Prisoner Can Break Silence on Muted Trial

     MANHATTAN (CN) — A Long Island man claims that he’s spent 18 years serving a life sentence after a trial that he could not hear, but until now appeals courts have turned a deaf ear to his complaints that his lawyer did not seek court accommodation for his disability.
     The Second Circuit cleared that impasse for John Pierotti on Wednesday, telling a federal judge that he must listen to Pierotti’s habeas petition.
     The ruling comes three days after Pierotti celebrated his 62nd birthday behind the bars of New York’s maximum-security Green Haven Correctional Facility, which has been his home ever since being sentenced two years after he shot and killed two men outside a bar in Baldwin, N.Y., in 1998.
     Pierotti did not deny pulling the trigger, but he failed to convince a jury that he had acted in self-defense.
     Diagnosed with “bilateral sensorineural hearing loss,” Pierotti’s world has been muffled since he was a child, and his hearing aides broke in jail before trial began. His attorney at the time told a Nassau County judge about the problem, in a conversation captured in court documents.
     “For the record, this is a very small courtroom here in the west wing. It was originally designed for misdemeanor trials,” the judge said in the transcript. “[P]lease keep your voice up.”
     But by trial time, Pierotti says, proceedings moved into a much larger courtroom where voices had to carry further.
     At the defense table in this room, Pierotti also had a new lawyer, whom he claims brushed him off when he said he could not hear witnesses.
     Pierotti says this attorney told him he “did not need to hear all of the proceedings,” and “did not once ask the judge to make any accommodations for [his] hearing impairment.”
     The Second Circuit noted that the courtroom record is silent as to whether this lawyer even knew Pierotti was hard of hearing.
     Pierotti’s appellate attorney challenged his conviction on a number of grounds, but not ineffective assistance of counsel — and by the time that he filed his habeas petition, multiple state and federal courts reviewing his case determined that he missed his opportunity for raising the issue.
     Overturning these findings, the Second Circuit said Wednesday that Pierotti’s case fell with the “limited category of exceptional cases” that excuse the prior oversight.
     “New York case law indicates that Pierotti did not have to raise his ineffective assistance of counsel claim on direct appeal,” Judge Rosemary Pooler wrote for the three-judge panel.
     “Although it is apparent from the transcript of the pretrial hearing that Pierotti’s counsel at that hearing was aware of Pierotti’s hearing impairment, nothing in the trial record indicates that Pierotti’s new counsel at trial was aware of this fact,” the 16-page opinion states. “Nor does the trial record indicate that Pierotti was unable to hear critical portions of his trial, as he now claims. Without this information, the Appellate Division could not have adjudicated Pierotti’s ineffective assistance of counsel claim on direct appeal.”
     U.S. District Judge Denis Hurley must decide the merits of Pierotti’s claims of ineffective assistance of counsel when the habeas petition returns to him on remand.
     Pierotti’s attorney did not return an email request for comment Wednesday. A spokeswoman for the Nassau County District Attorney’s Office said they are reviewing the decision.

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