“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

After a Florida jury heard unreliable hearsay evidence that should not have been allowed, Marvin Tarleton was convicted of unarmed bank robbery of about $3,400 and sentenced to 30 years in prison. He filed a petition for habeas corpus, arguing that his trial lawyer had been unconstitutionally deficient in not challenging the obviously inadmissible testimony. However, with Trump judge Robert Luck casting the deciding vote, the Eleventh Circuit denied the petition, and Tarleton remains in prison. The July 2021 case was Tarleton v. Secretary, Florida Department of Corrections.

Tarleton had first filed a habeas petition in state court, which was denied. The state court concluded that he likely would have been convicted anyway without the hearsay testimony because the permissible testimony was “near overwhelming evidence” of his guilt. Tarleton then turned to the federal courts, but a district court and now a panel of the Eleventh Circuit upheld the state court denial of his habeas petition.

All three Eleventh Circuit judges agreed that the testimony should not have been allowed. But Judge Luck and one other judge concluded that Tarleton had nevertheless failed to meet his burden of showing a reasonable probability that the verdict would have been different but for the unlawful testimony, citing the state court’s finding that the remaining evidence had been “near overwhelming.”

Judge Robin Rosenbaum dissented, explaining how the state court’s finding was “an unreasonable determination of facts” meriting reversal under the federal Antiterrorism and Effective Death Penalty Act. Rosenbaum noted that the admissible evidence against Tarleton had not been strong. He had not been a match for the DNA and fingerprint evidence collected at the scene of the crime, and police searches of his home and car had turned up no evidence connecting him to the robbery. Two of the three eyewitnesses could not identify him as the robber; the third (the bank teller) picked him out of a photo lineup based on his eyes but admitted that she was not able to positively identify anyone. Prosecutors had three estranged relatives identify him in a still photo taken by a bank surveillance camera, but the reliability of their testimony was undercut by the acrimony of their relationship with him. Rosenbaum wrote that this “left a lot of room for reasonable doubt.”

She noted that “even the State was apparently concerned with its admissible evidence because it bolstered its case” with inadmissible hearsay evidence. Prosecutors had a police detective testify as to his conversations with family members who prosecutors chose not to have testify at the trial. The detective testified that the other family members positively identified him. Although this hearsay evidence should not have been allowed, Tarleton’s defense lawyer did not object. The prosecutor repeatedly used the alleged corroboration by non-testifying family members to bolster the state’s case and “relied heavily on those hearsay statements” in closing arguments. The prosecutor specifically cited the hearsay testimony to undercut the defense counsel’s argument that the estranged family members who did testify all had something to gain from his conviction. As Rosenbaum wrote, “even if the jurors thought the three estranged relatives who testified at trial might have been biased, that didn’t matter because other family members sealed the deal.” That is enough to show that the hearsay testimony was not harmless and to undercut confidence in the outcome of the jury trial.

All individuals have a constitutional right to effective counsel when on trial in a criminal court. Tarleton wrote in his petition to the Eleventh Circuit that “having counsel who fails to protect your constitutional violations is worse than having no counsel at all.” But because of Trump judge Robert Luck, he will continue to serve a 30-year sentence based on inadmissible hearsay testimony that an effective lawyer would have objected to.

This case reinforces the importance, as part of our fight for our courts, of the Senate confirming Biden judicial nominees who will respect fundamental rights, including the constitutional right to effective assistance of counsel.