Funding Issues Continue to Cause Concern:
Convening Chiefs Communicate Caseload, Funding Crises
Public Defenders, Legal Aid Society Directors, and Assigned Counsel Administrators who met in Albany at NYSDA's Chief Defender Convening on February 7 were asked to state the major problem facing their programs. Overwhelmingly, they communicated the message that underfunding and resulting excessive caseloads threaten to engulf them. Direct cuts to programs, as well as cuts to defense services including NYSDA, were analyzed from varying points of view, including big Legal Aid offices, small county public defenders and assigned counsel. The discussion ranged from general comments on the need to educate the public, press and politicians about the vital role of the defense in criminal justice, to detailed discussions about creative ways to meet specific situations. Topics included: applying for available funds for defense-based advocacy; handling prison cases; and dealing with fiscal pressures driving new proposals such as co-pay, eligibility guidelines and related questions. Those who took time from too-busy schedules to share ideas on overcoming the problems facing defense services made this the largest and most successful convening to date.
Gradess Testifies Before Fiscal Committees
On February 4, NYSDA presented testimony before the Joint Senate and Assembly Fiscal Committees about the impact of the governor's proposed budget cuts (set out in the January Report) on public defense services in the state. Written testimony detailing the cost-effective work done by NYSDA's Public Defense Backup Center and other organizations eliminated or cut by the governor's proposed budget was supplemented with oral testimony by NYSDA Executive Director Jonathan Gradess, joined by Wyoming County Public Defender Norman Effman, Neighborhood Defender Services of Harlem Director Leonard Noisette and Schenectady County Public Defender Elbert H. Watrous, Jr. The constitutional nature of representation of the poor, and the impossibility of local governments stepping into the fiscal breach left by withdrawal of state funds were major points made. Copies of the written testimony are available at the Backup Center.
NY County Lawyers Association Committee Advocates New Fees
A report on the need for increased 18-B fees was released in February by the Committee on Assigned Counsel Compensation of the Presidential Task Force on the Representation of the Indigent, created by the New York County Lawyers Association. Noting that existing rates paid to attorneys representing poor persons accused of non-capital crimes are among the lowest in the nation, and significantly below both the rates paid in Federal Courts in the Southern and Eastern Districts and the recently-established rates in capital cases, the committee recommended that new fees be set, pegged to the seriousness of the crimes charged, and without in-court/out-of-court distinction: felonies carrying potential life sentences, $100/hour; other felonies, $75/hour; misdemeanors, $50/hour, appeals, $75/hour. Rates for ancillary help were also proposed, with additional lawyers to receive ½ the rate for assigned counsel and paralegals to receive $20/hour. (The report is available on the Internet at http://www.ljx.com/nylj/links/0213nylink.html).
NYSACDL Resolved Against Cuts in Fees, Quality
At its Board of Directors meeting on January 24, the New York State Association of Criminal Defense Lawyers voiced opposition to the governor's proposed “slashing of capital defense fees and the gutting of the quality defense fees and the gutting of the quality defense provisions of the current law,” and expressed anger at “any attempts to divide the criminal defense bar” by trading urgently needed 18-B fee increases for capital defense cuts. A copy of the resolution is available from NYSACDL and the Backup Center, along with other materials addressing proposed budget cuts to defense services.
Lies, Damn Lies, and Police-Produced Evidence:
Final Report on Trooper Evidence Tampering
Whether acting as “vigilantes” as they claimed, or as more selfishly motivated individuals as described by the special prosecutor whose final report has just been released, the members of the State Police who tampered with evidence across at least seven counties have, in their downfall, made it clear that law enforcement witnesses should not automatically be believed. Nelson Roth's 345-page wrap-up of the Troop C (and F) scandal made headlines not only in the New York press but beyond. Associated Press stories picked up by The Boston Globe on February 4 referred to the 36 known and 11 suspected cases in which evidence was falsified, and quoted Roth's statement that “Perhaps the most prudent reaction to any case touched by these individuals in which any additional questions are raised should be to assume that it is tainted unless and until its validity can be demonstrated.”
In addition to detailing the misdeeds of five troopers directly involved, Roth's report indicates that several top officers knew or should have known about the falsification of evidence. One, former Lieut. Joseph G. Begley, is now at the Federal Drug Enforcement Administration. The DEA has reportedly curtailed Begley's duties as a result of Roth's findings. (The New York Times 2/4/97).
FBI Lab Revelations Endanger Cases
News reports in late January about possible taints in laboratory work done by the Federal Bureau of Investigation provide additional grounds for skepticism about law enforcement scientific evidence. Justice Department officials have told prosecutors and defense lawyers around the nation about potential flaws in evidence handled by the lab. According to the Albany Times-Union on January 31, there have been allegations not only of sloppy procedures, but of pressure brought on lab employees to alter conclusions and of changes made by supervisors to lab findings for the purpose of supporting criminal prosecutions. As of February 14th, fifty prosecutors had been notified of cases in which problems might be raised by the defense, according to The New York Times.
