March 1998 Defender News

The New York State Continuing Legal Education Board has granted NYSDA Accredited Provider status for its training programs through February 28, 2001.

The advent of mandatory CLE rules for newly-admitted New York attorneys (Backup Center REPORT, Vol. XXI, No. 9) has recently focused attention on legal training programs, but NYSDA's commitment to defense CLE long predates the new rules. The annual Metropolitan New York Trainer has received accolades from its (often repeat) attendees for 12 years. The most recent of these trainers was held on Mar. 14 in cooperation with the Assigned Counsel Panel for the 1st and 2nd Departments, the Legal Aid Societies of NYC [Criminal Defense Division] and Nassau, Suffolk, Orange and Westchester Counties, the Assigned Counsel Plans for Suffolk and Westchester Counties, and the Dutchess County Public Defender Office.

This June, the Defender Institute Basic Trial Skills Program will once again provide a week of intensive jury-trial training to defense lawyers. The program has been an annual event (except for budget-cut interruptions in the mid-90s) since 1987. Deadline for applying is May 4 (For an application call NYSDA at 518-465-3524.)

A wide range of topics are covered each year during training sessions at NYSDA's annual summer meeting. Other periodic, topical programs have been offered throughout NYSDA's history. The acquisition of Accredited Provider status will allow NYSDA to continue to fulfill the training needs of public defense lawyers and defense team members.

News About Noncitizens and Criminal Justice

Criminal convictions may have added consequences when the defendant is not a citizen of the United States. Recently, there have been several developments affecting this discrete group of clients.

Newspaper accounts have appeared recently criticizing a Pataki administration policy allowing prisoners to receive early parole for purposes of deportation. A Daily News story, picked up by other papers, noted that of 1,277 inmates paroled and deported since 1995, 158 had been convicted of the most serious drug felonies. The reports noted that in two cases prosecutors had successfully sought to have the early releases revoked. (See Matter of Ortiz v NYS Board of Parole, Digest, p. 11.) An administration spokesperson said that paroles under the policy were granted only after the Immigration and Naturalization Service had agreed to deport the paroled prisoners. (Times Union, 3/23/98)

Earlier this year, the Department of Correctional Services magazine DOCS Today claimed that early deportation, provided for by the Sentencing Reform Act of 1995, had saved the state $87 million. This estimate included $55,961,629 in operational costs that would have resulted from housing the deported inmates to their parole eligibility dates, and $30,751,504 in capital construction costs said to have been required to house those deported inmates who would have still been in custody on September 30, 1997. (DOCS Today, Jan. 1998)

A divided U.S. Supreme Court recently upheld a federal statute providing that noncitizens who were convicted of a crime before being deported could receive longer prison sentences for subsequent illegal re-entry, even if the previous conviction was not charged and proven in the new case. The defendant, Hugo Almendarez-Torrez, had pled guilty to illegal re-entry, and was sentenced to seven years, one month. The offense carries a maximum sentence of two years for defendants who had not been convicted of a crime before deportation (Almendarez-Torrez v US, No. 96-6839 3/24/98). A digest of the opinion will appear in a future REPORT.

A federal district court judge in New York who had accepted a guilty plea from a young man who was raised in the U.S. vacated the plea because subsequent federal legislation required that the defendant be deported to Honduras. Petitioner Juan Urbina had been brought to this country at the age of six, and was raised by an aunt and uncle. While he considered himself American, Urbina had never been naturalized, although his Honduran mother had relinquished her parental rights. When, after conviction, Urbina cooperated with the government, the court fashioned a sentence of imprisonment and subsequent supervised release intended to assist in Urbina's "readjustment to the community." But passage of the Antiterrorism and Effective Death Penalty Act (Pub. L. No. 104-132 [1996]) led to Urbina's deportation instead. The court rejected the defense contention that the plea had been unlawfully induced or was not voluntarily and understandingly made, but also refused to let the plea stand. Finding authority in US v Morgan, 346 US 502 (1954) for relief in the nature of a writ of error coram nobis, Senior Judge Knapp concluded: "In the exercise of our discretion, we vacate the judgment which subsequent facts have turned into an intolerable miscarriage of justice." Urbina v US, No. 96 CIV. 9532 WK (So. Dist. NY 1/27/98)

