Court Seeks Creation of Commission on Counsel Fees
At the request of the Judiciary, bills have been introduced in the legislature to create a special Commission to Investigate the Adequacy of Rates of Compensation for State-paid Assigned Counsel. The commission would be mandated to determine the adequacy of current fees, compare them with fees paid by the federal government and other states for similar services, and to promulgate a new schedule of fees by Dec. 31, 1999, to be effective on Apr. 1, 2000. Among the rates to be covered are state habeas corpus assigned counsel, law guardians in Family Court, locally-paid criminal defense counsel in non-capital cases, and guardians ad litem. Non-counsel services needed by indigent criminal defendants (capital and non-capital alike) would be required to be procured from a governmental source unless such procurement was found by the trial court to be "impracticable" or the available services "inadequate."
Ten members of the proposed 22-member commission would be appointed by the governor (four from a list submitted by the New York Association of Counties, two from a list submitted by the Mayor of New York City, and four others), four by the Temporary President of the Senate, four by the Speaker of the Assembly, and four by the Chief Judge. Eight members would be required to be lawyers.
The proposed measure would also provide for expedited appellate review of assigned counsel fees (capital and non-capital) challenged in individual cases by the attorneys or other providers receiving compensation or by the local government obligated to pay it.
Copies of the proposal, currently under review by NYSDA, are available from the Backup Center.
Capital Counsel Fees Cut for '99
The Court of Appeals announced new capital fees on Dec. 16, 1998. Despite comment from NYSDA and many other bar organizations opposing any drop in existing fees, the changes will result in substantially lower compensation to counsel. Effective Jan. 1, 1999, the fee schedule for counsel appointed in death penalty cases is as follows:
Before a Notice of Intent to Seek the Death Penalty:
After a Notice of Intent to Seek the Death Penalty
Reasonably necessary additional legal assistance, shown and verified to have promoted the efficient and economic delivery of defense services:
Reasonably necessary paralegal assistance, shown and verified to have promoted the efficient and economical delivery of defense services:
The screening panels set up by statute in the four Appellate Division departments to promulgate fees (subject to Court of Appeals approval, Judiciary Law §35-b[5]) are to submit to the Court of Appeals reports relating experiences under the original and revised schedules by Dec. 31, 1999. The panels were previously asked on Sept. 22, 1997 to recommend whether the original schedule should be revised, and in December of that year expressed approval of existing fees. However, in June 1998, three of the panels concurred in lowering rates (with one person in dissent) and the panel for the First Department divided on whether to maintain or lower the original rates.
Attached to the announcement from the Court of Appeals about the new fees were: the Court's order; a report on the number of cases in which capital counsel had been assigned since the effective date of the capital punishment law (398); a list of the 8 highest vouchers submitted; and a report on capital fees across the nation. Copies of the announcement, and of NYSDA's comments on the proposal to lower fees, are available from the Backup Center.
Federal Fees Also Under Attack
The obvious emphasis on cost in the materials accompanying the Court of Appeals announcement described above, rather than on the impact of fees on the quality of representation or on a comparison of the overall availability of resources to prosecution/law enforcement and to public defense, was disappointing if not surprising to those who have followed state and national developments with regard to capital fees. Congress expressed concern over the cost of federal capital fees in its FY 1999 funding bill, directing a detailed study of such costs. (Criminal Justice Newsletter, Vol. 29, No. 16, Aug. 98.)
However, defense costs are not the primary cost of capital punishment. A report released in October by the U.S. Judicial Conference noted that the respective costs in federal death penalty cases are: defense $218,000, prosecution $365,000. NLADA also reported on an earlier Senate amendment to an appropriations bill, prohibiting defense fees paid in any month from exceeding the salary of a U.S. Attorney. Proponents of the amendment refused to discuss the difference between fees from which overhead must be paid and salaries. (Indigent Defense, Vol. 2, No. 4, Sept./Oct. 98.)
Plea Portion of Death Penalty Law Repudiated
A defendant may not plead guilty to first-degree murder when a notice of intent to seek the death penalty is pending, due to a recent Court of Appeals decision invalidating two guilty plea portions of the 1995 capital punishment statute. The court found that the contested portions of the law (Criminal Procedure Law 220.10[5)] [e] and 220.30[b] [vii]) impermissibly burdened the federal constitutional rights to a jury trial and against self-incrimination as set out by the United States Supreme Court in US v Jackson, 390 US 570.
