f/k/a archives . . . real opinions & real haiku

April 12, 2008

poorly framed in Schenectady

Filed under: Haiku or Senryu,lawyer news or ethics,Schenectady Synecdoche — David Giacalone @ 6:43 pm

Even by Schenectady standards for silly and strange legal news (see examples here), the burglary conviction of 50-year-old Gregory Barnes is noteworthy. Last February, after a two-week trial, Barnes was found guilty of three counts of first-degree burglary, plus menacing and harassment charges [for threats and sexual comments to the victim]. According to the Albany Times Union:

“Barnes broke into his sister-in-law’s James Street home and attacked her with a screwdriver in March 2007. At the time, he was high on crack cocaine and incensed at the woman for cutting him off from family activities, Assistant District Attorney Anne Bair said.”

What makes the case peculiar and interesting can be culled from the headlines it garnered in the two major local newspapers: “Burglar convicted after alibi collapses: Defendant tried to pin violent break-in on imaginary criminal” (Albany Times Union, by Paul Nelson, Feb. 22, 2008); and “Burglar gets added time for trying to frame a frame” (Schenectady Daily Gazette, by Steven Cook, April 12, 2008). As the TU explains further:

“Barnes tried to pin his crime on an imaginary person — even providing a photo of a dapper picture-frame model to make his case.

. . . “A few weeks before the trial started, Barnes presented an alibi to his lawyer, public defender Kent Gebert. Barnes gave Gebert a picture of a man he contended was responsible for the crimes against his sister-in-law and gave the man’s name as Wayne Heittleman, Gebert said. That photo was used as an exhibit to bolster the case.

. . . “Gebert said Barnes testified in court that he had only arranged for Heittleman to scare the victim and that Heittleman ‘went beyond the assignment” by burglarizing the place and attacking the woman.”

Public Defender Kent Gebert told the Times Union he initially had no reason to doubt Barnes’ story. Luckily, the prosecutor’s office was not quite as gullible as Gebert. You see, this is the “photo” submitted by Barnes and Gebert to identify the alibi perpetrator:

The TU tells us that “A subsequent background check of Heittleman by county investigator Dave Mantei came up empty,” and “We knew it (photo) was phony, cropped and cut out from some type of catalog, but didn’t know where,” ADA Bair added. Then, serendipity helped uncover the truth:

“As luck would have it, Cathy Dobies, who works in the district attorney’s office, saw the photo in a picture frame while browsing in the Glenville Wal-Mart where her son works.”

The Schenectady Daily Gazette filled out the story in its article today:

“Investigators spent the better part of 12 hours trying to find the man, Bair said. When the photo surfaced, they had immediate suspicions, but had to prove it.

“It was Cathy Dobies, who works in the district attorney’s office, who solved the mystery. She knew she had seen the face and suspected it came from somewhere, but didn’t know where. She checked several advertisements. Then, after work, she went to Wal-Mart.

“Within minutes, she found ‘Mr. Heidleman.’

“ ‘I went to the picture frame aisle and there they were, tons of them,’ Dobies recalled today. . . .

“It turned out the man in the picture was nowhere near Schenectady last March — or apparently ever. Officials called the company that produced the frames and was told he lived in Florida.”

Taking Ms. Dobies’ lead, I headed to the same Wal-Mart store this afternoon, and also quickly found “Mr. H.”, and scanned it for this posting (after spending $1.47 for the frame). The photo is part of the packaging in a series of picture frames with the brand name “megapix,” manufactured by MCS Industries, Inc., and sold at Wal-Mart. It comes on a thin piece of cardboard, in the odd size and shape shown above. There is no way a thinking adult could have been fooled by it.

Acting Schenectady County Court Judge Richard Giardino was clearly correct to be angry about the lies told to judge and jury by defendant Barnes in his courtroom, and right to add years to his sentence. On Friday, Judge Giardino sentenced Barnes — who had a prior burglary conviction 20 years ago — to the maximum 18 years in prison. Per the Daily Gazette:

judgeAngry “As upsetting as this crime is, what is also upsetting to the court is that you came and put your hand on the Bible and lied in front of the jury,” Giardino told Barnes. “You tried to put this off on someone else, and in doing so you damaged the integrity of the whole criminal justice system.”

