At its April meeting, the New York State Bar Association's House of Delegates approved, in modified form, a New York County Lawyers' Association report calling for a tiered system of compensation for assigned counsel under County Law §18-B, with hourly compensation of $100 for felonies with a potential of life imprisonment, $75 for other felonies and appeals, and $50 for misdemeanors. (See February Backup Center REPORT.)
The American Civil Liberties Union has filed a lawsuit against Allegheny County, PA, which cut the budget to its public defender office by one third in early 1996, occasioning layoffs of lawyers and support staff, including investigators and the only social worker. Following a reorganization, some staff were rehired, but the office still lacks the necessary resources to properly handle the caseloads it has, according to the ACLU's suit. The amended class action complaint seeks declaratory and injunctive relief, based on the 6th and 14th Amendments to the US Constitution, Art. 1, §9 of the Penn Constitution, and various state statutes and rules. ACLU attorney Robin Dahlberg said the case is now in discovery, with depositions scheduled.
Current legislation allowing televised coverage of court proceedings in New York expires on June 30, 1997. New York's ten-year experiment with cameras has proven to be detrimental to a fair trial. The following represents a summary of recent events surrounding this issue:
The New York State Committee to Review Audio-Visual Coverage of Court Proceedings Releases Report. While the Majority Report recommends making the ten year experiment with cameras in court permanent, it contains evidence to support a ban on cameras, including a judicial survey which found: 37% of judges said television coverage tends to cause judges to render rulings they otherwise might not issue; 40% of judges said that witnesses were distracted by the presence of TV cameras; 80% of judges agreed that television coverage is more likely to serve as a source of entertainment than education for the viewing public; and 87% agreed that television coverage transforms sensational criminal trials into mass-marketed commercial products. A public opinion poll of New Yorkers by the Marist Institute found that 54% would be less willing to testify as a witness to a crime if cameras were present, 43% would be less willing to serve on a jury; 62% think televised coverage gets in the way of a fair trial; and 69% would not want their trial televised if they were a defendant.
The Committee Minority Report Calls for a Ban on Cameras. Authored by committee member Leonard Noisette of the Neighborhood Defender Service, Inc., the Minority Report focuses on data collected by the Committee which deals with several areas of concern: witnesses and victims less likely to come forward if cameras are present; public opposition to cameras in courts; judicial skepticism as to the purposes of televised coverage; and concerns about the media's almost exclusive coverage of violent crimes at the high end of the sentencing structure. Furthermore, this report notes: "There is no Committee finding that our judicial system needs TV coverage of court proceedings. There is no suggestion as to how our New York system of justice was deficient prior to 1987 when there was no TV coverage of court proceedings. There is no suggestion as to how our New York system of justice would be deficient in the future if there were no TV coverage of court proceedings."
The New York Law Journal has the Report on its Website. The footnotes of the Majority Report, which contain relevant information, are not included. To read the Majority Report of the Committee to Review Audio Visual Coverage of Court Proceedings (174k) link here. To read the Minority Report of the Committee (84k) link here.
The Defenders Association has been Active on This Issue. Executive Director Jonathan Gradess was invited in March to participate in Albany Law School's 1997 Warren M. Anderson Legislative Seminar Series on Cameras in Courts, joining Chris Brunner from WNYT-13, Everett Mayhew from the Crime Victims Board, Judge Michael McGrath of Rensselaer County, and Dean Sponsler from Albany Law School. Gradess was also a "Cameras in Court" panelist on VoxPop, a call-in talk show on WAMC, the public radio station, on Friday April 18, along with Jeff Ballabon of Court TV, Gary Brown of the Fund For Modern Courts, which supports cameras in court, and Everett Mayhew, counsel for the NYS Crime Victims Board, which is opposed to cameras. Information about cameras, including excerpts from the Committee's reports, public opinion information, and the judicial survey, is available on the NYDSA website at http://www.nysda.org.