This opinion was provided to the REPORT by Manuel Vargas, head of NYSDA's Criminal Defense Immigration Project (Backup Center REPORT, Vol. XXI, No. 7). If you have questions about immigration issues in a criminal case, call Manny on Tuesdays or Thursdays between 9:30 a.m. and noon or 2:00 p.m. and 4:30 p.m.

Urging the 2nd Circuit to find that dismissal of a habeas petition was properly denied, NYSDA has filed an amicus brief in Nicholas Rosa v Senkowski, No. 97-2974. At issue is the application of filing deadlines under the Antiterrorism and Effective Death Penalty Act (AEDPA). The specific question presented concerns proper construction of the statute of limitations for first habeas corpus petitions, under 28 U.S.C. 2244 (d) (1), by state inmates whose convictions became final before April 24, 1996, AEDPA's effective date.

Scores of first-time habeas petitions, filed mostly by pro se inmates who thought they had one year after enactment of the AEDPA to file, have recently been dismissed in the district courts of the 2nd Circuit. These dismissals have been based on lower court interpretations of Peterson v Demskie, 107 F.3d 92 (2d Cir. Feb. 5, 1997) that petitions must have been filed within an unspecified reasonable time after April 24, 1996. (See Backup Center REPORT, Vol. XII, No. 6.) NYSDA's brief, by Backup Center staff attorney Al O'Connor, argues that these dismissals are improper and unfair. A copy of the brief is available from the Backup Center.

The US Supreme Court's refusal to review early challenges to New York's Sex Offender Registration Act (SORA) and similar statutes (Backup Center REPORT, Vol. XIII, No. 2) did not end legal or policy arguments involving these laws that, among other things, require some level of notification to the public of a convicted sex offender's presence in the community.

A federal court issued a temporary restraining order on Mar. 17, limiting the restrictions that can be applied to individuals to whom SORA would apply retroactively unless defined procedures are followed.

While the order is in effect, only level one of the act's three classification levels can be imposed on persons convicted of designated offenses before Jan. 21, 1996 who were under parole or probation supervision on that date and had been given a risk level classification, or who were incarcerated on that date and who had been or will be given a classification. A higher classification can be imposed only if "the registrant receives proper prior notice of a proposed higher risk level classification and an opportunity to be heard before a court, including (a) notice prior to the hearing specifying the risk level recommendation of the New York State Board of Examiners of Sex Offenders (the "Board"), the reasons therefore, and the extent of community notification procedures that would be followed for an individual at that level, and (b) presentation by the state (or local prosecuting body) of clear and convincing evidence that the registrant should be classified level two or three."

The order allows the state to inform callers to a special 900 number that the classifications of persons covered by the TRO are "pending." The court is expected to hear the parties in April as to whether a preliminary injunction should be issued to continue the limitations on community notification under the Act. A copy of the TRO is available from the Backup Center.

Dozens of phony notices were circulated in a New Jersey housing development in early March, falsely accusing a high school guidance counselor of being a convicted sex offender. The county prosecutor has begun an investigation, and sent letters to every resident of the housing development saying that the fliers were fake. (New York Times 3/20/98) Earlier this year, a local New Jersey paper printed a front page story containing information, including a photograph, from a flier distributed under the state's notification act. The state's attorney general denounced publication of the information by the press as improper and said that vigilantism as to known sex offenders would not be tolerated. Governor Christie Whitman claimed that such incidents were not within the intention of those who had supported passage of the law. (AP, 1/21/98)

New forms for orders of protection and for affidavits in support of such orders have been prescribed for use in family offense cases in local criminal courts and Family Court. The forms conform to statutes enacted during the 1997 legislative session.

