Federal Appeal / Where Things Stand Now

In New York State, county judges as well as state appellate justices are elected to ten-year terms of office. By contrast, federal judges have lifetime appointments. Therefore, the latter are -- hopefully -- better insulated from the poltical pressures faced by state judges.

In March of 2006, a federal appeal -- known as a writ of habeas corpus -- was filed in the Northern District of New York.

On May 11, 2009, federal Magistrate Judge Randolph F. Treece issued a recommendation that Nickel's appeal be denied .

Because the federal writ had been languishing on Treece's desk for more than three years , we had thought that perhaps this was a good sign Treece was considering ruling in our favor. But in hindsight the delay was -- perhaps -- merely a sign that the writ was just sitting there collecting dust, with Treece not even bothering to look at it until shortly before making his recommendation. In any event, besides being riddled with factual errors, Treece's decision simply ignored many of the facts raised in Nickel's brief:

On pg. 2 of his decision, referring to photographs which Nickel had mailed to an inmate at the Albany County Jail, Treece wrote: "Thereafter, the Sheriff's Department commenced an investigation and located and interviewed some of the boys in the photographs, including [alleged victims 'Arthur' and 'Chris']." This is simply false ; none of the people depicted in those photos were subjects of the indictment against Nickel. Thus, Treece did not appear to have a grasp of the actual facts of this case.

(pg. 3) "After his interview, [Nickel] consented to a search of his home that yielded...a picture of a man who appeared to be [Nickel] engaged in a sexual act with a boy." It only appeared so to Investigator Ronald Bates , who then managed to convince 'Arthur' that it depicted himself and Nickel. But given the eye color (whereas 'Arthur' has blue eyes, the boys in the sex photo has brown eyes) and background details (police's own photos show sex photo was obviously not taken in Nickel's bedroom, as 'Arthur' had claimed), he was obviously wrong, as the defense's photography expert was prepared to testify.

"['Arthur' and the two other alleged victims] testified against [Nickel] at trial after a determination by the court that they were competent to testify." Despite the fact that Nickel's writ enumerated 'Arthur's' numerous competency problems, the Magistrate failed to address these in any way whatsoever. 'Arthur' claimed that the title of a book he was using in class to study all history subjects was entitled 'The Civil War.' When asked to name the school in the "Harry Potter" series, of which he claimed to have read 4-5 books, he gave the name of his own school, then proceeding to change his answer (though he was wrong then as well) in an obvious effort to please the person asking the questions -- Judge Paul Czajka . He was only able to name one character in those books, the title character, to whom he mistakenly ascribed the appellation, 'Mr.' . Then he stated, obviously incorrectly, that he had three teachers, all of whom taught the same subject. That is to say, although he clearly did not understand the question, rather than saying he didn't understand it, he felt obliged to just go ahead and provide what he thought was a plausible answer.

"['Arthur'] testified that [Nickel]...put his finger inside ['Arthur's'] anus on one occasion; and that [Nickel] placed his mouth on ['Arthur's'] penis and took a photograph of the act." This totally ignores the reality that 'Arthur' changed his stories as to where these acts supposedly occurred, as well as the fact that he got all of the house details wrong .

(pg. 4) "Under the Anti-Terrorism and Death Penalty Act...a federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication...resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." This clearly was the case here. And yet, the Magistrate completely failed to actually review this. He ignored the fact that 'Arthur' was wrong about absolutely every verifiable detail regarding the scene of the most serious supposed crime, as well as the fact that he changed his stories as to where it supposedly occurred . Nickel's writ outlined 'Arthur's' absolutely unrefuted wrongfulness as to each and every detail regarding Nickel's home about which he testified:

1. He said the house was white, when it's really blue.
2. He said the walls in Nickel's bedroom were blue, when they're really white.
3. He said Nickel had to duck to enter a low doorway, which is false.
4. He said there was a camera mounted on a 3-1/2-foot-wide window sill in Nickel's bedroom, when the fact is, there are no window sills there.
5. He said there was a waterbed in the bedroom, which is false.
6. He said there was a computer in Nickel's bedroom, when there was not.