For comments during a criminal sentencing proceeding, the Commission on Judicial Conduct has found censure appropriate for Robert J. Hanophy, a Judge of the Court of Claims and Acting Justice of the Supreme Court, Queens County. While sentencing a British citizen in connection with her infant's death, Hanophy "engaged in hyperbole about the British legal system," which he called "primitive and uncivilized," and incorrectly described as granting "a blanket exemption for prosecution or punishment to those people who kill their children" under a year old. Reacting to criticism by the defendant's parents, the judge also referred to the defendant's father as "Ralph Kramden-the guy with the big mouth." The commission noted in its Determination that Hanophy knew the court proceedings were being videotaped by the BBC and other news media and believed the event was "being publicized all over the world." The Commission's Determination has been forwarded to the Chief Judge of the Court of Appeals, Judiciary Law 44(7). (Determination Relating to Hanophy, 4/2/97)
Full-time Assistant District Attorneys in New York make as much as $114,500 per year if they have administrative or supervisory duties and are in New York City, or a minimum of $25,000 if they have no administrative duties and are in smaller population areas. For District Attorneys, the range is $85,000 to $125,000. Part-time DAs and ADAs are rare. These and other facts were compiled by the Office of Justice Systems Analysis of the state's Division of Criminal Justice Services in a report released last December. The report notes that "prosecutors' offices require other support staff with a wide range of skills. These include investigators, paralegals, and clerical staff." Assigned investigators-241 across the state-are not directly employed by DA offices, but come from local law enforcement agencies. A copy of the report, "District Attorney Organizational & Staffing Survey 1996" can be obtained by calling DCJS's Statistical Services, (518) 457-8381.
Nominations are being sought by the New York State Bar Association for four Criminal Defender and Civil Legal Services Awards. Recipients for the Criminal Defender Award must have demonstrated an extraordinary commitment to the following: provision of zealous, skilled, committed, hands-on, competent and creative legal representation for low-income and disadvantaged clients; courageous advocacy of defense rights in the face of adverse publicity and community hostility; or ability to support and mentor colleagues through leadership, overall example and inspiration. The Awards Committee may also consider direct client representation, work in support of direct client representation, and other activities in the client or legal communities. Nominations must be submitted by May 15, 1997, to Sheilah R. Sable, Dept. of Pro Bono Affairs, NYSBA, One Elk Street, Albany NY 12207. (518)487-5641; (fax) (518)487-5694.
William McMahon, who was head of the commission overseeing state, local, and county jails for nine years before taking a job in private industry four years ago, died at the beginning of April. He had been a deputy commissioner with the state Division of Criminal Justice Services for 16 years prior to his appointment to the cabinet-level position by Gov. Mario Cuomo. NYSDA Executive Director Jonathan Gradess said that, "Bill McMahon took his job as Chairman of the State Commission of Correction seriously, opening his door to the concerns of the defense community and to the clients we serve. His solicitude for input was genuine as were both his responsiveness and his belief in alternatives to incarceration, particularly for the developmentally disabled."
The Hawaii Supreme Court has held that a defense team knew or should have known that the presence of the defendant's lover's father-who had become an informer-at an impromptu hallway meeting of the defendant, her lover, and her attorney, would waive any confidentiality under the attorney/client privilege. The informer was acting on instructions to "further the discussions in regards to the murder-for-hire case," and deliberately followed the attorney, defendant and defendant's lover from the courtroom into the hall. The informer was then debriefed about the meeting by a police detective. Had the state used an informant to receive privileged information, the right to counsel would have been violated, but where there was no reasonable expectation of confidentiality, no violation occurred. (State [Hawaii] v Soto, Nos. 18673 etc., 2/28/97; 60 CrL 1534)
The issue of informants infiltrating the defense camp via multiple-defendant meetings was recently addressed by Barry Tarlow, in his "RICO Report" column for The Champion (April 1997). He urged that written joint-defense agreements be used, requiring all parties to affirm: that clients are not, and do not plan to become, informers; they will notify all other parties if a client does decide to cooperate (if this can be done without violating the attorney/client privilege); and any lawyer whose client decides to cooperate will withdraw from the joint-defense agreement and not attend any joint meeting after tentative or firm understanding to that effect has been reached with any federal or state agency. Tarlow discussed a case in the Southern District of New York in which one participant in joint defense meetings was a "mole" masquerading as an attorney to find out for the drug lords who hired her which, if any, codefendants were cooperating. While prosecutors knew about the mole's sham law practice, they passed no information about her on to the defense bar.