The prosecutor had only asked for 12 years. Public Defender Gebert had the chutzpah to ask for five years, arguing that Barnes had stayed out of trouble for 20 years, and still has a chance to be a productive member of society.

After the verdict, Gebert told the TU in February that he was “thoroughly ticked off” and that Barnes sheepishly gazed down when he realized the prosecution had refuted his story and had the picture frame to prove it. He also asserted that he:

“wouldn’t knowingly put something in evidence if I knew it was false.”

We’re not doing legal ethics punditry these days here at f/k/a, but I’d like to do a little Concerned Citizen Commentary. Frankly, I don’t buy lawyer Gebert’s excuses — and I would not like to think that the ethical and “professional responsibility” duties of an officer of the court could be so lax as to allow him to look the other way, while his client tried to pin the crime on a picture-frame model. I’m hoping that my weblogging friend Scott H. Greenfield, of the Simple Justice weblog, and many other criminal defense and legal ethics experts [such as the proprietors of CrimProfBlog, Doug Berman at Sentencing Law & Policy, Skelly Wright at Arb& Cap, Mike Frisch at Legal Profession Blog, and maybe even Scott at Grits for Breakfast] will help us sort out Gebert’s obligations. And, I hope some non-criminal lawyers who care about protection of the public and the honor of the profession will also chime in and help us understand what kind of due diligence is due from a criminal defense lawyer confronted with a fishy tale.

Did Gebert “know” the alibi was false and the picture phony? It seems to me he would have to be consciously leaning backwards, averting his gaze, and holding his nose, to avoid seeing the truth. Such willful ignorance is not the same as not knowing. Here are a few of the reasons why I believe no responsible lawyer should have — in the totality of the circumstances — allowed the alibi to go forward:

  • Barnes’ victim was his own sister-in-law, who surely could identify her attacker; this raises the alibi threshold in my mind;
  • The photo came in a size and on a type of stock paper that is not consistent with home photography — and it plainly looks like a male model (rather than a likely co-conspirator button-man, likely to act as a heavy in crack-head Barnes’ campaign to scare his relatives)
  • If Gebert had Googled the name of the so-called actual perpetrator — either “Wayne Heittleman” per the Times Union, or “Wayne Heidleman” per the Gazette — he would have found not one responsive link back in February. Today, the only Google results for either name are articles about this story. Indeed, there appears to be no person ever mentioned in cyberspace with the surname “Heittleman.”

By letting Barnes present that clearly bogus alibi evidence, public defender Gebert did a great disservice to the justice system and to the public and his profession. (Without that alibi, would there have been a two-week jury trial wasting public and private resources?) Of course, as a practical matter, he helped garner the maximum sentence for his client. I hope his managing attorneys have taken note, along with the appropriate bar officials.

after the verdict
the tireless lawyer speaks
in falling snow

first murder trial–
the D.A. arrives
in new gloves

…………………………………………. by Barry George, J.D.

A final thought or two: ADA Anne Bair told the TU that the attempted ruse was “something out of the movies.” My response to that remark is similar to that of Albany area investigator “John D” at his weblog Nobody Move! (“STUPID CROOK TRICKS: EVERY PICTURE TELLS A STORY”, March 2, 2008):

Movies? What movies? Dumb and Dumber? The Jerk? The beauty of this is that it’s a twofer; a stupid crook trick, and a stupid lawyer trick. Too bad we couldn’t have worked in a stupid politician trick for the trifecta. Maybe next time.