(pg. 9) [Quoting the Third Dept.'s decision:] "County Court was clearly in a position to make a reasoned determination concerning the reliability of the child witnesses as well as their credibility." Whatever 'position' the trial judge (Czajka) may have been in, he clearly did not "make a reasoned determination" here. An examination of 'Arthur's' responses in his voir dire for competency, as well as the fact of his irrefutable wrongfulness regarding each and every detail about which he testified, in addition to the fact that he changed his stories as to where the top two convictions supposedly happened , clearly demonstrate that the trial court's determination of this witness' competency as well as reliability was irrational. Yet another writ-raised issue which this Magistrate failed to address, also relating to 'Arthur's' reliability, is the so-called 'slapping incident,' where the boy thought a friend of Nickel's had struck him, only to concede later on that that simply wasn't true; on the stand, he admitted that he "might have dreamed it up." He further confessed that he sometimes mistakes dreams for reality, and falsely thought that Nickel had given him a motorcycle as well as a saxophone, again, realizing only later on that these also were untrue. When the written record itself is so clearly riddled with problems and inconsistencies as to facts at issue, appellate courts are obliged to go beyond such slavish deference to the trial court's findings. This federal Magistrate's Decision and Recommendation relies on the trial and state appellate courts' findings to such a degree, as to render his federal 'review' virtually superfluous and meaningless.

(pg. 10) [Attempting to rebut Nickel's claim that his trial lawyer was ineffective for failing to call an expert on suggestibility :] "In addition, trial counsel identified the issue of suggestiveness...in his opening and closing statements." Again, this is simply false . As a careful review of defense counsel's opening and closing statements, as well as -- for that matter -- his comments during cross-examination (or any other time) demonstrate, as Nickel's writ clearly points out, "[defense counsel] never used (in opening, cross-examination, or closing) the terms 'suggestive,' 'suggestible,' or 'suggestibility.'" Nor did defense counsel use any words that could possibly be interpreted as synonyms of the former, such as 'influence,' 'alter memory,' 'implant memories,' etc. Not once -- during the entire trial. In other words, defense counsel said nothing whatsoever about how 'Arthur's' memories were actually created by suggestive interviews. Nor did trial counsel offer to the trial court any treatises on suggestibility which Nickel had provided him with months in advance. Again, though this is all covered in Nickel's writ, it is simply ignored in the Magistrate's decision.

"[Nickel] did not testify, and his confession that he inappropriately touched the children was corroborated by the testimony of the child-witnesses."

1. This ignores the numerous inconsistencies between the alleged statement and the children's testimony.
2. Once again, it completely ignores the reality that nothing in the supposed 'statement' says anything about the top three charges: oral sex, photographing of the same, and the 'finger incident.'

This Magistrate's Report and Recommendation is also something of an exercise in atomization : In focusing on each discrete, insular issue, it ignores the clear reality that, cumulatively , Nickel was denied his right to a fair trial.

(pg. 11) [Attempting to rebut Nickel's claim that his trial lawyer was ineffective for failing to call a medical expert or other witness regarding the largely illegible report on the physical examination of 'Arthur,' which was provided to the defense at the last minute:] "On the agreement of both attorneys, the trial Court decided that ['Arthur'] would testify that day as scheduled, but that [Nickel's] attorney would be given the opportunity to review and consult with whomever he deemed necessary about the report, and that ['Arthur'] could be asked to return the next day regarding potential medical issues if the need arose." Treece ignores the fact that defense counsel never did so much as carefully review this report and then take further action of any kind, to even ascertain what it actually said , or, re-call 'Arthur' or any other witness. The point here is not what the trial Court offered to defense counsel in this vein, but rather, what defense counsel actually did or did not do.

