Capital Case Fees Proposed By Screening Panels ============================================== The four capital defender screening panels recently submitted proposed rates of compensation for counsel appointed in capital cases. The panel for the First Department proposed the highest rates, recommending lead counsel be paid at a rate of $300 an hour and associate counsel at $250 an hour. The Second and Third Department panels endorsed rates of $250 and $225. The Fourth Department panel called for rates of $200 an hour for lead attorney and $175 for associate counsel. The Fourth Department panel also proposed limits on the compensation of travel time and a maximum on compensation to a 10-hour day. Each screening panel provided for compensation for paralegal and associates of assigned counsel, but the screening panel for the Third Department left the determination of that rate to the trial courtþs discretion. The Administrative Board of the Courts has recommended the rates of $200 for lead counsel and $175 for associate counsel. The Executive Committee of the New York State Bar Association (NYSBA) recently approved its Criminal Justice Section recommendation which endorsed the rates of lawyer compensation recommended by the First, Second, and Third Department screening panels. The State Bar also recommended that the rates of the Second and Third Departments be applied in the Fourth Department. In addition to endorsing the no fee cap policy of the Administrative Board, NYSBA recommended that paralegals and associates of assigned counsel be compensated for work that they can perform as proposed by the First Department. The Court of Appeals, which has final authority to adopt the rates, has extended the deadline to comment on the proposed fee schedule to March 1. Fees Proposed By Capital Defender Screening Panels in Capital Cases ===================================================================== (Hourly Rates) 1st Dept. 2nd Dept. 3rd Dept. 4th Dept. Admin. Board --------- --------- --------- --------- ---------- Lead Counsel $300 $250 $250 $200 $200 Associate Counsel $250 $225 $225 $175 $175 Associates $75þ100 $112 Court $125 - or $125 Discretion Paralegals $<+>75 $<+>75 Court $<+>60 - Discretion Sex Offender Registry In Effect =============================== On January 22, 1996, the Sex Offender Registration/Community Notification Act went in to effect. The Act mandates notification to the police of the release or case disposition of certain sex offenders, and their annual registration with the Division of Criminal Justice Services (DCJS). It also requires various levels of community notification whenever a sex offender is released from prison or jail, including, in some cases disclosure of the defendant's photograph and exact street address. Finally, the Act requires DCJS to operate a 900 number, and release information about some specifically-identified offenders over the phone. The call will cost $5, and the system is scheduled to be in operation on March 8, 1996. Many questions about the Act remain unclear, such as the extent of the lawþs retroactivity, the scope and duration of community notification requirements, the type of information authorized to be released on the 900 number, the manner in which counsel will be assigned and compensated to represent defendants at sex offender classification hearings, and the burden of proof at these hearings. An analysis of the new law was featured in the November, 1995 issue of the Report: New York's Sex Offender Registration/Community Notification Act: The Devil in the Details. Appellate Division Adopts Federal Forfeiture Test ================================================= In a case of first impression for New York courts, the Third Department in Attorney General v One Green 1993 Four Door Chrysler (No. 73008, 1/18/96) adopted a federal test for determining whether a forfeiture of property used in drug crimes violates state and federal constitutional bans on excessive fines. [New York Law Journal, 1/19/96, p. 1]. The forfeiture proceeding arose from a 1993 State Police investigation resulting in respondent Kelly pleading guilty to fifth-degree possession of a controlled substance. Supreme Court denied the summary forfeiture petition, holding that Kelly was entitled to a jury trial to determine whether forfeiture of her car would amount to an excessive fine. The Appellate Division, Third Department reversed. While the court granted the forfeiture, it also ruled in favor of the defense on two issues. First, the court held that the Excessive Fines Clause applied in this case based on the 1993 U.S. Supreme Court ruling in Austin v United States, 113 S.Ct. 2801. Secondly, the court adopted the three-part test enunciated by the U.S. Court of Appeals for the Second Circuit in United States v Milbrand, 58 F3d 841, which requires a court to consider the harshness of the forfeiture in comparison to the gravity of the offense, the relationship between the property and the offense, and the culpability of the owner of the property. By comparison, some federal courts have adopted a strict instrumentality test, which considers only whether property had a close enough relationship to the offense to render it