One statute, addressing problems arising in local criminal courts when Family Courts are not in session, permits the local criminal courts to issue or modify Family Court orders of protection with simple, generic affidavits rather than requiring formal Family Court pleadings. The temporary orders and affidavits must be transmitted to Family Court "forthwith." The temporary orders of protection issued on this basis may last up to four days; further relief must be sought in the Family Court. Laws of 1997, ch. 186; see Family Court Act 154-d and Criminal Procedure Law 530.12(3-a). The second statute amends the Family Court act to provide that a notice of appeal must be filed within 30 days of receipt in court or service of an order, or within 35 days from a mailing of the challenged order by Family Court. "Service by a party" is defined in the statute by incorporating Civil Practice Law and Rules rule 5513. Under the new law, notice of the time limits for appeal must be included on all orders. Laws of 1997, ch. 461, amending Family Court Act 1113.

Chief Administrative Judge Jonathan Lippman's Feb. 11 order requires that existing Family Court General Forms 5 and 5a, for orders of protection, be replaced with revised forms. New General Form 5b/Criminal Form 3 and General Form 5c/Criminal Form 4, for affidavits in support of orders of protection, were also promulgated. Copies of the new forms are available from the Backup Center.

The New York Law Journal has posted the full text of the New York State Court of Appeals rules of court on its free Internet site (http://www.nylj.com/rules/ctapindex.html). The rules are presented with hypertext links for the cross-references and a table of contents linked to the text. Recent amendments to the rules are listed, with links, before the table of contents. The Law Journal reports that the site will be updated promptly when the court issues changes.

The levels of cadmium found in the body of James Oliver Huberty, who was killed by police in 1984 after he shot 21 people in a San Ysidro, California restaurant, were the highest ever found in a human, according to one expert. Huberty had left his earlier employment as a welder saying that the fumes were making him crazy. Finding a link between high metal readings and violent behavior is not unusual, according to William J. Walsh, president of the Pfeiffer Treatment Center of Naperville, Illinois. He told the magazine Popular Mechanics recently that the body's ability or inability to handle several common metals is an important factor in whether violent behavior develops. His center has used dietary adjustments to reduce the metal found in children displaying severe behavioral problems with good results, Walsh said. (Perhaps as a result of the Popular Mechanics article, the automatic phone system at the center as of Mar. 24 accepted only inquiries to be answered by mail from callers other than current patients.)

A more systemic view of the metal/violence link may be found in studies by Roger D. Masters, a Dartmouth College professor of government. He has reported evidence that in geographic locations where lead and manganese have been released into the environment, violent crime statistics are significantly higher. Both metals are known to alter brain chemistry in ways that could cause poor impulse control and aggressiveness, according to Masters. Prolonged exposure to lead may impair the ability to be deterred from conduct by the threat of punishment. ("So much for long sentences discouraging criminals," Popular Mechanics Science/Technology Editor Jim Wilson noted in the April issue.)

Masters told the REPORT that defense teams should not contact him seeking support for a defense that high metal levels vitiated individual responsibility for criminal actions. His future research, however, may include looking at metal imbalance treatment as part of alternative-to-incarceration sentences for first-time, low risk offenders.

A mounted copy of Clarence Earl Gideon's handwritten petition for certiorari to the U.S. Supreme Court, a recording of the historic 1963 arguments held after cert. was granted, a large courtroom mural with defense counsel noticeably missing (painted by Joanne Pollara), and a wealth of information put together by the Gideon Day Coalition greeted everyone passing through the concourse of the Empire State Plaza in Albany on Mar. 18. Among the materials handed out were a letter from William L. Murphy, District Attorney of Richmond County and President of the National District Attorneys Association, and a statement made by Richard A. Brown, Queens County District Attorney and President of the New York State District Attorneys Association, each stressing the importance of adequate funding for the provision of defense counsel.