"[Nickel] does not allege, and there is no evidence on the record, that the report contained any exculpatory information." To this day, we still don't know precisely what it contained because, as Czajka himself acknowledged, the faxed pages that were ultimately provided were largely illegible . (One part that can be read, however, is where it says: "No apparent injury.") Defense counsel failed to take even the initial step of trying to get a legible copy of this report, and/or, get the doctor who wrote it to decipher it.

(pg. 12) "Also, on cross-examination of ['Arthur'], [defense counsel] questioned ['Arthur'] about the medications he was taking on a regular basis, which, according to ['Arthur's'] testimony, included Adoral, Clonidine, Ritalin, Zoloft, and Senokot." Yes, but defense counsel never even attempted to elicit any testimony as to what underlying psychiatric disorders these medications were prescribed for . (For one, defense counsel could have asked 'Arthur's' social worker about this.) Again, though Nickel raised this in his brief, the Magistrate failed to address this in any way whatsoever.

"The Appellate Division denied this claim, stating that '[t]he decision not to request an adjournment for consultation with a medical expert regarding one victim's records was a trial strategy, as counsel was able to effectively cross-examine that victim regarding his extensive medication regimen." In citing the Appellate Division here in apparent approval, the Magistrate makes the same factual and logical errors. First, contrary to the Appellate Division's strong implication (and apparently now the Magistrate's belief as well), this report was finally presented to the defense not during 'Arthur's' testimony, but rather, before that -- during Investigator Ronald Bates' testimony. Second, whereas there may have been a legitimate trial strategy at play in finishing the cross-examination of Bates prior to seeking an adjournment to review the medical exam, there was no good reason why defense counsel shouldn't have sought such an adjournment after Bates left the witness stand.

"[G]iven the testimony of the child witnesses, which was corroborated by [Nickel's] own statement to the police..." Yet again, this is simply a parroting of the Appellate Division's own sloppy misstatements regarding the actual content of the purported statement, which says nothing about the top three charges of oral sex, photographing the same, or the 'finger incident.'

(pg. 13) [Attempting to rebut Nickel's claim that Richard McEvoy, the defense's proposed photography expert , was wrongly barred -- by Judge Paul Czajka -- from testifying as an expert:] "[O]ur review is limited to whether 'the omitted evidence creates a reasonable doubt that did not otherwise exist'." The Magistrate simply ignores the extensive case law cited by Nickel, concerning the fact that experts of this kind not only are routinely qualified by courts to testify as experts, but in one particular case, U.S. v. Alexander -- cited extensively in Nickel's brief -- the 5th Circuit found that the exclusion of very similar evidence in a bank robbery case constituted reversible error.

"In this case, although the trial court did not permit Mr. McAvoy [sic] to testify as an expert, it nonetheless permitted his testimony as a layperson." This is meaningless: So limited, Mr. McEvoy's testimony -- at best -- simply 'cancelled out' Bates' lay testimony to the contrary. By contrast, if McEvoy had been allowed to give expert testimony, that would have completey destroyed 'Arthur's' credibility.

