Lindstadt v. Keane
| Citation | 239 F.3d 191 |
| Decision Date | 01 August 2000 |
| Docket Number | Docket No. 99-2002 |
| Parties | (2nd Cir. 2001) GEORGE LINDSTADT, Petitioner-Appellant, v. JOHN P. KEANE, Superintendent, Respondent-Appellee |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Appeal from the judgment of the United States District Court for the Eastern District of New York (Sifton, J.) denying a pro se motion for a writ of habeas corpus pursuant to 28 U.S.C. §2254. The motion challenges a conviction in the Supreme Court of the State of New York, Suffolk County, on three counts of sexual abuse and one count of rape.
Reversed.
[Copyrighted Material Omitted] COLLEEN P. CASSIDY, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for petitioner-appellee.
MICHAEL BLAKEY, Assistant District Attorney, Riverhead, NY (James M. Catterson, Jr., District Attorney of Suffolk County), for respondent-appellant.
Before: JACOBS, STRAUB, and SACK, Circuit Judges.
Petitioner-appellant George Lindstadt ("Lindstadt") has moved for a writ of habeas corpus pursuant to 28 U.S.C. §3354, challenging his 1989 conviction in New York Supreme Court, Suffolk County, for the sexual abuse of his daughter. Lindstadt challenges the conviction on the grounds (A) that his criminal trial counsel was constitutionally ineffective; and (B) that the use of closed-circuit television to take the testimony of his nine-year old daughter violated his rights under the Confrontation Clause (and that counsel's failure to object to this arrangement was another instance of ineffectiveness). The United States District Court for the Eastern District of New York (Sifton, J.) denied Lindstadt's motion, Lindstadt v. Keane, No. CV-97-1843 (CPS) (E.D.N.Y. Oct. 20, 1998), and denied his pro se motion for reconsideration, Lindstadt v. Keane, No. CV-97-1843 (CPS) .
We agree with Judge Sifton that the closed-circuit televising of the child's testimony did not under the circumstances violate Lindstadt's rights under the Confrontation Clause; but we reverse nevertheless, and grant the writ, because Lindstadt has established (i) that trial counsel's errors, considered cumulatively, amounted to constitutional ineffectiveness, and (ii) that Lindstadt was prejudiced by those errors.
Lindstadt has served about eleven years of his 12 ½ to 25 year sentence. He was convicted on the basis of testimony from his daughter and estranged wife, and on testimony from two experts. Lindstadt testified in his own defense that he committed no abuse, and asserted that the allegations were fabricated by his embittered wife.
Lindstadt claims that his lawyer at trial committed numerous errors serious enough to render the defense services constitutionally ineffective. We base our decision on the cumulative effect of four errors:
(i) Defense counsel (along with the judge and the prosecution) failed to notice a one-year error in the date of the alleged abuse. Lindstadt's wife and daughter testified that the first incident of abuse (Lindstadt was convicted on the basis of two incidents) took place in December 1986. It is now conceded that the first incident must have happened, if at all, in December 1985. Since the daughter's account of the event reflects that Lindstadt was at the time of the incident a member of the household (doing cooking, bathing the child, present at night, etc.), and since Lindstadt lived with his wife and daughter in December 1986 but not in December 1985 (and can prove it), a lawyer who conducted an adequate investigation could have elicited testimony by Lindstadt that he did not live with his daughter at the time of the alleged abuse, and in that way (and others) shaken the credibility of both key prosecution witnesses.
(ii) Defense counsel made no effective challenge to the only physical evidence of sexual abuse. Dr. Milton Gordon testified that his observations of the child's private parts confirmed that she was abused. This testimony was based on unnamed studies that were (a) not requested by defense counsel, (b) not produced by the prosecution, (c) never produced or usefully identified since, (d) essentially unchallenged at trial, and (e) controverted by other easily available, published studies.
(iii) Defense counsel announced in his opening that, after the close of the state's case, Lindstadt and counsel would decide "whether [the prosecutors] have proven their case," and only "if they have made their case" would Lindstadt testify. Lindstadt's testimony in his own defense therefore became an implicit concession that the prosecutor had "made [its] case."
