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    07.15.10 Diane Mirabile Rafal ’11 Argues Habeas Case Before the Second Circuit Court of Appeals
    Diane Mirabile Rafal

    On July 15, Diane Mirabile Rafal ‘11, a student in Professor Ursula Bentele’s Capital Defender and Federal Habeas Clinic, argued before the Court of Appeals for the Second Circuit on behalf of the Clinic’s client, Jerry McBee who has been in prison for felony murder since 1999. Rafal, who will begin her third year at the Law School in the fall, was clear, calm, confident, and deliberate in her argument before the three judge panel that included Chief Judge Dennis Jacobs, Judge Barrington D. Parker, and Judge Peter W. Hall. Rafal is the third BLS student in four years to argue before the Second Circuit, and her experience is a perfect example of the opportunities for substantive, real-world practice offered by the BLS Clinical Program.

    McBee, who has been a client of the Capital Defender and Federal Habeas Clinic since 2006, is seeking federal habeas corpus relief based on constitutional errors committed at his trial in Kings County, NY. Over his attorney’s objection, three out-of-court hearsay statements directly implicating him in a fatal robbery were introduced through the testimony of two NYPD detectives, despite the fact that the two men who accused him never testified in court. In his habeas petition, Clinic students argued that the admission of these statements violated McBee’s right to confrontation under Crawford v. Washington, decided by the United States Supreme Court in 2004. The federal district court agreed that McBee’s rights were violated, but declared that the error was harmless. In the Clinic’s appeal to the Second Circuit, Rafal argued that the prosecution could not demonstrate that, in light of two previous trials ending in hung juries, the erroneously admitted evidence did not have a substantial and injurious effect on the third jury’s verdict.

    While Rafal argued the case before the Second Circuit, several students have assisted in McBee’s representation since the Clinic took on his case in 2006. These included Ariel Aranda ’08, Nathaniel Kunkle ’07, Timothy Stapleton ’08, Anita Nabha ’09, Will Page ’09, Daniel Goodstadt ’10, Shayna Kessler ’10, Brendan Palfreyman ’10, and William Vandivort ’10. To help her prepare for the argument before the Second Circuit, Rafal participated in five Moot Court rounds judged by Professors Robert Pitler, Fred Bloom, Miriam Baer, Michael Cahill, and Stacy Caplow.

    The Capital Defender and Federal Habeas Clinic offers Brooklyn Law School students the opportunity to represent death row inmates in other states and defendants in New York who have filed federal habeas corpus petitions. The work consists of filing petitions in the U.S. Supreme Court and is supervised by Professor Ursula Bentele.