"The trial court acquitted [Nickel] on count #3 of the indictment: Use of a Child in a Sexual Performance. Thus, whether or not the inclusion of Mr. McAvoy's [sic] expert testimony would have created a reasonable doubt with respect to that claim is a moot question. With regard to the remaining counts of the indictment for which [Nickel] was convicted, those counts were proven by the testimony of the child-witnesses, and by [Nickel's] confession. Even if Mr. McAvoy's [sic] testimony had been introduced and classified as 'expert,' and even if the trial court had concluded as a matter of law that [Nickel] was not the person in the photograph, that fact would not have created a reasonable doubt with respect to the other crimes for which [Nickel] was convicted. Those crimes relate to specific acts alleged by the child-witnesses, that were corroborated by [Nickel's] own statement." Once again, the Magistrate ignores the fact, clearly pointed out in Nickel's brief, that 'Arthur' only alleged oral sex after being shown that very photograph. Nickel was convicted of the oral sex charge itself. Furthermore, the Magistrate also overlooks the fact -- also addressed in Nickel's brief -- that the sex photo was also offered as proof of the oral sex charge itself. Also, he fails to address the (legal) 'repugnancy' (gross inconsistency) problem inherent in the trial Court acquitting Nickel of the 'Use' (photo-taking) charge, while simultaneously connvicting him of the sodomy charge itself, given that these two charges clearly share one or more material element(s). Obviously, had McEvoy been allowed to testify as an expert, the effect of this would have been simply devastating to 'Arthur's' overall credibility. Given that he claimed the sex photo depicted both himself and Nickel, if the defense had been permitted to provide irrefutable evidence that Nickel was not in the photo, 'Arthur's' credibility would have been reduced to nil. Because five of the six counts of which Nickel was convicted related to 'Arthur,' the impact of refusing to allow McEvoy to testify as an expert was clearly enormous. Moreover, once again, the Magistrate speaks of "[Nickel's] confession" as if it "corroborated" the top two charges of which he was convicted. It does not. Given that Treece is simply parroting many of the same factual errors made by the state appellate court, it is extremely difficult to characterize this federal review as truly independent. And lastly, this review fails to even acknowledge the fact -- as was pointed out in Nickel's brief -- that defense counsel failed to clearly elicit tesrimony from 'Arthur' with regard to the reality that he only alleged that oral sex took place after he was shown the sex photo in question.

In addition to what has been enumerated above, there are three further points/issues, raised in Nickel's brief, that were also ignored by this Magistrate's 'review':

1. That the trial "Court took on the role of the prosecutor by seeking to redirect the People's theory and proof of the case relative to said [sexual] photograph. (brief at 3)

2. The fact that the trial Court took a mere two minutes to 'deliberate' its verdict. (3)

3. The failure of the police and/or prosecution to turn over to the defense police-taken photos of the interior of Nickel's home , until it was too late to be able to effectively use them; and moreover, that Judge Paul Czajka offered no remedy of any kind. (32)

Randolph Treece is no longer a judge. In his entire career, he never recommended that a writ actually be granted .

C8 In a radio interview, Judge Treece said: "I knew I wanted to be an advocate for the downtrodden."

On June 8, 2009, less than a month after Judge Treece rendered his decision, federal District Judge Thomas McAvoty concurred with Treece's recommendation that Nickel's appeal be denied. The following are some 'highlights' from this rather rubber-stamp ruling:

In response to Judge Treece's decision, Nickel's brief had pointed out that Treece was simply factually wrong in asserting that Nickel had sent photographs of the boys who would later be the subject of the indictment. McAvoy then responds in his own decision: "This factual error is irrelevant to the legal issues presented and, thus, is an insufficient basis for rejecting the Report and Recommendation." Well, no , because this casts doubt on Treece's grasp of all the facts of this case.

"[Nickel] also faults the Magistrate Judge for failing to 'address the factual problems in declaring the children...competent.'...This does not present a factual error by the Magistrate Judge." So, when Treece simply ignored this raised issue, that was somehow 'okay'? Moreover, McAvoy himself then does so as well.

"This...goes to [Nickel's] claim at trial, on appeal, and in the instant Petition that the minor witnesses' testimony was not sufficiently competent because it was the product of suggestive interrogations." This statement actually conflates two different issues (and also misrepresents Nickel's claims here): competency to testify under oath -- which is the actual issue raised by Nickel in this vein -- relates to one's general ability to understand questions asked, and provide coherent and consistent responses. 'Arthur' clearly failed this test when Judge Paul Czajka was examining him ('voir dire') to assess his competency to testify under oath. Suggestive interrogations , though certainly a huge problem in this case, were not the reason why 'Arthur' should have been found incompetent to testify: It was his obviously nonsensical answers to Czajka's voir dire questions -- before he provided any actual testimony -- that should have precluded him from testifying. McAvoy's point here constitutes an 'apples and oranges' factual and logical error, as well as -- once again -- a troubling misrepresentation of Nickel's actual claim here.