Evidence of Jailhouse Informants May be Destroyed
Whether jailhouse informants are created by the police and prosecution, or only used by them, demonstrating the often unreliable nature of their testimony has long been a part of criminal defense work. In California, prosecutors are seeking to destroy felony case records going back 15 years, while defense attorneys want to preserve the records so they can continue looking for cases in which false testimony was offered by jailhouse “snitches.” The ease with which such informants could obtain information to manufacture testimony was made infamous by a 1988 segment of the television news show, 60 Minutes, and a 153-page Los Angeles Grand Jury report was later issued detailing abuses of the use of jailhouse informants. Recently, in a suit brought by the California Attorneys for Criminal Justice and the Los Angeles Criminal Courts Bar Association, an L.A. County Superior Court granted an injunction against the proposed destruction of files. (CACJ Newsletter Dec. 1996/Jan. 1997.) Defense concern about criminal informants is not limited to California jailhouse snitches; last fall, Richard Givens, chair of the N.Y.S. Bar Task Force on Simplification of the Law in 1988-1989, noted that reliance on informers and cooperating wrongdoers “presents a major threat to the integrity of criminal justice.” (New York State Bar Journal, September/October 1996.)
High-Tech Tracking Treking to NY in May
Teletrac, a company that sells a radio-signal tracking device to police departments, plans to move into the New York City market by May 1. In California, up to 500 defendants sentenced to prison may have been tracked by police, a fact never disclosed to their defense counsel. The Orange County (CA) district attorney's office advised police that no warrant is needed to attach a magnetized transmitter to the underside of a suspect's car. The chief of their investigations bureau views the technology as surveillance equipment, no different than binoculars or nightscopes. Defense lawyers who have become aware of the practice disagree. Times-Union 1/27/97.
Localities Must Pay Attorney Fees
In December, the Court of Appeals held that localities, not the state, must pay for counsel appointed to represent an indigent alleged incompetent person under Article 81 of the Mental Hygiene Law, which is silent as to payment. At the NYSDA Chief Defender Convening, there was a discussion that the case (Matter of St. Luke's-Roosevelt Hospital et al, digest on p. __) could be argued to require county payment of attorneys fees in Sex Offender Registration Act hearings under Correction Law article 6-C, section 168-n(3).
Tennessee Public Defender Eliminates Paperwork
By implementing a standing order that allows seven standard pretrial motions to be considered as filed by merely invoking the order in a simple listing of new cases, the public defender office in Tennessee's Fourth District has reduced the piles of paper being handled. A copy of the standing order is available in each of the counties served and in the district attorney's office, as well as at the public defender. If a case is appealed, the clerk's office prepares a copy of the standing order for inclusion with the record. Replacing 21 pages per set of motions (which, once copied for the prosecutor and the court, meant 60 pages were actually produced, and had to be stored) with a one-page document covering up to 40 cases is saving time, money, and trees. (The Public Defender Forum, publication of the Tennessee District Public Defenders Conference, January 1997). The practice has been in use for three years, with no reported problems, according to attorney Kay Rutherford, who was instrumental in developing the standing order. A copy is available at the Backup Center.
ABA Asks for Awards Nominations
The American Bar Association's Government and Public Sector Lawyers Division invites nominations for the following awards: the Dorsey Award, honoring an outstanding public defender or legal aid lawyer; the Hodson Award, recognizing sustained outstanding services or a specific extraordinary accomplishment by a government or public sector law office; and the Nelson Award, recognizing outstanding contributions to the ABA by an individual government or public sector lawyer. For more information or a nomination brochure, call Katherine Zittel Mikkelson at (202) 662-1021.
]Yankees v White Sox: Cases, Not Bases, For Good Causes
Ronald Tabak, Pro Bono Coordinator for the New York firm of Skadden Arps, is organizing a baseball fundraiser for public interest organizations. Pay $20 per seat in Section 12 (halfway between Home and Third Base, lowest rows of the Upper Deck) – the regular price is $18 – and watch the New York Yankees play the Chicago White Sox on April 27 beginning at 1:35 p.m., while over half your money goes to the worthy cause of your choice.
To join 199 other fans of fun and fundraising, send one check for $9 per seat made out to Ronald Tabak, and one check for at least $11 per seat made out to NYSDA or other tax-deductible group, to Ron at 919 Third Avenue, 31st Floor, New York NY 10022-3897. For more information, call him at (212) 735-2226.
Hearings Announced on Electronic Court Recording
With the statutory authorization of experimental electronic recording in certain New York courts set to expire on April 1, the Office of Court Administration is proposing legislation to make the authorization permanent in all courts where such recording is currently authorized, to continue the Family Court experiment without current limitations, and to allow electronic recording in all other trial courts with the authorization of the chief administrative judge. Public hearings on the issue have been announced for Friday, March 7 in New York City, beginning at 11 a.m. in the Assembly Hearing Room at 270 Broadway, 11th floor, and for Tuesday, March 11 in Albany, beginning at 10 a.m. in the Roosevelt Hearing Room of the Legislative Office Building, 2nd Floor. For more information, contact Joanne Barker or Tricia Gorman at the Assembly Committee on Judiciary (518) 455-4313.
