Bright yellow buttons proclaiming "Preserve the Right to Counsel" were visible around the capital on March 18 as practitioners and supporters of public defense work came to Albany on behalf of a fair criminal justice system and 6th Amendment rights. Eleven local, state and national groups, on behalf of the state's 62 county public defender systems and numerous advocates-and indigent clients-spent the 34th anniversary of Gideon v. Wainwright petitioning the legislature to adequately fund defense services for the poor.
At a press conference held after meetings with legislators and staff, leaders of the coalition said it was time for legislators to end the inefficiencies and waste of resources inherent in placing this vital aspect of the criminal justice system "in play" in annual budget political maneuvers. Gerald Lefcourt, head of the Lawyers Coalition for Criminal Justice and President-elect of the National Association of Criminal Defense Lawyers, pointed out the increasingly complicated nature of defense representation in an era of draconian punishments and scientific evidence, and called for a fair and practical formula for automatic funding of defense services. Susan Lindenauer, Chair-elect of the New York State Bar Association's Criminal Justice Section, said these constitutionally mandated services should no longer be held hostage in the budget process. Edward Nowak, President of NYSDA's Board, pointed out the fiscal irresponsibility of forcing all counties currently without computerized record systems to develop them individually when NYSDA, which stands defunded in the current budget, already has a replicable case management system nearing completion.
Dennis Murphy, Attorney-in-Charge of the Legal Aid Society of New York's Criminal Defense Division, spoke of the 30 states that had agreed with Clarence Gideon's position 34 years ago. He then pointed to a chart showing, in the widening gap between New York State's assistance to the prosecution and to indigent defense, the decline of the state's commitment to equal access to justice.
Unique problems of various defense services providers were also addressed. Leonard Noisette, Director of Neighborhood Defender Service of Harlem, described the positive community impact the office has had; his description of early provision of information to the courts about clients' needs stood in sharp contrast to recent press accounts of courts having to make crucial decisions about individuals without adequate knowledge of their circumstances. Ed Nowak pointed out that without the Indigent Parolee Representation Program, defense costs will fall to local governments even though the state is responsible for those cases. Gerard Damiani, Vice President of the New York State Association of Criminal Defense Lawyers, made sure that the issue of 18-b fees was not ignored, while Tom Terrizzi, Associate Director of Prisoners' Legal Services of New York, pointed out that by defunding PLS, the state would be depriving New York prisoners-now numbering 70,000-of a major mechanism for voicing grievances, which was a major cause of the Attica riots.
The Gideon Day Coalition consists of: Association of Legal Aid Attorneys, UAW Local 2325, AFL-CIO; Lawyers Coalition for Criminal Justice; National Association of Criminal Defense Lawyers; National Legal Aid and Defender Association; Neighborhood Defender Service of Harlem; New York State Association of Criminal Defense Lawyers; New York State Defenders Association; Prisoners' Legal Services of New York; The Legal Aid Society Chapter of 1199 Health & Human Services Employees Union; the Legal Aid Society of New York City; and the Legal Aid Society of Westchester County.
"As always, excellent" was a common comment in evaluations of the 11th Annual Metropolitan New York Trainer held March 8. While the over three hundred attendees had different favorites, each session received a share of praise. The many suggestions for new and please-repeat topics are already being tabulated, so that the 12th Annual Trainer will make a round dozen of successes.
Materials from the recent Trainer are now available from the Backup Center. Included are: Recent Developments in Criminal Law and Procedure (Edward J. Nowak); Litigating the Sidelines: Sex Offender Hearings, FOIL, and Other Collateral Matters (Michele Maxian); Examining the Child Witness (Laurie Shanks and Raymond Brown); Telling the Story in a Criminal Case (Joseph Guastaferro); and Samurai Evidence (Nancy Hollander). The cost is $25.
The new Administrator of the Assigned Counsel Plan of Nassau County, which was one of the co-sponsors of the Metropolitan Trainer, is M. Arthur Eiberson. He is a former judge of the District Court of Nassau County.