"While defense counsel may not have specifically used the words 'suggestive questioning' or something similar, defense counsel repeatedly challenged the veracity of the minor witnesses and the interrogation techniques utilized by law enforcement." 'Challenging the veracity of witnesses' is not the same thing as carefully and consistently arguing that it was suggestiveness that implanted wholly new, false memories. Though Nickel's trial counsel did do some of the former, it did none of the latter. Given that defense counsel indeed did not use any derivatives or even synonyms of 'suggestibility' etc., he patently did not build a case for suggestiveness. Veracity is a totally separate issue from suggestibility per se. (Whereas suggestive procedures may often lead to a lack of veracity, such a lack can have many other causes -- e.g., deliberate lying.) Mere allusions to generally poor interview practices are no substitute for hammering home how false memories can be -- and were -- implanted. At no time during trial did defense counsel ever make this point, which is precisely why he was -- in the legal sense of the word -- ineffective in his representation of Nickel.

"Moreover, the issue of suggestive questioning was the basis of pre-trial motions." As both of Nickel's briefs clearly stated, those pretrial motions were conducted before a different judge (Breslin). Here , Czajka -- the actual trial judge -- never had the benefit of any of this suggestibility-related information. Judge McAvoy appears to be blissfully unaware of this.

"Next, [Nickel] attacks the Magistrate Judge's findings concerning the credibility of the minor witness, [ 'Arthur' ]. ['Arthur's'] understanding of the obligation to tell the truth in court was adequately developed by the trial court." Once again, Judge McAvoy conflates competency to testify under oath with credibility regarding what is actually testified to once one is deemed competent. In any event, it is simply ludicrous to say that "['Arthur's'] understanding of the obligation to tell the truth in court was adequately developed by the trial court." Judge McAvoy simply ignores 'Arthur's' numerous competency problems evinced in the voir dire examination of him, all of which were addressed in both of Nickel's briefs: 'Arthur' claimed that the title of a book he was using in class to study all history subjects was entitled 'The Civil War.' When asked to name the school in the 'Harry Potter' series, of which he claimed to have read 4-5 books, he gave the name of his own school. He then proceeded to change his answer -- though this second answer would be wrong as well -- in an obvious effort to please the person interviewing him, the trial judge. He was only able to name one character in those books -- the trial character, whom he wrongly gave the title of 'Mr.' He then stated, obviously incorrectly, that he had three teachers, all of whom taught the same subject. Although he clearly did not understand the question, he still felt obligated to provide some answer -- true or not. Treece and McAvoy simply ignored all of these problems. Moreover, 'Arthur's' 'understanding' of the obligation to tell the truth was only part of the competency examination; one must also be able to demonstrate an understanding of the questions asked, and provide coherent, consistent answers.

"Moreover, defense counsel clearly elicited ['Arthur's'] history of telling non-truths and detailed the many ways in which ['Arthur's'] testimony was inconsistent with the facts." That defense counsel may have been competent in this respect says nothing about his ineffectiveness re: failing to pursue the issue of suggestibility in any meaningful way, which was, after all, (part of) Nickel's actual ineffectiveness argument . Moreover, Judge McAvoy's characterization as to "the many ways in which ['Arthur's'] testimony was inconsistent with the facts," which is actually quite an understatement, is precisely why the trial court's factual (i.e., guilt) determinations were clearly incorrect. Judges Treece and McAvoy fail to acknowledge that 'Arthur' was, in fact, irrefutably wrong about absolutely every verifiable detail regarding Nickel's home (supposedly where the oral sex happened) about which he testified:

1. He said the house was white, when it's really blue.
2. He said the walls in Nickel's bedroom were blue, when they're really white.
3. He said Nickel had to duck to enter a low doorway, which is false.
4. He said there was a camera mounted on a 3-1/2-foot-wide window sill in Nickel's bedroom, when the fact is, there are no window sills there.
5. He said there was a waterbed in the bedroom, which is false.
6. He said there was a computer in the bedroom, when there was not.

