Kathy E <[EMAIL PROTECTED]> writes:
A LAWYER WHO took heroin and cocaine every day while trying a murder
case in 1984 did not necessarily provide ineffective assistance of
counsel, a Brooklyn federal judge has ruled.
While asserting that the use of drugs by attorney Michael Noble, who
later was convicted on drug charges and disbarred, was "reprehensible,"
Eastern District Judge Eugene H. Nickerson said it did not automatically
establish ineffective representation.
Under U.S. Supreme Court precedent, noted Judge Nickerson in Badia
v. Artuz, 95-CV-3212, one claiming ineffective assistance must show that
the lawyer's performance fell below an "objective standard of
reasonableness" in order to prevail.
"Petitioner's claim cannot simply rest on Mr. Noble's admissions that
he was on drugs during the entire trial. Petitioner must show that Mr.
Noble's handling of the trial was affected by his drug usage."
The petitioner, Edwin Badia, was convicted of murder in February 1984
and sentenced to a prison term of 20 years to life. He was represented
throughout the trial in Brooklyn Supreme Court by Mr. Noble.
In April 1984, Mr. Noble was convicted in Manhattan federal court for
conspiracy to distribute narcotics and obstruction of justice. He was
later disbarred.
After Mr. Noble's trial, Mr. Badia learned that the attorney had been
addicted to drugs for seven years. In addition, Mr. Noble later declared
that he used both heroin and cocaine every day during Mr. Badia's trial.
Mr. Badia moved in state court to have his conviction vacated. That
application was rejected and the denial was affirmed on appeal. He then
filed a writ of habeas corpus in Brooklyn federal court, alleging that
Mr. Noble's drug use during the trial prejudiced him in several
respects.
First, Mr. Badia argued that Mr. Noble should have presented the defense
of extreme emotional disturbance rather than justification.
He further contended that Mr. Noble's closing statement placed the
burden on the defendant to prove innocence, that the lawyer had failed
to hire a private investigator, and that he did not interview defense
witnesses until the day of trial. Finally, Mr. Noble failed to inform
his client of a plea offer of manslaughter with a proposed sentence of
12 -1/2-to-20 years.
Judge Nickerson rejected all but one of Mr. Badia's claims.
Mr. Noble's choice of the justification defense, "while unsuccessful,
was not unreasonable," Judge Nickerson said. "It is not the role of this
court to second-guess the trial strategy developed by Mr. Noble for his
client."
'Sloppy' Lawyering
Mr. Noble's "misstatement of the law" in the closing statement was
corrected by the trial judge's instruction to the jury, "which properly
placed the burden of proof on the government," the judge added.
As for the lawyer's failure to hire an investigator or to interview
witnesses before trial, Judge Nickerson characterized that conduct as
"sloppy," but "not unreasonable."
But Judge Nickerson did find an unresolved issue regarding the plea
offer, noting that testimony given by Mr. Badia and Mr. Noble on that
question at a 1987 state hearing was contradictory.
Concluding, therefore, that he could not decide whether Mr. Badia
actually knew of the offer based on the motion papers, Judge Nickerson
ordered a hearing to supplement the record.
Mr. Badia, who is incarcerated in the Fishkill Correctional Facility,
represented himself. Assistant Kings County District Attorney Ann
Bordley represented the government.
--
Kathy E
"I can only please one person a day, today is NOT your day, and tomorrow
isn't looking too good for you either"
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