Eisemann v. Herbert, 99-CV-2826 (JBW).
| Decision Date | 31 July 2003 |
| Docket Number | No. 99-CV-2826 (JBW).,No. 03-MISC-0066 (JBW).,99-CV-2826 (JBW).,03-MISC-0066 (JBW). |
| Parties | Robert EISEMANN, Petitioner, v. Victor HERBERT, Superintendent, Collins Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Robert Eisenmann, Helmut, NY, Pro se.
William D. Wexler, North Babylon, NY, for Petitioner.
Edward Miller, Mineola, NY, for Respondent.
The petition for a writ of habeas corpus is granted. Defense counsel's representation and conflicts so tainted this conviction as to require its being characterized as a nullity. That defense counsel's associate, who conducted most of the actual trial, did a decent job does not mitigate the serious constitutional violations.
A hearing was held in this matter. Petitioner's counsel was present in person. The court ordered petitioner to be available by telephone, but he was not because of administrative problems at the prison. His presence was waived by his appointed habeas corpus counsel. Since only issues of law are involved, with no need for an evidentiary hearing, the waiver is accepted. Petitioner will be furnished with a full transcript of the hearing.
Because resolution of this matter requires the court to determine whether petitioner's trial lawyer provided him with effective representation, the court sought the attendance of petitioner's trial lawyer at the hearing. The court has been informed that the lawyer, who was disbarred and convicted of fraud sometime after petitioner's trial, is deceased.
Petitioner Robert Eisemann was convicted of three counts of sodomy in the first degree for sexually molesting his girlfriend's seven-year-old daughter. His father, Henry Eisemann, was also charged with sodomizing the same girl. Both men were represented by attorney Harold Holtman at overlapping times. In the course of representing the Eisemanns, Holtman committed numerous egregious violations of the rules of professional responsibility and the law. He bilked the Eisemann family of relatively exorbitant sums of money, fabricated affidavits to excuse his conduct, threatened to put petitioner in jail if he did not vouch for the fabricated affidavits, and advised petitioner to flee while the jury was deliberating. Holtman was later disbarred.
Holtman's representation of both Robert and Henry Eisemann created an actual conflict of interest that caused him to forego reasonable alternative defense strategies on petitioner's behalf. This conflict violated petitioner's right to the effective assistance of counsel and mandates habeas corpus relief.
Holtman's self-interest in concealing his malfeasance created a second conflict of interest that adversely affected his representation of petitioner. Although unnecessary to resolution of the habeas application, this ground too would provide a basis for granting the writ.
A. The Arrest and Interrogation
Petitioner had a long-term relationship with Josephine Sciubra. The couple lived together for a number of years and had a son together, Robert Eisemann, Jr. Ms. Sciubra had two other children from a previous relationship: a daughter named Theresa R., seven years old at the time of the incidents in question, and her twin brother, Timothy.
Petitioner and Sciubra's relationship ended. He petitioned the Family Court to obtain unsupervised visitation rights for his son. Ms. Sciubra opposed.
While this domestic-relations litigation was in progress, Theresa R. accused petitioner of anally sodomizing her on five occasions. Theresa also claimed that Eisemann's father, Henry, had sodomized her.
On August 8, 1985, petitioner was approached by the police while he was at work and was told to accompany them back to the police station. Upon his arrival, he was informed that he was under arrest for sodomizing a child.
After being read his Miranda rights, petitioner denied the allegations. Petitioner was informed that his father had been arrested earlier in the day for sodomizing Theresa, her brother, and petitioner's son Robert; and that his father had confessed to the crime. Petitioner broke down and cried. See Hit Tr. at 10. After recovering from the shock of being informed that his father had molested his grandson, petitioner spoke to Detective Vincent Jordan.
It is undisputed that while at the police station petitioner signed an inculpatory, written statement concerning the allegations. Hotly contested, however, are the circumstances of the interrogation which led to the signing of the statement. The interrogation was neither audiotaped nor videotaped.
Detective Jordan's account at trial of the interrogation and ultimate signing of the confession presented petitioner as spontaneously offering the detective details of the sexual abuse of Theresa. According to the detective, he began the interrogation by asking petitioner why Theresa would allege that he had sodomized her, and that petitioner responded, "Well, it's not the way it seems." Trial Tr. at 103. The detective then testified that petitioner told him, in essence, that he had a strong sex drive that was unfulfilled by Ms. Sciubra, that he would sometimes cuddle with Theresa and get an erection, and that he had once placed his penis to the anus of Theresa mistakenly believing that he was about to engage in anal intercourse with Ms. Sciubra. Id. at 103-05.