Given the above, and the fact that there are no admissions in the purported statement as to the two top counts of which Nickel was convicted (the oral sex and 'finger incident'), the state court's findings clearly "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." (This is the standard for federal review laid out in the so-called 'Anti-Terrorism and Effective Death Penalty Act' (AEDPA) of 1996.) However, the Magistrate as well as the District Judge, in violation of the AEDPA, incorrectly addressed (or completely failed to address) these factual variances in reviewing the trial court's own (unreasonable) determination of the facts.

"[D]espite ['Arthur's'] history and the inaccuracies, of falsities, of his trial testimony, the trial court was not required to disregard the entirety of ['Arthur's'] testimony." Well, the trial court was required to find guilt only if it had been proven beyond a reasonable doubt . Again, the only evidence as to the two most serious counts is 'Arthur's' own testimony. Given that he was wrong about each and every detail of the house where the sodomy supposedly took place, and in any event, changed his stories as to where that and the 'finger incident' took place, guilt beyond a reasonable doubt clearly was not proven, thus rendering the trial court's finding of facts here unreasonable. Given 'Arthur's' absolutely wrongfulness about each and every detail regarding Nickel's home , where the alleged oral sex took place, the trial court was obliged to disregard -- at the very least -- his testimony in this regard.

"[Nickel] further admitted that 'I may have had some experiences even with those boys I have mentioned but haven't recalled those experiences,' leaving open the possibility that ['Arthur'] truthfully testified that [Nickel] put his mouth on ['Arthur's'] penis and inserted his finger in ['Arthur's'] anus." That's absurd : This sort of 'catch-all clause' -- which Detective Mark DeFrancesco likely inserted into all of the so-called 'statements' he took from suspects -- does not constitute carte blanche to convict on whatever charge, regardless of how absolutely and irrefutably wrong the alleged victim is on each and every verifiable background detail. Again, the standard to convict is 'beyond a reasonable doubt' -- not "a possibility." (Isn't there always 'a possibility'? What a ridiculous, impossible burden to place on the defense.) Once more, the trial court's determination of the facts was clearly unreasonable here.

"Thus, [Nickel] had ample opportunity to present his theory that the stories of the minor witnesses were the result of unduly suggestive interrogation tactics by law enforcement. Further, aside from conjecture and surmise, there is nothing in the record suggesting any improper interrogation techniques." Whatever 'opportunities' the defense at trial may have had to present its theory of suggestive interview techniques, Nickel's actual contention here was and is that defense counsel did not actually avail himself of them, again, as evidenced by the fact that he never once used the word 'suggestive' or any derivations/synonyms thereof, merely alluding to poor interview practices in general as well as witness inconsistencies, of which there could be many causes. As to there being "nothing in the record suggesting any improper interrogation techniques," to the extent that this is so, it's only because these interviews were not videotaped , thereby ensuring that there could never be any clear proof of improper interrogation techniques. This is akin to demanding that one prove what was suggestive about a line-up procedure at which one was not present, and/or, regarding which one has very few details. In any event, there actually are some things in the record to indicate improper interview techniques: 'Arthur' said nothing about oral sex (and the supposed photographing of it) until he was shown the sex photo , which clearly does not depict him, given the eye-color mismatch as well as the fact that the background of the photo clearly does not match Nickel's bedroom, where 'Arthur' said it was taken. Therefore, the logical conclusion is that the oral sex was suggested to him, which he then came to believe. In the New Jersey Michaels case, which was cited extensively in Nickel's briefs, it was only because the interviews were recorded that the defense was able to produce tangible evidence suggestion. If one simply avoids recording them -- as happened in the Nickel case -- there will never be concrete proof of suggestiveness.