ABA Resolution Seeks Execution Moratorium
Finding fairness to be essential for, and currently lacking in, a system of capital punishment, the American Bar Association's House of Delegates passed (280 to 119) a resolution calling for a moratorium on use of the death penalty until procedures ensuring basic principles are put into place. The resolution, which stresses that the ABA takes no overall position on the death penalty, and that the principles put forward have long been ABA policy, calls for:
1) implementation of the ABA's Guidelines for the Appointment and Performance of Counsel in Death Penalty
Cases,
2) preservation, enhancement and streamlining of “state and federal courts' authority and responsibility to exercise independent judgment on the merits of constitutional claims” in post-conviction and habeas corpus proceedings;
3) efforts to eliminate racial discrimination in capital sentencing; and
4) prevention of the execution of persons with mental retardation or under age 18 at the time of their offenses.
Twenty of the 24 living former ABA Presidents supported the measure. A report accompanying the resolution, and picked up by The Boston Globe, described how “efforts to forge a fair capital punishment jurisprudence have failed.”
Ron Tabak, a New York lawyer who has long worked against the unfairness of capital punishment, said in The New York Times, “We think it significant that lawyers, those closest to the system, stand up and say it's in shambles.”
Wilfred O'Connor, former NYSDA President, Dies
Wilfred R. O'Connor, former President of NYSDA and New York County Civil Court Judge, died of cancer in New York City on January 23. Funeral services were held in New York City on January 31.
Over a lifetime, which included 37 years as a lawyer and judge, Bill O'Connor served the client and defense communities in many ways. By his own skilled advocacy, first as a trial attorney and later in supervisory positions at the Legal Aid Society, including 19 years as Program Director and Attorney in Charge of the Prison Legal Assistants Program, Bill always demonstrated the simple belief that clients were entitled to dignity. During his presidency, the North Shore Unitarian Society Veatch Program first funded what later became the state funded Public Defense Backup Center. As President of NYSDA from 1978 to 1989, when he was elected to the NYC Civil Court, he built and used the resources of our Association in continual efforts, seen and unseen, to ensure that courtrooms not be mere mirrors of society. From seeking inclusion of a criminal defense component in all state criminal justice funding, to moving the New York State Association of Counties to deal constructively with jail overcrowding, to service on the state's first Cameras in Court Advisory Committee, to the establishment of the Defender Institute, Bill continually urged support for zealous, client-centered representation. He was a founding member of NYSDA and the Macon B. Allen Black Bar Association, as well as a deputy regional director of the National Bar Association and a member of the National Legal Aid and Defender Association.
Court of Appeals
Proposes Capital Rules
On February 20, the Court of
Appeals released proposed "Rules of the Court of Appeals in Capital Cases."
Intend, to constitute "a complete guide to capital practice in this Court,"
the proposed rules would stand alone as 22 NYCRR part 510. They would be "independent
and distinct" from 22 MYCRR part 500, the current rules governing civil
and criminal appeals.
Included in the proposed rules are 'Duties of Trial-level Capital Defense Counsel," which include, timely taking an appeal pursuant to CPL 450.70(l), which a defendant may not waive; advising the defendant of any appealable matters under CPL 450.70(2)-(4) and appealing such matters if the defendant so desires; and advising the defendant of the procedural requirements for taking an appeal.
Also included is a section on stays of execution, both those provided for by statute and otherwise. Emergency motions for interim stay relief, including those sought outside business hours, would be provided for.
Provisions for defendants seeking assignment of counsel or other poor person relief are included. For appeals under CPL 450.70(1), assigned counsel could "move at any time pursuant to section 510.12 of this Part for assignment of Associate Counsel for good cause shown."
Detailed descriptions of capital appeal management procedures are set out, including defense preliminary appeal statements and separately bound "Issue Identification-Statements" for the purpose of "issue identification and case management purposes only." The court's "Initial Capital Appeal Management Order" would establish a briefing, schedule, the form of the record on which the appeal would proceed, the date and time of oral argument, periodic progress reports, and amici deadlines. Capital appeals would receive calendar preference.
Detailed descriptions of how the record would be dealt with, including responsibilities of the defense and prosecution, is included in the proposed rules, as well as sections on briefs and motions. Notice to the Attorney General of all constitutional issues, and notice to the Capital Defender Office of all affirmances of judgments that include a sentence of death, would also be prescribed.
The end date for receipt of
public comment on the proposed rules (send two copies) is March 21. Copies of
the proposed rules can be obtained by calling the Public Information Office
of the court at (518) 455-7711, by using the Court of Appeals Bulletin Board
at (518) 426-2220 [for information on accessing the bulletin board, call the
switchboard at (518) 455-7700], or by writing: Public Information Office, Court
of Appeals Hall, 20 Eagle Street, Albany NY 12207-1095.