The opinion of the court was delivered by: John F. Grady, United States District Judge
The court has under consideration the petition of the defendant Betty Loren-Maltese to vacate her conviction and sentence pursuant to 18 U.S.C. § 2255. She claims three violations of her Sixth Amendment right to effective representation by trial counsel.
The parties agree on the Sixth Amendment law, which is well established. The basic rules are set forth in Strickland v. Washington, 466 U.S. 668 (1984):
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.
Id. at 689 (citation omitted). In addition to proving a failure of performance by counsel under this test, a defendant making a Sixth Amendment claim must also prove prejudice resulting from counsel's deficient performance. The Strickland Court explained the required showing of prejudice in the following terms:
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel's errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
DISCUSSION OF THE DEFENDANT'S SIXTH AMENDMENT CLAIMS
We will now discuss each of the defendant's three claims in terms of the Strickland requirements of deficient performance and prejudice.
I. Failure to Call Witnesses Concerning the October 1996 Board Meeting
At the trial, the government offered a series of Cicero Town Board minutes of meetings that occurred from 1989 through February 1997. The purpose was to show that from 1989 through April 1993, the Board voted monthly on insurance payments, but after April of 1993, when the defendant Loren-Maltese became Town President, the Board did not vote again on monthly insurance payments until January 14, 1997. This, in the government's view, tended to show that the making of the insurance payments was controlled by Loren-Maltese rather than by the Board. The defendant Joseph DeChicio objected to the amendments contained in the January 6, January 14, and February 11, 1997 minutes because they purported to establish that he had been instructed at the October 19, 1996 meeting not to make any further insurance payments to Specialty Risk Consultants ("SRC") without specific Board approval. DeChicio argued that he had been given no such direction and that the statements to the contrary contained in the amendments were untrue. He contended that the admission of these amendments as business records would deny him the right of confrontation. We agreed with DeChicio and refused the government's offer of the amendments.
Loren-Maltese later offered the same exhibits, which we refused again on the same basis. We made it clear to defense counsel, however, that the amendments might be admissible if authenticated by witnesses who could testify to their accuracy. No such witnesses were called by the defendant, who argued on appeal that our refusal of the amendments as business records was error. In affirming the defendant's conviction, the Court of Appeals held that the amendments did not qualify as business records because the circumstances attending their preparation raised a strong inference of "doctoring." United States v. Spano, 421 F.3d 599, 604 (7th Cir. 2005).
In her § 2255 petition, Loren-Maltese argues that her trial counsel, Terence P. Gillespie and Marc W. Martin, were negligent in not calling Town Board members as witnesses to testify that the January and February 1997 amendments were accurate. (Actually, the question is whether those amendments were accurate in reciting that DeChicio had been directed at the October 1996 meeting to stop insurance payments to SRC and that he later reported that he had done so. The essential witness, therefore, would have been someone present at the October 1996 meeting who could supply that testimony. The 1997 amendments to the minutes would be relevant only to the extent that they confirmed that testimony by someone who had been present at the October 1996 meeting).
In support of her petition, the defendant has submitted the affidavits of Town Clerk Marylin Colpo and Town Trustees Moses Zayas, Richard Smetana and Michael A. Frederick.
The most significant thing about these affidavits is that all of the affiants state that they recall talking with defendant's attorneys at the time of the trial but have little recollection of what was discussed. None of the affiants state that they told the attorneys anything about DeChicio having been instructed by the defendant or anyone else at the October 1996 meeting not to make insurance payments or about having heard DeChicio later say that he had not made the payments.
Marylin Colpo's affidavit refers to discussions at the January 1997 board meetings that relate to the issue of whether DeChicio had been told not to make the insurance payments, but these references are to the meetings at which the amendments in question were considered. Colpo's affidavit does not say anything about the October 1996 minutes, which contained no reference to any such direction being given to DeChicio.
As illustrated by the Colpo affidavit, defendant tends to conflate the question of what was said at the 1997 meetings about what had been said at the October 1996 meeting with the entirely separate question of what was said at the October 1996 meeting.
While defendant's affiants recall discussions at the 1997 meetings that address the 1996 meeting, what they do not claim to recall is what was said at the 1996 meeting.
The affidavit of Trustee Moses Zayas states that the January 14 and February 11, 1997 minutes, containing the amendments in question, "are consistent with [his] recollection of discussions which occurred at Board meetings around this time period," but he does not say that he has any recollection of DeChicio having been given any instructions at the October 1996 meeting or at ...