The value of persistence and perseverance is shown in the case of People v. Jarvis a decision rendered today by the Fourth Department, a NY Appellate Court covering several Upstate counties. 22 years ago, Kharye Jarvis was convicted in the execution-style shooting of two men in Monroe County. The original appeal of his conviction and sentence (to 50 years to life) was quickly denied by the same court in 1994.
But Mr. Jarvis plugged away, filing several pro se motions for a new trial , all of which fell on deaf ears. Then, a few years ago wrote his own writ of error coram nobis a fancy Latin phrase for a petition alleging that his appellate counsel was ineffective. Mr. Jarvis’s writ was successful – he convinced the court that his original appellate lawyer should have argued that his trial lawyer was ineffective; an argument his appellate lawyer failed to make. The court reversed the affirmance of the conviction and sentence re-opened Mr. Jarvis’ appeal and appointed William Pixley, a semi-retired former prosecutor and former Fourth Department clerk from Rochester, to pursue an appeal.
Mr. Pixley successfully argued that Mr. Jarvis original trial attorney, Robert Smith, was ineffective in two ways: (1) Presenting an alibi defense for the wrong day; and (2) After successfully stopping the prosecution from introducing evidence that the defendant had threatened a witness, the lawyer did not object when the prosecutor elicited that very same testimony at trial. The court here said Smith’s failure to object was “inexplicable” and “simply cannot be construed as a misguided though reasonably plausible strategy decision” (quoting from People v. Webb, 90 AD3d 1563 (2011). The court noted that either one of those on its own would have been enough to overturn the conviction originally, especially since the trial prosecutor, Joanne Winslow (who is now a Monroe County Court Judge), “took full advantage” and hammered both points at trial and in summation.
I wonder what it was about Mr. Jarvis’ pro se writ that caused the Fourth Department to pay attention? No one knows and the record does not state. Appeal courts get countless of self-written (sometimes hand-written) motions and writs from the incarcerated begging for relief. Because I do some work in the field of wrongful convictions, I myself get at least a few per month and to be frank, I don’t always have the time to read them thoroughly or look into the claims they make. I or someone in my office writes back a generic “We are not taking any new matters on at this time but thank you for your inquiry” letter. This case gives me some pause about that practice. At the Fourth Department, Mr. Jarvis’ writ must have stood out among the huge pile for some reason.
I don’t know if Mr. Jarvis is innocent and the two dissenters in the 3-2 decision here state that there was “strong evidence incriminating the defendant” but our Constitution requires that everyone has a right to effective assistance of counsel and this case is important as it highlights (from a generally conservative court) that one key error may be enough to grant a convicted man a new trial. The dissent noted that other than the two errors cited by the majority, defense counsel’s representation was “otherwise impressive.” Under NY State law, courts generally look at whether the attorney provided “meaningful representation” overall but under Federal law, courts must examine each individual error to see if that error deprived the defendant to a fair trial; the standard set forth many years ago in Stickland v. Washington. So NY courts usually have to balance both standards in making the determination. Here, the court only looked at it from a NY law perspective and did not engage in an analysis under Strickland. It specifically held that each of these errors on their own deprived Mr. Jarvis of meaningful representation and was “sufficiently serious to have deprived defendant of a fair trial.”
I have two appeals pending where I am alleging ineffective assistance (and where I believe both men were wrongfully convicted) and I will be sure to raise this case to the courts’ attention. So I thank Mr. Jarvis and his new appellate counsel Mr. Pixley for securing a decision that greatly strengthens the right to effective counsel in New York.
Read more: http://www.newyorklawjournal.com/id=1202638151575/After-22-Years%2C-Panel-Grants-New-Trial-in-Double-Murder#ixzz2qNuhLPPP