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Second Circuit Overturns District Court on Ineffective Claim: Nolan

In United States vs. Nolan, the Second Circuit found that a lawyer had been ineffective for failing to object to an eyewitness ID and a photograph.

United States vs. Nolan, 2nd Circuit, 16-3423-pr(L), 956 F.3d 71

Nolan was charged with Conspiracy to Commit Hobbs act Robbery, attempted Hobbs Act Robbery and carrying a firearm in furtherance of a crime of violence. It was alleged that Nolan engaged in a home invasion involving five adult victims. There were problems with the identification of the robbers. Originally the victims stated that the robbers may be Hispanic. Nolan was white and known to at least two of the victims.

The Faulty Investigation

During the second photo array, one victim testified that she identified Nolan but was only 75% sure in her ID. Then the detective showed the photos to another victim who was able to identify Nolan. “At that point, Desiree entered the room where Lorraine was. Lorraine, referring to Nolan’s photo, asked Desiree, “that’s him, right?” L. Scroggins, trial tr. at 152. Desiree and Lorraine, in the detective’s presence, then looked at photos of Nolan on his Facebook page. And after viewing Nolan’s Facebook photos, Desiree testified, she became certain of her identification.
On the same day, according to Desiree’s testimony, she discussed her identification of Nolan with Sandra and Christopher Martinez, to whom law enforcement had not yet showed a photo array that included Nolan’s picture. She also showed them Nolan’s Facebook photos.”

“The following day, NYPD showed a “six-pack” photo array containing Nolan’s photograph to Sandra, who identified Nolan and testified that she was “pretty confident” in her identification...Sandra also testified that, at that point, she recognized Nolan as the person she knew of as “White Boy” from her old neighborhood. About two weeks later, law enforcement showed the photo array to Christopher, who also identified Nolan as one of the robbers and stated that he recognized him as “White Boy.” Christopher testified that he was confident in his identification. He also testified that his mother, Sandra, had shown him a picture of Nolan before law enforcement showed him the photo array.”

The Trial and Defense Counsel's Missteps

The prosecutors leaned heavily on the eyewitness testimony to indicate that the crime happened.

Originally defense counsel made a pretrial motion to preclude the in-court identification testimony, but the court stated that “were it to preclude the identifications, it would also preclude any questioning about the identification techniques used by law enforcement, such as permitting the victims to view Facebook photos of Nolan[.]” The defense counsel withdraw the motion in favor of allowing "'it … all [to] come in.' … Defense counsel then attempted to impeach the credibility of the identifications on cross-examination and argued on summation that the identifications were not reliable."

The government "introduced a photo from Nolan’s Facebook page of him holding what appears to be a black handgun, but which the jury was told was in fact a BB gun. The Government also discussed this photo in its summation, arguing that it evidenced “the defendant’s … access to firearms and knowledge of them.” The government moved to permit the introduction of the photo as well as a video recording of Nolan's post-arrest interview where he made the statement that he knew a co-conspirator.

Defense counsel did not seek to exclude the BB gun photo or object to its introduction at trial. Instead, he asked that the whole post-arrest interview be admitted because there were portions where Nolan denied involvement in the crime.

Nolan was found guilty of the crimes. He sought a direct appeal and a 2255. He was denied on both. He asked for and received an order from the Second Circuit consolidating his direct and 2255 appeals.

Was there Ineffective Assistance of Counsel?

The court explained that to succeed on an ineffective assistance claim, a defendant must demonstrate, first, that “in light of all the circumstances,” the acts or omissions of trial counsel “were outside the wide range of professionally competent assistance,” and, second, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Eyewitness ID Ineffectiveness

Nolan argued that his lawyer was ineffective because he failed to adequately challenge the eyewitness ID's that formed the core of the government's case. He argued that he received ineffective assistance because his lawyers did failed to pursue a pre-trial motion to preclude the in-court testimony and because his lawyers failed to hire an expert on eyewitness testimony and its unreliability especially in this case.

In Young v. Conway, the 2nd Circuit held that there were factors that a court should examine in determining whether the exclude eyewitness identification testimony:

“literature indicates that certain circumstances surrounding a crime — including the perpetrator’s wearing a disguise, the presence of a weapon, the stress of the situation, the cross-racial nature of the crime, the passage of time between observation and identification, and the witness’s exposure to [the] defendant through multiple identification procedures — may impair the ability of a witness … to accurately process what she observed."

Young v. Conway, 698 F.3d 69, 78-79 (2d Cir. 2012)

The court noted that al; of those factors were present here: The perpetrators were armed, they were carrying firearms, they were engaged in aggressive behavior that caused the victims to be under stress, there were matters of cross racial identification, and the police "employed highly irregular procedures in pursuing the witnesses’ identification of Nolan, potentially biasing the victims’ identifications by, for example, allowing them to talk among themselves about Nolan’s identification and allowing them to view his photos on Facebook."

The defense counsel knew all of this and filed a motion concerning the same. He then abandoned it believing that it would be better off to impeach the eyewitnesses. The Second Circuit disagreed:

"If defense counsel had succeeded in the exclusion motion, it would appear that the case would have been effectively over in light of the Government’s heavy reliance on the eyewitness identifications. And even if defense counsel had lost the motion, they would have educated the judge as to the frailty of the identifications and would, of course, still have been free to fully impeach the eyewitnesses at trial."

The court also found that counsel was ineffective for failing to call an expert as well. Issues like "persons of a given race or color [not being] nearly as good at perceiving and remembering the fine facial features of someone of a different race or color as they are at perceiving such features of someone of their own race or color" are not easily known by typical jurors. Further, if the defense had used an expert then they would have become more aware of the factors causing the eyewitness identifications to be so problematic and defense counsel would not have abandoned their exclusion motion so quickly.

Regarding Strickland's second prong, that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” the court stated that without the identifications the remaining value of the government's evidence would have been limited. Because of this a reasonable jury would have most likely acquitted Nolan.

BB Gun Ineffectiveness

Turning to the BB gun, the court agreed that counsel's lack of effort to preclude the government from introducing a highly prejudicial Facebook photo of Nolan holding a BB gun was ineffective assistance of counsel. There was no strategic rationale for defense counsel's failure to move to exclude the photo. The photo was not direct evidence of the crime and does nothing to place Nolan at the time and place of the robbery. The government's rationale about the photo, that it shows that Nolan has access to and knowledge of firearms is weak on its face and must be weighed against the prejudice.

In light of all of this, defense counsel's failure to seek a limiting instruction was ineffective assistance of counsel. Even the idea that "effective counsel might elect not to seek a limiting instruction for fear that 'the instruction may call the jury’s attention to the harmful evidence'" didn't hold water because the government moved in liminie for the court to admit the photo, indicating their desire to use the photo and bring particular attention to it. In addition the court found that “there [was] a reasonable probability that … the result of the proceeding would have been different” had the photo not been admitted." The reason for this was that the photo "likely served to elicit an emotional reaction among the jurors in light of the fact that the defendant was being tried on a charge of armed robbery."

The Second Circuit held that Nolan did not receive effective assistance of counsel and the court reversed the denial of the 2255 motion as well as vacating his conviction on all three counts.

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