By: Denise M. Champagne//October 22, 2015
By: Denise M. Champagne//October 22, 2015//
A mother convicted of killing her infant daughter in 2001 by setting fire to their residence is trying to get her conviction overturned.
Racheal Casey, 38, is represented on appeal by attorney Keir M. Weyble, a professor at Cornell Law School, who Wednesday told a panel of the Appellate Division, Fourth Department that Casey’s defense counsel at trial should have gotten an independent expert witness.
Instead, Weyble argued, it was not reasonable for the defense to begin and end his investigation talking to people who had been trained under the people’s expert at the New York State Academy of Fire Science or curriculum he developed.
Robert J. Shoemaker, prosecuting on the appeal, countered the issue is really about whether defense counsel’s seeking out his own expert was his only trial strategy. He noted two previous trials ended with hung juries.
Casey was represented at trial by Bath attorney David G. Wallace, now an assistant district attorney in Steuben County.
At her third trial, in 2003, a jury found Casey guilty of two counts of second-degree murder, first-degree arson, first-degree reckless endangerment and second-degree criminal mischief. One murder count was for felony murder and the other for acting with a depraved indifference to human life.
She was convicted of intentionally setting the July 13, 2001 fire at her duplex in the city of Corning, which killed her 7-month-old daughter Kiara Casey Lawton. Casey and her three older children escaped harm. Prosecutors maintained Casey killed her daughter because she had a different father and she did not want the baby.
Weyble argued Wednesday the “supposed arson expert’s” testimony was totally inconsistent with prevailing national standards as expressed in the National Fire Protection Association 921 Guide for Fire & Explosion Investigations which he said had been around for at least a decade before the fatal fire.
“No one contests that if Rachael Casey’s trial counsel had done the basic research to discover that document, he could have destroyed the people’s case,” Weyble told the panel, which consisted of Justices Gerald J. Whalen, John V. Centra, Edward D. Carni and Brian F. DeJoseph.
He said defense counsel’s duty to investigate exists to facilitate a meaningful adversarial representation and he should have gone outside of the group of people he spoke to to find an independent fire investigation expert to refute the prosecution’s expert.
Weyble also argued when key evidence in a case takes the form of expert testimony, defense counsel’s job is to determine whether the people’s expert really is an expert and if the methods and conclusions used were reliable.
“I think you’re also arguing that there was plenty of impeachment material had he used the guide,” said Justice DeJoseph.
“No question about that,” said Weyble, noting defense counsel did not even have to get an expert, although he said that would have helped, but could have devastated the prosecution’s case using the 921 guide.
Shoemaker said defense counsel did seek out an expert.
Justice Whalen asked about the impact of the two previous mistrials.
“It affects the argument because it shows there is another strategy, essentially that he wasn’t unreasonable to rely on that strategy that he eventually relied on at the third trial,” Shoemaker said.
“The argument being that the hung juries are a success because she was not convicted,” said Justice Whalen.
“Correct,” replied Shoemaker, noting a legitimate defense strategy may have been to focus solely on seeking an expert and not on cross examining the people’s expert. He said that also would not have been the only legitimate strategy.
“It seems to me he could have done this without an expert, just by impeaching the people’s expert,” Justice DeJoseph said.
“Possibly,” Shoemaker agreed, saying maybe defense counsel did not know about the standard or the experts he sought out all agreed with the prosecution’s expert.
Justice Centra agreed the case focuses on whether there was a strategic purpose for the defense’s representation and if it was reasonable.
Casey previously appealed her conviction, claiming a number of things, including her third prosecution violated the constitutional prohibition against double jeopardy, the evidence was legally insufficient to support the conviction, the court should have included second-degree manslaughter as a lesser offense for the jury to consider, she received ineffective assistance of counsel and that she was denied a fair trial because of pretrial publicity during jury selection and that the conviction was based solely on circumstantial evidence.
All of those arguments, and others, were rejected by the Fourth Department in its Feb. 2, 2007 decision in People v. Casey (2007 NY Slip Op 00847).
That panel found Casey failed to demonstrate the absence of strategic or other legitimate reasons for defense counsel’s failure to object to the prosecutor’s reference to the prior trials and not calling a nurse the prosecution did not call to testify.
It agreed defense counsel should have objected to the testimony of a police witness who said he ended his interview with Casey because she asked for an attorney and to the prosecutor’s subsequent questions of the police witness, but found overall that defense counsel provided effective assistance.
Casey moved in 2012 to have her conviction set aside, mostly based on her contentions of ineffective assistance of counsel.
That request was rejected by Steuben County Court Judge Marianne Furfure, prompting the latest appeal. A decision could come before the end of the year.
Casey, who was sentenced to 25 years to life in prison, is housed at the Bedford Hills Correctional Facility in Westchester County.