Dawn Ryan has been named Attorney-in-Charge of the Brooklyn Legal Aid Society office. She was formerly the Training Director for that office. (New York Law Journal 2/27/97)
The Indigent Defense Oversight Committee formed by the Appellate Division (First Department) in 1995 has issued its first report, giving "generally good grades" to three legal services providers, in the words of the New York Law Journal. Klaus Eppler, who chairs the committee, reportedly expressed concern about high caseloads, inadequate supervision, and fixed funding for unlimited numbers of cases at the Legal Aid Society, while noting that LAS provides "quality representation." Neighborhood Defender Service of Harlem and the Office of the Appellate Defender also provide effective representation, while dealing with smaller caseloads, Eppler said. Standards promulgated in 1996 were used to evaluate the defense service providers.
Neither NDS nor OAD currently have renewed contracts with the City of New York, and NDS is among the public defense services left out of Governor Pataki's budget. In its conclusions, the Oversight Committee specifically noted: "It is self-evident that pervasive uncertainty from year to year about whether NDS will continue to exist adversely affects morale and, in the long run, is bound to undermine the quality of representation."
The report's conclusions included observations that excessive LAS caseloads were the result of a rising number of misdemeanor arrests combined with LAS's contractual duty to take an unlimited number of cases. It further noted that due to the contractual limitations on alternate offices and the increase in misdemeanor arrests, LAS has been evolving into a misdemeanor defense organization in a way likely to increase demoralization of its attorneys.
On July 17-20, at the Renaissance Westchester Hotel in White Plains, NYSDA will celebrate 30 years of supporting the constitutional right to counsel. Past achievements will be recognized, along with future challenges like the systemic funding crisis that threatens to make impossible continuing implementation of the 6th Amendment's guarantee. Details of registration for the 30th Annual Meeting and Conference will be announced in future issues of the REPORT.
Judge Denny Chin has followed several other federal district judges in finding that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) did not repeal the right of aliens to challenge deportation orders in habeas corpus proceedings under 28 USC 2241. Rejecting as "untenable" the government's contention that certain aliens were without any judicial recourse, Chin held that while the AEDPA did replace a provision of immigration law allowing habeas review with language barring review of deportation orders, the Act did not modify the habeas statute itself. Section 2241 provides for habeas review to prisoners "in custody in violation of the Constitution or laws or treaties of the United States." Yesil v Reno, 96 Civ. 8409. No federal circuit court has yet ruled on the issue. (New York Law Journal, 3/6/97)
The Illinois supreme court has rejected a defense claim that the prosecution has a federal constitutional duty to disclose to the jury a benefit received by state's witness. Arrested for soliciting the victim's death, the witness had been released when she agreed to elicit evidence from the defendant. She did not reveal-or deny-this in front of the jury. Case law relied upon by the defense, including Giglio v US, 405 US 150 (1972), was distinguished: ". . . the prosecution's obligation to reveal the existence of an agreement with a witness arose only because of the witness's false testimony on the subject." People v Pecoraro, Ill. Sup. Ct. #78457 (2/6/97), 60 CrL 1455.
(In the recently-decided 2nd Department case People v Pons [digest on p. 12], the witness later sought enforcement of a more favorable agreement than the one described to the jury.)
Defense lawyers with a policy against representing clients who cooperate with the government cannot accept fees from third parties believed to be accomplices, the Indiana supreme court has ruled. In Matter of Maternowski and Dillon, __N.E. __, Ind. #49S00-9312-DI-1322 and 1321, (12/13/96), a 30-day suspension from practice was upheld against two attorneys for violation of the state's Professional Conduct Rules 1.7(b) and 1.8(f). The court found that the convergence of the attorneys' non-cooperation policy and a reasonable possibility that fees were being paid by accomplices conflicted with the independence of the attorneys' professional judgment where they continued to represent a client who was vacillating about cooperating with authorities. (Indiana Defender, Feb. 1997)
A federal district court enhanced a balloon-swallowing drug courier's sentence on the basis of statistical calculations of the amount of drugs he probably carried in seven earlier, uncharged trips. The Second Circuit reversed. Statistics based on 117 other couriers' "loads" and the amount carried by the defendant during the trip for which he was convicted did not comprise "specific evidence" of any amount carried by the defendant on the uncharged trips, the court held in U.S. v Shonubi, 103 F3d 1085 (1997).
Relieving the detailed description of several statistical analyses presented at a hearing was the following note: "As a first step, one of the rule 706 experts . . . distributed a pound of powdered sugar into 103 balloons . . . and also `reflecte[d] on the task of swallowing them . . .' There is no indication that he carried his investigation to the point of swallowing them . . . [He] concluded that the activity of carrying heroin in swallowed balloons involves a learning curve." Id. at 1091, fnote 3.