Republican state senator James Lack and Democratic assembly member Dan Feldman are proposing legislation to create an Office of Special Prosecutor for Prison Crime. The two say that local DA's lack the resources needed to keep up with prison crime. New York City Public Advocate Mark Green has joined in pressing for the legislation, claiming that over 6,000 crimes are committed annually in the prison system (figures disputed by the Department of Correctional Services). Also mentioned in press coverage of the proposal was an indication that Feldman wants inmates who commit misdemeanors to serve out their sentences in state prisons, rather than in county jails as is the current practice. Nothing about local resources for public defense in prison cases was included in press coverage of these proposals. (Times Union 4/17/97)
The allegations of sloppy procedures and deliberate skewing of results at FBI evidence laboratories that surfaced publicly in late January [see February Backup Center REPORT] continue to make headlines and raise justice issues. High-profile cases, both past and current, have been touched. The impact on many less-publicized cases also remains to be seen. Anyone who finds evidence of potential lab problems relating to New York matters is encouraged to share that information through the REPORT, which will provide further information as it becomes available.
Habeas Deadline Runs from Report Release. During a Freedom of Information Act battle concerning draft copies of a report on the allegations, the Department of Justice (DOJ) assured the federal district court in Washington that early access to the report was not needed for federal habeas corpus actions despite the one-year filing deadline effective since the signing of the Antiterrorism and Effective Death Penalty Act in April of 1996. Prisoners for whom the report may provide grounds for habeas relief will have a year from the date of the final report to file their petitions, DOJ said. (National Association of Criminal Defense Lawyers v US Dept of Justice, Civil No. 97-372 (DC DC) 3/17/97; 60 CrL 1549) The DOJ letter, by Assistant US Attorney Jessica Lerner, applies to petitions under both 28 USC 2254 (regarding state prisoners) and 2255 (regarding federal prisoners); it is in the court file, should petitioners require certified copies of it. (The Champion, April 1997)
A Judge and A Judge's Alleged Attacker Are Among Apparent Victims. Included in the mix of cases apparently tainted by questionable FBI lab evidence are the 1989 impeachment proceedings against District Judge Alcee Hastings (now a Florida Congressional representative) and the 1991 criminal trial of Walter Leroy Moody, convicted of killing US Circuit Judge Robert S. Vance and civil rights attorney Robert E. Robinson. FBI Director Louis J. Freeh prosecuted Moody while a US Attorney. Among criticisms of Freeh's FBI administration is an accusation that a lab supervisor was promoted after he was found to have altered lab reports. (Times Union, 2/28/97, 3/7/97, and 3/21/97)
The Final Report: Whistleblower Vindicated, But Chastised. Early media attention to the newly released DOJ report focused on its treatment of whistleblower Whitehurst. Saying that most of his allegations were not substantiated-and some important ones were-the report is said to recommend that he be transferred from the lab and referred to "his frequently overstated and incendiary way of criticizing laboratory personnel."
The report, by Inspector General Michael Bromwich, acknowledged that since 1989 FBI managers have bungled repeated efforts to eradicate problems; blame was placed on now-retired managers. (The day before the DOJ report was issued, a 1991 report by the American Society of Crime Laboratory Directors [ASCLD] was disclosed by the Los Angeles Times, a report that had criticized the policies and procedures of the FBI crime lab as having become "diluted, unofficially altered or ignored.")