"The first ineffective assistance of counsel claim pertains to trial counsel's decision not to call an expert concerning the susceptibility of minors to suggestive interviewing techniques." What Judge McAvoy completely ignores is the second prong of Nickel's claim here: that defense counsel also failed to furnish the trial court with any of the numerous treatises which Nickel himself had given to his defense lawyer well prior to trial.

"On the issue of the failure to seek an adjournment to review the late disclosed medical exam, the Magistrate Judge properly concluded that [Nickel] failed to demonstrate prejudice." The ineffective assistance of counsel goes to, in part, the fact that we still do not know what the exam records even say . Once again, an impossible-to-meet burden of proof is being placed on [Nickel].

"Defense counsel adequately argued to the court that these medications could effect ['Arthur's'] memory or ability to testify truthfully." This ignores Nickel's clearly-raised issue that we still don't know what underlying disorders these medications were being taken for ; moreover, defense counsel never even asked .

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Other issus raised (again) in Nickel's Objection to Judge Treece's decision, which Judge McAvoy then simply ignored, are as follows (quotes are from Nickel's brief):

"The Trial Court used the photograph as evidence of the Sodomy, which may very well be a repugnant verdict in view of the acquittal of [Nickel] of the Use of a Child in a Sexual Performance (Count #3)." (A verdict is 'repugnant' when, on two charges sharing a material element, there is an acquittal on one but a conviction on the other. In other words, either both must be true, or both false.)

"Another issue related to ['Arthur's'] voir dire for competency -- which was also simply ignored by the Magistrate -- was the fact that the trial /court [Czajka] broke its own promise to allow defense counsel to propose competency questions of its own."

"Another writ-raised issue which this Magistrate fails to address, also related to ['Arthur's'] credibility, is the so-called 'slapping incident,' where ['Arthur'] thought a friend of [Nickel] had struck him, only conceding later on that that was simply not true. On the witness stand he admitted that he 'might have dreamed it up.' He furthermore confessed that he sometimes mistakes dreams for reality, and falsely thought that [Nickel] had given him a motorcycle, as well as a saxophone, again, realizing only later on that these, also, were untrue."

"The trial judge...did not allow defense counsel to inquire about the training of child sex abuse interview techniques when defense counsel asked the following quesrions:

Q: Where did you receive that training? ...

Q: Did they alert you at that session not to ask, for example, direct questions of the child?

TORNCELLO: Objection.

CZAJKA: Sustained."

"During the examination of the children or even investigator (DeFrancesco), trial counsel did not ask whether answers to questions during the child's interview were given immediately, whether there were long pauses or whether answers changed or questions were repeated."

"Even after the child changed his answers during voir dire (for competency to testify), counsel abandoned...the attack on the witness's credibility."

Except for the very brief and general statement, "This Court agrees with the Magistrate Judge on all further grounds...," McAvoy says nothing about the exclusion of the defense's photography expert . Therefore, he completely ignores our pp. 24-27 of the Reply Brief:

"The Magistrate erroneously found that the denial of the expert witness [claim] was without merit absent a showing that the 'omitted evidence creates a reasonable doubt that did not otherwise exist.' The Magistrate relied upon the acquittal of the child pornography charge, stating that the other convictions were on independent evidence of the child witnesses. This too is a narrow, almost myopic view of the impact of the photograph on the Trier of Fact [Czajka]. It was used to support the Sodomy conviction and without it the only evidence would be the erratic, false and constantly changing story of ['Arthur'], whose testimony was extremely tainted by law enforcement.

"The expert witness, Richard McEvoy, Jr., was proffered to testify that the adult male photographed in People's Exhibit #5 was not [Nickel]. The court interrupted, indicating that the court doubted that an expert opinion was necessary to establish the identity of the adult male in the photograph."

"The adult male in the photograph is not facing the camera and cannot be identified by an examination of his face. Therefore Mr. McEvoy was to testify that he took photographs of [Nickel] and did certain scientific measurements, eventually determining that the adult male in the photo was not [Nickel]. The court stated that Mr. McEvoy was qualified in his field but that expert testimony was not 'required...much less appropriate.'...Mr. McEvoy's testimony would have established the lack of a 'match' by comparing physical features such as ears, hairline, etc. This refusal to even hear from an expert found qualified on measurements he had taken and experiments performed was an error.

