Ghosts of Affirmed Convictions Past

Over five years ago, I argued the direct appeal of Dustin Narrod's murder conviction.  He was convicted without the jury ever hearing that the police originally suspected another man, Fred Taylor, of committing the murder, or that the police focused on Taylor for months after the murder as the prime suspect, and developed a sizable amount of circumstantial evidence pointing to Taylor as the killer. 

The evidence of Taylor's potential involvement was excluded because the prosecutor told the trial judge that a heightened standard of admissibility applied, and the defense needed to demonstrate a "clear link" between Taylor and the killing before the evidence could be allowed in front of the jury.  One problem:  the Court of Appeals had rejected the "clear link" standard for third-party culpability evidence over a year before Narrod's trial.  Worse, the prosecutor cited to the Court of Appeal's decision rejecting the "clear link" standard as authority for requiring the application of the heightened standard.

The Fourth Department affirmed Narrod's conviction in a two-paragraph memorandum decision.  Despite the fact that both the prosecutor and court exclusively used the rejected "clear link" standard, the Fourth Department held that, really, the trial court applied to appropriate probative/prejudicial balancing test.  (See People v Narrod, 23 AD3d 1061 [4th Dept 2005].) 

Earlier this month, the Western District of New York handed down an almost 50-page decision on Narrod's pro se habeus corpus petition.  The good news for Narrod:  the federal court agreed that the trial court's application of the "clear link" standard to exclude evidence of Taylor's guilt was an unreasonable application of clearly established Supreme Court precedent.  From the Western District's decision:

This Court is not as sanguine as the Appellate Division, for it appears to this Court that there is no basis for concluding that the trial court did not apply the "clear link" standard rejected by the Court of Appeals in Primo.  [...]

Give the present record I am compelled to conclude that the trial court applied a heightened standard of probity--the disavowed "clear link" standard--rather than the general balancing test that has been employed by the Supreme Court in its seminal cases on the right to present a defense.

(Narrod v Napoli, 2011 WL 378244.)  

The bad news:  the federal court found the error harmless, and ultimately denied Narrod's petition.