New trial ordered in murder case

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A state appeals court has overturned a murder conviction and granted a new trial because of the quality of the legal representation provided by the defense attorney.

Defendant Marshall D. Jackson, 41, was convicted in Oneida County Court of second-degree murder, second-degree criminal possession of a weapon, and fourth-degree criminal possession of stolen property.

He was sentenced to 25 years to life in state prison.

Jackson used a gun that he stole to kill a stranger. The evidence included two video recordings of the incident in which Jackson could be identified as the perpetrator.

Jackson and his girlfriend testified for the defense. Jackson testified that he had served nine years in the military, including three tours of active duty in Iraq, and that he was receiving Social Security disability benefits due to a diagnosis of post-traumatic stress disorder (PTSD).

He testified that, when he saw what he believed to be a gun handle in the victim’s waistband, his “combat mode really kicked in,” and he shot the victim.

But no medical evidence or expert testimony was introduced at trial supporting Jackson’s PTSD diagnosis or a psychiatric defense, so the judge denied defense counsel’s request for a jury charge on the affirmative defense of extreme emotional disturbance (EED).

In September 2017, Jackson appealed the convictions to the Appellate Division of state Supreme Court, Fourth Department, claiming ineffective assistance of counsel.

The Fourth Department panel affirmed the conviction, but ruled that “it is not apparent from the record … whether defense counsel undertook an adequate investigation into the affirmative defense of extreme emotional disturbance.”

There also was a question of whether the decision not to present the testimony of a psychiatric expert or Jackson’s military or medical records was part of a reasonable trial strategy, the Fourth Department found.

The Fourth Department ruled that the justices could not consider the argument because it was based on information “outside the record.”

The proper procedure was for the argument to first be raised before the trial judge in a 440 motion, the Fourth Department ruled.

Jackson filed a 440 motion seeking to vacate the conviction claiming the defense attorney was “ineffective because she failed to obtain defendant’s Social Security disability benefit records or have him evaluated by an independent psychiatrist in preparation of an EED defense.”

That motion was denied, which led to the latest appeal to the Fourth Department.

Jackson’s trial lawyer testified at the 440 hearing that she obtained Jackson’s military records, which showed that he was diagnosed with PTSD, but she did not request records related to his Social Security disability benefits, even though Jackson told her he received those benefits.

The attorney accompanied Jackson to an interview conducted by the prosecution’s expert, who concluded that Jackson was not suffering from active PTSD symptoms during the shooting, but she did not seek an independent expert’s opinion.

Instead of presenting expert or medical evidence, Jackson’s trial lawyer tried to establish an EED defense through the testimony of Jackson and his girlfriend.

“Although defense counsel did not clearly recall the details of the case, and her file had been destroyed, she thought that she might have opted not to introduce defendant’s military records at trial because she was uncertain how to lay a foundation for their admissibility,” according to the Fourth Department decision.

“We conclude on this record that defendant met his burden of establishing that he received less than meaningful representation,” the Fourth Department wrote.

“Pursuing an EED defense was the best trial strategy for defendant, and defendant demonstrated the absence of any strategic or other legitimate explanation for defense counsel’s failure to obtain certain records, her failure to introduce other records in evidence, and her failure to secure an expert to support an EED defense,” the panel wrote.

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