The opinion of the court was delivered by: John Gleeson, District Judge
Racky Ramchair seeks habeas relief from his robbery convictions in state court. His petition has so far produced a decision of this Court, Ramchair v. Conway, 2005 U.S. Dist LEXIS 25852 (E.D.N.Y. Oct. 6, 2005) (Ramchair I ), a decision of the New York Court of Appeals, People v. Ramchair, 8 N.Y.3d 313 (2007) (Ramchair II), a second opinion of this Court, Ramchair v. Conway, 2008 U.S. Dist. LEXIS 27682 (E.D.N.Y. Apr. 4, 2008) (Ramchair III), and a decision of the United States Court of Appeals for the Second Circuit, Ramchair v. Conway, No. 08-2004-pr, 2009 U.S. App. LEXIS 14131 (2d Cir. June 30, 2009) (Ramchair IV). Familiarity with those decisions is assumed.
Ramchair III granted Ramchair's petition for a writ of habeas corpus on the ground of ineffective assistance of appellate counsel. Specifically, I held that appellate counsel made a serious mistake that gravely undermined confidence in the outcome of the state-court proceedings. The mistake was her failure to seek review of the trial court's denial of Ramchair's motion for a mistrial. I ordered the state to grant Ramchair a new trial.
The Second Circuit vacated that order and remanded for two purposes: (1) to afford Ramchair's appellate counsel an opportunity to explain her behavior, and specifically to say whether "there was a strategic reason for not raising the mistrial claim," Ramchair IV, at *3; and (2) to require me "to provide reasons for" ordering a new trial, rather than just a new appeal, id at *4.
Pursuant to those directions, I conducted an evidentiary hearing on September 30, 2009, at which Ramchair's appellate counsel in the state court testified. On the same date, I heard oral argument (having previously received supplemental briefing on the issue) as to the appropriate remedy in the event I continued in the belief that the writ should be granted. I then reserved decision.
As discussed below, I once again grant the writ. Appellate counsel's testimony confirmed that she indeed made a mistake, and she explained the reason for that mistake. Specifically, counsel failed to appeal the trial court's denial of Ramchair's motion for a mistrial because she believed -- mistakenly -- that the issue had not been preserved for appellate review.
As for the appropriate relief, I once again exercise my discretion to order a new trial, rather than merely a new appeal. Pursuant to the instructions of the Court of Appeals, I set forth below the reasons for that decision.
I. Was There a Strategic Reason for Not Raising the Mistrial Claim?
As discussed above, the first instruction the Court of Appeals gave me was to afford Ramchair's appellate counsel an opportunity to explain her behavior, and particularly to explain whether the failure to assert the mistrial claim was supported by strategic reasons. Appellate counsel testified about her preparation of Ramchair's appeal brief, and the reasons for the choices she made in doing so, at the September 30, 2009 hearing.
Set forth below is a brief description of the relevant portions of the record supplied to appellate counsel, followed by a description of the error she made in prosecuting the appeal and the reasons for the error.
A. Ramchair's Unfair Trial
The tortuous procedural path of Ramchair's petition should not obscure the simple, irrefutable fact that his trial more than 12 years ago was fundamentally unfair. I described that unfairness at length in Ramchair I (at *34-46; J.A. 40-44*fn1 ) and summarized it in Ramchair III (at *1-4; J.A. 12), so I need not describe it again here. Based on the evidentiary hearing, however, I make the following additional observations.
Ramchair was present in my courtroom at the hearing. Observing him personally for the first time placed in even clearer relief the unfairness of the line-up, and the fallacy of the prosecutor's claim, see Ramchair I, at *5 (J.A. 30), that only skin tone, and not ethnicity, matters in determining whether a line-up is suggestive. Ramchair, a Guyanese Indian, appears South Asian. The fact that the perpetrator had such physical characteristics was important to the victim. Tr. 319-20.*fn2 Thus, it was hardly surprising (and not very probative) when the victim selected Ramchair from a line-up in which he was the only person who appeared South Asian. The prosecutor's argument that it did not matter that the fillers in the line-up were three Hispanics and an African-American,*fn3 as long as their complexion was comparable to Ramchair's, was frivolous. A victim looking for someone who appears South Asian will not likely identify an Hispanic or an African-American, even if that person's skin tone is similar to the perpetrator's.
