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Court of Appeals orders new trial after attorney kept out of psychiatric exam

Defense attorney kept out of psychiatric exam

The state’s highest court has ordered a new trial because a defense lawyer was not allowed to attend a psychiatric interview with the defendant before a trial where the defendant was convicted of first-degree manslaughter.

The trial attorney for defendant Jose Guevara properly gave notice that he intended to present psychiatric evidence at trial.

Before the trial, Guevara was interviewed twice by a clinical psychologist working for the prosecutor. Guevara’s trial lawyer was present at the first examination, but the psychologist refused to let him attend the second exam.

Over defense counsel’s objection that Guevara’s right to counsel had been violated, the expert’s testimony was admitted at trial.

Guevara appealed and, on Dec. 3, the Appellate Division of state Supreme Court, First Department, affirmed the conviction in a spit decision.

The majority ruled that Guevara’s constitutional right to counsel had been violated, but that “the error was harmless because defense counsel was provided with a copy of the expert’s report and permitted to cross-examine the expert on the stand,” according to the First Department decision.

“In addition, the court permitted defendant’s own expert to be present during testimony by the People’s expert, and permitted defense counsel to recall him if needed, and defense counsel was able to consult with the defense’s expert before commencing cross-examination of the People’s expert,” according to the Dec. 3 decision.

“We now reverse because we conclude that the error was not harmless,” the Court of Appeals wrote in a decision released Thursday.

In Matter of Lee v County Court of Erie County et al the Court of Appeals ruled in 1971 that a defendants’ Sixth Amendment right to counsel applies at pre-trial psychiatric examinations, according to the decision.

The prosecution has the burden of showing that the trial court’s admission of the expert’s testimony based on the examination the defense lawyer did not attend didn’t affect the verdict.

“Under the circumstances of this case, the expert’s testimony at trial was based in part on the examination undertaken in violation of defendant’s constitutional right to counsel, and we cannot say that the error was harmless,” the Court of Appeals wrote.

Ellen Gesmer, an associate justice of the Fourth Department, dissented in the Dec. 3 decision. But her dissent was not based on the psychiatric examination conducted without the defense lawyer.

“I agree with the majority that the trial court erred in admitting into evidence two photographs of a bayonet knife belonging to defendant. However, I disagree with my colleagues that this error did not prejudice defendant. Rather, I conclude that the introduction of the photographs, even though only for demonstrative purposes, denied defendant a fair trial, especially in light of the People’s improper comments about them during its summation, Gesmer wrote.

“The photographs of the (bayonet) knife were completely irrelevant to the charges leveled against defendant and could have been offered for no other purpose than to inflame the jury,” she wrote.

Guevara’s appellate lawyer also sought to suppress Guevara’s statements to police, but that argument was meritless, the court ruled.

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