Kramer Levin successfully represented Mr. Damecha Harris in overturning his 1992 state court robbery conviction, for which he already had served 12 years of his sentence of 15 years to life, on the basis of his trial counsel’s constitutionally deficient performance.  In his January 8, 2004, decision, U.S. District Court Judge Frederic Block of the Eastern District of New York stressed “the abject ineffectiveness of trial counsel” and lamented “that it has taken Harris almost twelve years from the date of his conviction to obtain relief.”

Mr. Harris’s saga began in January 1992, when he was convicted of second degree robbery based solely on the eyewitness testimony of the victim.  Prior to trial, Mr. Harris’s court-appointed counsel had obtained a copy of the complaint report prepared thirty minutes after the incident, in which the victim described her assailant as a black male, 5’4” tall and weighing 130 pounds; Mr. Harris, in contrast, is a black male, 6’ tall, and weighed 220 pounds at the time of his arrest.  Despite this glaring discrepancy, Mr. Harris’s trial counsel never attempted to use the prior inconsistent statement to impeach the victim — the sole eyewitness — notwithstanding his argument to the jury based on mistaken identification.  In the twelve years following his conviction, Mr. Harris repeatedly petitioned the state and federal courts to overturn his conviction, but his pro se pleas were rebuffed until 2001, when the Second Circuit Court of Appeals heard his case and remanded to permit Mr. Harris to pursue his ineffective assistance claim.

In early 2003, Kramer Levin partner Eric Tirschwell, a former criminal prosecutor in the Eastern District of New York, was appointed by the district court to represent Mr. Harris.  The Kramer Levin team, including associates Jennifer Rochon, Grace O’Hanlon , and Michael Tremonte, first focused on a significant procedural obstacle — the state’s claim that Mr. Harris had not exhausted his state court remedies.  After repeated searches of the state court files, the team located a summary appellate affirmance of one of Mr. Harris’s petitions that had not previously been part of the federal court record, and with this newly discovered decision in hand persuaded the Attorney General’s office to withdraw its lack of exhaustion defense.  The Kramer Levin team also submitted a pre-hearing memorandum of law, subpoenaed and then cross-examined Mr. Harris’s trial counsel during the hearing, and submitted a post-hearing memorandum rebutting the state’s continued argument that trial counsel’s decision not to cross-examine the sole eyewitness with the glaring height and weight discrepancies was somehow a reasonable trial strategy.  Based on this showing, Judge Block vacated Mr. Harris’s conviction, concluding that “the failure of Harris’ counsel to confront [the witness] at trial with her prior inconsistent statement … is inexcusable” and that “a more compelling example of ineffective representation is difficult to fathom.”

Having secured a reversal and remand for a new trial, the team, which Parthena Psyllos had joined, continued to represent Mr. Harris in his retrial proceedings in Queens County Criminal Court.  The team vigorously pressed for an immediate retrial or dismissal when the Queens County District Attorney’s Office failed to follow the federal court’s directive to retry Mr. Harris within 60 days.  After the case was finally placed on the State trial calendar, the team filed an extensive motion to suppress the faulty identification.  The government finally consented to a hearing but never went forward and ultimately voluntarily dismissed the entire indictment.

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