Opposing a Kings County deputy district attorney's Freedom of Information Law (FOIL) request for records from the Capital Defender Office (CDO), forty Chief Defenders have joined NYSDA's proposed amicus pleadings in the Supreme Court, New York County. ("Chief Defenders" include heads of public defender offices, legal aid societies, and assigned counsel programs.) The proposed amici fear that a prosecution victory in this case might expose public defense offices throughout the state to similar demands for client and other records under the Freedom of Information Law, as well as adversely affect clients they represent jointly with the CDO.
Noting that this would be an unprecedented application of FOIL, the pleadings filed by NYSDA Executive Director Jonathan Gradess describe the devastating effect such a ruling could have on the ability of public defenders to fulfill the constitutional mandate of providing effective representation to indigent persons accused of crimes and otherwise safeguarding their clients' fundamental rights.
Deputy DA Deborah Modica is seeking numerous CDO confidential records and documents, including client files pertaining to People v. Michael Hale. Hale is a pending death penalty prosecution.
Among the cases currently pending in the Supreme Court are several that may be of interest to criminal defense teams and their clients. The issues are set forth below descriptively, not in the language of the pleadings:
Bates v. US, No. 96-7185, 60 CrL 3175 (2/18/97)-Must the government prove fraudulent intent in a prosecution under the statute prohibiting knowing and willful misapplication of federally guaranteed student aid funds?
Bracy v. Gramley, No. 96-6133, 60 CrL 3143 (1/10/97)- Is a habeas petitioner whose capital trial and death sentence were before a judge who admittedly accepted bribes in contemporaneous criminal cases entitled to discovery on the claim that he was denied the right to trial before an impartial judge?
Kalina v. Fletcher, No. 96-792, 60 CrL 3187 (2/24/97)-Is a prosecutor who brought formal criminal charges against the defendant entitled to absolute immunity from §1983 liability for allegedly making false statements to obtain an arrest warrant for purpose of bringing the defendant before the court to respond to the charges?
Lindh v. Murphy, No. 96-6298, 60 CrL 3143 (1/10/97)-Did the Court of Appeals correctly conclude that Congress did not specify the extent to which 1996 amendments to the habeas corpus statute are to apply retroactively, correctly find that retroactivity jurisprudence depends on proof of actual reliance interests, and create a presumption that habeas-curtailing laws apply retroactively?
McMillan v. Monroe County, AL, No. 96-542, 60 CrL 3103 (12/6/96)-Is a county sheriff the final policymaker for county in law enforcement matters for purposes of county liability under §1983?
O'Dell v. Netherland, No. 96-6867, 60 CrL 3126 (12/19/96)-Was the decision in Simmons v. South Carolina (defendant entitled to rebut prosecution showing of future dangerousness with evidence of parole ineligibility) a "new rule" under Teague v. Lane, barring retroactive application to prior state convictions, and if so, does Simmons fall within the exception to the Teague bar that allows retroactive application of rules protecting fundamental fairness and accuracy of proceedings?
Reno v. ACLU, No. 96-511, 60 CrL 3103 (12/6/96)-Is the Communications Decency Act prohibition of transmitting certain materials to minors over the Internet an unconstitutional violation of the First Amendment?
Richardson v. McKnight, No. 96-318, 60 CrL 3095 (11/27/96)-Are employees of a private prison-management company entitled to assert the defense of qualified immunity in a §1983 civil rights suit filed against them by a prisoner?
Richards v. Wisconsin, No. 96-5955, 60 CrL 3127 (1/12/97) -must police "knock and announce" when executing a search warrant for drugs?
Salinas v. US, No. 96-738, 60 CrL 3187 (2/24/97)-Do the bribery provisions of 18 USC §666 apply to actions by a county sheriff and deputy in accepting money to arrange conjugal jail visits, and must the government prove that the defendants personally committed or agreed to commit two RICO predicate acts before RICO can apply?
US v. Hyde, No. 96-663, 60 CrL 3151 (1/17/97)-Can a guilty plea be withdrawn after a federal court has accepted it, before the court decides whether to accept the accompanying plea agreement?