Full Circuit Allows Rights Suit, Despite Guilty Plea

, New York Law Journal

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Marcos Poventud and his attorney Julia Kuan
Marcos Poventud and his attorney Julia Kuan at Poventud's home in Inwood, NY in June.

Lynch penned a concurrence saying a state tribunal invalidated the conviction Poventud was challenging by meeting a requirement of Heck, but he also said the answer to the question before the court "is equally simple from the standpoint of simple justice."

Lynch said anyone in Poventud's shoes would be hard pressed to turn down the plea offer that would allow him to leave prison, and he asked "…do we not now KNOW that Poventud is guilty as a matter of fact, because of his plea? I submit that we know no such thing."

In his own opinion, Jacobs faults Lynch, as well as Calabresi and Sack for "impugning" the guilty plea.

Livingston's dissent emphasized the necessity that a Brady violation be material. "Until today, Brady v. Maryland, 3737 U.S. 83 (1963), and its progeny represented a safeguard against the miscarriage of justice," she said.

"In this Circuit - at least until such time as today's error is corrected - Brady now includes, with our imprimatur, the right to recompense for a denial of the opportunity to commit perjury more successfully," she said.

Joel Rudin argued the appeal for Poventud, who is currently battling cancer, with Kuan on the brief.

"Because the majority accepted the theoretical application of Heck and simply decided Heck does not bar our claim, we are precluded at trial from taking the position he is innocent, so in that sense it constrains how we can try the case," Rudin said. "In my view the majority opinion makes it crystal clear that guilt or innocence is not an element of our Brady claim - the claim is solely whether he was denied a fair trial by the cover up of favorable evidence."

Assistant Corporation Counsel Mordecai Newman argued for the City of New York.

Michael Kimberly argued for amici National Association of Criminal Defense Attorneys and New York State Association of Criminal Defense Attorneys.

Caitlin Halligan argued for amicus District Attorneys Association of New York.

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