The statutory sections in question prohibited guilty pleas to first-degree murder except where the agreed-upon sentence was imprisonment. As a result, the death penalty could only be imposed after a jury verdict. This statutory scheme was found to needlessly encourage jury waivers and guilty pleas, which Jackson prohibits.
The court found the plea provisions to be discrete and severable, and declined to overturn the entire capital punishment statute. Because Jackson was found to control, the court did not reach arguments made under the state constitution. The case, Matter of Hynes v Tomei et al, Nos. 146 and 176, was decided on Dec. 22, 1998. A digest of the opinion will appear in a future issue of the REPORT.
State of the State Highlights Criminal Proposals
Governor Pataki's Jan. 6, 1999 State of the State speech included requests for the passage of other criminal legislation, such as a Sexual Assault Reform Act and an end to all parole for violent felons. The latter issue was a major focus of media coverage of the address.
The governor also wants to expand the DNA data bank to require that all persons convicted of felonies or attempted felonies have to submit to DNA testing, and to change laws regarding youths in the Family Court and criminal justice system, as described below.
Controversies Continue Over Juvenile Justice
Sometimes as the recipients of concern, sometimes as the targets of animosity, children in the justice system remain at the center of publicized political and social debate across the country.
Here in New York, Governor Pataki called in his recent State of the State address for passage of his Juvenile Justice Reform bill. Last year, only the Senate passed the bill, which provided for, among other things: increased sentences for youths under 16 who commit violent crimes and are tried as adults; increased sentences for violent juvenile delinquents; prohibition of youthful offender treatment following conviction for any class B violent felony, unless the court makes special findings; and allowing access to youthful offenders and juvenile delinquent records if a person applies for police employment or a gun license.
Juveniles Must Juggle Unnecessary Court Notices
While the governor pushes for harsher treatment of young offenders, The Legal Aid Society of New York City is seeking fairer treatment of accused youth.
Juveniles arrested in the five boroughs are usually released, then wait as long as a year before prosecutors decide whether to proceed with charges. During the wait, the juveniles are routinely given court notices that have no legal authority and serve no purpose other than to save prosecution time and money, according to a lawsuit filed by The Legal Aid Society to stop the practice. By making the juveniles repeatedly show up in court until a decision is made, prosecutors are spared the effort of locating them to serve court papers if and when charges are actually brought. The disruption of family schedules and cost of transportation to court take a toll, especially on poor families, attorney Nancy Rosenbloom has said. Peter Reinharz, chief Family Court prosecutor in New York City, blamed the delays on "outdated" rules imposing more stringent standards for bringing charges in Family Court than are required in criminal courts. (New York Times 1/5/99)
OJJDP Report Describes Juvenile Legislation
The federal Office of Juvenile Justice and Delinquency Prevention issued a bulletin in November, 1998 that described legislative actions across the country resulting from political responses to ongoing media coverage of violent juvenile crime. ("State Legislative Responses to Violent Juvenile Crime: 1996-97 Update" [see Resources Sighted, p. 5]). Among the trends noted: states continue to modify the criteria for allowing serious and violent juvenile offenders to be tried as criminals, and some states are beginning to study the impact of these new transfer laws; states are supplementing institutional programming with locally administered interventions stressing public safety and accountability of the offender; and states are experimenting with sentencing options such as "blended" statutes (providing for imposition of juvenile and/or adult correctional sanctions). Louisiana's 1997 law requiring juveniles held as delinquents to be transferred without a hearing to adult corrections facilities at the age of majority (17) was struck down by the state supreme court as a violation of due process under the state constitution.
Feds Sue Louisiana For Care of Juveniles
Meanwhile, the federal Justice Department in November sued the state of Louisiana for failing to provide adequate care to over 1,750 young people in state secure juvenile correctional centers. This suit came only four months after the state took over temporary management of a privately-run juvenile facility following the resignation of its warden and reports of brutality. (New York Times, 11/6/98)
O'Connor On Jenna's Law Now On Tape
The multi-media presentation by Backup Center Staff Attorney Al O'Connor on the sentencing complexities of Jenna's Law has been captured on videotape. As reported in prior issues, O'Connor has designed a training program that explains how felony sentences will be calculated under Jenna's Law, with special emphasis on the new system of "post-release supervision" terms. The program features easy-to-follow, step-by-step illustrations of the new sentence calculation rules, and is designed to enable criminal defense attorneys to consistently provide accurate information to clients about release dates and possible sentence exposure under the harsh new law. The videotape is available from the Backup Center for $12. No MCLE credit is available for the tape.
NYSDA Hires New Staff Attorney
The Backup Center has added Stephanie Batcheller to its legal staff. Her experience and skills will be called on for a variety of projects, and members who have called for assistance recently may well have already "met" her.
