{"id":9116,"date":"2008-04-12T18:43:57","date_gmt":"2008-04-12T23:43:57","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2008\/04\/12\/poorly-framed-in-schenectady\/"},"modified":"2011-08-05T14:53:29","modified_gmt":"2011-08-05T18:53:29","slug":"poorly-framed-in-schenectady","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2008\/04\/12\/poorly-framed-in-schenectady\/","title":{"rendered":"poorly framed in Schenectady"},"content":{"rendered":"

<\/a> E<\/em><\/strong>ven by Schenectady standards for silly and strange legal news (see examples here<\/a>), 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<\/em><\/a>:<\/p>\n

\n

“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.”<\/p><\/blockquote>\n<\/blockquote>\n

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<\/a>: Defendant tried to pin violent break-in on imaginary criminal” (Albany Times Union<\/em>, by Paul Nelson, Feb. 22, 2008); and “Burglar gets added time for trying to frame a frame<\/a>” (Schenectady Daily Gazette<\/em>, by Steven Cook, April 12, 2008). As the TU<\/em> explains further:<\/p>\n

\n

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

. . . “A few weeks before the trial started, Barnes presented an alibi to his lawyer, public defender Kent Gebert<\/a>. 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.<\/p>\n

. . . “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.”<\/p><\/blockquote>\n<\/blockquote>\n

Public Defender Kent Gebert told the Times Union<\/em> 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:<\/p>\n

\n

<\/p><\/blockquote>\n<\/blockquote>\n

The TU<\/em> 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:<\/p>\n

\n

“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.”<\/p><\/blockquote>\n<\/blockquote>\n

The Schenectady Daily Gazette<\/em><\/a> filled out the story in its article today:<\/p>\n

\n

“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.<\/p>\n

“It was Cathy Dobies, who works in the district attorney\u2019s office, who solved the mystery. She knew she had seen the face and suspected it came from somewhere, but didn\u2019t know where. She checked several advertisements. Then, after work, she went to Wal-Mart.<\/p>\n

“Within minutes, she found ‘Mr. Heidleman.’ <\/p>\n

\u201c ‘I went to the picture frame aisle and there they were, tons of them,’ Dobies recalled today. . . .<\/p>\n

“It turned out the man in the picture was nowhere near Schenectady last March \u2014 or apparently ever. Officials called the company that produced the frames and was told he lived in Florida.”<\/p><\/blockquote>\n<\/blockquote>\n

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<\/a>). 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.<\/p>\n

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<\/em><\/a>:<\/em><\/p>\n

\n

\"judgeAngry\" \u201cAs 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,\u201d Giardino told Barnes. \u201cYou tried to put this off on someone else, and in doing so you damaged the integrity of the whole criminal justice system.\u201d<\/p><\/blockquote>\n<\/blockquote>\n

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.<\/p>\n

After the verdict, Gebert told the TU<\/em> 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:<\/p>\n

\n

“wouldn’t knowingly put something in evidence if I knew it was false.”<\/p><\/blockquote>\n<\/blockquote>\n

We’re not doing legal ethics punditry these days here at f\/k\/a<\/em>, 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<\/a>, of the Simple Justice<\/em><\/a> weblog, and many other criminal defense and legal ethics experts [such as the proprietors of CrimProfBlog<\/a><\/em>, Doug Berman at Sentencing Law & Policy<\/a><\/em>, Skelly Wright at Arb& Cap<\/a><\/em>, Mike Frisch at Legal Profession Blog<\/a><\/em>, and maybe even Scott at Grits for Breakfast<\/a><\/em>] 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.<\/p>\n

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:<\/p>\n