Detective Jordan prepared a statement which Eisemann signed. The first part of the statement contains Eisemann's biographical information and a Miranda waiver. The substantive part of the statement reads as follows:
Sometime, over a year ago, I was living with Josephine Sciurba [sic] whom [everybody] calls Kathy. At that time I was having a drinking problem off and on and also emotional problems with Kathy. [This] included having no sex with Kathy. I have a large sex drive and could not get satisfaction. Due to these prob[lems] I found my self [sic ] getting into bed with Kathy's daughter Theresa. This happened on three or four different occasions. This would happen when Kathy was out [of] the apartment and I knew she was cheating on me staying out to all hours. When I would get into bed with Theresa ["Kathy" is crossed out and "Theresa" is handwritten in] I would cuddle up behind her and hug [her] for affection. Theresa would be wearing a night shirt but no underware [sic ]. As I would cuddle up with Theresa I would naturally have an erection which [sic] would come out of the top of my underpants. On one occasion I spread [t]he cheeks and pressed my erect penis against her anus. I remember Theresa ["Kathy" is crossed out and "Theresa" is typed in] said it hurt so I stopped and got out of bed and went into the bathroom and masturbated. This happened other times but I stopped when Theresa complained of pain or I just did not go all the way. Sometime I would just go into the living room and cool off them [sic] I would masturbate. I know I need help and [have] been attempting to get it. Further, I would like to state that on one occasion I was sleeping with [omitted] and we would have anal sex together. I remember cuddling someone and I t[hought] it was Kathy. I had an erection and put it into her anus and penatrated [sic] her. All of a sudden I heard Theresa's voice and I realized she was in bed with [me] and I, and it was her who I had stuck my penis in. I took out my penis and rolled over and went back to sleep.
. . . . .
As to the above statement I would like to clear up a point. When I stated above that I penetrated Theresa thinking it was Kathy, I mean to say that I went in a little bit not all the way.
Each paragraph is signed by petitioner, Detective Jordan, and Detective Dempsey. The statement is dated August 8, 1985.
Petitioner's recounting of the interrogation that led to his signing of the above statement purports to flesh out the context in which it was generated. According to Eisemann's testimony at a pretrial hearing, detectives engaged in some banter with him, asked for some boxing lessons and then began asking about the alleged abuse:
A He said to me, you know, Bobby, the last time you were in here, Kathy — you were telling me how you and Kathy don't get along and how you moved out and, you know. And I said, Yeah, I never went back to her. I go, I'm still with Laura, the girl you met. I go, Yeah — and then he said — well, he goes, you know, How did you live without sex for that long? He goes, Don't you have like a normal sex drive? And I said, Yeah, I got a good sex drive, never thinking that he would turn it around and say I got a horrendous sex drive, you know. That's ridiculous, the way this guy emphasized the whole damn thing. And then he told me like this. He goes, When you and Kathy were fighting, wouldn't you, you know, like take comfort in the children being around you? I said, That's the only thing that kept me in that house that long. I hated that girl after a while with the way she was filthy and dirty and wouldn't do nothing around there. I was the one who washed their clothes and cooked and took them shopping and everything else, not her. My friends would take me with their cars to go do that.
Q What did Detective Dempsey tell you when you told him that, if anything?
A He said, Of course, I know the way you are with your kids. You're very sensitive about them. The last time you said that if you could take them how, you would. Make no mistake, if I had my kids, I would have loved to move out. The first time she ever said to me, Why don't you take your son, your fox and get out of the house. That's what started this. Plain and simple. And he goes to me — then he says, where do you think they would come up with an accusation like this? I go, Plain and simple, from the mother who has been doing nothing but calling and harassing me and my fiancé, now who I am happy with. She can't bear the thought of us being happy. Have the phone bills subpo...
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Eisemann v. Herbert
...habeas corpus brought by Petitioner-Appellee Robert Eisemann to challenge his New York State sodomy conviction. See Eisemann v. Herbert, 274 F.Supp.2d 283 (E.D.N.Y.2003). Although the ineffective assistance claim is of arguable concern, we conclude that it is ultimately without merit and th......