Stephanie received her law degree from the Walter F. George School of Law at Mercer University, and was admitted to the Georgia Bar in 1984. She has been a chief Public Defender in a rural south Georgia circuit, a private practitioner primarily accepting assigned cases, and an assistant Federal Public Defender in the District of Maryland. Most recently she was an assistant Public Defender in the Monroe County Public Defenders Office in Rochester, NY, where she was assigned to misdemeanor and felony litigation units for three years, and the Appeals Bureau for the last five.
Describing her calling to defense work as inborn and scrupulously nurtured by the National Association of Criminal Defense Lawyers and the National Criminal Defense College, Stephanie says she "is excited to be a part of NYSDA and the Back-up Center, where she looks forward to working on criminal defense issues from a statewide perspective and hopes to help inspire others in the profession to recognize that we in fact embody an ancient vision and that there is no greater goal in the practice of law than the protection, if not the enhancement, of the right to counsel." She considers her most significant role models to be the goddess Athena, her mother, and jury expert Cat Bennett, all of whom she is confident sip Perrier together and guide her from on High.
NYSDA Amicus Cases Argued: Garcia & Garcia
Court of Appeals arguments were scheduled for the week of January 11 in two unrelated cases in which NYSDA was involved as amicus curia.
Raphael Garcia pled guilty in Brooklyn to a Class B felony (third-degree criminal sale of a controlled substance) as part of a Treatment Alternatives to Street Crime (TASC) plea that called for dismissal of the charge upon his completion of an 18-month residential drug treatment program. After more than 17 months in the program, Garcia failed to return on time one evening after attending the program's softball awards dinner, and was ejected from the program. Several months later, Garcia was arrested for violating the terms of the TASC plea. The case was adjourned four times in Supreme Court, Kings County, over a span of five weeks. Counsel for Garcia was actively engaged in the trial of another case and did not appear on any of those occasions. Although counsel was absent, on the fourth court date the trial court abandoned further discussion of restoring Garcia to treatment and scheduled him for sentencing. Counsel for Garcia did appear at the sentencing proceeding, where Garcia was sentenced to four and a half to nine years imprisonment. The Appellate Division affirmed the conviction and sentence, finding no violation of Garcia's right to counsel. NYSDA Backup Center Staff Attorney Al O'Connor wrote an amicus brief for NYSDA supporting Garcia, who is represented by Lynn W.L. Fahey of Appellate Advocates.
In People v Jovani Garcia the Appellate Division decided a prosecution appeal after the defendant made no appearance in response to the filing of the prosecutor's brief. The First Department took no action to determine whether Jovani Garcia, who was indigent, intended to waive his right to counsel on the appeal. The memorandum reinstating the jury verdicts finding Garcia guilty of first-degree robbery and burglary simply noted that there was "no appearance" by respondent Garcia. A brief filed as a joint amicus submission of The Legal Aid Society and NYSDA, arguing that the Appellate Division action was improper, was authored by Criminal Appeals Bureau staff attorney John Schoeffel. Jovani Garcia is represented by Andrea G. Hirsch.
Use of Irrelevant Rap Sheet Found Reversible Error
An alibi witness named Trafton was cross-examined about a rap sheet showing prostitution charges, and denied having ever used any of 13 aliases. When defense counsel objected to the use of the rap sheet, which was for someone named Williams, the prosecutor said the witness had used the name Williams when being sworn in. This was not borne out by the record. The trial court told the jury that the rap sheet was not evidence, but refused to instruct them further after the prosecutor claimed his questions had been asked in good faith. The First Department found that the "baseless accusations" that the witness was a liar and a prostitute unfairly damaged the defendant in a case which consisted of a credibility contest between the alibi witness and the police. The jury should have been told to disregard all questions relating to the rap sheet. (New York Law Journal 12/16/98.) A digest of the opinion in People v Johnniemae Crawford, No. 2249 (1st Dept 12/15/98) will appear in a future issue of the REPORT.
Judges Must Continue Training, Too
Two weeks before Continuing Legal Education became mandatory for all New York lawyers (Backup Center REPORT Vol. XIII, No. 10), a similar measure was created for judges. Chief Judge Judith Kaye issued an administrative order on Dec. 15, 1998, establishing a new section, 17.3, of the Rules of the Chief Judge. The new rule requires that the Unified Court System provide training and education for judges and justices (other than town and village justices, whose training requirements were already set out in Rule 17.2) and that judges and justices attend at least 24 hours of training and education every two years.