THE
PEOPLE OF THE STATE OF
against REPLY MEMORANDUM IN
SUPPORT OF
DEFENDANT’S CPL 440 MOTION
JOHN F. CARROLL
I. INTRODUCTION
On
II. PROSECUTORIAL MISCONDUCT
In her Affirmation the District Attorney correctly points out that “Defendant’s counsel dedicates a significant portion of his supporting memorandum to the issue of prosecutorial misconduct”. Affirmation at ¶15[1] Incredibly, despite the fact the District Attorney’s Office has now had three similar cases overturned by the Appellate Court on the grounds of prosecutorial misconduct and despite the fact that the defendant herein has pointed out innumerable instances of prosecutorial misconduct, the Affirmation is nearly devoid of argument regarding the prosecutorial misconduct at the heart of the John Carroll retrial. Astonishingly, the District Attorney never states, argues or even implies that John Carroll received a fair trial.
The District Attorney does not
argue that the facts or the alleged misconduct in the Carroll retrial are
distinguishable from Levandowski or the other cases. In fact, the Affirmation
essentially serves as an admission by the District Attorney that John Carroll did
not receive a fair trial under the standards recently enunciated by the Third
Department. People v. Levandowski,
8 AD3d 898 (3rd
In this regard, the District Attorney’s Affirmation is an appalling attempt to impose form over function. In essence, the DA is admitting that John Carroll did not get a fair trial and is attempting to have the Court sweep the matter under the rug on procedural grounds. The District Attorney, who has an obligation and a sworn duty to see that justice is done, would have John Carroll, a man who admittedly has not had a fair trial, sit in jail, on a supposed procedural pratfall.
Moreover, the DA would have this Court sanction a conviction and sentence that the Third Department has essentially already said was the result of an unfair trial. In Levandowski, the Third Department specifically indicated the actions of the DA that made the Levandowski trial unfair. The defendant herein has demonstrated that those same actions and types of actions took place in the Carroll retrial. Again, the DA has not argued that the retrial was a fair trial or that the case is distinguishable from Levandowski.
Instead the DA’s Affirmation argues, without support, that Levandowski did not create new law. Affirmation at 17. In other words, the DA is arguing, that despite the fact that Mr. Carroll was denied a fair trial, he should be denied relief because he failed to make the same argument as Levandowski in a timely fashion. This argument has a number of flaws. First a case announces a "new rule" if the result reached was not "dictated" by precedent existing at the time defendant's judgment of conviction became final. Teague v. Lane 489 US 288,301 Clearly the result in Levandowski was not dictated by precedent. It was only the Third department’s elucidation of what constitutes improper behavior by a prosecutor that provided the precedent for this action. Second it suggests that the DA has not heard or absorbed what the Third Department has said to her in its recent decisions. Her job, as the People’s representative, is to see that justice is done. Under what perverted sense of justice is John Carroll to be denied a fair trial based on the DA’s unsupported technical arguments regarding “new law”?
The Third Department itself recognized that form should not be elevated over substance when it stated, with regard to the DA’s misconduct in Levandowski, that “while it is true that in all instances, the noted errors were subject to objections, which were sustained by Supreme Court, and in certain instances, curative instructions were given, we need only note that such rulings and instructions cannot always assure elimination of the harm caused”. Levandowski at 4.
More recently, the Third Department overturned the conviction of one Christopher Allen. Once again the Third Department indicated its reluctance to allow form to triumph over function. The Third Department, in overturning Allen’s conviction, found that “cumulative errors deprived defendant of a fair trial” and that despite “defense counsel’s failure to object, we also find - in the interest of justice – that it was error for the prosecutor to question defendant…” People v. Allen, 2004 NY App Div. LEXIS 15828. (emphasis supplied)
Again, in People v. Gorghan, the Third Department recently found that “while not every error resulted in a timely objection” even the Court’s curative instructions could not “assure elimination of the harm caused”. People v. Gorghan, 2004 NY App. Div. LEXIS 15829 The Gorghan court found that there had been a pervasive pattern by the prosecutor of pushing beyond accepted boundaries on key issues and in a fashion prejudicial to a fair trial.” [2]
In other words, the Third Department itself has recognized the paramount importance of a fair trial and has not allowed form to trump function when it comes to a defendant’s right to a fair trial. Similarly, in this case, this Court should not allow the DA to put the Court in the position of sustaining a conviction that is the result of an unfair trial – a trial that the DA has all but admitted through her silence was unfair under the Third Department standards as recently enunciated in the new cases Levandowski, Gorghan and Allen.
