January 1998 Defender News

Public defense funding issues and justice court system defects must be addressed to achieve viable court reform, NYSDA's executive director told the Standing Judiciary Committees of both state legislative houses on January 21. Jonathan Gradess, responding to various recent proposals from all three branches of state government, urged that the plight of indigent defendants be recognized and rectified in court reform legislation. The need for a permanent funding mechanism for civil legal services was also stressed (see IOLA story p. 3).

Comparing legal fees paid with taxpayers' money in a variety of contexts, NYSDA's written testimony highlighted state payments to bond disclosure counsel of $225 per hour, legal costs in the Attica civil case of $150 per hour, and reimbursement of counsel pursuant to federal court awards in excess of $300 per hour. For lead counsel appointed in capital cases, fees are currently $175, which is also the "blended" rate to be paid to the firm of White and Case for handling the governor's litigation concerning replacement of the Bronx District Attorney by the Attorney General in a capital case (see the opinion in Johnson v Pataki, p. 8).

Just before the NYSDA testimony was presented, it was learned that Governor Pataki wants to reduce capital fees to the $125 per hour authorized in federal death penalty cases. (Times Union 1/21/97). He has not, however, suggested that federal rates for appointed counsel in non-capital cases be applied in New York. Standard federal assigned counsel fees are $40 for out-of-court work and $60 in court, but those rates can be raised by a circuit to $75 per hour across the board. New York fees for appointed counsel in non-capital cases have remained frozen at $25/$40 for 12 years.

Citing justice courts as the first and sometimes only court in which many citizens-indigent and middle class alike-ever appear as defendants, Gradess advocated for their overhaul. Among the recurring problems in justice courts that have been neglected in the current court reform debate are failure to record proceedings, denial of the right to counsel, unacceptable delays and improper bail. While changing the structure of such courts is a topic of debate within the public defense community, with opinions varying depending on the quality of justice courts in individual jurisdictions, there is consensus on many issues such as mandated stenographic recording, de novo bail review, provision for law-trained judges upon request, and more educational requirements for justice court judges.

Copies of the written testimony are available from the Backup Center.

State Bar Section Salutes Steinberg

David Steinberg, Chief Assistant Public Defender in Dutchess County and a member of NYSDA's board of directors, is the 1998 recipient of the "Delivery of Defense Services" award of the New York State Bar Association's Crim- inal Justice Section. Commenting on the honoree, NYSDA Executive Direc-tor Jonathan Gradess observed: "David is one of the kindest, most committed lawyers I know, but more importantly he is one of the most humble human beings on the face of the planet. His combination of humility, compassion and intellect are rare. He richly deserves this recognition of his outstanding work."

The AIDS Institute of the New York State Department of Health has given money to 10 community-based organizations to provide HIV-related services to prisoners. Programs vary among facilities. The types of services available include: support groups and one-on-one counseling for HIV+ prisoners; peer-education programs; HIV testing (which can be done anonymously if requested); education concerning AIDS medication and prevention; and transitional planning for release from prison. (PWA Support [publication of Prisoner Legal Services], Fall 1997)

According to Barbara Greenberg of the Department of Health's AIDS Institute, the second year of funding for these programs begins in March. Defense teams whose at-risk or HIV+ clients are prison-bound are encouraged to let them know that they can inquire about HIV programs at whatever prison they are assigned to. While there have been delays in implementation, services should be available in most if not all facilities.

"Economic, statistical, technological, and natural and social scientific data are becoming increasingly important in both routine and complex litigation," according to a report quoted by Justice Breyer in his concurring opinion in the recent U.S. Supreme Court case of General Electric Co v Joiner. The specific legal holding in Joiner deals with federal appellate review of expert evidentiary issues arising under the Federal Rules of Evidence and the court's decision in Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579, 589 (1993) (see digest p. 6) and may have little initial impact on the daily practice of state criminal law. But the more basic question at issue-how courts, and lawyers, should deal with expert evidence- faces public defense lawyers in a growing variety of situations, as a sampling of 1997 Appellate Division cases shows:

• People v Avellanet, 662 NYS2d 345 (4th Dept): The trial court erred in admitting a personality profile of an arsonist, as the prosecution failed to establish that the profile was generally accepted in the scientific community or that the subject was beyond the ken of the jury, and in permitting an expert to testify that, in his opinion, the fire was set by an individual.
• People v Roraback, 662 NYS2d 327 (3d Dept): Admission of a Fourier Transform Infrared Spectrophotometer test used in the analysis of cement samples collected from the defendant's home, from the victims' safe, and from tools recovered from the defendant's van, required a Frye hearing. [Frye v United States, 293 F 1013, not Daubert, is the standard in New York.] However, no Frye hearing was needed as to tracking dog evidence, which is investigative rather than scientific.
• People v Washington, 657 NYS2d 24 (1st Dept): The court did not err by denying the defense request to present expert testimony on the susceptibility of young children to suggestion, as this subject was not beyond the knowledge of the jury.
• People v Hofmann, 656 NYS2d 481 (3d Dept): It was not error to preclude an expert's testimony about the reliability of parental confessions, where the witness lacked expertise on the subject.
• People v Graves, 656 NYS2d 490 (3d Dept): The court did not err in denying appointment of a particular expert to testify for the defense about the effects of crack cocaine on a person's ability to form the intent to commit a crime, because the proposed cost of $1500 was exorbitant, and there were no "extraordinary circumstances" to justify the expense, which was well beyond the statutory limit of $300.
• People v Greco, 654 NYS2d 890 (4th Dept): The court did not err in admitting DNA evidence after reopening a Frye hearing for further inquiry into its reliability and scientific acceptance.
• People v Fish, 652 NYS2d 124 (3d Dept): The court's refusal to allow the defense to call an "alcoholism expert" was not error. Alcohol's effect on a person's mental state is within the ken of average jurors.

