’s penis and inserted his finger in [“A”]’s anus.” That’s absurd; this does not represent carte blanche to convict on whatever charge, regardless of how absolutely and irrefutably wrong the alleged victim was on each and every verifiable background detail. Again, the standard to convict is “beyond a reasonable doubt,” not “a possibility.” (Isn’t there always “a possibility”? What a ridiculous, impossible burden to place on the defense.) Once more, the trial court’s determination of the facts was clearly unreasonable here.

“Thus, Petitioner had ample opportunity to present his theory that the stories of the minor witnesses were the result of unduly suggestive interrogation tactics by law enforcement. Further, aside from conjecture and surmise, there is nothing in the record suggesting any improper interrogation techniques.” Whatever “opportunities” the defense at trial may have had to present its theory of suggestive interview techniques, it is precisely the Petitioner’s contention now that defense counsel did not avail himself of them, again, as evidenced by the fact that he never once used the word “suggestive” or any derivations or synonyms thereof, merely alluding to poor interview practices in general as well as witness inconsistencies, of which there could be many causes. As to there being “nothing in the record suggesting any improper interrogation techniques,” to the extent that this is so, it is only because these interviews were not electronically recorded, thus ensuring that there would be no clear proof of improper interrogation techniques. This is akin to demanding that one prove what was suggestive about a lineup at which he was not present and/or about which he has very few details. In any event, there actually are some things in the record to indicate that improper interview techniques in fact were employed. “A” said nothing about the oral sex (and the alleged photographing of it) until he was shown the sex photo, which clearly does not depict him given the eye color mismatch as well as the fact that the background of the photo clearly does not match Nickel’s bedroom, where “A” said it was taken. Therefore the only reasonable inference is that the oral sex was suggested to him, which he then came to believe. In the New Jersey Michaels case, which was cited extensively in Nickel’s briefs, it was only because the interviews were recorded that the defense was able to produce evidence of suggestion. If one simply avoids taping them, there will never be concrete proof of suggestiveness.

“The first ineffective assistance of counsel claim pertains to trial counsel’s decision not to call an expert concerning the susceptibility of minors to suggestive interviewing techniques.” What Judge McAvoy completely ignores is the second prong of Nickel’s claim here, which is that defense counsel also failed to furnish the trial court with any of the several treatises which the defendant himself had personally given to defense counsel well before trial.

“On the issue of the failure to seek an adjournment to review the late disclosed medical exam, the Magistrate Judge properly concluded that Petitioner failed to demonstrate prejudice.” The ineffective counsel issue goes to, in part, the fact that we still don’t know what the exam records even say; again, an impossible burden of proof is being placed on the Petitioner.

“Defense counsel adequately argued to the court that these medications could affect [“A”]’s memory or ability to testify truthfully.” This ignores Petitioner’s clearly-raised issue that we still don’t know what underlying conditions these medications were being taken for; moreover, defense counsel never even asked.

Other issues raised (again) in Petitioner’s Objection to Judge Treece’s decision, which Judge McAvoy then simply ignored. (Quotes are from Petitioner’s brief):

“The Trial Court used the photograph as evidence of the Sodomy, which may very well be a repugnant verdict in view of the acquittal of Petitioner of the Use of a Child in a Sexual Performance (Count #3).” (A verdict is ‘repugnant’ when, on two charges sharing a material element, there is an acquittal on one but a conviction on the other. In other words, either both must be true, or both false.)

“Another issue related to [“A”]’s voir dire for competency, which was also simply ignored by the Magistrate, was the fact that the trial court broke its own promise to allow defense counsel to propose competency questions of its own.”

“Another writ-raised issue which this Magistrate fails to address, also relating to “A”’s reliability, is the so-called ‘slapping incident,’ where “A” thought a friend of the Petitioner had struck him, only conceding later on that that was simply not true. On the witness stand he admitted that he ‘might have dreamed it up.’ He furthermore confessed that he sometimes mistakes dreams for reality, and falsely thought that the Petitioner had given him a motorcycle, as well as a saxophone, again, realizing only later on that these, also, were untrue.”

“The trial judge … did not allow defense counsel to inquire about the training of child sex abuse victim interview techniques when defense counsel asked the following questions: 

Q: Where did you receive that training? … 
Q: Did they alert you at that session not to ask, for example, direct questions of the child? 
TORNCELLO: Objection. 
THE COURT: Sustained.

“During the examination of the children or even the investigator (Defrancesco) trial counsel did not ask whether answers to questions during the child’s interview were given immediately, whether there were long pauses or whether answers changed or were questions repeated.”

“Even after the child changed his answers during voir dire (on the issue of this ability to know truth from fiction), counsel abandoned for no tactical reason the attack on the witness’s credibility.”

