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Anthony Cardinal v. John Gorczyk and Jeffrey Amestoy
Citations: 81 F.3d 18; 1996 U.S. App. LEXIS 6576; 1996 WL 167474Docket: 319
Court: Court of Appeals for the Second Circuit; April 2, 1996; Federal Appellate Court
Anthony Cardinal was convicted of sexually assaulting his seventeen-year-old daughter after a second trial in the Vermont District Court, with the first trial resulting in a hung jury. His conviction was affirmed by the Vermont Supreme Court in 1990. Cardinal later filed a pro se petition for post-conviction relief, which was dismissed for jurisdictional issues. Subsequently, appointed counsel submitted a new petition in 1993, claiming violations of Cardinal's constitutional rights due to his inability to listen to or observe the jury voir dire. The Superior Court found that the State had not proven Cardinal waived his Sixth Amendment rights, granting him a new trial. However, the Vermont Supreme Court reversed this decision in 1994, ruling that Cardinal had waived his rights by not notifying the court of his issues during voir dire. Cardinal then filed for a writ of habeas corpus in the U.S. District Court, which was initially recommended for denial by a magistrate judge on the grounds that Cardinal had effectively waived his right to be present. Judge Billings, however, granted the petition, stating Cardinal had asserted his right to participate by moving toward the bench but later did not waive it by sitting down. The appellate court reversed this decision, noting that during the general voir dire, Cardinal was able to observe and listen without issue. The individual voir dire was conducted away from Cardinal's seating area, but he complied with his attorneys’ requests and remained seated, while they consulted him throughout the jury selection process. Cardinal testified that he was unable to see or hear the individual voir dire during his trials due to his distance from the bench and obstruction from attorneys. He claimed his lawyers did not inform him of his right to observe jury selection. However, Paul Volk, Cardinal's attorney, stated he likely advised Cardinal of this right during the first trial, where Cardinal actively participated in the voir dire. Volk noted that at the second trial, Cardinal did not communicate any issues with visibility or audibility, and he would have alerted the court if he had known. The Vermont Supreme Court concluded that Cardinal waived his Sixth Amendment right to observe the individual voir dire by not asserting it. Cardinal's prior participation in the voir dire at the first trial indicated he was aware of his rights. He complied with his attorney's suggestion to return to his seat without objection, and the trial judge had no reason to believe Cardinal was unable to see or hear the proceedings. The court found no evidence supporting Cardinal's claim that he was deprived of his right to observe, particularly since he raised this issue months after his conviction without corroborating evidence. Consequently, the district court's decision to grant the writ of habeas corpus was reversed, and the judgment was vacated.