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Defense Counsel Deemed Ineffective/Failed to Examine Evidence

The First Department determined defense counsel was ineffective (requiring a new trial) because he emphasized the difference between the Ziploc bags (containing drugs) the defendant was alleged to have sold to an undercover officer and the bags which were in defendant’s possession upon his arrest without ever comparing them.  When the jury asked to see the bags which were in defendant’s possession, defense counsel was forced to acknowledge that they matched those purchased by the undercover officer:

In focusing on the Ziploc bags, counsel eviscerated his entire strategy. No longer could the jury believe that no physical evidence tied defendant to the charges; to the contrary, counsel pointed them in the direction of strong physical evidence. Further, the jury could not be expected to acquit defendant on the theory that the People’s case lacked credibility when his own counsel demonstrated a lack of believability on a critical issue at trial. In addition, defendant’s own credibility was directly undermined by counsel’s failure to conduct due diligence, since he testified about a discrepancy between the drugs purchased by the undercover and those recovered from him by the police. There was no sound strategy underlying counsel’s decision to focus the jury on the evidence bags. By his own admission, it was a mistake, and he would not have highlighted the Ziploc bags had he known their actual contents. This self-sabotage of counsel’s defense strategy, albeit inadvertent, was inherently unreasonable and prejudiced defendant’s right to a fair trial under New York law… .  People v Barnes, 2013 NY Slip Op 03757, 1st Dept, 5-23-13

 

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