"Mr. McEvoy is indeed qualified in his field. He as been consulting with and training law enforcement personnel in the use of photography and digital imaging for over 25 years. He started out doing precision photography for the military and then went into forensic photography. He was in char/ge of the photographic laboratory of the Georgia Bureau of Investigations for over six years, which was part of its homicide and arson investigation section. He also worked on photo identification cases for other agencies, including the Federal Bureau of Investigation (FBI). Some of this involved the identification of persons in robbery cases depicted in bank surveillance photographs. In fact, Mr. McEvoy works almost exclusively for the prosecution side."

"The Court found that 'this is not the kind of testimony or evidence that is beyond the cannon of a lay person.' This assertion simply belies common sense. Because Mr. McEvoy is clearly a full-time professional expert in this field, this fact by definition indicates it is one that requires special expertise. The Court appears to be totally unaware that experts routinely testify at trials as to the identity of persons depicted in photographs.

"The Court as well as the prosecutor drew a great deal of attention to the fact that face recognition is something that everyone does every day. This is true. But it is hardly dispositive of the need for an expert's opinion, particularly in the case at bar. It bears repeating that the adult male depicted in the photograph is faceless; he is shown only in a blurry profile, with his face turned away from the camera. Moreover, the mere fact that laypersons may have some knowledge in a given area does not mean that an expert is barred per se from giving testimony on that same topic. Handwriting analysis is an excellent exemplar. Although persons may 'recognize' the handwriting of another, especially if the person is known to them, experts nevertheless regularly testify as to whether or not various handwriting exemplars 'match.' What distinguishes laypersons from experts is that the latter make systematic, objective and scientific observations and comparisons.

"Courts throughout the United States routinely admit expert testimony of this nature. Bank robberies are the most common cases for which forensic photography experts are called in.

"The Magistrate in his report ignores the logic and wisdom of the 5th Circuit in United States v. Alexander , 816 F.2d 164 (5th Cir. 1987). The Fifth Circuit found that the District Court's refusal to permit testimony from two such defense experts constituted reversible error. The defense has intended to call an expert cephalometry, which is the scientific measurement of the dimensions of the human head, as well as a former FBI agent with expertise in photographic comparisons, in order to show that [Alexander] was not the person depicted in the bank surveillance photographs of the robbery.

"To exclude this witness violates the right to a trial by an impartial jury or judge."

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Not unlike the decision in the state appeal of this case, the opinions authored by federal Judges Treece and McAvoy here look less like deliberative, thoughtful, and impartial judicial decisions than they do retroactive efforts to come to certain foregone -- and desired -- conclusions.

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This case was then appealed to the Second Circuit Court of Appeals, located in New York City. Because this was not an appeal 'by right,' the Second Circuit had the option of declining to hear the case at all. And indeed, that is exactly what they did: On November 18, 2009, Circuit Judges Roger J. Miner, Jose A. Cabranes, and Chester J. Straub issued an order denying a certificate of appealability.

(There are twelve Circuit Courts of Appeal, each covering one particular region of the country. The Second Circuit is regarded as the second most 'conservative' of them, second only to the Fourth Circuit, headquarted in Richmond, Virginia.)

In March of 2010, Nickel's appellate attorney was preparing to file a petition with the Supreme Court of the United States . As is so in the Second Circuit, the U.S. Supreme Court declines to hear the vast majority of the petitions it receives. Therefore, this was always a long shot. Eventually, however, the issue of the suggestibility of child witnesses is something that the U.S. Supreme Court will have to definitively address.

But, would it do so in this case? No -- because Nickel's lawyer missed the deadline to file.

Other avenues of legal redress continue to be explored. But it may well be that it's the 'court of public opinion' that will have the greatest impact.