Wednesday, September 13, 2006

Have to prove all of the elements of the offense

Susan Dunleavy, a federal public defender in Albequerque, got a nice win in Torres v. Lytle, getting 2254 relief on sufficiency grounds reversing a state conviction for retaliation against a witness. The Tenth Circuit held that:

The statute under which Mr. Torres was convicted provides:
Retaliation against a witness consists of any person knowingly engaging in conduct that causes bodily injury to another person or damage to the tangible property of another person, or threatening to do so, with the intent to retaliate against any person for any information relating to the commission or possible commission of a felony offense . . . . N.M. Stat. Ann. § 30-24-3(B) (emphasis added).

The issue before us is whether the State produced sufficient evidence at trial to prove that Mr. Torres's letter (it is now undisputed that Mr. Torres was the author) was retaliation for Mr. Medina's providing information relating to a felony. Mr. Torres contends that the evidence showed only retaliation for Mr. Medina's report and testimony concerning the misdemeanor offense for which Mr. Torres was convicted. We agree. Even applying the deferential standard of review mandated by the Antiterrorism and Effective Death Penalty Act (AEDPA), see 28 U.S.C. § 2254(d), we conclude that the evidence was not sufficient.

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