III. DUPLICITY AND DOUBLE JEOPARDY
Compounding the nature of the unfair trial caused by the admitted prosecutorial misconduct is the fact that several of the Counts for which Mr. Carroll was convicted were duplicitous, violated principles of Collateral Estoppel and placed him in double jeopardy. Again the DA does not address the substance of these Constitutional issues but rather relies again on procedural arguments. Affirmation at ¶18 The DA even relies on this argument with regard to the conviction on Count 4, a conviction clearly not supported by the record.
IV. SIXTH AMENDMENT VIOLATION
After essentially admitting that, under the standards elucidated in Levandowski, prosecutorial misconduct resulted in an unfair trial and after not addressing the substance of Mr. Carroll’s double jeopardy and other related constitutional claims, the DA incredibly goes on to argue that the fraud perpetrated on Mr. Carroll, his then fiancée, and his sister – fraud that resulted in the deprivation of his Sixth Amendment right to counsel – should be overlooked because the defendant did not swear that he was without counsel during the interview at the police station. Affirmation at ¶25. Of course, the DA does not argue or provide evidence that Mr. Carroll actually had counsel but merely argues the incredibly picayune point that Mr. Carroll didn’t swear he was without counsel during the interview. The DA could easily have answered the question by conferring with the detectives who were present and asking them whether Mr. Carroll had counsel or the DA could have reviewed the transcript of the trial and the testimony of the detectives who interviewed Mr. Carroll – there was no mention of Mr. Carroll having an attorney present and of course no attorney would have allowed his client to be interviewed under these circumstances. At the very least a hearing should be held on this issue to determine whether Mr. Carroll’s sixth amendment rights were violated.
V. CONCLUSION
Prosecutorial and police misconduct was egregious and pervasive in Mr. Carroll’s trial and resulted in the deprivation of his rights under the United States and New York State Constitutions (CPL 440.10(h)) and in material evidence being adduced by the people in violation of Mr. Carroll’s rights during the trial (CPL 440.10(d). There has been a retroactively effective change in the law controlling the issues previously determined on Mr. Carroll’s appeal through the issuance of the Levandowski, Gorghan and Allen opinions. (CPL 440.10. 2(a)) New evidence, not appearing in the record has been established regarding the abridgement of Mr. Carroll’s sixth amendment right to counsel.
The Third Department’s Levandowski, Gorghan and Allen opinions provide specific guidance to this Court as to the reversible errors made by the prosecutor in those cases and the instant matter. Mr. Carroll’s conviction was obtained through the same types of egregious conduct that resulted in the three reversals– reversals that were ordered because the defendants did not get a fair trial. Under those newly announced standards (and with the DA’s Affirmation failing to contest the substance of the matter and seemingly acquiescing to the argument that the Levandowski standards were not met here) it is abundantly clear that Mr. Carroll didn’t get a fair trial either. In the interest of justice, his convictions should be overturned - they are manifestly unjust.
______________________
Dated:
Attorney for John Carroll
750
Broadway,
(518) 462-7879
[1] In
addition to the instances of misconduct already mentioned, the DA in her
opening made numerous other statements not supported by the record. For
instance, she falsely quoted the alleged victim as saying “Candace, if you love
me you will let me do this to you” and “No daddy, I don’t feel good about this,
no daddy.” (page 17)The DA stated in her opening that Mr. Carroll had called
the alleged victim’s house repeatedly (pg. 33) and then stated in the summation
that “for over two weeks he did nothing, he didn’t call up Paula and say
“Paula, what is going on here”. (Pg. 260) The DA talked about an attempted
suicide by the alleged victim and mentioned a suicide note – a note that the
defense has repeatedly attempted to review but has never seen and a note that
was not in evidence. (page 52) The DA again interjected her personal opinion by
stating “the key to this case for me is just that he was such a
wonderful father, but he did nothing all that time that went by”. (page 262)
[2] The Third Department in Gorghan also provides guidance applicable to the instant matter with regard to Vertimiglia, another issue not addressed by the DA in her Affirmation.