Except for the short statement, “This Court agrees with the Magistrate Judge on all further grounds …,” McAvoy says nothing about the exclusion of the expert witness in forensic photography. Therefore, he completely ignores our pp. 24-27 of the Reply Brief:

“The Magistrate erroneously found that the denial of the expert witness [claim] was without merit absent a showing that the ‘omitted evidence creates a reasonable doubt that did not otherwise exist.’ The Magistrate relied upon the acquittal of the child pornography charge, stating that the other convictions were on independent evidence of the child witnesses. This too is a narrow, almost myopic view of the impact of the photograph on the Trier of Fact. It was used to support the Sodomy conviction and without it the only evidence would be the erratic, false and constantly changing story of [“A”], whose testimony was extremely tainted by law enforcement.

The expert witness, Richard McEvoy, Jr., was proffered to testify that the adult male photographed in People’s Exhibit #5 was not the petitioner on trial. The court interrupted indicating that the court doubted that an expert opinion was necessary to establish the identity of the adult male in the photograph …

The adult male in the photograph is not facing the camera and cannot be identified by an examination of his face. Therefore Mr. McEvoy was to testify that he took photographs of the petitioner and did certain scientific measurements, eventually determining that the adult male in the photo was not the petitioner. The court stated that Mr. McEvoy was qualified in his field but that expert testimony was not ‘required … much less appropriate.’ … Mr. McEvoy’s testimony would have established the lack of a ‘match’ by comparing physical features such as ears, hairline, etc. This refusal to even hear from an expert found qualified on measurements he had taken and experiments performed was an error.

Mr. McEvoy is indeed qualified in his field. He has been consulting with and training law enforcement personnel in the use of photography and digital imaging for over 25 years. He started out doing precision photography for the military and then went into forensic photography. He was in charge of the photographic laboratory of the Georgia Bureau of Investigations for over six years, which was part of its homicide and arson investigation section. He also worked on photo identification cases for other agencies, including the Federal Bureau of Investigation (FBI). Some of this involved the identification of persons in robbery cases depicted in bank surveillance photographs. In fact, Mr. McEvoy works almost exclusively for the prosecution side. …

The Court found that ‘this is not the kind of testimony or evidence that is beyond the cannon of a lay person.’ This assertion simply belies common sense. Because Mr. McEvoy is clearly a full-time professional expert in this field, this fact by definition indicates it is one that requires special expertise. The Court appears to be totally unaware that experts routinely testify at trials as to the identity of persons depicted in photographs.

The Court as well as the prosecutor drew a great deal of attention to the fact that face recognition is something that everyone does every day. This is true. But it is hardly dispositive of the need for an expert’s opinion, particularly in the case at bar. It bears repeating that the adult male depicted in the photograph is faceless; he is shown only in a blurry profile, with his face turned away from the camera. Moreover, the mere fact that laypersons may have some knowledge in a given area does not mean that an expert is barred per se from giving testimony on that same topic. Handwriting analysis is an excellent exemplar. Although persons may ‘recognize’ the handwriting of another, especially if the person is known to them, experts nevertheless regularly testify as to whether or not various handwriting exemplars ‘match.’ What distinguishes laypersons from experts is that the latter make systematic, objective and scientific observations and comparisons.

Courts throughout the United States routinely admit expert testimony of this nature. Bank robberies are the most common cases for which forensic photography experts are called in.

The Magistrate in his report ignores the logic and wisdom of the 5th Circuit in United States v. Alexander, 816 F.2d 164 (5th Cir. 1987). The Fifth Circuit found that the District Court’s refusal to permit testimony from two such defense experts constituted reversible error. The defense had intended to call an expert in celphalometry, which is the scientific measurement of the dimensions of the human head, as well as a former FBI agent with expertise in photographic comparisons, in order to show that the petitioner was not the person depicted in the bank surveillance photographs of a robbery.

To exclude this witness violates the right to a trial by an impartial jury or judge. …”

This case was then appealed to the Second Circuit Court of Appeals, located in New York City. Because this is not an appeal “by right”, the Second Circuit had the option of declining to hear the case at all. And indeed, that is exactly what happened: On November 18, 2009, Circuit Judges Roger J. Miner, Jose A. Cabranes, and Chester J. Straub issued an order denying a certificate of appealability.

(There are twelve Circuit Courts of Appeal, each covering one particular region of the country. The Second Circuit is regarded as the second most conservative of them, second only to the Fourth Circuit, headquartered in Richmond, Virginia.)

On March 9, 2010, an appeal was filed with the Supreme Court of the United States. As was the case with the Second Circuit, the U.S. Supreme Court may decline to even hear the case. Indeed, of the many thousands of petitions it receives each year, it only agrees to hear eighty or so; less than 1%. Therefore, this would appear to be a long-shot. Having said that, the issue of suggestibility of child witnesses is something that the Supreme Court will have to eventually address. Will it do so in this case? We will have to wait and see. The decision on whether to accept the Nickel case will probably come down in a few months.

Please continue to check this site regularly for updates.

Copyright © 2001-2012 TwoMinuteVerdict.org. All Rights Reserved.

No comments:

Post a Comment