2nd Circuit Upsets Conviction Over Defense Failure to Test Victim's Memory Mark Hamblett New York Law Journal 09-06-2007 A defense lawyer was found ineffective because he failed to inquire into the effects of blood loss and heavy sedation on the memory of a robbery victim who identified a defendant 11 days after the crime, a federal appeals court has ruled. The 2nd U.S. Circuit Court of Appeals vacated the conviction of Derrick Bell, who is serving 12 1/2 to 25 years in prison for the robbery and shooting of Brentonol Moriah in Brooklyn in 1996. Moriah, who suffered enormous blood loss from a single shot to the thigh, spent the next 11 days under heavy sedation and in a near-comatose state. He did not name Bell as his assailant at the scene of the crime, instead giving only a general description of "male black, wearing a lemon-colored shirt," even though he knew Bell from having shared space with him in a rooming house for more than a year. Eastern District of New York Judge Allyne Ross denied Bell's petition for a writ of habeas corpus, but the circuit reversed, with Chief Judge Dennis Jacobs and Judges Robert Katzmann and Peter Hall deciding the appeal in Bell v. Miller, 05-52-5235-pr. Judge Jacobs wrote for the court, which gave Brooklyn prosecutors 60 days to either retry or release Bell. The identification of Bell by Moriah was the only evidence produced by the prosecution connecting Bell to the crime. Bell presented three alibi witnesses who said they were all playing cards during the time the robbery occurred. Police reports from the crime scene showed nothing indicating that Moriah knew his assailant -- they listed him only as "unknown or unidentified." The shooting took place on July 16, 1996, and Moriah did not regain consciousness (or identify Bell) until July 28. According to the circuit's opinion, Bell's trial counsel asked Moriah no questions about memory loss or the medications he was given in the hospital. After Bell was convicted of first-degree robbery and second-degree assault and his appeals were unsuccessful, he moved to vacate his conviction under N.Y. Criminal Procedure Law §440.10. He submitted an affidavit from a neuropsychologist, Dr. Elkhonon Goldberg, who stated that Moriah's testimony contained "unequivocal evidence that he suffered from retrograde amnesia for the events predating the loss of consciousness," that the amnesia was made worse by the medications he likely received, and that it was unlikely that he had regained full consciousness when he first named Bell. The state court denied the motion. Ruling on the habeas petition, Ross found that trial counsel's failure to question Moriah on his memory did not fall below prevailing professional norms in 1997. VULNERABLE EVIDENCE But the circuit viewed the evidence differently. "Given the trauma Moriah endured and the medical treatments he received, Moriah's memory was highly vulnerable to attack by scientific evidence," Jacobs said. And the description given by Moriah at the scene, the judge said, "implicitly but undeniably indicates that the assailant was a stranger: one does not fall back on general features (a 'male black') or the color of a shirt ('lemon' yellow) to express the identity of a person known by name or affiliation." When Moriah emerged from his "sedated, coma-like state," and remained 'semi-conscious (at best) for eleven days," the judge said, he "awakened with cognitive abilities that were in doubt."   A month after the assault, Moriah said he was still taking pain killers and reported that he was suffering from memory loss and dizziness and was unable to recall his description of his assailant at the crime scene. "Impeaching Moriah's memory was therefore all in all for the defense," Jacobs said. "Armed with the insight and advice of a medical expert, a lawyer could have vastly increased the opportunity to cast doubt on this critical evidence."   Jacobs cautioned that the decision "does not announce a per se rule requiring defense counsel to consult with a medical expert in order to cast doubt on a key prosecution witness." But given the circumstances of this case -- one witness who had been unconscious and sedated and whose memory was obviously effected by the medical trauma -- Jacobs said "the failure of defense counsel to consider consulting an expert to ascertain the possible effects of trauma and pharmaceuticals on the memory of the witness is constitutionally defective." Trial counsel Fredy Kaplan could not be reached for comment. Anne Raish of Paul, Weiss, Rifkind, Wharton & Garrison, one of the attorneys who represented Bell on appeal, said his legal team was "thrilled" by the decision. While the attorneys feel it was the correct ruling, Raish said their enthusiasm "is tempered because Bell is an innocent person who has already served 11 years in prison for a crime he didn't commit." Joining Raish in representing Bell were Mark Pomerantz and Stephen Yuhan of Paul Weiss; Lara Shalov of Stillman, Friedman & Shechtman; and Steven Banks and Lawrence Housman of the Legal Aid Society. Assistant District Attorneys Howard Goodman, Ann Bordley and Leonard Joblove represented the state. Joblove said prosecutors were reviewing the decision and weighing their options.

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