(iv) Defense counsel proffered testimony from two law enforcement witnesses that, before the daughter made allegations of abuse, Mrs. Lindstadt had attempted several times to put her husband in jail for a variety of alleged crimes. This testimony was essential to bolster Lindstadt's only defense: that his wife had fabricated the allegations of abuse and coached the child to remember them. The testimony was excluded, however, after counsel failed to make the obvious relevance argument to the court.
Because we find that these errors, in combination, fall outside the "wide range of professionally competent assistance" and that they "prejudiced the defense," we conclude that Lindstadt's petition should be granted. Strickland v. Washington, 466 U.S. 668, 687, 690 (1984).
The government moved for an order allowing Lindstadt's daughter to testify via closed-circuit television. Lindstadt's counsel did not object, and the motion was granted. Lindstadt contends that the trial court thereby violated his Sixth Amendment right to confront the witnesses against him, and that his counsel's failure to object further demonstrates counsel's ineffectiveness. We disagree. The trial court's grant of the unopposed motion did not violate Lindstadt's rights, and the decision to acquiesce is not ineffective because the decision was supportable for tactical reasons.
On June 17, 1988, Suffolk County Grand Jury indicted Lindstadt on one count of first degree rape, three counts of first degree sodomy, and one count of first degree sexual abuse. All counts involved Lindstadt's alleged abuse of his daughter.
Before trial, the prosecution moved to have the child declared a "vulnerable witness," pursuant to New York Criminal Procedure Law § 65.20, so that she could testify via closed-circuit television. In support of its motion, the prosecution cited five factors: 1) the alleged crimes were heinous (sexual abuse of a six-year-old girl); 2) the witness was nine years old; 3) the defendant was the witness's father, and had lived previously with her in the same home; 4) the alleged abuse was part of a course of conduct over two years; and 5) according to a psychologist, the child would be vulnerable to psychological harm if called to testify in open court. The defense filed no opposition. Justice D'Amaro (not the trial judge) granted the motion.
The trial commenced on March 30, 1989 before Justice Weissman. The prosecution called four witnesses: Lindstadt's wife; his daughter; Dr. Don Lewittes (an expert child psychologist); and Dr. Milton Gordon (the doctor who examined the child).
Lindstadt's wife testified briefly that there was acrimony in her marriage; that in April 1988 her daughter told her about "sexual acts involving her father"; and that she immediately ordered Lindstadt out of the house and took her daughter to Child Protective Services. Mistakenly, she testified that in December 1986, the first alleged instance of abuse (Counts 1-4 of the indictment), Lindstadt lived with her and their daughter at 62 Fairfax Drive in Coram. (As discussed later in some detail, the family did not live in Coram in 1986.)
Defense counsel mounted no useful cross-examination, focusing instead on a curious series of questions, including a line of questioning concerning her name. Lindstadt's wife had several previous husbands and was apparently thought by counsel to have had an inordinate choice of last names.
The child testified as to the nature of the abuse. She too mistakenly testified that the first incident took place in December 1986. On that occasion, Lindstadt is alleged to have performed various sexual acts with his daughter, including intercourse. She testified that, on instructions from her father, she reported this to no one. The child testified to a second incident in March 1988 (Count 5 of the indictment) in which her father performed a sexual act on her until she stopped him.
Lindstadt's lawyer conducted a lengthy cross-examination, limited by numerous objections sustained by the court. He did get out that the child rode horses and was active in gymnastics, activities he cited in his closing as alternative causes of the physical phenomena later described by the prosecution's medical expert.
The prosecution then called a child psychologist, Dr. Don Lewittes, to explain why a child might conceal sexual abuse for years. Dr. Lewittes described the effect of child abuse on the victim, specifically addressing sexual abuse syndrome, a form of post traumatic stress disorder. Dr. Lewittes had never examined the child. Defense counsel asked a single question on cross: "Is [Lindstadt's daughter] your client?" It is not contended that more was required.
The next prosecution witness was Dr. Milton Gordon, the pediatrician who examined the child after her mother brought her to Child Protective Services. The doctor gave her general medical history, followed by a discussion of the genital examination. Dr. Gordon found no obvious signs of trauma (bruising, swelling, etc.); her hymen was intact. The doctor did find "bumps and clefts" on the hymen at the "two o'clock and three o'clock and extending down to the five o'clock positions," a phenomenon that he testified was consistent with...
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