forfeitable. Finally, the court strictly interpreted the applicable statute, Public Health Law Section 3388, in determining that the question of excessiveness is one for judges rather than jurors to decide. A trial is available under Section 3388, the court said, only when a property owner is able to raise a genuine issue of material fact as to the elements of the statutory cause of action . . . or as to an affirmative defense. NYSDA member Terrence Kindlon represented the respondents. Copies of the opinion and briefs are available from the Backup Center. Peter Gerstenzang Testifies at Assembly Hearing =============================================== Noted DWI expert, Peter Gerstenzang, recently testified on behalf of NYSDA and the New York State Association of Criminal Defense Lawyers at the Assembly Standing Committee on Transportation. Mr. Gerstenzang explained to the committee the practical effects of New Yorkþs Prompt Suspension Law and, more specifically, how it deprives defendants of their constitutional rights. He presented several constitutional arguments to the committee including how the statute offends: due process rights, the right against self-incrimination, the presumption of innocence, equal protection rights, and the double jeopardy clause. Copies of Mr. Gerstenzang's written testimony are available from the Backup Center. Court Adopts Common Interest Variation of Attorney-Client Privilege ==================================================================== The common-interest variation of the attorney-client privilege, which covers confidences made in strategy meetings of co-defendants and their counsel, was recently adopted by a trial court in Brooklyn. "Judge Supports Variation on Client Privilege", New York Law Journal, 1/22/96, p. 1. While the privilege has been adopted by the federal courts and enacted by law in nine states, it is the first time it has been recognized in New York. Justice Robert S. Kriendler of Supreme Court, Kings County issued the ruling in a post-trial memorandum in People v. Pennachio (1/22/96, NYLJ, p. 32, col. 4), a case involving four co-defendants. The variation on the rule provides that confidences resulting from joint discussions of co-defendants and their lawyers, which are not protected under a strict interpretation of the attorney-client privilege, are protected as privileged communications. However, the variation has its limits as was evident in this case. In cases, as here, where one of the co-defendant voluntarily discloses these confidences to the prosecution in a plea agreement, such confidences would not be protected, and the co-defendant would be permitted to testify regarding the communications. The court wrote that "[t]he attorney-client privilege is an obstacle to the truth-finding process and must be strictly confined within the narrowest possible limits consistent with its purpose. . . . While this court adopts the common-interest privilege as a matter of policy, it should not be extended to exlude evidence derived from a voluntary disclosure," he said. Copies of the opinion may be obtained from the Backup Center. Defenders Recognized for Excellence =================================== The Criminal Justice Section of the New York State Bar Association presented awards at its 119th Annual Meeting for outstanding work in the following areas: Delivery of Defense Services, Matthew Muraskin, Attorney-in-Chief, Legal Aid Society of Nassau County; The Charles F. Crimi Memorial Award as the Outstanding Practitioner, Lawrence S. Goldman; Correctional Services, Norman P. Effman, Executive Director, Attica Legal Aid Bureau and Wyoming County Public Defender; Criminal Law Education, Brooklyn Law School Professor William Hellerstein; David S. Michaels Memorial Award for Courageous Efforts in Promoting Integrity in the Criminal Justice System, Awarded Posthumously to William M. Kunstler; Service to the Bar and Community, Martin B. Adelman. The New York State Association of Criminal Defense Lawyers also pre- sented its awards of excellence at its Annual Dinner on January 25. The Honorable William J. Brennan Award for outstanding contributions to the field of criminal justice was presented to the Honorable John Carro. The Honorable Thurgood Marshall Practitioner's Award for outstanding contributions to criminal law was presented to Ronald Tabek. NYSDA congratulates the award winners for their contribution to the criminal law field in New York. Co-Founder of NYSDA Dies ======================== John P. Brown, 70, of Naples, Florida, the co-Founder of the New York State Defenders Association, died on January 11. Mr. Brown helped to establish NYSDA in 1967 and served as the Associationþs President from 1968 to 1970. He also served as Chairman of the Criminal Justice Section of the New York State Bar Association from 1971 to 1972 and was Saratoga County's Chief Public Defender from 1974 to 1978. NYSDA mourns the loss of John P. Brown and will long remember his dedication to improving New Yorkþs public defense services. Report Calls for Improved Juvenile Defense Representation ========================================================= On January 1, 1996, the American Bar Association released a report finding