Report Recommends Discipline, Change. Bromwich's recent report recommended censure, transfer or other discipline for five agents. Explosives unit examiner David Williams was said to have repeatedly reached conclusions incriminating the World Trade Center and Oklahoma City bombing defendants without scientific basis. He and the chief of his unit, J. Thomas Thurman, both "merit special censure" for their acts in the Oklahoma bombing case because of its "enormous national significance," Bromwich concluded. Also named in the report was Roger Martz, head of the chemist toxicology unit, said to have testified to an "opinion stronger than his analytica
orida death penalty case. Bromwich said he had not found any instance of intentional faking of evidence or lying about findings in court.
Report Raises Concerns as to Scores of Cases. The New York Times emphasized the multiple and serious nature of the lab's problems: "The investigation found that the laboratory's explosives, chemistry-toxicology and materials analysis units were rife with substandard performance that had forced FBI officials to review several hundred past and current cases to determine how many might have been jeopardized by faulty work. ***The findings are expected to give added impetus to defense lawyers in scores of cases . . ." But Attorney General Janet Reno said that despite the identification of "significant instances of testimonial errors, substandard analytical work and deficient practices," the lab remains capable of performing its mission to provide unbiased analyses. She also said that data has been turned over to defense attorneys in twenty-five cases so far, and that in the thirteen cases that have gone to trial, "there has been no change in the outcome of the case." (The portion of this article on the final report was compiled from Reuter and Associated Press Internet accounts, 4/15/97, Times Union 4/15/97, and New York Times, 4/16/97)
As an administrative step toward formal adoption of the regulation, The Board of Parole has republished for public comment its "Guidelines for the Dispositions in the Parole Revocation Process" (New York State Register April 9, 1997). The regulation, which establishes strict guidelines for the adjudication of all parole violations, has been in effect as an emergency measure since January 27, 1997. (See "Board Adopts Strict New Parole Violation Guidelines," Dec. 1996 Public Defense Backup Center REPORT). Readers wishing to respond may fax or mail their comments to the Backup Center, or to the Division of Parole directly at: 97 Central Ave., Albany, New York 12207. Please be sure to copy in the Backup Center (attn: Al O'Connor). The formal comment period expires on May 24, 1997.
California Revises Capital Habeas Compensation Standards
The California Supreme Court has amended and clarified the state's habeas corpus compensation standards in capital cases to require preapproval of "extraordinary" expenses such as investigative and expert witness fees and costs. However, fixed fee payment guidelines have also been amended so that appointed counsel may choose to enter into a "fixed sum" agreement covering all legal fees and expenses including investigative ones.
Federal Funds Allowed for Unexhausted Capital Claims
A capital habeas corpus petitioner in the 9th Circuit may obtain investigative and expert funds under 21 USC 848(q)(9) even though the federal petition has been dismissed as "mixed" and the funds are needed to investigate unexhausted state claims. Calderon v US District Ct for the Eastern Dist of Calif, #94-7956 (CA 9, 2/21/97); 60 CrL 1541.
When the daughter of a car's owners was arrested for possession of cocaine with intent to distribute, the car was seized. One owner agreed to "buy back" the car (worth $2500) for $2000 and avoid forfeiture proceedings on the vehicle. Suit was then brought alleging the buy-back scheme was unconstitutional. Despite a lack of statutory authority for the scheme, the state Court of Special Appeals found the program valid. (Boyd v Hickman, No. 663-1996 [Maryland Ct Spec App, 2/21/97]; 60 CrL 1541)
The court found that neither the state's forfeiture statute nor due process required a hearing to precede seizure of the property in question. The court further found that voluntary agreement to the buy-back procedure did not deprive the owners of their right to litigate an innocent owner defense, and that the owners did not have standing to challenge the fact that the buy-back option was offered to only some owners of seized vehicles.