While representatives of the Coalition met with legislators or staff, a wide range of visitors stopped at the table. Some proudly took and wore the coral-colored buttons celebrating the 35th anniversary of the right to counsel decision in Gideon v. Wainwright, others helped themselves to facts sheets on indigent defense funding or to materials describing Gideon and its impact. A group of students who had just been assigned to read Gideon's Trumpet by Anthony Lewis, aspiring paralegals, and other young people were among the many who stopped by. A set of the materials resulting from this year's Gideon Day are available from the Backup Center.

Across the state, defense teams have been contending with the death penalty law since 1995. What follows is some recent information on the ongoing fight.

An Onondaga County Court has ruled that one of the terms set out in New York's first-degree murder statute is unconstitutionally vague. Under the statute, a defendant whose criminal liability is based on another person's conduct may be found guilty of first-degree murder for specified types of killings only if the defendant "commanded" the other person to cause the death. Penal Law 125.27(a)(a)(vii). But the statute does not define the word "commanded," rendering that portion of the law void.

The prosecution did not define the term at issue for the grand jury that indicted John Lee Couser, the court noted, leaving the grand jury "to apply their own individual notions of what that term meant." Especially where a death sentence could result, grand juries and trial juries across the state should not be invited to apply personal, subjective, interpretations of what "commanded" means.

Press accounts reported that the challenged section of the 1995 death penalty law has been hotly contested in several cases. Capital Defender Office attorney Thomas Dunn said this was the first time the provision had been declared unconstitutional.

Prosecutors had decided against seeking the death penalty for Couser before the court's ruling. A second count of first-degree murder, alleging that Virginia Hackett was killed as part of a plot to keep her son from testifying against Couser, was unaffected by the decision. (The Post-Standard, 2/27/98)

With the scheduling of jury selection in a capital case in Poughkeepsie, the annals of New York's death penalty have acquired an unsettling symmetry. If a verdict is returned in Dalkeith McIntosh's case, it will be the first trial since capital punishment was reinstated in New York in 1995. Nearly twenty years ago, a Dutchess County case was the vehicle for invalidating the state's capital punishment law. (The defendant in that case, Lemuel Smith, has recently been in the news as he seeks to end a 16-year stint in solitary confinement [Times Union, 2/5/98].)

Approximately two percent of the county's population has been summoned for the jury pool in the McIntosh case, and the 4,800 jury notices were accompanied by a letter telling prospective jurors not to read or listen to media reports. (Times Union, 3/23/98)

Among the findings of a late 1997 review by law students of death-penalty-eligible cases filed since passage of the capital punishment statute: Of three death-eligible cases filed in the Bronx, death was not sought in two. The third yielded the Court of Appeals opinion upholding the governor's right to replace a local prosecutor with the attorney general to ensure capital prosecution (Johnson v Pataki, Nos. 227, 228 (12/4/97).

In Kings County, the prosecution declined to seek the death penalty in three cases, and expressed the intention to seek death in two. In New York County, four eligible cases were filed with no death penalty being sought. Death was being sought in one Queens County case and declined in another.

A plea agreement with a sentence of life without parole discharged an Onondaga case, as well as a case in Otsego County and one of three eligible Suffolk County cases (intention to seek the death penalty was announced in the other two). The prosecutor elected to pursue the death penalty in the one Ulster County case. No death penalty was sought in the one eligible case filed in Richmond County, or in any of the three eligible cases filed in Westchester County. ("The Implementation of the New York Death Penalty Statute," Criminal Law Institute, St. John's University School of Law, Criminal Justice Journal [NYSBA Criminal Justice Section] Vol. 5, No. 2 (1997).

The death penalty has been considered in 315 cases since its reintroduction in New York. Death was declined in 226 cases, is still under consideration in 63, and was initially sought in 23, of which 15 are awaiting trial. Charges were dropped in 3 cases. (Times Herald Record, [Middletown NY] 2/6/98)