Observing Ramchair in my courtroom helped me appreciate more fully why the prosecutor needed defense counsel's imprimatur on the line-up at trial. The prosecution's case hinged entirely on a vigorously disputed one-witness identification. I have no doubt that a Queens jury would be receptive to Ramchair's defense at trial, i.e., given that the victim was searching the line-up for a Guyanese Indian, he would naturally settle on Ramchair even if Ramchair was not the perpetrator. Even putting aside the ridiculous fact that at least two of the fillers' faces were smudged with carbon paper, it was obvious that none of them was South Asian. What could be a more effective answer to that glaring weakness in the prosecution's case than to lead the jury to believe that defense counsel himself had approved the line-up as fair by not objecting to it at the time?
B. Trial Counsel's Reaction to the Unfairness
1. The Prosecutor's Tactic
As described in my prior opinions, the prosecutor surprised Ramchair and his defense counsel, Jonathan T. Latimer, III, at Ramchair's third trial. See Ramchair III, at *3-4 (J.A. 12); Ramchair I, at *10-11, *37-40 (JA. 32, 41-42). By eliciting for the first time that Latimer was present at the line-up and failed to object on the ground that it was suggestive, the prosecutor made Latimer a witness against his own client on the central issue in the case: the suggestiveness of the line-up identification of Ramchair seven weeks after the robbery. The testimony of Detective Winnik implied to the jury that Latimer did not object to the composition of the line-up because Latimer himself thought it was fair. In fact, Latimer would have testified that there are important tactical reasons why attorneys do not object to line-ups even when they are unfair. Unfortunately, jurors would not likely intuit those reasons, and indeed a reasonable layperson would expect a lawyer to object to an unfair line-up. But the New York courts recognize that an attorney in Latimer's position at a line-up must make an important strategic decision, and the decision may well be to keep quiet even if, as in this case, the line-up is unnecessarily and even grossly suggestive. See People v. Adams, 90 A.D.2d 1, 11, 455 N.Y.S.2d 616, 621 (1st Dep't 1982) (counsel's strategy may be to "take his chances on the results of the lineup, reserving the option in the event his client was identified, to challenge the lineup as suggestive at the hearing").
2. The Two Options Available to Trial Counsel
By eliciting from Winnik that Latimer was both present and silent at the line-up, the prosecutor unfairly cast Latimer in the role of witness against his client. Latimer naturally wanted the opportunity to tell the jury that his silence at the line-up was not, in fact, the seal of approval on the line-up the prosecutor suggested it was. Since Latimer was the only possible witness to his reasons for not objecting, there were two options available to ameliorate the prejudice of the prosecutor's unseemly tactic. They were dramatically different options.
First, Latimer could testify in the ongoing trial. He would then be both the lawyer for the defendant and a key witness for the defendant. The trial would proceed to a conclusion with Latimer in that unusual dual role.
Second, a mistrial could be declared. In that event, the trial would end immediately, a new trial would be ordered, new counsel would be appointed, and Latimer would then be available as a defense witness in the new trial, unencumbered by the general prohibition on being both an advocate and a witness in the same trial.
Latimer pursued both options.
a. Latimer's Request That The Trial Continue With Latimer in Two Key Roles
Latimer first sought option one. After his objection to Winnik's testimony about him was overruled, he immediately told the trial judge that the only way to remedy the "totally improper" act of making him a witness against his client was to allow him to testify for his client -- to tell the jury the "myriad of reasons that I can have" for not objecting to an unfair line-up. Ramchair I, at *12 (J.A. 32) (quoting Tr. 344). He could not have made a ...