widespread evidence that juveniles are not receiving adequate legal representation in the justice system across the nation. The report, entitled, "A Call for Justice: Access to Counsel and Quality of Representation in Delinquency Proceeding", prepared by the ABA Criminal Justiceþs Juvenile Justice Center is a national assessment of the current state of representation of youth in juvenile courts, and an evaluation of training, support, and other needs of practitioners. The assessment revealed that: significant numbers of youths appear in juvenile courts with out lawyers; 55% of public defenders stay less than 24 months as juvenile defenders; juvenile defenders, on average, carry staggering caseloadsþmore than 500 cases per year; appeals are rarely taken; and 87% of the public defender offices surveyed do not have a budget for lawyers to attend training programs. To obtain a copy of the report, contact the ABA Juvenile Justice Center at 202/662-1515; 740 15th Street, NW, Washington, DC 20005. Legal Action Center Releases Pamphlet on Rap Sheet for Defenders ================================================================ The Legal Action Center has released a helpful publication addressing the problems associated with Rap Sheet accuracy. The 20-page pamphlet, "Setting the Record Straight: How Defense Attorneys Can Help Ensure Rap Sheet Accuracy" is written for defense attorneys. The pamphlet discusses the kinds of errors that are commonly found on rap sheets, what can be done to correct them, and where clients can be referred for help. It also answers some of the commonly asked questions about the collateral effects of criminal convictions, so clients may more fully understand the consequences before accepting a plea bargain. For a copy of the pamphlet, contact the Legal Action Center at 153 Waverly Place, New York, NY 10014; (212) 243-1313. State and Federal Prisons Report Record Growth ============================================== Not surprisingly, given the popularity of harsh crime legislation across the country, the number of state and federal prison inmates grew by the largest one-year population increase ever recorded. According to the Department of Justice, 89,707 inmates were added to prisons during the one- year period ending June 30, 1995. At that time, there were 1,104,074 men and women incarcerated in the nation's prisons and jails. Surf's Up at NYSDA's Internet Web Site: Homepage Accessed Over 1,300 Times During First Four Months! ================================================================== As reported in the September 1995 issue of the Report, NYSDA has set up a World Wide Web site at www.nysda.org on the Internet. @DNEWS TEXT = Among the pages we have included are a criminal defense training calendar, the New York State Chief Defenders list, Defender News from the Backup Center Report, a list of NYSDA board members, excerpts from NYSDAþs Eligibility Report of New York state counties, links to other legal resources, a link to the New York State Association of Counties (NYSAC) web page, membership information, as well as descriptions of other NYSDA services. Since the site was first set up on AlbanyNet in September 1995, it has been accessed over 1,300 times. Many visitors have sent us comments and suggestions via our "Guest Book." We are planning to provide additional enhancements to the web site as security measures are implemented to allow exchange of information. We know that more and more defense lawyers are using the resources of the Internet. Please stop by NYSDA's site, sign the guest book, give us your comments and contribute your ideas. TCT-ThunderBYTE Donates Anti-virus Software to Defend Defenders Computer Systems ======================================================================= NYSDA has just received a generous donation of a 25 user license of ThunderBYTE Anti-Virus Pro utilities for Networks from TCT-ThunderBYTE Corporation, which has offices in New York, Canada and the Netherlands. ThunderBYTE anti-virus utilities are consistently rated among the top three anti-virus software packages on the market today, and have the capability of detecting and removing thousands of viruses, trojan horses and logic bombs. In addition, ThunderBYTE has developed the first "heuristic" virus scanner which can decipher encrypted viruses and has a built-in artificial intelligence capability of "learning as it goes". NYSDA has found ThunderBYTE to be very easy to install and configure, extremely fast in scanning for viruses, very well-behaved as it stays in the background constantly checking for attacks by viruses, and versatile in both the DOS and Windows versions which were donated. TCT-ThunderBYTE's contribution will greatly enhance the day-to-day operations of NYSDA by securing our network file server and workstations from attacks by viruses. This insurance is especially important now since NYSDA has put up World Wide Web pages on the Internet (www.nysda.org) and is accessing Internet resources on a daily basis, including downloading programs, the most likely source of virus attacks on computer systems. We thank TCT-ThunderBYTE Corporation for its generosity and commitment to NYSDA, and its work to improve public defense services.