This being Schenectady, I doubt the stupid-trifecta will be long in coming.

school photo
the frown my sister
grew into

… by Roberta Beary [honorable mention, penumbra 2004 haiku contest]

school staff photos
an early retirement leaves
a patch of glue

in black and white
the smiles of men
who made it home

…. by Matt Morden, at Morden Haiku
school staff photos” (Sept. 15, 2007) –
in black and white” – (Oct. 15, 2006, with photo)



ancient snapshot
their last smiles
for the camera

…. by dagosan [Sept. 1, 2004]

Speaking of cropping, click this image for a creative use of scissors from “ethicalheretic” Michelle Rhea, who does not appear to make haiga, but does often combine photos and poetry.

winter woods
seeing myself
in black and white

old passport
the tug
of my father’s smile

………………….. by yu chang –
“winter woods” – Update Dim Sum 2005/1
“old passport” – UDS, 2001/II; The Loose Thread: RMA 2001

the old days . . .
autumn colors
black and white

. . . . . . . . . . . . . . . by andrew riutta – Full Moon Magazine (2005)

family album–
the black and white
of my youth

…. by Jim Kacian – from pegging the wind

home for Christmas
the golden afterimage
of a camera flash

……………. by Alice Frampton


  1. Always bear in mind that defendants are presumed innocent, not intelligent. Some even less so than others.

    Comment by shg — April 12, 2008 @ 7:02 pm

  2. Scott, I fail to see how the intelligence of the defendant bears on the responsibility of the lawyer not to present false evidence. If anything, the stupid defendant’s alibi is even easier to spot as false. And, the stupid defendant deserves to be strongly counseled not to try a fake alibi — not ill-served by a lawyer who “sees no reason to doubt the evidence.”

    Comment by David Giacalone — April 12, 2008 @ 7:11 pm

  3. The lawyer’s responsibility is clear; it’s his vision, or lack thereof, or choice to close his eyes, that’s in question.

    The defendant’s effort here was pathetic. It’s hard to imagine that the lawyer thought it possibly true, leaving two possibilities.

    Was the lawyer complicit in the attempted false alibi, whether knowingly or by conscious avoidance. Or did the lawyer decide that it was the defendant’s life and, if he insisted on the truth of his alibi, despite how bad an alibi defense it was, decide to let the defendant sleep in whatever bed he made?

    Sometimes, when the client absolutely insists, and the lawyer lacks affirmative evidence to the contrary, on pursuing a ridiculous strategy, he’s caught between ethical duties. Was this such a time?

    Comment by shg — April 12, 2008 @ 8:29 pm

  4. Thanks for framing the issues for us, Scott. Quite helpful (even if a punt). Of course, when the lawyer “lacks affirmative evidence to the contrary” due to “conscious avoidance” he does not get to “let the defendant sleep in the bed he made.” Obliviousness is no defense for the competent and ethical lawyer.

    Comment by David Giacalone — April 12, 2008 @ 8:44 pm

  5. Unfortunately, I think Scott’s hit it right on the head. There are times in the representation of a criminal defendant when the lawyer has a very strong inkling that the “story” is absolutely false. However, the ethical rules call for more than an “inkling”.

    I think it is pretty obvious that the lawyer was not “oblivious” to this, at best, shaky alibi. The question is what he could have done about it.

    He almost certainly would not have been permitted to withdraw based on a lack of definite information, regardless of how obvious the sham was. Stuck with a pushy client, an almost certainly fake alibi and no real concrete proof of the former, he probably had no choice but to proceed to trial.

    I will say that his comments post-trial seem a bit unnecessary. It would have been more appropriate to decline comment and go about his business.

    Comment by Gideon — April 21, 2008 @ 9:16 pm

  6. Thanks for leaving such a substantive Comment, Gideon. It bothers me to think that counsel could decide that there was “no concrete proof” here — that oddly-shaped, professional-model photo printed on a piece of cardboard seems like rather probative evidence and should have prompted a little digging.

    Comment by David Giacalone — April 21, 2008 @ 9:36 pm

  7. David – you’re right, it’s a very fine line. I find myself struggling a bit to make this argument plausible.

    I still think there’s a difference between “That picture looks like it is from a catalog” and “I know that picture is from a catalog”.

    As to the picture, I didn’t realize that the image you posted was exactly how it appeared in this frame. If that is the case, then I think the case for knowing admission of false evidence becomes stronger.

