Ineffective assistance and the “Dog Pound”

People v. Ennis is a fascinating Brady and ineffective assistance of counsel case that was decided today by the Court of Appeals.  Basically, two brothers — Sheldon and Aaron Ennis — were charged with running a drug-selling conspiracy in Manhattan.  They ran their operation out of a hotel that they dubbed the "Dog Pound."  At trial, the People attempted to show that the brothers, and a third co-conspirator, used violence to protect their drug turf.  One of the incidents involved a shooting.  The victim testified that both Aaron and Sheldon shot at him.

During the trial, Aaron Ennis’ attorney confided to Sheldon Ennis’ attorney that Aaron had made a proffer to the People, during plea negotiations, that he alone had shot at the victim and that Sheldon was not present.  According to Sheldon’s attorney, this information was communicated to him in confidence, with the understanding that it would not be disclosed until after trial.  The People never disclosed the contents of the proffer to Sheldon’s lawyer.

The question on appeal was whether Sheldon’s attorney provided effective assistance of counsel.  The defendant argued that he did not, due to a conflict of interest and the attorney’s failure to take action on the disclosed information as well as the People’s failure to turn over the information.  The Court of Appeals, in a unanimous decision authored by Judge Graffeo, rejected defendant’s claims and affirmed his conviction.

The court first held that there was not a conflict of interest:

To date, our conflict of interest cases have generally fallen into one
of two categories: cases where a potential conflict of interest was
identified based on defense counsel’s previous or concurrent
representation of a client whose interests conflicted with those of
defendant (see e.g. People v Abar, 99 NY2d 134 [2002]; People v McDonald, 68 NY2d 1 [1986]) and cases where defense counsel became a witness against defendant (see e.g. People v Lewis, 2 NY3d 224 [2004]; Berroa,
99 NY2d 134). Regardless of the circumstances, in our prior cases the
potential conflicts of interest were discernible based on objective
facts that were not easily subject to manipulation by the conflicted

In this case, the purported conflict of interest does not arise from
objective facts or circumstances external to defense counsel. Rather,
it is alleged that defense counsel was torn between keeping a promise
to Aaron’s counsel not to reveal the exculpatory information and
fulfilling his professional obligation to act in defendant’s best
interests. In the affidavit submitted in connection with the CPL 440.10
motion, Cooper stated that he did not tell the trial court about the
alleged Brady violation or otherwise attempt to use the
exculpatory information at trial because he felt constrained to remain
silent, apparently based on his personal (as opposed to professional)
ethical values.

The personal dilemma defense counsel describes is markedly
different from the types of conflicts that we have previously
recognized as triggering our conflict of interest analysis because it
is entirely subjective. Many (perhaps most) attorneys would not have
perceived any conflict; having learned information that they deemed
useful to their client, they presumably would have pursued one of
several available courses of action, including advising the trial
court, ex parte and without necessarily divulging their source,
that they had reason to believe there had been a proffer session in
which exculpatory statements were made. For these lawyers, any personal
concern stemming from the assurance of confidentiality would have been
outweighed by the professional obligation to pursue the interests of a
client who was on trial for serious offenses, including attempted
murder. We are therefore hard-pressed to place the internal struggle
cited by defense counsel in the same category as the conflicts of
interest discussed in our precedents.

The court also noted that the question under the second prong is a mixed one of law and fact.  The court could not find that the inference drawn by the courts below lacked support in the record.

Turning to the question of whether counsel was ineffective for failing to make proper use of the information, the court first summarized counsel’s "effective" advocacy throughout the trial.  This is an important point that many appellate attorneys overlook: Under New York’s standard for ineffective assistance of counsel, the entirety of counsel’s work must be examined to determine whether he or she provided "meaningful representation."  Therefore, any error must be placed in the context of the entire representation.  Here, the court found that the defendant had the assistance of an able advocate:

In this case, defense counsel performed as an effective advocate in
many significant respects. He vigorously cross-examined the People’s
witnesses, gave a strong closing argument, and succeeded in obtaining
acquittals on the most serious charges facing defendant — the three
attempted murder counts (one relating to the Moody shooting and the
others stemming from the stabbings of Calwell and Sherman).

The court also found that, in any event, counsel’s lack of use of the information from Aaron’s attorney did not deprived the defendant of effective assistance of counsel.  Importantly, the court noted that the defendant would not have been able to do anything meaningful with the information.  He could not have called Aaron to the stand (since he would have asserted the privilege against self-incrimination).  Other witnesses to the proffer could not have testified about its substance because the statement that the defendant did not shoot the victim and was not present was not against Aaron’s penal interests.  Likewise, raising a Brady claim during the trial would not have resulted in a sanction against the People because:

had the statement been turned over, there would have been no avenue for
defense counsel to admit it into evidence, either in the joint trial of
the Ennis brothers or in a separate trial of defendant had severance
been granted.

The court noted, however, that the People’s failure to disclose the proffer "cannot be condoned."

So what are the key points to be learned from this case?

  • An ineffective assistance of counsel claim will not succeed without a showing that the trial attorney did not offer meaningful representation.  A single or even series of judgment calls, which in retrospect were not wise moves, will not suffice to garner a new trial unless really severe.
  • Proffer sessions of one co-defendant are difficult for other co-defendants to introduce into evidence.
  • As always, the best practice of a prosecutor is to disclose everything that is even remotely exculpatory even if the information is not, itself, admissible in evidence. 


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