NYSDA helps defense teams deal with expert evidence in a number of ways. For example, the newly-released WindowsÔ version of the Case Digest System (CDS), from which the above cases were easily accessed using the Subject Matter Index, provides quick retrieval of the important appellate decisions that have appeared in the REPORT. CDS also includes the New York City Assigned Counsel Plan Directory of Experts and Investigators. Articles in the REPORT remind defense teams that scientific evidence offered by the prosecution should not be considered invulnerable to attack-see stories of falsified or unreliable evidence emanating from the laboratories of the FBI (vol. xii, No. 4) and Troops C and F of the state police (vol. xii, Nos. 1 and 2). Staff at the Backup Center offers assistance on expert issues, helping defense teams by referring to the in-house Criminal Justice Research Unit's holdings and by putting attorneys in touch with experts or other attorneys who have dealt with a particular issue.

Finally, NYSDA urges systemic reforms needed to assure public defense teams and their clients the resources needed to proffer or challenge expert evidence in appropriate cases. By articulating the need to include increased state public defense funding and statewide standards for assigned counsel in court reform measures (see above), the Association seeks to assure that public defense clients will not be denied the increasingly important scientific expertise referred to by Justice Breyer.

The softcover book Reference Manual on Scientific Evidence, a 1994 post-Daubert Federal Judicial Center publication aimed at federal judges, is included with the newly revised multi-volume looseleaf set, Scientific Evidence, from Matthew Bender (which will be reviewed in a future REPORT). Daubert, above, dealt with scientific evidence in a civil case, and much of what is contained in this manual is similarly focused, but criminal work is also referenced: "The accused may be more handicapped in challenging expert scientific proof proffered against him or her than the civil litigant because of less extensive discovery rights and fewer resources. In addition, the prosecution may have considerable control over the expertise if it participated in creating and applying the forensic technique in question."

That comment was followed by an observation that judges may want to consider appointing their own experts (under Federal Rule of Evidence 706) when novel scientific evidence is at issue. This point, strongly taken up in Justice Breyer's opinion in Joiner, above, is fully addressed in the final chapter of the manual. Because it is good to know what information judges may be relying on in dealing with an issue, this manual is almost certainly useful for attorneys practicing under Rule 706.

A basic introduction to Daubert is presented, including references to the appellate review question now answered in Joiner. While the manual is aimed at civil practice, several chapters could prove useful in criminal cases. Most obviously of interest is the "Reference Guide on Forensic DNA Evidence," which addresses several technical points frequently raised in challenges to DNA evidence. While the manual predates some developments in DNA analysis (see e.g. Backup Center REPORT vol. xi, #10: "DNA: Defense Faces Daunting Dilemmas"), it straightforwardly presents information on typical DNA procedures. Of special interest is Appendix C, which sets out guidelines as to what DNA laboratories should do with regard to documentation, validation, and analysis.

Other potentially useful reference guides in the manual include: Survey Research, which provides information that could be used in preparing cases involving allegations of discrimination in jury pools or the need for a change of venue; Statistics, a background chapter that includes an 18-page glossary of terms; and Multiple Regression, a statistical tool which has been used, for example, in challenges to the deterrent effect of the death penalty, and which might be creatively used in other areas, such as to examine sentencing assumptions or drug-courier profiles, etc.

This review was prepared by Backup Center Staff Attorney Mardi Crawford.

A "suitable for framing"-or posting-copy of the Statement of Client's Rights is now available from NYSDA's Public Defense Backup Center. Pursuant to an action of the Administrative Board of the Courts, the statement should be posted in every attorney's office, where clients can see it. (Public Defense Backup Center REPORT, vol. XII, #9, Oct/Nov '97) Contact the Backup Center to receive a copy-specify whether you want the full statement or the version for offices that accept no cases in which clients pay fees directly, which has the fee statement redacted.

Public defenders, legal aid and assigned counsel program directors and other public defense chiefs have been invited to 1998's first Chief Defender Convening on Friday, February 27, 1998 at the Omni Hotel in downtown Albany. The invitation asked that proposed agenda items be sent in advance, so that information and issues of common interest can be discussed. Potential topics include funding questions, including the governor's proposed budget (which provides some funds for Aid to Defense but once again zero funds the Backup Center).

Everyone interested in public defense work is invited to the Association's 31st Annual Meeting and Conference, set for July 30 through August 2. Those who come to the Radisson Hotel Corning will find a full schedule of training, meetings, awards and opportunities to talk to colleagues from around the state.

The New York Interest on Lawyer Account Fund (IOLA) has awarded $10.1 million in grants for 1998 to 103 civil legal assistance organizations. The IOLA program, which requires participation by all attorneys who hold qualified short-term or nominal monies for clients, allows interest from a pooled client trust account to be distributed to programs for legal services to the poor and for the improvement of the administration of justice. The program began in 1983. A decline in interest rates has decreased the IOLA funds available in recent years. That decline, as well as the pending US Supreme Court case challenging such programs [Phillips et al v Washington Legal Foundation, No. 96-1578 (6/27/97) argued 1/13/98] and continuing cutbacks in federal funds to civil legal services, underlies NYSDA's support, noted above, of a proposal to create a permanent funding mechanism for New York civil legal services.