    Comment by Gideon — April 21, 2008 @ 10:18 pm

  8. When there’s a fine line to an ethical issue, it is rare that the appropriate action is the easy one. Usually, the right thing to do takes some courage on the lawyer’s part.

    A veteran (head) public defender who I respect a lot had this to say about this case: “You’re being too hard on Gebert. . .. I would have never let the client present that alibi.”

    Comment by David Giacalone — April 21, 2008 @ 10:33 pm

  9. I can’t disagree with your first statement.

    I would like to think that I, too, would not have let the client present that alibi and if the picture is indeed the one you linked to, then I would have to agree that the decision should not have been a difficult one.

    Comment by Gideon — April 21, 2008 @ 10:44 pm

  10. Thanks for continuing the discussion, Gideon. Just to be clear: the picture used in evidence was not the entire insert from the picture frame; the photo was cut from the insert — leaving the strange shape and image that is shown above and here.

    Comment by David Giacalone — April 21, 2008 @ 10:56 pm

  11. David, for further reflection, I turned to the Rules of Professional Conduct here in CT. Rule 3.3 states that a lawyer shall not knowingly:

    (3) Offer evidence that the lawyer knows to be false.

    The commentary provides:

    If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence.

    The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious

    Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the
    testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify.

    So, did this lawyer “know” that the evidence was false? Probably, but the rule does complicate matters a bit.

    (Sorry for the really long comment)

    Comment by Gideon — April 22, 2008 @ 7:52 pm

  12. Gideon, thank you for “the really long comment.” It’s useful. Got to tell you, it sounds like lawyers (a committee of ’em) wrote that commentary — and that’s not a compliment. On the one hand, blah, blah; on the other hand, blah, blah. Client’s rights, blah blah blah.

    If the lawyer does not have an obligation to try to learn whether shaky-looking evidence is or isn’t false, the rules are protecting lawyers, not the justice system.

    Thanks for pointing to this posting from your weblog.

    Comment by David Giacalone — April 22, 2008 @ 8:22 pm

  13. David, it sure looks like that doesn’t it? But if it were anything else – say the requirement was “reasonably believe”, then it puts defense attorneys in the untenable position of having to question (almost) everything that a client ever says and then we’re fighting them while fighting the system at the same time.

    So given the alternative, I’d rather have the requirement of actual knowledge as opposed to just a hunch.

    Comment by Gideon — April 24, 2008 @ 6:45 am

  14. Thanks for more discussion, Gideon. It seems that you’ve set up a strawman-like dichotomy. I’m certainly not saying that a lawyer should act merely on a hunch. Nor, that the defense attorney “question (almost) everything that a client ever says.” However, when there are obvious red flags screaming “this evidence/alibi is bogus,” doing a little cross-examination of your client to put the proffer to a test is not asking a lot of the lawyer, if there truly is an obligation to prevent false evidence from tainting the trial. That need does not arise with almost everything a client tells you (or, if it does, it is because clients have learned to expect their criminal lawyer to act deaf-dumb-blind) — and will come up even less if criminal clients know their lawyer is not simply a mouthpiece or cipher.

    Every other kind of (responsible) lawyer asks his or her client questions to help confirm or just better-understand the client’s story. For example (using two areas in which I practiced for long periods), the ethical divorce lawyer has a duty to ask a few questions when a client starts throwing around accusations about the other spouse (who, e.g., often suddenly becomes a danger to their children or an incompetent babysitter). And, antitrust lawyers don’t take conspiracy or boycott allegations on their face and just start drafting their pleadings.

    Every lawyer in litigation has to “fight the system.” Criminal defense lawyers — unlike everyone else — only have to deal with an evidentiary standard of “beyond a reasonable doubt” in order to win their case. The rest of the profession can lose despite almost convincing the trier of fact that their story is more likely to be true. It seems to me, therefore, that the criminal lawyer should have an even stronger obligation than other lawyers to make sure evidence creating doubt is not false.

    Comment by David Giacalone — April 24, 2008 @ 7:27 am

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