Continuing to Build on Precedent: Federal Court Recommends Habeas Grant in another Criminal Appeals Case
MONDAY, JULY 13, 2009

Douglas Eaton, a Magistrate Judge in the Southern District, issued a report on July 10 recommending that a habeas writ be granted to John Dingle, a Criminal Appeals client who was originally convicted in the Bronx of depraved-indifference murder.  Dingle is represented by Steve Berko, a staff attorney.   On direct appeal, Dingle's conviction was modified to second-degree manslaughter based on the prosecution's failure to prove the "depraved indifference" element of the murder charge, but rejected our contention that the trial court had erred by refusing to charge justification. 30 AD3d 1121.  Mag. Judge Eaton concluded that Dingle was denied due process by the court's refusal to charge justification.

Andrew Fine,  Director of the Court of Appeals Practice in the Criminal Appeals Bureau, reported that this is the second time in the last seven months that CAB attorneys have successfully relied on Davis v. Strack, 270 F3d 111 (2d Cir. 2001) (CAB's Frances Gallagher of counsel), in which the Second Circuit initially established that an erroneous refusal to charge a state-law defense (justification) constituted a due-process violation.  In Harris v. Alexander, 548 F3d 300, the Second Circuit relied on Davis to uphold a grant of habeas relief based on the erroneous refusal to charge the agency defense in a possession-with-intent-to-sell case (CAB's Bob Budner of counsel).   The Second Circuit, distinguishing Davis, has held, albeit non-precedentially, that no due process claim lies based on an erroneous instruction (as opposed to a refusal to instruct) regarding a state-law defense.  Mojica v. Fisher, 254 Fed. Appx. 28.